State Support Of Religious Education: Canada Versus the United Nations (Studies in Religion, Secular Beliefs and Human Rights)

State Support for Religious Education Canada versus the United Nations

STUDIES IN RELIGION, SECULAR BELIEFS AND HUMAN RIGHTS VOLUME 3

State Support of Education Canada versus the United Nations Anne F. Bayefsky and Arieh Waldman

MARTINUS NIJHOFF PUBLISHERS LEIDEN • BOSTON 2007

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Contents

Acknowledgements

xiii

Introduction (a) History of Religious School Funding in Canada (b) Provincial Comparison (c) The Situation in Ontario (d) History of the Litigation in Canada (e) The Response of the UN Human Rights Committee (f) Follow-up Attempts (g) The Current State of Affairs Annex: Comparative Table of Provincial and Territorial Funding in Canada for Religious and Secular Schools

1 4 13 17 21 27 31 33

1. Canadian Law #1 An Act to restore to Roman Catholics in Upper Canada certain rights in respect to Separate Schools, 26 Vic. Cap. 5, 5th May, 1863 (Scott Act) 35 #2 Section 93, Constitution Act, 1867 (U.K.), 30 & 31 Vict., c.3, reprinted in R.S.C. 1985, App. II, No. 5 45 #3 Canadian Charter of Rights and Freedoms, Schedule B, Canada Act (U.K.), S.C. 1982, c. 11, Part I, Sections 1, 2, 15, 23 and 29; Part VII, Section 52 51 #4(a) Constitution Amendment, 1997 (Quebec), SI/97-141, 22 December 1997, Canada Gazette Part II, Vol. 132, No. 2, 21/1/98 55 #4(b) Education Act, R.S.Q. 1977, c I-13.3, s. 111, as amended by S.Q 1988, c. 84, and S.Q. 1997 c. 47, s.2 56 #5(a) Amendment to The Constitution of Canada: Term 17 of the Terms of Union of Newfoundland with Canada (Report). Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 26, 17 July 1996 57 #5(b) Report of the Special Joint Committee on the Amendment to Term 17 of the Terms of Union of Newfoundland with Canada, 3 December 1997 111 #5(c) Constitution Amendment, 1998 (Newfoundland Act), SI/98-25, 14 January 1998, Canada Gazette Part II, Vol. 132, No. 1, 14/1/98 151 #6 Education Act, R.S.O. 1990, c. E. 2, ss. 1(1), 1(4), 1(4.1), 51, 52, 159 and 234, as amended by S.O. 1997, c.3, s. 2(6); and S.O. 1997, c.31, ss. 1(5), 28, 73 and 113(1) [excerpts] 153

vii

STATE SUPPORT FOR RELIGIOUS EDUCATION

#7 Canadian Revenue Agency, Information Circular IC 75-23, Tuition Fees and Charitable Donations Paid to Privately Supported Secular and Religious Schools (19 September 1975)

157

2. International Treaties and Commentary #8 International Covenant on Civil and Political Rights, 999 UNTS 171 (in force 23 March 1976) #9 Optional Protocol to the International Covenant on Civil and Political Rights, 999 UNTS 171 (in force 23 March 1976) #10 Letter from the Premier of Ontario to the Prime Minister of Canada &RQFHUQLQJ5DWLÀFDWLRQRI,QWHUQDWLRQDO+XPDQ5LJKWV7UHDWLHV0D\ 1969 #11 Human Rights Committee, General Comment 3, (1981) A/36/40, Annual Report of the UN Human Rights Committee, Annex VII #12 Human Rights Committee, General Comment 18, (1990) A/45/40, Volume 1, Annual Report of the UN Human Rights Committee, Annex VI #13 Human Rights Committee, General Comment 22, (1993) A/48/40, Volume 1, Annual Report of the UN Human Rights Committee, Annex VI #14 Human Rights Committee, General Comment 23, (1994) A/49/40, Volume 1, Annual Report of the UN Human Rights Committee, Annex V

161 179

183 185 187 191 195

3. Government Data #15 Census of Canada, 1870-71, “Table II: Population by Religions, Province of Ontario”, Volume I, pp. 141-145. Ottawa, 1878 #16 Canada Yearbook, 1992. Table 3.17, Principal Religious Denominations of the Population, Selected Years, 1871-1981 #17 2001 Census: Analysis Series – Religion in Canada, Top 10 Religious Denominations, Canada, 2001. Statistics Canada, 2003. http://www12. statcan.ca/english/census01/Products/Analytic/companion/rel/canada.cfm #18 2001 Census: Analysis Series – Religion in Canada, Major Religious Denominations, Canada, 1991 and 2001. Statistics Canada, 2003. http:// www12.statcan.ca/english/census01/Products/Analytic/companion/rel/ canada.cfm #19 2001 Census: Analysis Series – Religion in Canada, Top 10 Religious Denominations, Ontario, 2001. Statistics Canada, 2003. http://www12. statcan.ca/english/census01/Products/Analytic/companion/rel/on.cfm #20 2001 Census: Analysis Series – Religion in Canada, Major Religious Denominations, Ontario, 1991 and 2001. Statistics Canada, 2003. http:// www12.statcan.ca/english/census01/Products/Analytic/companion/rel/ on.cfm #21 Ontario Ministry of Education, 2000-01 Financial Statements, Total School Board Net Expenditures

viii

199 205

209

211

213

215 217

CONTENTS

#22 Ontario (Ministry of Education), 2004. Enrolment in Publicly Funded Schools by School Type and Level in 2002-2003 #23 Ontario (Ministry of Education), 2004. Enrolment in Private Schools by 5HOLJLRXV$IÀOLDWLRQLQ

231 233

2IÀFLDO5HSRUWs #24 Report of the Royal Commission on Education in Ontario (The Hope Report). Toronto: Queen’s Printer, 1950, Chapters I, II and XVIII only #25 Report of the Commission on Private Schools in Ontario (the Shapiro Report). Queen’s Printer, October 1985, Chapters I-V and Appendices D, E, F and G only*

235

297

3ULYDWH5HSRUWs #26 Canadian Education Association, Information Note: The Public Funding of Private Schools in Canada, February 1992 #27 Federation of Independent Schools in Canada. An Overview of Independent Education in Canada, 2000

547 569

6. Canadian Judicial Decisions #28 Re Board of Education for the Borough of North York and Ministry of Education (1978) 19 O.R. (2d) 547 (H.C.J.) (Ontario High Court of -XVWLFH $SULODIÀUPHG$SULO2QW&$ #29 Reference re an Act to Amend the Education Act (Ontario) (1987) 40 D.L.R. (4th) 18 (S.C.C.) (The Bill 30 Case), 25 June 1987 (Supreme Court of Canada) #30 Re Zylberberg v. Sudbury Board of Education (Director) (1988), 65 O.R. (2d) 641, 52 D.L.R. 577 (C.A.), 23 September 1988 (Ontario Court of Appeal) #31 Canadian Civil Liberties Association v. Ontario (Minister of Education) (1990) 71 O.R. (2d) 341, 46 C.R.R. 316 (C.A.) 30 January 1990 (Ontario Court of Appeal) #32 Adler v. Ontario (1996) 140 D.L.R. (4th) 385 (S.C.C.), 21 November 1996 (Supreme Court of Canada) $IÀGDYLWV3URGXFHGIRUWKHAdler Case, Ontario Court of Justice (General Division) #34 Bal v. Ontario (1994) 21 O.R. (3d) 681 (G.D.), 5 December 1994 (Ontario Court (General Division)); (1997) 34 O.R. (3d) 484 (C.A.), 6 June 1997 (Ontario Court of Appeal); L.A. to S.C.C. ref’d (1998) 227 N.R. 151n (S.C.C.), 12 February 1998

ix

579

595

631

671 707 769

813

STATE SUPPORT FOR RELIGIOUS EDUCATION

7. United Nations Committee Decisions (a) Waldman v. Canada: The Committee Process and Decision #35 Waldman v. Canada, Author’s initial submission and accompanying DIÀGDYLW)HEUXDU\ 843 #36 Waldman v. Canada, Government of Canada’s initial reply regarding issues of the admissibility of the complaint, 27 June 1996 883 #37 Third Party Submission, Letter from Ed Morgan, Counsel for Canadian Jewish Congress, 5 July 1996 889 #38 United Nations Human Rights Committee, Letter from Centre for Human Rights, Communications Branch, 12 July 1996 895 #39 Waldman v. Canada, Author’s submission regarding admissibility, 24 September 1996 897 #40 United Nations Human Rights Committee, Letter from the Centre for Human Rights, Support Services Branch, 14 October 1996 901 #41 Waldman v. Canada, Author’s submission regarding admissibility, 17 December 1996 903 #42 Waldman v. Canada, Author’s letter to Government of Canada, 11 February 1997 905 #43 Waldman v. Canada, Government of Canada reply to Waldman counsel’s letter of 11 February 1997, on 8 April 1997 907 #44 Waldman v. Canada, Author’s letter to the Human Rights Committee, 28 April 1997 909 #45 United Nations Human Rights Committee, Letter from the Centre for Human Rights, Support Services Branch, 2 June 1997; Government of Canada letter to Human Rights Committee, 29 April 1997 911 #46 Waldman v. Canada*RYHUQPHQWRI&DQDGDÀUVWUHSO\UHJDUGLQJWKH merits of the Waldman submission, 27 February 1998 913 #47 Waldman v. Canada, Author’s reply and second submission to the Human Rights Committee, 30 May 1998 935 #48 Waldman v. Canada, Government of Canada second reply, 22 February 1999 945 #49 Waldman v. Canada, Author’s reply and third submission to the Human Rights Committee, 15 March 1999 961 #50 Waldman v. Canada, Government of Canada third reply, 18 June 1999 965 #51 Waldman v. Canada, Author’s reply and fourth submission to the Human Rights Committee, 25 June 1999 987 #52 Ontario Catholic School Trustees’ Association Proposed Intervention, 7 July 1999 989 #53 United Nations Human Rights Committee, 3 November 1999, Final Views: Waldman v. Canada, Communication No. 694/1996, A/55/40 vol. II, Annex IX.H (2000), Annual Report of the United Nations Human Rights Committee 1013 x

CONTENTS

(b) Post-decision Submissions and Correspondence #54 Government of Ontario Correspondence with the Government of Canada, 13 January 2000 #55 Government of Canada Correspondence with the Government of Ontario, 1 February 2000 #56 Government of Ontario Correspondence with the Government of Canada, 1 February 2000 #57 Government of Canada Correspondence with the Human Rights Committee, 3 February 2000 #58 Government of Canada Correspondence with Ontario Parents for Equality in Education Funding, 4 February 2000 #59 Correspondence of the Author, Mr. Waldman, with the Human Rights Committee, 16 February 2000 #60 Government of Canada Correspondence with the Author, Mr. Waldman, 5 May 2000 #61 Correspondence of the Author, Mr. Waldman, with the Government of Canada, 1 October 2002 #62 Government of Canada correspondence with the Author, Mr. Waldman, 1 April 2003 #63 Government of Canada correspondence with the Author, Mr. Waldman, 23 April 2003 #64 Correspondence of the Author, Mr. Waldman, with the Government of Canada, 11 May 2003 #65 Government of Canada correspondence with the Author, Mr. Waldman, 20 June 2003 (c) Grant Tadman et al. v. Canada #66 United Nations Human Rights Committee, 19 October 1999, Admissibility Decision: Tadman et al. v. Canada, Communication No. 816/1998, A/55/40 vol. II, Annex X.G (2000), Annual Report of the Human Rights Committee

1031 1033 1035 1037 1039 1041 1047 1049 1053 1055 1059 1061

1063

8. Legislative Developments in Ontario Post Waldman v. Canada #67(a) Responsible Choices for Growth and Prosperity Act (2001 Budget), S.O. 2001, c. 8 #67(b) Equity in Education Tax Credit Regulations (EETC), O. Reg. 498/01, 3 December 2001 #67(c) Amendments to the Equity in Education Tax Credit Regulations (EETC): O. Reg. 134/02, 12 April 2002; O. Reg. 384/02, 5 December 2002; O. Reg. 217/03, 22 May 2003; O. Reg. 340/03, 9 August 2003 #67(d) Keeping the Promise for a Strong Economy Act (Budget Measures), 2002, S.O. 2002, c. 22

xi

1073 1077

1081 1091

STATE SUPPORT FOR RELIGIOUS EDUCATION

#67(e) The Right Choices for Equity in Education Act (Budget Measures), 2003, S.O. 2003, c.5 #67(f) Fiscal Responsibility Act, 2003, S.O. 2003, c.7

1093 1095

Index

1097

xii

Acknowledgements This book represents years of advocacy through courts, international tribunals, public demonstrations and meetings with federal and provincial legislators. As the years stretched by, the struggle for religious equality in Canada took on a surreal quality. For outsiders, Canada seems like an idyllic setting, a bastion of freedom and justice. Few are aware that in Canada’s most populous province of Ontario, religious discrimination is a fact of daily life for hundreds of thousands of families. This discrimination touches the most basic dimensions of their lives – the nature of their children’s education and the ability to preserve their religious identity. Who would have imagined that a deal for religious privileges made in 1867 upon Canada’s creation, when the composition of the population and the face of religious minorities were utterly different, would govern the entitlements of the country’s diverse inhabitants two centuries later? Who would have believed that Canadian judges and legislators would refuse to recognize the needs and interests of a multi-cultural, multi-ethnic and religiously heterogeneous society in the 21st century? Who would have thought a Canada that loudly proclaims its commitment to international human rights protection would completely ignore the admonition of the UN’s Human Rights Committee to put an immediate end to religious discrimination in Ontario’s education system? And yet, this is Canada today – a land where Roman Catholics in Ontario receive public funding for their children’s entire religious day school education from ages 4-18, and every other religious minority receives nothing at all. In Ontario the population is divided into Roman Catholics and others. The demands of equality present a choice: ending the dichotomy and its privileges for one religious denomination, or extending those privileges to the rest. One thing is certain: the status quo is a blight on the very essence of what Canada claims to represent. This book charts the effort, stretching over half a century, to eliminate religious GLVFULPLQDWLRQ LQ 2QWDULR7KH ÀQDQFLDO DQG RWKHU VDFULÀFHV UHOLJLRXV PLQRULWLHV LQ Ontario make to provide their children with a sense of religious identity – one that informs all aspects of their education – may be personal. But the consequences affect XVDOO:HÀUPO\EHOLHYHDVGR5RPDQ&DWKROLFSDUHQWVZKRWDNHDGYDQWDJHRIWKHLU unique position, that a strong and proud sense of religious identity will make our FKLOGUHQ EHWWHU FLWL]HQV ZLWK ÀUPO\URRWHG YDOXHV DQG D FRPPLWPHQW WR FRPPXQDO responsibility. We hope that Canada and Ontario will now end this religious discrimination, which YLRODWHV&DQDGD·VLQWHUQDWLRQDOKXPDQULJKWVREOLJDWLRQVVRWKDW&DQDGDFDQMXVWLÀDEO\ take its place as a beacon for equality and liberty in the years to come. Many thanks to Gillian Collins, Lindy Melman and Sarah Adler for their patience, support, tireless assistance and professionalism in the production of this book. We are also extremely grateful for the support of the Ford Foundation and the Social Sciences and Humanities Research Council of Canada. Anne Bayefsky and Arieh Waldman

xiii

Introduction D +LVWRU\RI5HOLJLRXV6FKRRO)XQGLQJLQ&DQDGD Religious discrimination in Canada’s current education system arises from a framework of human rights protection which was designed for the nineteenth century. Canada’s Constitution Act 1867 1 recognized the legal right for the minority Roman Catholics in Upper Canada (Ontario) to receive public funding for separate schools2. This recognition was part of the “historic compromise” that gave the same right to minority Protestants in Lower Canada (Quebec). The “historic compromise” has been explained this way: “At the time of Confederation it was a matter of concern that the new Province of Ontario (formerly Canada West) would be controlled by a Protestant majority that might exercise its power over education to take away the rights of its Roman Catholic minority. There was a similar concern that the new Province of Quebec (formerly Canada East), which would be controlled by a Roman Catholic majority, might not respect the rights of its Protestant minority … With respect to religious minorities, WKHVROXWLRQZDVWRJXDUDQWHHWKHLUULJKWVWRGHQRPLQDWLRQDOHGXFDWLRQDQGWRGHÀQH those rights by reference to the state of the law at the time of Confederation. In that way, the existing denominational school rights of the Catholic minority in Ontario could not be impaired by the Legislature; and the Protestant minority in Quebec

1

Constitution Act, 1867 (U.K.), 30 & 31 Vict., c.3, reprinted in R.S.C. 1985, App. II, No. 5.

2

Section 93 reads: “In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provision: (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: (2) All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and Schools Trustees of the Queen’s Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen’s Protestant and Roman Catholic Subjects in Quebec: (3) Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen’s Subjects in relation to Education: (4) In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this section is not made, or in case any Decision of the Governor General in Council on any Appeal under this section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section.” Constitution Act, 1867 (U.K.), supra note 1. See infra pp. 45-49, Document #2.

1

STATE SUPPORT FOR RELIGIOUS EDUCATION

would be similarly protected. This is the reason for the guarantees of denominational school rights in section 93 [of the constitution].”3 $WWKHWLPHRIWKLV´KLVWRULFFRPSURPLVHµWKHUHOLJLRXVDIÀOLDWLRQRI2QWDULRUHVLGHQWV UHYHDOHG D ELFXOWXUDO VRFLHW\ WULFXOWXUDO KDG WKH ÀUVW QDWLRQV EHHQ LQFOXGHG  ZLWK DQRYHUZKHOPLQJ3URWHVWDQWPDMRULW\DVLJQLÀFDQW&DWKROLFPLQRULW\DQGYHU\VPDOO PLQRULWLHVZLWKRWKHUUHOLJLRXVDIÀOLDWLRQV,Q4XHEHFWKHUHYHUVHKHOGWUXHLQUHVSHFW of Protestants and Catholics. There was no intention to create schools for other minority groups in either Upper or Lower Canada. Over the ensuing four decades, as more components of British North America became part of the Dominion of Canada, the public funding of Roman Catholic separate schools was made a legal condition of joining.4 These funding arrangements, when they existed, did not include members of other religious minorities, only those children following the Roman Catholic faith. There was no need to guarantee the education funding rights of Protestants outside of Lower Canada, as they were the majority in these other jurisdictions and the “public” schools were essentially Protestant schools. Authority for the public funding of Roman Catholic separate religious schools is therefore deeply rooted in Canadian law. Foremost is section 93 of the Constitution Act, 1867.5 Section 93 establishes the plenary power of the provinces with respect to education within the Canadian federal system. Each province has been granted exclusive jurisdiction to enact laws regarding education. This power is limited by the requirement that historical denominational school rights be respected. Since Confederation these section 93 guarantees have been subject to many disputes.6 In recent times, objections to the discriminatory impact of these guarantees has most often been based, in the domestic context, on Canada’s principal human rights law, the Canadian Charter of Rights and Freedoms.7 Legislation that does not conform to the provisions of the Canadian Charter of Rights and Freedoms may be declared by the courts to be of no force and effect in accordance with section 52 of the Constitution Act, 1982. The Charter provides:

3

Peter Hogg. Constitutional Law of Canada (4d) (looseleaf) (Toronto: Carswell, 1997), volume 2 at 54-2.

4

See: Manitoba Act, 1870, 33 Vict., c. 3, s. 22 (Canada); Alberta Act, 1905, 4-5 Edw. VII, c. 3, s. 17 (Canada); Saskatchewan Act, 1905, 4-5 Edw. VII, c. 42, s. 17 (Canada); Term 17, Terms of Union of 1HZIRXQGODQGZLWK&DQDGDFRQÀUPHGE\WKHNewfoundland Act, 1949, 12-13 Geo. VI, c. 22 (U.K.). See infra pp. 46-49, Document #2.

5

Supra note 2.

6

See, for example: Report of the Royal Commission on Education in Ontario (The Hope Report). Toronto: Queen’s Printer, 1950, infra pp. 235-296, Document #24, Chapter XVIII; Report of the Commission on Private Schools in Ontario (The Shapiro Report). Toronto: Queen’s Printer, October 1985, infra pp. 297-546, Document #25; Canadian Education Association. Information Note: The Public Funding of Private Schools in Canada, February 1992, infra pp. 547-567, Document #26.

7

Canadian Charter of Rights and Freedoms, Schedule B, Canada Act (U.K.), S.C. 1982, c. 11. See infra pp. 51-53, Document #3.

2

INTRODUCTION

“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 FDQEHGHPRQVWUDEO\MXVWLÀHGLQDIUHHDQGGHPRFUDWLFVRFLHW\ 2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion … … 15. (1) Everyone is equal before and under the law and has the right to the equal SURWHFWLRQDQGEHQHÀWRIWKHODZZLWKRXWGLVFULPLQDWLRQDQGLQSDUWLFXODUZLWKRXW discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability …”8 Some provinces in Canada have amended the applicable constitutional provisions to replace a “religious based school system” with other alternatives. Constitutional amendments in the last decade in Quebec9 and Newfoundland,10 eliminating a denominational school system, indicate that constitutional change in relation to denominational schools is possible in Canada where the political will exists. In other provinces, resolution of the discrimination problem and the favoured treatment of Roman Catholics has resulted in equal funding for independent schools of both a religious and non-religious character. Solutions have been framed as maximizing parental school choice.11 All of the provinces of Canada except Ontario have arrived at a general consensus on the issue of public funding of religious education. Whether by constitutional amendment12 or an extension of entitlements to all religious minorities or more broadly

8

Ibid., ss. 1, 2(a) and 15(1). Section 29 of the Charter provides: “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.” In the leading Supreme Court of Canada cases concerning the challenge to selective and discriminatory denominational school funding, little reliance has been placed on section 29. See Reference re an Act to Amend the Education Act (Ontario) (1987) 40 D.L.R. (4th) 18 (S.C.C.) (The Bill 30 Case), 25 June 1987, infra pp. 595-629, Document #29; Adler v. Ontario (1996) 140 D.L.R. (4th) 385 (S.C.C.), 21 November 1996, infra pp. 707-767, Document #32.

9

Constitution Amendment, 1997 (Quebec), SI/97-141, 22 December 1997, Canada Gazette Part II, Vol. 132, No. 2, 21/1/98. See infra p. 55, Document #4(a).

10

Constitution Amendment, 1998 (Newfoundland Act), SI/98-25, 14 January 1998, Canada Gazette Part II, Vol. 132, No. 1, 14/1/98 See infra pp. 151-152, Document #5(c).

11

See for example, the website of the Federation of Independent Schools in Canada: www.independent schools.ca. See also: Canadian Education Association. Information Note: The Public Funding of Private Schools in Canada, February 1992, infra pp. 547-567, Document #26; Federation of Independent Schools in Canada. An Overview of Independent Education in Canada, 2000, infra pp. 569-577, Document #27.

12

Amendment of the provision of section 93 of the Canadian Constitution Act 1867, requires only the agreement of the government of the province affected and the federal government. Such amendments have been passed within the last decade in Quebec and Newfoundland. Section 43 of the Constitution amends the Constitution Act, 1867 (U.K.), supra note 1. Section 43 reads as follows: “An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all provinces, including (a) any alteration to boundaries between provinces, and

3

STATE SUPPORT FOR RELIGIOUS EDUCATION

GHÀQHG LQGHSHQGHQW VFKRROV QRQGLVFULPLQDWLRQ LQ VFKRRO IXQGLQJ LV HYLGHQWO\ WKH trend in all provinces in Canada other than Ontario. Ontario is the only province in &DQDGDWKDWVLJQLÀFDQWO\DGYDQWDJHVRQO\RQHUHOLJLRXVJURXSLQLWVVFKRROIXQGLQJ namely, Roman Catholics.

(b) Provincial Comparison British Columbia In British Columbia,13 in addition to a fully-funded public secular school system, there exists a tiered grant system providing between 0 and 50% support to independent schools based on criteria related to the students and teachers and compatibility with the public school curriculum. No distinction is made between religious and non-religious independent schools with regard to funding. The independent schools include Catholic, Protestant, Mennonite, Seventh Day Adventist, Jewish, Muslim, Sikh, Evangelical, Lutheran, and Fundamentalist Christian schools. The independent school system is also comprised of secular schools such as Waldorf, Montessori, Special Needs, Native Band, and university preparatory schools.14 Funding in independent schools is calculated on a per pupil operating cost based on the public school costs in the same district in which the independent school is located. This system may result in a distinction in funding among independent schools due to the difference in funding of the public school districts. This distinction, however, does not result in any systematic advantage for one religious group over another. Independent schools receive no funding for capital costs, such as land, buildings, or furnishings. The amount of funding each independent school receives depends on the group category (1-4) to which they are assigned. Group 1 receives 50% funding compared to the public school in that same district. It is characterized by the following criteria: – minimum enrolment of 10 students – operated under authority of the Independent School Act – statistics provided to the Ministry – do not promote doctrines of racial or ethnic superiority, religious intolerance, social change through violence or sedition – no discrimination in the schools  ² RSHUDWHGE\DQRQSURÀWDXWKRULW\ – at least 50% of the students qualify for grants

(b) any amendment to any provisions that relate to the use of the English or the French language within a province may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies.” 13

Independent School Act, R.S.B.C. 1996, c. 216, s. 12; Independent School Regulation, B.C. Reg. 262/89, s. 4.

14

Mr. Barry M. Sullivan. A Legacy for Learners: Report of the Royal Commission on Education (1988). Online: Federation of Independent Schools Association, KWWSZZZÀVDEFFDUR\DOKWP.

4

INTRODUCTION



² DOOWHDFKHUVDUHFHUWLÀHGE\WKHSURYLQFH – student program complies with instructional time and program requirements – the operational costs of the independent school is the same as, or less than, the operational cost of the public school located in the same district.15

Group 2 receives 35% of the funding of public school funding and is characterized by the same criteria as Group 1 except that the operational costs of the independent school exceeds the operational costs of the public schools. Group 3 schools receive no funding because they are either not required to follow the provincial curriculum or do not have SURYLQFLDOO\FHUWLÀHGWHDFKHUV*URXSUHFHLYHVQRIXQGLQJEHFDXVHPRUHWKDQ of the students are not eligible for funding (foreign students). Alberta In Alberta, there are six kinds of schools: public, separate, Francophone, charter, alternative, and independent or private. Separate schools include only Roman Catholic and Protestant schools.16 There is full funding for public, separate, alternative and Francophone schools. Full funding for separate schools is based on a constitutional guarantee concerning the province of Alberta.17 Francophone school boards were formally established in 1993,18LQRUGHUWRUHÁHFW the rights guaranteed under section 23 of the Canadian Charter of Rights and Freedoms regarding education in minority languages and three Supreme Court of Canada rulings WKDWDIÀUPHGWKHULJKWRI)UDQFRSKRQHVWRJRYHUQWKHLURZQVFKRROV19 Francophone schools must be designated as either public schools or separate schools, and therefore receive full funding.20 Charter Schools were established under the School Act 21 in 1994. They are autonomous public schools that provide innovative programs to enhance student learning not DYDLODEOHLQWKHUHJXODUSXEOLFVFKRROERDUG&KDUWHUVFKRROVFDQQRWEHDIÀOLDWHGZLWK

15

Independent Schools Act, R.S.B.C. 1996, c. 216, schedule, s. 3(1)(a).

16

School Act, R.S.A. 2000, c. S-3, ss. 212 and 213.

17

Section 93, Constitution Act, 1867, as altered for Alberta by section 17 of the Alberta Act, 4-5 Edw. VII, c.3, 1905 (Canada), see infra, pp. 45-49, Document #2; The School Ordinance, Ordinances of the Northwest Territories, c.29 (1901), s. 41.

18

The right to instruction in the French language and to the establishment of Francophone schools is set out in the School Act, R.S.A. 2000, c. S-3, preamble, and ss. 10 and 253.1-255.5, as amended by S.A. 2001, c.27. s. 25. From 1976 to 1993, Francophone educational programs could be established with a minimal English instruction requirement of one hour per day: Alta. Reg. 250/1976. Prior to 1976, limited Francophone instruction was available at the school board’s discretion.

19

$IÀUPLQJ)UDQFRSKRQH(GXFDWLRQ)RXQGDWLRQVDQG'LUHFWLRQV. Government of Alberta, 2001. Available online at: www.learning.gov.ab.ca/educationsystem/choices.asp. The three Supreme Court of Canada UXOLQJV WKDW DIÀUPHG WKH ULJKW IRU )UDQFRSKRQHV WR JRYHUQ WKHLU RZQ VFKRROV DUH Mahe v. Alberta [1990] 1 S.C.R. 342; Reference re Public Schools Act (Man.), s. 79(3), (4) and (7) [1993] 1 S.C.R. 839; Arsenault-Cameron v. Prince Edward Island [2000] 1 S.C.R. 3.

20

Supra note 18, s. 255.3.

21

School Act, R.S.A. 2000, c. S-3, ss. 31-38, as amended by S.A. 2001, c. 27 ss. 5-12.

5

STATE SUPPORT FOR RELIGIOUS EDUCATION

a religious faith or denomination.22 Charter schools receive full funding with regard to instructional and other costs, except for the following costs: home education, building quality and restoration programme, debt retirement and school capital projects.23 There are also “alternative” schools which relinquish their independent status DQGEHFRPHFRQWUROOHGE\WKHSXEOLFERDUGV$QDOWHUQDWLYHVFKRROLVGHÀQHGDVRQH with a programme that emphasizes a particular language, culture, religion or teaching philosophy that is not already offered by the public and separate school systems.24 The programme emphasis must affect the entire schooling experience.25 These schools receive funding equal to the funding of a regular public school, but school costs that exceed the costs of a public school may or may not be funded, at the discretion of the applicable school board.26 Alternative schools may be faith-based and include Jewish, Muslim and Christian denominational schools. Independent schools can receive partial funding. They can receive 60% of one item that is part of the public school instructional block, namely, basic instructional costs. This amounts to approximately 29.9% of the average expenditure per funded public student of a public school education.27 In addition, independent schools can receive a YDULHW\RIÀQDQFLDOJUDQWVVXFKDVDOHDUQLQJUHVRXUFHVFUHGLWDQGHDUO\OLWHUDF\IXQGLQJ There is no funding for costs such as capital costs or transportation. Including these RWKHULQFLGHQWDOJUDQWVWKHWRWDOÀQDQFLDOVXSSRUWJLYHQWRLQGHSHQGHQWVFKRROVDYHUDJHV approximately 37% of the total cost of a public school education.28 There are three types of independent schools. The third category of private or independent schools is the only one that receives funding:

22

Ibid., s. 34(4).

23

2003-2004 Funding Manual for School Authorities. Alberta Learning, 2003, section 1.21. Available online at: http://www.learning.gov.ab.ca/funding/Manual2003-2004/pdf/7_7.pdf

24

Supra note 16, s. 21(1).

25

Alternative Programs Handbook. Alberta Learning (Special Programs Branch), 2003, pgs. 2-3. Available online at: http://www.learning.gov.ab.ca/educationsystem/AltProgHandbook.pdf.

26

Supra note 16, s. 21(4).

27

In 2002/2003, the Government of Alberta spent an average of $8,775.00 per public school student, and the standard funding provided to private or independent accredited schools was $2,620.00 per student in grades 1-9 or approximately 29.9% of public school costs: Funding Manual for School Authorities. Alberta Learning, 2003, sections 1.21 and 7.7. Available online at: http://www.learning.gov.ab.ca/funding/Manual2003-2004; François Nault. Summary Public School Indicators for the Provinces and Territories, 1996-1997 to 2002-2003. Statistics Canada: Culture, Tourism and the Centre for Education Statistics, 2004, table 12A. Available online at: http://www.statcan.ca:8096/bsolc/english/bsolc?catno=81595-M2004022; 2003-2004. The 29.9% funding estimate is for Grade 1-9 students who are not special education students. In addition, independent schools designated as special education private schools are eligible for additional funds.

28

The average provincial expenditure for grade 1 to 12 students in independent schools for 2002-2003 was $3,252.00 per student, which equals 37% of the average cost per child in the public school system ($8,775.00 per student). See Association of Independent Schools and Colleges in Alberta (AISCA), Provincial Funding for Schools is not 60 percent. Available online at: http://www.aisca.ab.ca/not_60_percent. htm.

6

INTRODUCTION

– registered; a registered private school means a school that is registered as a private school under section 28(1) of the School Act29 – accredited; a school can gain accredited status if, in addition to meeting the UHTXLUHPHQWVVHWRXWLQVHFWLRQ WKH0LQLVWHULVVDWLVÀHGZLWKWKHHGXFDWLRQ program in the private school30 – accredited/funded; the third category of private schools can obtain funding by becoming accredited and subsequently applying to the Minister for funding through grants.31 The independent schools which are entitled to receive partial funding include both religious schools as well as secular schools. These are treated in the same manner. Kindergarten independent school students receive full funding. The independent schools include independent Catholic, independent Protestant, Mennonite, Seventh Day Adventist, Muslim, Sikh and Jewish schools. Catholic and Protestant separate schools, as well as alternative schools, are given more funding as compared to other religious independent schools, since the maximum grant a private or independent school can receive varies from 29.9%-37% of the cost of public school. Saskatchewan In Saskatchewan, there is a publicly funded system that includes fully-funded public schools, Francophone schools, Catholic separate schools and Protestant separate schools,32 with a provision for the partial funding of independent schools that are FODVVLÀHG DV ´KLVWRULFDOµ ´DVVRFLDWHµ RU ´DOWHUQDWLYHµ 2WKHU LQGHSHQGHQW VFKRROV receive no funding. A historical school is one of the nine schools designated in the Independent Schools Regulations33 and are given such treatment because they were in existence prior to these regulations coming into effect. All of the historical schools are Christian schools, and include Lutheran, Catholic and nondenominational Christian. These schools were founded by the early 1900s, at a time when all schooling in Saskatchewan was undertaken by churches. Eight “historical” schools currently receive partial funding.34 Two of these schools DUHDOVRFODVVLÀHGDV´DVVRFLDWHVFKRROVµDQGWKHUHIRUHUHFHLYHIXQGLQJDVDVVRFLDWH schools (see below). The other six schools receive a grant based on the basic “per pupil JUDQWµSOXVSURMHFWVSHFLÀFJUDQWVRIRIFDSLWDOFRVWV+LVWRULFDOVFKRROVGRQRW

29

Supra note 16, s. 28(1).

30

Supra note 16, s. 28(2).

31

Private Schools Regulation, Alta. Reg. 190/2000, s.8.

32

A separate school board can only be either Protestant or Catholic: Education Act, S.S. 1995, c. E-0.2, s.49.

33

Alta. Reg. 11, c. E-0.1, s.2(k).  2QHVFKRROGHVLJQDWHGLQWKHUHJXODWLRQVDVD´KLVWRULFDOVFKRROµLVLQIDFWQRORQJHUFODVVLÀHGDVD historical school and no longer has independent status as it joined the Francophone school authority in 2003.

34

7

STATE SUPPORT FOR RELIGIOUS EDUCATION

receive funding for other costs, such as transportation or special education students. In 2003, the per pupil grants averaged $4,100.88,35 whereas the 2002-2003 provincial average expenditure per student in the public school system overall was $8,161 per student.36%DVHGRQWKHVHÀJXUHVWKHPLQLPXPDPRXQWRIIXQGLQJJLYHQWRKLVWRULFDO schools is approximately 50% of the cost of a public school education. Associate schools are independent schools that have a subsisting agreement with a board of education to operate in association with that board.37 All associate schools are independent schools and must be religious-based. Associate schools include Christian denominational (including Catholic) and Muslim schools. Currently nine associate schools (including two historical schools) receive per pupil funding, which is the basic grant per student, as well as special education grants. They do not receive full funding as compared to public schools. Funding grants are paid to the public school with which the school is associated and funds are actually distributed to the associate school in accordance with their agreement with the public school. Alternative schools include only schools for students with special needs. They are not religious schools. An independent school can apply to become an “alternative” independent school, whereby they are accredited by the province and are entitled to receive per pupil as well as special education funding.38 Currently, there are three alternative schools. Manitoba In Manitoba, full funding is provided to public (secular) schools and operational support is provided to independent or private schools (including religious schools) that meet certain criteria.39 Full funding was initially provided to Roman Catholic schools, but an 1890 legislative amendment abolished tax support for Catholic schools. In Manitoba, there are approximately 94 independent schools, 56 of which are partially funded. There are no registration requirements to operate an independent school in Manitoba, EXWLQRUGHUWRSURYLGHVWXGHQWVZLWKRIÀFLDOWUDQVFULSWVHQGRUVHGE\WKH3URYLQFHRU to receive funding, independent schools in Manitoba are required to obtain a “School Code” from the province. The application for the School Code requires independent schools to show that they meet certain legislated criteria.40 If the school requests

35

The per pupil grants vary by grade (kindergarten, elementary, middle school and secondary school) and by school location (rural or urban area).

36

François Nault, supra note 27.

37

Supra note 33, s.2(f).

38

Provincial Funding of Independent Schools, Online: http://www.independentschools.ca/funding.htm.

39

The Public Schools Act, R.S.M. 1987 c. P250, s.60(5), as amended by S.M. 1989-1990, c. 49, s. 12; S.M. 1992, c. 58, s.27; S.M. 1996, c. 51, s.11; and S.M. 2001, c. 43, s. 57.

40

Legislated funding criteria for Manitoba independent schools include regulations on curricula, teacher FHUWLÀFDWLRQSURJUDPUHTXLUHPHQWVLQIRUPDWLRQDSSOLFDWLRQVXEPLVVLRQVPLQLPXPVFKRROHQUROOPHQW building requirements, school board of directors and advisory boards, and school policies: The Public Schools Act, R.S.M. 1987, c. s-3 s. 60(5) as amended by S.M. 1998-1990, c. 49, s. 12; S.M. 1992, c. 58, s. 27; S.M. 1996, c. 51, s.11; and S.M. 2001, c. 43, s. 57; Private Schools Grants Regulation, Man. Reg. 267/97, 24 December 1997, Part V.

8

INTRODUCTION

governmental funding there is a three year waiting period in addition to the processing of the School Code portion of the application. During this period the Province will observe the independent school to verify that they are meeting the legislated criteria on a consistent basis. No distinction is made between religious and secular independent schools in relation to satisfying the criteria for funding. In Manitoba, the independent school system includes Christian, Catholic, Muslim, Jewish, Lutheran, Sikh, Seventh Day Adventist, Montessori, and community-type schools. Under The Private Schools Grant Regulations41 there is a formula for calculating the grant paid to the private or independent school for each eligible student. The grant is approximately 50% of the net operating expenditures (or instructional and services costs) for public schools two years previously. For 2002-2003, the grant amount paid to independent schools was the equivalent of 41.4% of the cost of a public school education.42 In addition, schools can receive small grants for other related costs.43 Ontario In Ontario, full funding is extended to separate schools, which are legislatively restricted to Roman Catholic and Protestant schools.44 In practice, full public funding of religious schools is only provided to one religious group, Roman Catholics. Ontario does not provide any direct grant support to independent schools. In 2001, the provincial government created a short-lived refundable tax credit for tuition fees paid by parents to independent schools through the Responsible Choices for Growth and Prosperity Act (2001 Budget), 2001.45 This Act amended the Ontario Income Tax Act46 to provide parents with a tax credit which would increase progressively from 10% to 50% of the eligible tuition to a maximum refundable tax credit of $3,500 (or 50% of $7000) by the year January 2007. The credit was to be 10% in 2002, 20% in 2003, 30% in 2004, 40% in 2005 and 50% in 2006 and beyond.47 However, subsequent to the fall 2003 provincial election, the newly elected Liberal Government immediately

41

Ibid., s.2(1).

42

In 2003 the grant paid to independent schools was $3,381 per student. In 2002-2003, the province spent $8,161.00 per student in the public school system. François Nault, supra note 27.

43

Independent schools receive $50 per student for textbooks, may receive special education grants, and enter into shared service agreements with public boards concerning transportation and course resources.

44

Supra notes 70 and 71, s. 1(1). There is only one Protestant separate school board in existence in Ontario and it is an English language school. There are no religion class requirements and it operates in the same manner as a secular public school.

45

Responsible Choices for Growth and Prosperity Act (2001 Budget), 2001, S.O. 2001, c. 8 s. 40(15.5). See infra pp. 1073-1076, Document #67(a).

46

Income Tax Act, R.S.O. 1990, c. I.2.

47

Responsible Choices for Growth and Prosperity Act (2001 Budget), 2001, supra note 45; Keeping the Promise for a Strong Economy Act (Budget Measures), 2002, S.O. 2002, c. 22, infra pp. 1091-1092 Document #67(d); and The Right Choices for Equity in Education Act (Budget Measures), 2003, S.O. 2003, c. 5, infra p. 1093 Document #67(e).

9

STATE SUPPORT FOR RELIGIOUS EDUCATION

eliminated this limited funding48 for independent religious and secular schools, even making the new rules retroactive in their application. Quebec In Quebec, the application of the constitutional provision which privileged certain religious schools, section 93 of the Constitution Act 1867, was revoked on 22 December 1997 with the approval of the Governments of Quebec and Canada.49 Section 93 of the Constitution Act 186750 provided special protection for the Protestant minority and Protestant schools. The amendment ended those privileges, and the division of the school system in Quebec into Roman Catholic and Protestant schools. Quebec now has a system divided along linguistic lines and all public schools, )UDQFRSKRQH DQG$QJORSKRQH DUH IXOO\ IXQGHG DQG RIÀFLDOO\ VHFXODU51 However, under the Education Act,52 all students have the right of choice of religious instruction. Currently students in public schools are required to take one of the following three religion classes that are offered: Catholic, Protestant or moral education. Religious classes other than these three options are not available in the public system. No distinction is made between religious and non-religious independent schools with regard to funding. In order to receive funding subsidies, an independent school must be accredited53 and must comply with the provisions of the Charter of the French Language.54 The subsidy provided to accredited independent schools is determined annually, is the same for all such schools, and amounts to approximately 51-58% of the per pupil cost of a public school education. New Brunswick The New Brunswick Government initially extended support to Catholic schools, but in 1871 created a single non-sectarian system with no provision for religious education. After 1871, some public schools operated as Catholic schools under “informal agreements” with public school boards. These schools had the same curriculum as the public schools except for additional religious education. No schools maintain these informal agreements today and only the secular public school system receives funding.

48

Fiscal Responsibility Act, 2003, S.O. 2003, c.7, infra pp. 1095-1096 Document #67(f).

49

S.93AS, Constitution Act, 1867 (U.K.), 30 & 31 Vict., c.3, reprinted in R.S.C. 1985, App. II, No. 5, as amended for Quebec by Constitution Amendment, 1997 (Quebec), supra note 9.

50

Supra note 2.

51

Education Act, R.S.Q. 1977, c.I-13.3 ss.111-112, as amended by S.Q 1988, c. 84, and S.Q. 1997 c. 47, s. 2.

52

Education Act, R.S.Q 1977, c.I-13.3, s. 5, as amended by S.Q. 1997 c. 47.

53

Private schools are governed by An Act Respecting Private Education, S.Q. 1992, c. E-9.1. In order to receive subsidies, a school must be accredited (chapter IV).

54

An Act Respecting Private Education, S.Q. 1992, c. E-9.1, s.126 as amended by S.Q. 1997 c.96, s. 182; Charter of the French Language, R.S.Q. 1977, C-11.

10

INTRODUCTION

Nova Scotia Only public secular schools are fully funded in Nova Scotia. Since 1867, no legally recognized separate schools have existed. After 1867, some public schools operated as Catholic schools under “informal agreements” with the public school board. The Catholic church would build a school and make it available to the public school board on condition that Catholic children could attend these schools and that the schools would be staffed with Catholic teachers. These schools had the same curriculum as the public schools except for additional religious education. There are presently no schools that maintain these informal agreements. Currently, any religious group that wants to offer a religious education program must do so under the provisions for private schools. Private schools are permitted under the Education Act55 but receive no public funds.56 Prince Edward Island In Prince Edward Island only the public secular school system receives public funding. Newfoundland When Newfoundland joined Confederation in 1949 the education system was denominational and administered by different religious orders. That was retained as part of the Terms of Agreement until 1998. On 14 January 1998, through section 43 of the Constitution Act 1982, and with the approval of the Governments of Newfoundland and of Canada, an amendment was made which repealed the conditions relating to education made when Newfoundland entered Confederation.57 The goals of the amendment KDGÀUVWEHHQDSSURYHGE\WKHSHRSOHRI1HZIRXQGODQGLQDUHIHUHQGXP7KHFKDQJH resulted in the elimination of denominational school systems. These were replaced by a single secular school system that protected religious education, through the provision RIFODVVHVLQUHOLJLRQQRWVSHFLÀFWRDQ\UHOLJLRXVGHQRPLQDWLRQ58 Even though public VFKRROVDUHRIÀFLDOO\VHFXODUVWXGHQWVLQWKHVHVFKRROVDUHUHTXLUHGWRWDNHUHOLJLRQ classes, which are predominantly focused on the Christian religion.59 Parents may opt out of these course requirements for their children.60 Parents may also request that a

55

Education Act, S.N. 1995-96, c. 1, s. 130.

56

With the minor exception that the Nova Scotia Department of Education does provide a textbook credit allocation to First Nations Schools.  7HUP7HUPVRI8QLRQRI1HZIRXQGODQGZLWK&DQDGDFRQÀUPHGE\WKHNewfoundland Act, 1949, 12-13 Geo. VI, c.22, (U.K.)) See infra pp. 48-49, Document #2; Constitution Amendment Proclamation, 1987 (Newfoundland Act), SI/88-11, 20 January 1988 See infra pp. 133-138, Document #5(b), Appendix 3; Constitution Amendment, 1998 (Newfoundland Act), supra note 10.

57

58

Constitution Amendment, 1998 (Newfoundland Act), supra note 10.

59

Religion classes focus primarily on Christianity in the primary grades, and gradually diversify to include other religions in higher grades.

60

School Act, 1997 S.N.L., c. S-12 s. 10(1).

11

STATE SUPPORT FOR RELIGIOUS EDUCATION

public school allow for the observance of a religious holiday.61 Student attendance at such events is not mandatory. Religious and secular independent schools are permitted to operate in Newfoundland, but receive no public funding. Yukon Territory In the Yukon Territory there is a publicly funded system, which includes both secular and Roman Catholic schools. Catholic schools receive full funding as a result of an agreement between the Catholic Diocese and the Yukon Government in the 1960s.62 Under the Education Act, in theory, a school council can be established on the basis of religious criteria unrelated to Catholicism within the publicly funded school system,63 but there has been no demand to do so. Private schools, in theory, may be accredited and registered, but would receive no public funding. None have been created. Northwest Territories In the Northwest Territories, there is a publicly funded system that includes public schools as well as public denominational schools. A public denominational school is GHÀQHGLQWKHEducation Act as “a school established by a public denominational District Education Authority under this Act and in accordance with subsection 16(n)(ii) of the Northwest Territories Act”.64 Sections 16(n)(ii) and 97(1) of the Northwest Territories ActVSHFLÀFDOO\UHIHUWRSXEOLFGHQRPLQDWLRQDOVFKRROVDVEHLQJRIWKH5RPDQ&DWKROLF or Protestant faith.65 Currently, there is one publicly funded Catholic school board (comprising three schools) and no Protestant schools. Under section 21 of the Education Act, upon approval of the Minister, a person is entitled to open a private school, but no funding will be provided. There are currently three private schools in the Northwest territories, none of which receive funding: two are secular and one is Christian. Nunavut Territory When the Federal Government established Nunavut through the Nunavut Act in 1993, the laws of the Northwest Territories were to apply initially to the new Territory, with the Nunavut Legislature having the power to enact its own legislation, including on education. Legislative powers with respect to education are subject to minority separate school rights.66 To date, Nunavut has not enacted its own legislation on education.

61

Constitution Amendment, 1998 (Newfoundland Act), supra note 10. Such events are not known to have UHTXLUHGÀQDQFLDOH[SHQGLWXUHWRGDWHDQGVRLWLVXQFOHDUZKHUHÀQDQFLDOUHVSRQVLELOLW\ZRXOGOLHVKRXOG such expenditure occur.

62

Education Act, R.S.Y. 2002, c. 61, s. 57.

63

Ibid., ss. 62-64.

64

Education Act, R.S.N.W.T. 1995, c.28, s.1.

65

Northwest Territories Act, R.S.C. 1985, c. 27, ss.16(n)(ii) and 97(1).

66

Nunavut Act, R.S.C. 1993, c.28, ss. 23(1)(m) and 29. Legislative powers regarding education are subject to minority separate school rights in section 23(1)(m):

12

INTRODUCTION

In Nunavut Territory, there is a publicly funded system that includes public schools, DQGLQWKHRU\SXEOLFGHQRPLQDWLRQDOVFKRROV$SXEOLFGHQRPLQDWLRQDOVFKRROLVGHÀQHG in the Education Act of the Northwest Territories as “a school established by a public denominational District Education Authority under this Act and in accordance with subsection 16(n)(ii) of the Northwest Territories Act”.67 Sections 16(n)(ii) and 97(1) of the Northwest Territories Act VSHFLÀFDOO\UHIHUWRSXEOLFGHQRPLQDWLRQDOVFKRROVDVEHLQJ of the Roman Catholic or Protestant faith.68 In Nunavut, all public schools are secular; there are no denominational schools in existence. Under section 21 of the Education Act, upon approval of the Minister, a person is entitled to open a private school, but funding will not be provided.69 There are currently no private schools in Nunavut.

(c) The Situation in Ontario The comparative analysis makes clear that Ontario is the only province in Canada which extends public funding to only one religious group, to the complete exclusion of all other religions. The comparative differential is 100%, with Roman Catholics receiving 100% direct public funding and all other religious denominations 0%. Other provinces, such as Alberta and Saskatchewan, do fund Roman Catholic or Protestant separate schools at a different level than other religious denominations, but provide some funding to other religious schools. In Ontario, the power conferred under section 93 of the Constitution Act is exercised through the Education Act.70 The Act sets up a scheme setting out the rules for all legislation and regulations governing education funding, or all grant-making for educational purposes from money appropriated by the Legislature. It requires that such legislation, regulations or grant-making “operate in a fair and non-discriminatory manner” as between “English-language public boards”, which receive full public funding, and “English-language Roman Catholic boards”.71 The Act also requires non-discrimination

“23. (1) Subject to any other Act of Parliament, the Legislature may make laws in relation to the following classes of subjects: … (m) education in and for Nunavut, subject to the condition that any law respecting education must provide that (i) a majority of the ratepayers of any part of Nunavut, by whatever name called, may establish VXFKVFKRROVLQWKDWSDUWDVWKH\WKLQNÀWDQGPDNHWKHQHFHVVDU\DVVHVVPHQWDQGFROOHFWLRQ of rates for those schools, and (ii) the minority of the ratepayers in that part of Nunavut, whether Protestant or Roman Catholic, may establish separate schools in that part and, if they do so, they are liable only to assessments of such rates as they impose on themselves in respect of those separate schools;” 67

Supra note 57.

68

Supra note 65.

69

Supra note 64, s. 21.

70

Education Act, R.S.O. 1990, c.E.2 as amended. See infra pp. 153-156, Document #6.

71

Sections 234(1) and 234(2), Education Act, R.S.O. 1990, c. E.2, as amended by S.O. 1997, c. 31, s. 113 (1): “234(1) Subject to subsections (2) and (3), the Lieutenant Governor in Council may make regulations governing the making of grants for educational purposes from money appropriated by the Legislature.

13

STATE SUPPORT FOR RELIGIOUS EDUCATION

as between French-language public district school boards and French-language separate district school boards. The objection to Ontario’s differential treatment between Catholics and non&DWKROLFVLVHVVHQWLDOO\WKLVWKHH[WUHPHÀQDQFLDOEXUGHQLPSRVHGRQUDLVLQJFKLOGUHQ in a manner which preserves and promotes their religious heritage and identity in the case of all non-Catholic religious minorities in Ontario, as compared with the lack RIÀQDQFLDOEXUGHQRQ5RPDQ&DWKROLFVKDYLQJWKHVDPHJRDOVDQGLQWHUHVWVIRUWKHLU children, violates the fundamental obligation of non-discrimination. Secondly, a religious education in independent religious schools is integral to the conduct of the basic affairs of many minority religions. This understanding was expressed, for example, by Dr. Emil Fackenheim, world-renowned philosopher and former professor at the University of Toronto. He stated: “… Jewish day school education is indispensable to the survival of Jewish communities in Canada and throughout the world. In the post-Holocaust era, this has become a matter of absolute urgency, as the Jews are a survivor people for whom it is necessary that they and their children understand their religious heritage. It is imperative that Jews know who they are and why they are here. … … [S]ending children to weekend or afternoon schools to learn about their Jewish religion is not an adequate approach to Jewish education. The psychological impact of having Jewish education come after school hours rather than during the school day is such that it makes Jewish education a burden for them rather than a natural part of their life. Jewish education is intimately linked with Jewish cultural survival, and in order to be effective it must be pursued together with the secular portion of the children’s education in a full-time, day school setting.”72 Some argue that the extension of non-discriminatory public funding to religious denominations beyond Roman Catholicism harms the goals of a tolerant, multicul-

234 (2) Regulations made under subsection (1) shall ensure that the legislation and regulations governing education funding operate in a fair and non-discriminatory manner, (a) as between English-language public boards and English-language Roman Catholic boards; and (b) as between French-language public district school boards and French-language separate district school boards.” A separate school can mean both “a school under the jurisdiction of a Roman Catholic board”, and “a school under the jurisdiction of a Protestant separate school board” Education Act, R.S.O. 1990, c. E.2, s. 1(1). A Protestant separate school is funded through legislative grants in the same manner as an English public school. Education Act, R.S.O. 1990 c E.2, s. 159, as amended by S.O. 1997, c. 31, s.73. There is only one Protestant separate school board in existence in Ontario and it is an English language school. It has no religion class requirements and in practice operates in the same manner as a secular public school. 72

$IÀGDYLWRI(PLO)DFNHQKHLP, sworn 21 December 1991, in support of Adler v. Ontario, (General Division), paragraphs 2-3, infraSS'RFXPHQW6HHDOVRWKHRWKHUDIÀGDYLWVVZRUQLQVXSSRUW of the Adler case, infra pp. 769-812, Document #33(ii)-(xv).

14

INTRODUCTION

tural, non-discriminatory society.73 It would appear, however, that discriminatory and selective funding of one religious denomination in the establishment and operation of religious schools is detrimental to fostering a tolerant, non-discriminatory society. Public funding of religious schools predicated on privileged and exclusive religious DIÀOLDWLRQ HQFRXUDJHV WKH YHU\ KLHUDUFKLFDO LPEDODQFHG DQG GLYLGHG VRFLHW\ DORQJ religious lines that it claims to defeat. Singling out one religious denomination, namely Roman Catholics, does not promote social cohesion and understanding among the remaining population in public schools. It encourages discord in a society perceived by the remainder as favouring one religious denomination based on historical conditions which no longer exist. Madame Justice L’Heureux-Dubé in the Supreme Court of Canada case of Adler v. Ontario74, described the denial of equality this way: “At issue here are the efforts of small, insular religious minority communities seeking to survive in a large, secular society. As such, the complete non-recognition of this group strikes at the very heart of the principles underlying s.15. This provision, more than any other in the Charter, is intended to protect socially vulnerable groups from the discriminatory will of the majority as expressed through state action. The distinction created under the Education Act gives the clear message to these parents that their beliefs and practices are less worthy of consideration and value than those of the majoritarian secular society. They are not granted the same degree of concern, dignity and worth as other parents.”75 The argument is also made that the extension of similar treatment to non-Roman Catholics would cause fragmentation, religious ostracism and duplication of services in the Ontario school system. However, the vast bulk of any fragmentation of Ontario’s school system already exists by virtue of the division of the publicly-funded school system into Roman Catholic schools (31.6% of the total publicly-funded school population) and non-Roman Catholic schools,76 or Ontario’s support of the division of the population and their entitlements into Roman Catholics (34.3% of the population) and non-Roman Catholics.77

73

See Waldman v. Canada *RYHUQPHQW RI &DQDGD ÀUVW UHSO\ UHJDUGLQJ WKH PHULWV RI WKH :DOGPDQ submission, 27 February 1998, infra pp. 923-924, Document #46; Waldman v. Canada, Government of Canada second reply, 22 February 1999, infra pp. 947-948, Document #48; and Waldman v. Canada, Government of Canada third reply, 18 June 1999, infra pp. 966-967, Document #50.

74

Supra note 8.

75

Adler v. Ontario, supra note 8, at para. 86. Madam Justice L’Heureux-Dubé was dissenting on the issue of whether the Constitution Act 1867 was immune to Charter review. The majority of the Court did in fact recognize the incompatibility of the 1867 constitutional provisions and the Charter’s equality rights. See infra footnotes 101,102 and 103.

76

As of the 2002-2003 school year. Later information is not available. See Ontario (Ministry of Education), 2004, Enrolment in Publicly Funded Schools by School Type and Level in 2002-2003, Infra p. 231, Document #22.

77

2001 Census: Analysis Series – Religion in Canada, Major Religious Denominations, Ontario, 1991 and 2001. Statistics Canada, 2003, infra p. 215, Document #20. Also available online at: http://www12. statcan.ca/english/census01/Products/Analytic/companion/rel/on.cfm

15

STATE SUPPORT FOR RELIGIOUS EDUCATION

Furthermore, if the goal was only to maximize public funding for the secular public school system a withdrawal of special funding for Roman Catholics would be the logical course of action. The discriminatory funding in the province is in marked contrast to the demographic realities of modern Ontario. The actual composition of religious minorities in Ontario has changed dramatically since Canada was founded in 1867. The 2001 census, ZKLFKFROOHFWVLQIRUPDWLRQRQUHOLJLRXVDIÀOLDWLRQUHJDUGOHVVRIZKHWKHUUHVSRQGHQWV actually practice their religion), indicates that Roman Catholics are essentially no longer a minority in the province. Roman Catholics now number approximately the same as Protestants, or 34.3% of the population as compared to 34.9% of the population which is Protestant. In absolute numbers the 2001 Canadian census indicates an Ontario population of 3,866,350 Roman Catholics and 3,935,745 Protestants. Furthermore, the comparative numbers of Roman Catholics in Ontario continues to LQFUHDVHVLJQLÀFDQWO\DVFRPSDUHGWRWKH3URWHVWDQWSRSXODWLRQ,Q3URWHVWDQWV accounted for 43%, and Roman Catholics 35%. Between 1991 and 2001 there was a 10.3% increase in the Roman Catholic population.78 The Canadian census further EUHDNVGRZQ3URWHVWDQWGHQRPLQDWLRQVDQGÀQGV5RPDQ&DWKROLFVDWWKHWRSRIWKH “Top 10 religious denominations in Ontario in 2001” at 34.3%. After Roman Catholic, “no religion” was the second most frequent religion response to the census question (at 16% of the population) in 2001.79 In Canada as a whole, Roman Catholics were the largest religious group in 2001, the faith of just under 12.8 million people, or 43% of the Canadian population. Between 1991 and 2001, the number of Roman Catholics in Canada increased 4.8%, while the number adhering to Protestant denominations continued a long-term decline, falling by 8.2%.80 7KH UHOLJLRXV DIÀOLDWLRQ RI 2QWDULR UHVLGHQWV UHYHDOV D PXOWLFXOWXUDO VRFLHW\ LQ which there is no clear majority (unless Christianity is seen as a monolithic group) DQGLQZKLFKWKHUHDUHVLJQLÀFDQWPLQRULWLHV81 Nevertheless, the historical anomaly of protecting only Roman Catholics and extending no similar provision to other religious minorities, such as the Jewish community numbering 1.7% of the Ontario population, remains. Contrary to the 1867 rationale for protecting only a small Ontario Catholic

78

2001 Census: Analysis Series – Religion in Canada, Major Religious Denominations, Ontario, 1991 and 2001. Statistics Canada, 2003. See infra p. 215, Document #20.

79

2001 Census: Analysis Series – Religion in Canada, Top 10 Religious Denominations, Ontario, 2001. Statistics Canada, 2003. See infra p. 213, Document #19.

80

2001 Census: Analysis Series – Religion in Canada, Major Religious Denominations, Canada, 1991 and 2001. Statistics Canada, 2003. See infra p. 211, Document #18.

81

Muslim 3.1%, Hindu 1.9%, Jewish 1.7%. Buddhist 1.1%, Sikh .9%. Protestant denominations include United Church 11.8%, Anglican 8.7%, Baptist 2.6%, Presbyterian 2.5%. Persons reporting themselves as “Christians”, “Apostolic”, “Born-again Christian” and “Evangelical” are 2.7%. 2001 Census: Analysis Series – Religion in Canada, Top 10 Religious Denominations, Ontario, 2001, supra note 79; 2001 Census: Analysis Series – Religion in Canada, Major Religious Denominations, Ontario, 1991 and 2001, supra note 78.

16

INTRODUCTION

minority, there are currently other minority religions in Ontario that are in a far more vulnerable position today than Roman Catholics. In Ontario schools enrollment during the 2002-2003 school year was as follows. In publicly funded schools there were 2,164,940 students, of which 684,578 students attended the publicly funded Roman Catholic schools82. During the 2002-2003 school year, in non-publicly funded private schools there were 121,447 students, of which DSSUR[LPDWHO\ ZHUHLQUHOLJLRXVO\DIÀOLDWHGVFKRROV83. The total expenditures for publicly funded education in the province for 2002-2003 were $14.79 billion. These monies funded 1,997,479 Ontario students enrolled in public and Roman Catholic separate schools (with an additional 116,035 in Junior Kindergarten).84 The numbers indicate that public funding to Roman Catholic schools is of far greater ÀQDQFLDOVLJQLÀFDQFHWKDQWKHSRWHQWLDOIXQGLQJRIRWKHUUHOLJLRXVVFKRROVZLWKDPXFK smaller proportion of the student population. Failure to fund non-Roman Catholic religious schools in Ontario is also not related to a lack of provincial quality control over such schools. There are strong quality control assurances for private religious schools. They must submit annually to the Ministry of Education a notice of intention to operate a private school and provide statistical information regarding enrollment, staff, courses of study and any other information UHTXLUHGE\WKH0LQLVWU\7KH0LQLVWHUPD\GLUHFWRQHRUPRUHVXSHUYLVRU\RIÀFHUV to inspect a private school, and private secondary schools that wish to award a high school diploma may have standards of instruction inspected. These private schools must follow the course credit system applied in the public secular and Roman Catholic school systems.

(d) History of the Litigation in Canada In a series of rulings from 1978 to 1997, Canadian courts ruled that the public system had to be inclusive of students of all faiths and that mandatory religious observances, or religious instruction of particular faiths, in the public schools was impermissible.85 At the same time, Canadian courts ruled that privileged public funding of only Roman Catholic schools was permissible. The issue of public funding of non-Catholic religious schools in Ontario was decided by the Supreme Court of Canada in Reference re an Act to Amend the Education Act

 7KHVHÀJXUHVLQFOXGHHQUROOPHQWIRU-XQLRU.LQGHUJDUWHQWR*UDGHLQFOXVLYH6HH2QWDULR0LQLVWU\ of Education), 2004. Enrolment in Publicly Funded Schools by School Type and Level in 2002-2003, infra p. 231, Document #22.

82

83

Ontario (Ministry of Education), 2004. (QUROPHQWLQ3ULYDWH6FKRROVE\5HOLJLRXV$IÀOLDWLRQLQ. See infra p. 233, Document #23.

84

More recent information only includes projected expenditures, not actual expenditures. Ontario (Ministry of Education). School Board Funding Projections for the 2004-05 School Year, Spring 2004. Available online at: http://www.edu.gov.on.ca/eng/funding/fund0203.html.

85

Re Zylberberg v. Sudbury Board of Education (Director) (1988) 65 O.R. (2d) 641, 52 D.L.R. 577 (C.A.), see infra pp. 631-670, Document #30; Canadian Civil Liberties Association v. Ontario (Minister of Education) (1990) 71 O.R. (2d) 341, 46 C.R.R. 316 (C.A.), see infra pp. 671-705, Document #31.

17

STATE SUPPORT FOR RELIGIOUS EDUCATION

(Ontario), known as The Bill 30 Case, on 25 June 1987.86 The substance of The Bill 30 Case was repeated in a case brought a few years later, Adler v. Ontario, which was decided by the Supreme Court on 21 November 1996.87 ,QWKHÀUVWPDMRUFDVHLQDJURXSRIDSSOLFDQWVVRXJKWWRLQWHJUDWH+HEUHZ VFKRROVLQWRWKHSXEOLFRUSXEOLFO\ÀQDQFHGVFKRROV\VWHP,QRe Board of Education for the Borough of North York and Ministry of Education88 the applicants applied for a declaration concerning a proposal put forth by a local school board to integrate Hebrew schools into the public school system. This proposal would have had the effect of establishing a school, or schools, within the school district in which religious courses would be mandatory. In rejecting the application Mr. Justice Holland stated: “As the legislation presently stands the question propounded must be answered in the negative. While a pupil may not have a right to attend a particular school within a school district as found in Crawford, there is a clear right in each and every student in each and every school within the district, to claim exemption from any religious studies. To say that this could be overcome by grouping students who are prepared to accept instruction in a particular religion in one school within a school district is illusory … No school board has the power under the present legislation, in my opinion, to establish a mandatory course of religious instruction in any school within the school district under the board’s jurisdiction.”89 Although this decision was rendered before the Canadian Charter of Rights and Freedoms entered into force, subsequent decisions reached the same result. Subsequent litigants who attempted to draw minority religious education into the public school structure also failed.90 Roman Catholic separate schools in Ontario had been fully funded for grades Kindergarten through Grade 10 since the mid 1800s. In 1984 the Ontario Legislature decided to extend full funding to Roman Catholic separate schools through to Grade 13. The Conservative Government of the day, under Premier William Davis, referred the proposed legislation known as “Bill 30” to the courts to determine its constitutionality, particularly in light of the addition to the Canadian constitution of the 1982 Canadian Charter of Rights and Freedoms and its equality rights provision. The case was started in 1985. The judgment of the Court of Appeal was rendered on 18 February 1986.91 The Court held that while section 93 of Canada’s Constitution treats Canadians unequally it is not subject to the Charter. In the Court’s words:

86

Supra note 8.

87

Supra note 8.

88

(1978) 19 O.R. (2d) 547 (H.C.J.), aff’d April 9, 1979 (Ont. C.A.) See infra pp. 579-593, Document #28.

89

Ibid., at 559-560.

90

Re Zylberberg v. Sudbury Board of Education (Director), supra note 86; Canadian Civil Liberties Association v. Ontario (Minister of Education) supra note 86; Bal v. Ontario (1994) 21 O.R. (3d) 681 (Ont. G.D.), (1997) 34 O.R. (3d) 484 (C.A.), L.A. to S.C.C. ref’d (1998) 227 N.R. 151n (S.C.C.), see infra pp. 813-842, Document #34.

91

Reference Re An Act To Amend The Education Act (Ontario) (1986) 25 D.L.R. (4th) 1 (Ont. C.A.) (the Bill 30 Case).

18

INTRODUCTION

´7KHVHHGXFDWLRQDOULJKWVJUDQWHGVSHFLÀFDOO\WRWKH3URWHVWDQWVLQ4XHEHFDQG Roman Catholics in Ontario, make it impossible to treat all Canadians equally. The country was founded upon the recognition of special or unequal educational ULJKWVIRUVSHFLÀFUHOLJLRXVJURXSVLQ2QWDULRDQG4XHEHF7KHLQFRUSRUDWLRQRIWKH Charter into the Constitution Act, 1982, does not change the original confederation bargain.”92 This decision was subsequently appealed to the Supreme Court of Canada, and the Supreme Court upheld the decision of the Court of Appeal on 25 June 1987.93 The Court considered the effect of the equality rights and freedom of religion provisions of the Charter of Rights and Freedoms on other parts of the Constitution of Canada, VSHFLÀFDOO\VHFWLRQZLWKLWVVSHFLDOSURWHFWLRQRI5RPDQ&DWKROLFVLQ2QWDULR7KH majority held that section 93, and all the rights and privileges it afforded, were immune from Charter scrutiny on the grounds that no provision of the Constitution was intended to invalidate or have paramountcy over any other provision of the Constitution of Canada. Madam Justice Wilson stated: “The Charter cannot be applied so as to abrogate or derogate from rights or privileges guaranteed by or under the Constitution … It was never intended, in my opinion, that the Charter could be used to invalidate other provisions of the constitution, particularly a provision such as s. 93 which represented a fundamental part of the Confederation compromise.”94 The Court recognized that the result was not symbiotic with equality rights. In the words of Madam Justice Wilson: “I believe it [section 29] was put there simply to emphasize the special treatment guaranteed by the constitution to denominational, separate or dissentient schools, even if it sits uncomfortably with the concept of equality embodied in the Charter.”95 Similarly, in a concurring opinion Mr. Justice Estey conceded that the funding of only Roman Catholic religious schools was discriminatory: “It is axiomatic (and many counsel before this court conceded the point) that if the Charter has any application to Bill 30, this Bill would be found discriminatory and in violation of ss. 2(a) and 15 of the Charter of Rights.”96 In other words, the original, historical compromise of 1867, rooted in 1867 demoJUDSKLFVWRRNSULRULW\RYHUWKHHTXDOLW\ULJKWVDIÀUPHGLQWKHPRGHUQFRQVWLWXWLRQDO text of 1982. In the 1988 case of Zylberberg v. Sudbury Board of Education97, the Ontario Court of Appeal established that religious instruction of particular faiths in the public schools was impermissible. In this case, a group of parents of children enrolled in elementary public

92

Ibid., at 64.

93

Supra note 8.

94

Supra note 8, at 59-60.

95

Supra note 8.

96

Supra note 8, at 27.

97

Supra note 86.

19

STATE SUPPORT FOR RELIGIOUS EDUCATION

schools of the Sudbury Board of Education challenged an Ontario law which required a public school to open or close each school day with religious exercises consisting of the reading of the Scriptures and the repeating of the Lord’s Prayer. The schools under the jurisdiction of the Sudbury Board of Education opened with the national anthem, the Lord’s Prayer and, in some schools, readings from the Scriptures. The Court decided that the recitation of the Lord’s Prayer, which is a Christian prayer, and the reading of the Scriptures from the Christian Bible violated the freedom of conscience and religion guaranteed by section 2(a) of the Canadian Charter of Rights and Freedoms. Provisions for exempting minority students from these exercises did not save the regulation from violating the Charter. The Court held that this provision imposed on religious minorities a compulsion to conform to the religious practices of the majority. They found that the exemption provisions, in effect, discriminated against religious minorities by “imposing a penalty on pupils from religious minorities who utilize it by stigmatizing them as non-conformists and setting them apart from their fellow students who are members of the dominant religion”.98 In the 1990 case of Canadian Civil Liberties Association v. Ontario (Minister of Education)99 the Canadian Civil Liberties Association and parents of children enrolled in schools of The Elgin County Board of Education challenged the constitutional validity of another Ontario law and the curriculum of religious studies of the Board. The Ontario regulation required two periods of religious education in public schools each week, but noted that issues of a controversial or sectarian nature should be avoided. Parents could apply to have their child exempted from religious education. The Court decided that the regulation violated the Charter. It held that the regulation permitted the indoctrination of school children in Ontario in the Christian faith, and for the same reasons given in Zylberberg was not saved by the exemption provision. Although the Board had made an effort to make changes to its curricula following the Zylberberg case, the Court found that the curricula contained indoctrinating material. They made a general declaration that the curricula were inconsistent with the freedom of conscience and religion guaranteed by section 2(a) of the Charter. Both the Zylberberg and Canadian Civil Liberties Association cases indicated that Ontario courts were likely to view any religious instruction or religious observances in public schools with considerable scepticism, regarding them as serious potential sources of bias, favouritism or indoctrination. Subsequent efforts were therefore made to return to the issue of funding religious schools separately from public schools. In Adler v. Ontario100 the applicants framed the question around whether the Education Act infringed their freedom of religion or equality rights under the Charter. The applicants represented parents of children from a variety of religious backgrounds. They argued that the Education Act, by requiring attendance at school, discriminated against those whose conscience or beliefs prevented them from sending their children to either the publicly funded secular or Roman Catholic

98

Supra note 86, at 592.

99

Supra note 86.

100

Supra note 8.

20

INTRODUCTION

schools. They maintained that these parents were in effect forced to bear discriminatory high costs associated with their children’s education. On 21 November 1996 the Supreme Court held that its 1987 decision, the Bill 30 case, was determinative of the case in Adler. Mr. Justice Iacobucci, writing for the majority, quoted the earlier decision of the Court to the effect that Bill 30 was “immune” from Charter review. He stated: “In other words, Wilson J [in the Bill 30 Reference] … refused to use one part of the Constitution to interfere with rights protected by a different part of that same document: “It was never intended, in my opinion, that the Charter could be used to invalidate other provisions of the Constitution …” Following the same line of reasoning used by Wilson J in the Reference re Bill 30,ÀQGWKDWSXEOLFIXQGLQJ for the province’s separate schools cannot form the basis for the appellants’ Charter claim.”101 At the same time, Mr. Justice Iacobucci acknowledged the inequality of this result and its apparent incompatibility with the Canadian Charter of Rights and Freedoms. Speaking of the immunity of the privileges of Roman Catholics in the 1867 Constitution Act, he said: “this was true regardless of the fact that this unequal funding might … sit uncomfortably with the concept of equality embodied in the Charter”.102 $QRWKHU DWWHPSW WR ÀQG D MXGLFLDO UHPHG\ IRU WKH GLVFULPLQDWRU\ IXQGLQJ RI religious education in Ontario was made in Bal v. Ontario.103 In that case the litigants represented a variety of minority religious groups including the Christian Reformed, Hindu, Jewish, Muslim, and Sikh communities. The applicants sought to have minority religious education brought within the public school system by challenging the policy of strict secularization of public schools. The judgment of Mr. Justice Winkler was GHOLYHUHGRQ'HFHPEHU7KH&RXUWUHMHFWHGWKHDSSOLFDQWV·FODLPVÀQGLQJWKH case indistinguishable from Adler, which in turn relied on the Bill 30 case.104

H 7KH5HVSRQVHRIWKH81+XPDQ5LJKWV&RPPLWWHH In February 1996 the legal challenges to religious discrimination in education in 2QWDULRZHUHWDNHQWRWKHLQWHUQDWLRQDOOHYHO,Q&DQDGDUDWLÀHGWKHInternational Covenant on Civil and Political Rights (ICCPR)105 ZKLFK FRQWDLQHG VSHFLÀF OHJDO REOLJDWLRQV FRQFHUQLQJ QRQGLVFULPLQDWLRQ$OVR LQ  &DQDGD UDWLÀHG D VHFRQG related treaty, the Optional Protocol to the Covenant.106 The Optional Protocol allows

101

Supra note 8, at 403.

102

Supra note 8, at 403.

103

Supra note 91.

104

“Central to the thrust of the applicant’s position is the objective of funding. Since this is integral to the issue, the decision in Adler is determinative of this proceeding.” Bal v. Ontario, supra note 91, at 709.

105

International Covenant on Civil and Political Rights, 999 UNTS 171 (in force 23 March 1976). See infra pp. 161-178, Document #8.

106

Optional Protocol to the International Covenant on Civil and Political Rights, 999 UNTS 171 (in force 23 March 1976). See infra pp. 177-180, Document #9.

21

STATE SUPPORT FOR RELIGIOUS EDUCATION

individuals to submit claims of violations of the Covenant to the UN Human Rights Committee on condition, among other things, that all domestic judicial avenues have been exhausted. 7KH*RYHUQPHQWRI&DQDGDUDWLÀHGERWKWKHVXEVWDQWLYH&RYHQDQWDQGWKHLQGLYLGXDO complaint Protocol only after consultation and approval by the provinces. The Province RI2QWDULRVSHFLÀFDOO\DJUHHGLQZULWLQJWRWKH)HGHUDO*RYHUQPHQW·VUDWLÀFDWLRQRI both treaties. In May 1969 Ontario Premier John Robarts wrote to the Prime Minister RI&DQDGD3LHUUH(7UXGHDXFRQFHUQLQJ2QWDULR·VYLHZVRIWKHSURSRVHGUDWLÀFDWLRQ by Canada of the Covenant and the Optional Protocol. He informed the Prime Minister that Ontario “supports wholeheartedly the principles contained in these documents (the International Covenant on Civil and Political Rights and the Optional Protocol to the International Covenant on Civil and Political Rights) and has no objections whatsoever to the Federal Government entering into such agreements”.107 From 19 August 1976 Canada has been bound by the obligations of the Covenant, and cases can be brought against Canada for violating the Covenant to the UN Human Rights Committee. On 29 February 1996 Professor Anne Bayefsky submitted a complaint to the Human Rights Committee, on behalf of Arieh Waldman.108 Arieh and his wife Vallry, and their two sons Eitan and Avidan, lived in Toronto, Ontario where the two boys attended Bialik Hebrew Day School. The Waldman case alleged that Canada violated its international obligations under the International Covenant on Civil and Political Rights by refusing to fund students attending Bialik Hebrew Day School on an equal basis as those students attending Ontario Roman Catholic schools. Mr. and Mrs. Waldman chose to send their children to Hebrew Day school because they believed that such an education was essential for their children’s upbringing in the Jewish faith and to the needs of the minority Jewish community in Ontario. The remedy sought by Mr. Waldman was for “funding for all religious schools in Ontario meeting provincial standards at an equivalent level to the funding, if any, received by Roman Catholics in Ontario”.109 The articles of the Covenant alleged to have been violated were articles 2(1), 18(1), 18(4), 26 and 27. Articles 2 and 26 protect equality rights and non-discrimination on the basis, for example, of religion. Article 18 protects freedom of religion and article 27 concerns minority rights. “Article 2(1) Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

107

Letter of 30 May 1969. See infra p. 183, Document #10.

108

Waldman v. Canada$XWKRU·VLQLWLDOVXEPLVVLRQDQGDFFRPSDQ\LQJDIÀGDYLW)HEUXDU\6HH infra pp. 843-881, Document #35.

109

Ibid.

22

INTRODUCTION

… Article 18 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. … 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions. … Article 26 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 27 In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.”110 The Human Rights Committee, which considered the Waldman case, is composed of 18 independent experts, elected by the states parties to the Covenant on Civil and Political Rights. Canada is one of the more than 150 states parties to the Covenant. Annually, the Committee has three sessions each of three weeks duration. The Committee has the responsibility of monitoring compliance of states parties with the Covenant. Its monitoring functions are performed using three main techniques. First, all states parties are required to produce state reports on the consistency of national standards and practices with Covenant rights. These reports are reviewed apSUR[LPDWHO\HYHU\ÀYH\HDUVE\WKH+XPDQ5LJKWV&RPPLWWHHQRUPDOO\LQWKHSUHVHQFH of state representatives. Concluding observations, which comment on the adequacy of state compliance with Covenant obligations, are issued by the Committee following the review. Canada regularly participates in this process of reporting and review. The ÀIWKSHULRGLFUHSRUWRI&DQDGDZDVGXHRQ$SULODQGZDVVXEPLWWHGWRWKH

110

Supra note 106.

23

STATE SUPPORT FOR RELIGIOUS EDUCATION

Committee on 27 October 2004 . It was considered by the Committee at its October 2005 session.111 6HFRQGWKH2SWLRQDO3URWRFROWRWKH&RYHQDQWDOVRUDWLÀHGE\&DQDGDSHUPLWV individuals to complain of Canadian violations of their rights under the Covenant. These complaints are considered by the Committee which then expresses a view as to the presence or absence of a violation. Over the years many cases have been brought against Canada. To November 2004 there have been 112 registered cases against Canada. Of these 20 have been decided on the merits. In eleven cases the Committee has determined there were violations of the Covenant. Of the remaining Canadian cases, 54 were found to be inadmissible, 27 were discontinued, and 10 remain pending.112 Third, the Committee produces General Comments, or commentaries on the nature of obligations associated with particular Covenant rights and freedoms. These elaborate on the meaning of the treaty provisions, which are often very general or cryptic.113 The Human Rights Committee had the Waldman v. Canada case before it for three and a half years. The decision-making process of the Committee does not include oral hearings, and conclusions are reached on the basis of written submissions alone. The complaint was submitted on 29 February 1996.114 The lengthy amount of time taken in reaching a decision arose from a pattern of delay on the part of the Canadian Government repeated throughout the proceedings. The Government of Canada initially responded by disputing the admissibility of the case, and the Committee’s jurisdiction to consider it on the merits, on 27 June 1996.115 Counsel for Mr. Waldman replied to the Government’s admissibility objections on 24 September 1996,116 and provided further information on 17 December 1996117 on the admissibility issue after the decision of the Supreme Court of Canada in Adler. The Government of Canada agreed not to continue to press the admissibility issue

111

The Committee considered the fourth periodic report of the Government of Canada under the Civil and Political Covenant (CCPR/C/103/Add.5) prior to its decision in the Waldman case (CCPR/C/SR.1737 RQ0DUFK7KHÀIWKSHULRGLFUHSRUWWRWKH&RPPLWWHHZDVVXEPLWWHGRQ2FWREHU (CCPR/C/CAN/2004/5).

112

See http://www.bayefsky.com/complain/17_outcome_ccpr.php and http://www.ohchr.org/english/bodies/hrc/stat2.htm.

113

See for example, General Comment 3, (1981) A/36/40, Annex VII, infra pp. 185-186, Document #11; General Comment 18, (1990) A/45/40, Volume 1, Annex VI, infra pp. 187-190, Document #12; General Comment 22, (1993) A/48/40, Volume 1, Annex VI, infra pp. 191-194, Document #13; and General Comment 23, (1994) A/49/40, Volume 1, Annex V, infra pp. 195-198, Document #14.

114

Supra note 109.

115

Waldman v. Canada, Government of Canada’s initial reply regarding issues of the admissibility of the complaint, 27 June 1996. Infra pp. 883-888, Document #36.

116

Waldman v. Canada, Author’s submission regarding admissibility, 24 September 1996. Infra pp. 897-899, Document #39.

117

Waldman v. Canada, Author’s submission regarding admissibility, 17 December 1996. Infra pp. 903-904, Document #41.

24

INTRODUCTION

standing alone, and to join the issues of admissibility and the merits of the case in April 1997.118 On 27 February 1998, two years after the initial submission, the Government of &DQDGD ÀQDOO\ UHVSRQGHG WR WKH FRPPXQLFDWLRQ RQ WKH PHULWV119 Counsel for Mr. Waldman replied on 30 May 1998.120 On 22 February 1999, just prior to the Committee’s anticipated consideration of the case at its March 1999 session, the Government of Canada made another submission on the merits.121 Counsel for Mr. Waldman replied on 15 March 1999.122 The Government of Canada made one further submission just before the subsequent session of the Committee which took place in July 1999.123 The Committee had scheduled consideration of the case for that session and the Canadian submission urged the Committee to delay consideration until the case was joined with another Canadian case (Tadman et al. v. Canada124) which had been submitted at a much later date but raised related issues. Counsel for Mr. Waldman objected to any further delay and pressed the Committee to proceed with a decision.125 The Committee reached a decision at its November 1999 session, releasing its Views on 3 November 1999.126 The Committee found that Canada did violate its international legal obligations XQGHUWKH&RYHQDQWDQGVSHFLÀFDOO\YLRODWHG0U:DOGPDQ·V´ULJKWVXQGHUDUWLFOH of the Covenant to equal and effective protection against discrimination.”127 7KH&RPPLWWHHGLGQRWÀQGWKDWVWDWHVSDUWLHVWRWKH&RYHQDQWDUHUHTXLUHGWRIXQG religious schools from public funds. In its words, the violation of international human rights law by Canada resulted from the following Canadian policy:

118

Waldman v. Canada, Author’s letter to the Human Rights Committee, 28 April 1997, infra p. 909, Document #44; Government of Canada letter to Human Rights Committee, 29 April 1997, infra pp. 911-912, Document #45.

119

Waldman v. Canada*RYHUQPHQWRI&DQDGDÀUVWUHSO\UHJDUGLQJWKHPHULWVRIWKH:DOGPDQVXEPLVVLRQ 27 February 1998. Infra pp. 913-933, Document #46.

120

Waldman v. Canada, Author’s reply and second submission to the Human Rights Committee, 30 May 1998. Infra pp. 935-944, Document #47.

121

Waldman v. Canada, Government of Canada second reply, 22 February 1999. Infra pp. 945-959, Document #48.

122

Waldman v. Canada, Author’s reply and third submission to the Human Rights Committee, 15 March 1999. Infra pp. 961-963, Document #49.

123

Waldman v. Canada, Government of Canada third reply, 18 June 1999. Infra pp. 965-986, Document #50.

124

Tadman et al. v. Canada, Communication No. 816/1998, A/55/40 vol II, Annex X.G (2000) 218, Annual Report of the Human Rights Committee. Infra pp. 1063-1071, Document #66.

125

Waldman v. Canada, Author’s reply and fourth submission to the Human Rights Committee, 25 June 1999. Infra pp. 987-988, Document #51.

126

United Nations Human Rights Committee, 3 November 1999, Final Views: Waldman v. Canada, Communication No. 694/1996 A/55/40 vol. II, Annex IX.H (2000) 86, Annual Report of the Human Rights Committee. Infra pp. 1013-1030, Document #53.

127

Ibid., at 98, para. 10.6.

25

STATE SUPPORT FOR RELIGIOUS EDUCATION

“… the Covenant does not oblige States parties to fund schools which are established on a religious basis. However, if a State party chooses to provide public funding to religious schools, it should make this funding available without discrimination.”128 The Committee found discrimination in the Ontario school system, which violated Canada’s international legal obligations under the Covenant, on this basis: “[P]roviding funding for the schools of one religious group and not for another must be based on reasonable and objective criteria. In the instant case, the Committee concludes that the material before it does not show that the differential treatment between the Roman Catholic faith and the author’s religious denomination is based on such criteria. Consequently, there has been a violation of the author’s rights under article 26 of the Covenant to equal and effective protection against discrimination.”129 The status of the Committee’s Views are as follows: “… by becoming a State party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and … pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established …”130 ,Q RWKHU ZRUGV &DQDGD·V UDWLÀFDWLRQ RI WKH 2SWLRQDO 3URWRFRO LV D FRPPLWPHQW WR provide an effective and enforceable remedy in those cases in which a violation has been established – even though the Committee’s Views cannot be enforced in a Canadian court. 7KH+XPDQ5LJKWV&RPPLWWHHGLGQRWSUHVFULEHDVSHFLÀFUHPHG\WRWKHYLRODWLRQRI the Covenant in Waldman and the religious discrimination it found in Canada. Instead, it told the state party: “the Committee wishes to receive from the State party, within ninety days, information about the measures taken to give effect to the Committee’s Views.”131 It expected Canada to take action to provide a remedy for Mr. Waldman, and to inform it of this action within 90 days of 3 November 1999. During the same Committee session, the Committee decided the Tadman132 case and found it to be inadmissible. Tadman et al. had claimed a violation of the Covenant by Canada in connection with the public funding of Roman Catholic schools, but did not seek funding for the religious education of the authors’ children. Instead, they sought the elimination of funding for Catholic religious education. On 19 October 1999 the

128

Ibid., at 97, para. 10.6.

129

Ibid., at 97-98, para. 10.6.

130

Ibid., at 98, para. 13. This is the Committee’s accurate description of state responsibility under the Protocol.

131

Ibid.

132

Supra note 125.

26

INTRODUCTION

Committee ruled that the authors’ situation would not necessarily improve if funding ZHUHHOLPLQDWHGIRU5RPDQ&DWKROLFV7KHDXWKRUV´GLGQRWVXIÀFLHQWO\VXEVWDQWLDWH how the public funding given to Roman Catholic separate schools … affects them adversely.”133 Following the Waldman decision, the Government of Ontario reacted swiftly. In numerous press releases and letters, culminating in its 1 February 2000 response to the Canadian Minister of Foreign Affairs, Lloyd Axworthy, the Ontario Government stated “Ontario has no plans to extend funding to private religious schools or to parents of children that attend such schools, and intends to adhere fully to its constitutional REOLJDWLRQWRIXQG5RPDQ&DWKROLFVFKRROV:HUHDIÀUPWKDWRXUFRPPLWPHQWLVWR providing an excellent public education system that is open to all students regardless of religious or cultural background.”134 In a letter to the Human Rights Committee of 3 February 2000135 this paragraph ZDVTXRWHGDVMXVWLÀFDWLRQE\WKH&DQDGLDQ*RYHUQPHQWIRUQRWSURYLGLQJDUHPHG\ for the violation of the Covenant as the Committee had requested, and for failing to meet Canada’s international human rights obligations under the Covenant and the Optional Protocol.

I )ROORZXS$WWHPSWV On 16 February 2000 a further submission was made on behalf of Mr. Waldman to the Human Rights Committee.136 It pointed out to the Committee that Canada’s response exhibited a profound disregard of the Committee’s Views and Canada’s international obligations. Instead of providing a remedy for the violation of the Covenant, the Government of Canada stressed that in its opinion the Committee’s views are not binding,137 and claimed that its obligations consisted merely of asking the province of Ontario “to give consideration to the views of the Committee”.138 Furthermore, the submission made on behalf of Mr. Waldman pointed out that instead of complying with its international obligations, the Government of Canada had chosen to completely abdicate its responsibilities. In the words of the Canadian Minister of Citizenship and Immigration: “In the case of Waldman v. Canada, it is

133

Supra note 125, at 224-225, para. 6.2.

134

Government of Ontario Correspondence with the Government of Canada, 1 February 2000, infra pp. 1035-1036, Document #56; see also Government of Ontario Correspondence with the Government of Canada, 13 January 2000, infra pp. 1031-1032, Document #54.

135

Government of Canada Correspondence with the Human Rights Committee, 3 February 2000. Infra p. 1037, Document #57.

136

Correspondence of the Author, Mr. Waldman, with the Human Rights Committee, 16 February 2000. Infra pp. 1041-1046, Document #59.

137

Correspondence from the Minister of Citizenship and Immigration, Elinor Caplan, to Georgeanne Burke, Ontario Parents for Equality in Education Funding (OPEEF), 4 February 2000. Infra pp. 1039-1040, Document #58.

138

Letter of Minister of Foreign Affairs Lloyd Axworthy to the Minister of Education of Ontario (Janet Ecker), 1 February 2000. Infra pp. 1033-1034, Document #55.

27

STATE SUPPORT FOR RELIGIOUS EDUCATION

only the province that can choose to comply with the Committee’s views.”139 Canada’s response to the Committee is that it is not obligated to do more because “decisions regarding education are ultimately for the provinces to resolve in accordance with their constitutional authority.”140 This reply calls into question the ERQDÀGHVDQGHIIHFWRI&DQDGD·VUDWLÀFDWLRQRI the entire range of human rights treaties as well as other kinds of treaties. Canada’s UDWLÀFDWLRQV GR QRW OLPLW LWV REOLJDWLRQV WR VXEVWDQWLYH PDWWHUV RQO\ ZLWKLQ IHGHUDO constitutional jurisdiction, unless Canada has made such an explicit reservation at the WLPHRIUDWLÀFDWLRQRUWKHWUHDW\VRSURYLGHV0RUHRYHULQWKHFDVHRIWKH&RYHQDQW on Civil and Political Rights, the treaty clearly says: “The provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions.”141 Canada made no reservations to the Covenant attempting to limit its obligations as a consequence of being a federal state with divided constitutional jurisdiction. It is therefore not the case that Canada’s international legal obligations under the Covenant extend only to providing a remedy in matters within federal jurisdiction. There are three possible means for the Government of Canada to accept its responsibility under the Covenant on Civil and Political Rights and remedy the violation of international law in Waldman. 7KHÀUVWLVE\ZD\RIWKH´)HGHUDO6SHQGLQJ3RZHUµ8QGHUWKH&DQDGLDQ&RQVWLWXtion the federal government has the ability to spend the money which its taxes yield and to dispose of its own property, for any purpose it chooses including for objects which are outside federal legislative competence.142 The second route is the agreement known as the “Social Union” which explicitly permits the use of the federal spending power in making transfers to individuals and to organizations for the purposes of new Canada-wide initiatives after three months’ notice and an offer to consult with the provinces. Article 1 of the Social Union agreePHQW DQQRXQFHV D VHW RI 3ULQFLSOHV ZKLFK DUH WR JXLGH LWV RSHUDWLRQ DQG ÀUVW DQG foremost are the words “All Canadians are equal”, and governments are committed to “Respect the equality, rights and dignity of all Canadian women and men and their diverse needs”.143 Finally, the Federal Income Tax Act144 permits the use of a system of tax credits to HIIHFWDQHTXDOL]DWLRQRIWKHÀQDQFLDOEXUGHQRIDQRQ&DWKROLFLQ2QWDULRDVFRPSDUHG to a Catholic in the same province. In fact, the federal government has been, and is, already involved – through tax credits – in matters of education. To a very limited extent the federal government does provide a tax credit for parents sending their children to

139

Supra note 138.

140

Supra note 136.

141

Supra note 106, Article 50.

142

Constitution Act, 1867 (U.K.), supra note 1, s. 91.

143

“A Framework to Improve the Social Union for Canadians: An Agreement between the Government of Canada and the Governments of the Provinces and Territories”, February 4, 1999, http://socialunion. gc.ca/news/020499_e.html.

144

Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.).

28

INTRODUCTION

non-Catholic schools.145 Consequently, if the federal government wanted to provide a remedy for the violation of the Covenant, there is no legal impediment to their doing so. They have the jurisdictional authority to effect equality in Ontario through an expansion of the federal tax credit provisions. To date, the federal government has chosen to take no action whatsoever in order to satisfy Canada’s international legal obligations under the Covenant. At the same time, in all other provinces in Canada which choose to provide public funding for religious schools, provincial public funding is made available to a range of religions. The federal government wants the province of Ontario to accept responsibility for equal funding of non-Catholic religious schools. It would be possible, for example, for the federal government to apply pressure to Ontario by witholding the transfer of other funds, or limiting discretionary spending to offset any federal losses incurred through an expansion of the federal tax credit system, until such time as Ontario FRPSOLHG$WWKHVDPHWLPHLWLVXQMXVWLÀDEOHIRUWKH*RYHUQPHQWRI&DQDGDWRVKLUN its international obligations by claiming that a remedy for a violation of the Covenant will not be instituted until there is a resolution of the bickering over constitutional MXULVGLFWLRQDQGÀQDQFLDOUHVSRQVLELOLW\ The response of the Government of Canada is even more worrisome because of Canada’s leading role in the UN General Assembly and the primary UN human rights body (the UN Commission on Human Rights/Council on Human Rights) concerning resolutions of these bodies on the effective implementation of the human rights treaties. Canada is the lead sponsor of the resolutions in both bodies entitled “Effective implementation of international instruments on human rights, including reporting REOLJDWLRQVXQGHULQWHUQDWLRQDOLQVWUXPHQWVRQKXPDQULJKWVµ6XFKUHVROXWLRQVDIÀUP for example, “the full and effective implementation of United Nations human rights instruments is of major importance to the efforts of the Organization, pursuant to the Charter of the United Nations and the Universal Declaration of Human Rights, to promote universal respect for and observance of human rights and fundamental freedoms”146 $VDUHVXOWRI&DQDGD·VVLJQLÀFDQWUROHLQWKHLQWHUQDWLRQDODGYRFDF\RIWKHHIIHFWLYH implementation of the Covenant, it is especially important that Canada’s disregard of its obligations under the Covenant and the Optional Protocol be the subject of strong objection and commentary. The Annual Reports of the Human Rights Committee to the General Assembly have taken note of Canada’s continuing non-compliance with the Waldman case. The 2001 Annual Report says: “With regard to case No. 694/1996 – Waldman, the Government of Canada informed the Committee, by note of 3 February 2000, that matters of education fall under

145

Canadian Revenue Agency, Information Circular IC 75-23, Tuition Fees and Charitable Donations Paid to Privately Supported Secular and Religious Schools (19 September 1975), infra pp. 157-159, Document #7.

146

Commission on Human Rights Resolution 2002/85, Adopted 26 April 2002; General Assembly Resolution A/RES/57/202, Adopted 18 December 2002.

29

STATE SUPPORT FOR RELIGIOUS EDUCATION

the exclusive jurisdiction of the provinces. The Government of Ontario has communicated that it has no plans to extend funding to private religious schools or to the parents of children that attend such schools, and that it intends to adhere fully to its constitutional obligation to fund Roman Catholic schools. On 17 February 2000, the author sent a critical response to the State party’s reply. He met with the Special Rapporteur on Monday, 13 March 2000. The Special Rapporteur met with a representative of Canada on 18 July 2000. In a further letter, dated 14 February 2001, the author again expresses his dissatisfaction with the State party’s failure to implement the Views and asks the Committee to discuss Canada’s non-compliance at a public meeting or in the context of a follow-up visit. He indicates that the Minister of Education of Ontario has stated that the Government of Ontario “is not prepared to adopt the alternatives suggested by the UNHRC for complying with the decision”.147 The 2002 Annual Report of the Committee to the General Assembly states: “With regard to case No. 694/1996 – Waldman (A/55/40), the author informed the Committee by letter of 20 March 2002 that the State party had failed to take any PHDVXUHVWRFRUUHFWWKHGLVFULPLQDWLRQLGHQWLÀHGE\WKH&RPPLWWHHDQGDVNHGWKH Special Rapporteur to follow up again with the State party’s authorities.”148 In 2004, the Human Rights Committee published a progress report submitted by the Special Rapporteur for Follow-up on Views. With regard to the Waldman case, the Special Rapporteur has recommended that the Committee arrange a meeting with a Canadian Representative: “Follow-up information received from author: … By letters of 20 March 2002 and 2 January 2004, the author reiterated that the Views had still not been implemented and requested to meet again with the Rapporteur. He also requested the Special Rapporteur to meet again with a representative of the State party. Special Rapporteur’s recommendation: A meeting should be arranged with a State party representative.”149 In the fall of 2005 the Human Rights Committee considered Canada’s report on its compliance with the full range of obligations under the Covenant on Civil and Politi-

147

Annual Report of the Human Rights Committee, A/56/40 vol. I (2001) at para. 187.

148

Annual Report of the Human Rights Committee, A/57/40 vol. I (2002) at para. 237; Furthermore, when Canada’s report to another UN human rights treaty body, the Committee on the Elimination of Discrimination Against Women, was considered in January 2003, the Committee’s concluding observations on Canada stated: “The Committee acknowledges the State party’s complex federal, provincial and territorial political and legal structures. However, it underlines the federal Government’s principal responsibility in implementing the Convention.” A/58/38 part I (2003) 54 at para. 349.

149

Follow-Up Progress Report Submitted by the Special Rapporteur for Follow-Up on Views, CCPR/C/80/ FU/1 (2004) at p. 10.

30

INTRODUCTION

cal Rights.1506XFKVWDWHUHSRUWVDUHGXHRQDUHJXODUEDVLVQRUPDOO\HYHU\ÀYH\HDUV Following its consideration of the report, on November 2, 2005 the Committee adopted concluding observations. These assessed Canada’s compliance with its Covenant obligations.1517KH&RPPLWWHHVSHFLÀFDOO\REMHFWHGWRRQJRLQJUHOLJLRXVGLVFULPLQDWLRQE\ Canada, and pointed directly to the failure to provide a remedy in the Waldman case: “The The Committee expresses concern about the State party’s responses relating to the Committee’s views in the case Waldman v. Canada (Communication 694/1996, views adopted on 3 November 1999), requesting that an effective remedy be granted to the author eliminating discrimination on the basis of religion in the distribution of subsidies to schools. (articles 2, 18 and 26) The State party should adopt steps in order to eliminate discrimination on the basis of religion in the funding of schools in Ontario.”152 The Committee has made it very clear that it understands the government of Canada to have an international legal obligation to provide an effective remedy for ongoing religious discrimination.

(g) The Current State of Affairs On 9 May 2001 the Government of Ontario presented its annual budget for the 2001ÀVFDO\HDU153 The Conservative government of the day proposed a refundable tax credit (the Equity in Education Tax Credit) to parents sending their children to non-public schools that would refund to them a maximum of $3,500 in taxes.154 This was to be phased in over 5 years (at $700 per year) starting on 1 January 2002.155 This tax credit, if fully implemented, would not eliminate the difference between levels of funding for Catholic religious education and levels of funding for non-Catholic religious education. However, when combined with the current federal tax deductions available for religious education, it went part way to eliminating the differences in religious education funding levels in Ontario. The initiative met considerable opposition within the provincial legislature in the name of the secular public school system. Opposition politicians at that time – the Liberal party subsequently forming the Government in October 2003 – made numer-

150

Fifth Periodic Report of the Canada under the International Covenant on Civil and Political Rights, CCPR/C/CAN/2004/5, submitted 27 October 2004.

151

Concluding Observations of the Human Rights Committee: Canada, CCPR/C/CAN/CO/5, Adopted 28 October 2005.

152

Ibid., at para. 21.

153

Responsible Choices for Growth and Accountability Act (2001 Budget), supra note 45.

154

Income Tax Act, R.S.O. 1990, c.I.2, s. 8.4.2, as amended by S.O. 2001, c.8, ss. 41 and 42, S.O. 2002, c.22, and S.O. 2003, c.5; Equity in Education Tax Credit, O. Reg. 498/01, s. 3(2)(a). See infra pp. 1073-1093, Documents #67(a), (b), (d) and (e).

155

The initial two years: Responsible Choices for Growth and Accountability Act (2001 Budget), supra note 53, ss. 41 and 42(4); The credit level was subsequently frozen for one year: Keeping the Promise for a Strong Economy Act (Budget Measures), 2002, supraQRWHWKHÀYH\HDUSODQZDVLPSOHPHQWHG in 2003: The Right Choices for Equity in Education Act (Budget Measures), 2003, supra note 47.

31

STATE SUPPORT FOR RELIGIOUS EDUCATION

ous statements claiming the tax credit would destroy the public school system and WKDWLWZRXOGEHQHÀWRQO\ULFK2QWDULRWD[SD\HUV156 The opponents of the tax credit ignored the issue of religious discrimination in education funding and the fact that the tax credit began to address the UN Human Rights Committee’s Views that this discrimination violates Canada’s international legal obligations. The Conservative Ontario Government, however, did not use the Human Rights Committee decision as MXVWLÀFDWLRQIRUWKHWD[FUHGLWDQGUHOLHGLQVWHDGRQWKHUDWLRQDOHRIIXUWKHULQJSDUHQWDO choice in education. Also ignored was the fact that the relative cost of extending funding to small numbers of non-Catholics interested in sending their children to religious school was and is a tiny fraction of the public funds spent on Catholics. 7KHÀUVWLQVWDOOPHQWRIWKHWD[FUHGLWEHJDQRQ-DQXDU\DVRULJLQDOO\LQWHQGHG The second phase, an increase to $1400 starting on 1 January 2003, was delayed in the budget passed in December 2002. The Ontario Government stated this was due WRÀQDQFLDODQGEXGJHWDU\FRQVWUDLQWV,Q-XQHWKH&RQVHUYDWLYH*RYHUQPHQWRI Ontario passed a bill that reinstated the original phased-in schedule for the Equity in Education Tax Credit, and reiterated their commitment to the full implementation of the tax credit which would bring it to a level of 50% by 1 January 2006.157 On 2 October 2003 a provincial election brought to power a new Liberal Government in Ontario. Representatives of the Liberal Party said, both before and after the election, they would rescind the Equity in Education Tax Credit. By the end of 2003, the Equity in Education Tax Credit legislation was in fact rescinded, and even cancelled retroactively to January 2003158, to the detriment of those who had relied on its adoption. As for the federal government, it has taken no steps whatsoever to implement the Committee’s decision in Waldman. Canada remains in violation of its international obligations to end religious discrimination in the education system in the Province of Ontario.

156

In a press release of 5 April 2002, now Ontario Premier Dalton McGuinty stated: “Ontario families want quality, well-funded, public education. Instead the Tories have an ill-conceived plan to drain $500 million a year from public education and transfer it to private schools”. Subsequent to the election, Liberal Finance Minister Greg Sorbara gave a different number. He told the Legislative Standing Committee on Finance and Economic Affairs that in 2003 “we will save $165 million or thereabouts and next year in the order of about $450 million” (Standing Committee on Finance and Economic Affairs, Hansard RI3URFHHGLQJV'HFHPEHU %XWWKHVHÀJXUHVDUHVHULRXVO\LQGLVSXWH$FFRUGLQJWRWKH&DQDGD Customs and Revenue Agency, for 2002, the only year in which the tax credit was in place, a total of WD[ÀOHUVFODLPHGWKHFUHGLWDWDWRWDOFRVWRIPLOOLRQGROODUV/HWWHUIURP0LFKHOLQH3D\DQW Access to Information and Privacy Directorate to Mr. John Loukidelis, Barrister and Solicitor (Simpson Wigle), 15 January 2004; see Memorandum from John Vanessalt, OACS to the Standing Committee on Finance and Economic Affairs, 18 March 2004.)

157

The Right Choices for Equity in Education Act (Budget Measures), 2003, supra note 47, s. 1(3)(5).

158

Supra note 48.

32

33

Yes – separate schools (Protestant or Catholic) receive full funding; historical and associate schools (which are faith based) receive partial funding

no

yes – separate schools (Catholic (and one Protestant school board) receive full funding); independent schools receive no funding

Manitoba

Ontario

Yes – full funding is provided to separate schools (Catholic or Protestant), Francophone and alternative schools (which can be faith-based); other independent faith-based schools may receive lesser (partial) funding

Alberta

Saskatchewan

no

British Columbia

Does the province have higher levels of funding for separate schools (Roman Catholic or Protestant) than other religious schools or independent/secular schools?

0% if a separate school; 100% for all other religious schools

59% or less

100% for all other religious based schools

50% or less, if a historical or associate school

0% if a separate school

Approximately 63-100% for all other religious schools

0% if a separate or alternative school

50% to 100%

What percentage of the costs of education of a child in a religious school (which meets provincial standards) is borne by the parent as compared to the cost borne by the parent of a child in a public school (assuming the latter costs are nil)? (b) yes

(b) yes (b) no as compared to separate – essentially Catholic – schools, yes as compared to other religious schools

(a) no

(a) yes

(b) no, some religious schools may receive partial to full funding

(a) yes, but only secular alternative schools (special education)

(b) yes as between separate schools and alternative schools, no as between Charter schools and separate or alternative schools, no as compared to other religious schools

(a) yes- Charter schools and other independent secular schools

(a) yes

(b) If so, is this funding on the same basis as religious schools?

(a) Does the province fund independent/secular schools?

&RPSDUDWLYH7DEOHRI3URYLQFLDODQG7HUULWRULDO)XQGLQJLQ&DQDGDIRU5HOLJLRXVDQG6HFXODU6FKRROV

Annex

INTRODUCTION

34

yes, in theory separate schools receive full funding (Catholic or Protestant)

Nunavut Territory

no , but students in public schools must take a religion course (though there are limited provisions to opt out)

Newfoundland

yes – separate schools receive full funding (Catholic, and in theory Protestant); independent schools receive no funding

no

Nova Scotia

Northwest Territories

no

Prince Edward Island

Yes, Catholic schools receive funding, and in theory independent schools receive no funding; however in theory, a religious based school could be formed within the public system, but there has been no demand to do so

no

New Brunswick

Yukon Territory

no, but students in public schools take one of three religion courses: Catholic, Protestant or moral education

Quebec

(b) yes

(a) no (b) no as compared to separate schools (in theory, as there are no separate schools), yes as compared to all other religions

100% in theory, for all other religious based schools

(b) no as compared to separate schools, yes as compared to all other religions

100% for all other religious based schools 0% in theory, if a separate school;

(a) no

(b) No, in theory, as compared to separate schools; no in theory, if a religious school was formed in the public system; yes in theory as compared to religious independent schools not formed within the public system

(a) No, in theory

(b) no, if one takes into account the provision of religion classes in public schools, yes as compared to independent religious schools

(a) no

(b) yes

(a) no, with the exception of a textbook tax credit for First Nations schools

(a) no

(b) yes

0% if a separate school;

0%, in theory, if it is a school formed within the public school system; 100% in theory, if it is an independent school that is not part of the public school system.

100%

100%

100%

(a) no

b) no, if one takes into account the provision of Protestant and Catholic religion classes in public schools, yes as compared to independent religious schools

100% if non-accredited

100%

a) yes

42% – 49% if accredited

STATE SUPPORT FOR RELIGIOUS EDUCATION

1. Canadian Law #1 An Act to restore to Roman Catholics in Upper Canada certain rights in respect to Separate Schools, 26 Vic. Cap. 5, 5th May, 1863 (Scott Act) The Act of 1863, which pre-dates confederation, is the statutory basis of the rights and privileges of Roman Catholic separate schools found in the Constitution Act 1867.

$Q$FWWRUHVWRUHWR5RPDQ&DWKROLFVLQ8SSHU&DQDGD certain rights in respect to Separate Schools,1 1863 Preamble :+(5($6 it is just and proper to restore to Roman Catholics in Upper Canada certain rights which they formerly enjoyed in respect to Separate Schools, and to bring the provisions of the Law respecting Separate Schools more in harmony with the provisions of the Law respecting Common Schools: Therefore, Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows:–

Separate School Act of 1855 repealed ,6HFWLRQVHLJKWHHQWRWKLUW\VL[ERWKLQFOXVLYHRIFKDSWHUVL[W\ÀYHRIWKH&RQVROLGDWHG Statutes for Upper Canada, entitled, “An Act respecting Separate Schools”, are hereby repealed, and the following shall be substituted in lieu thereof, and be deemed to form part of the said Act.

Five heads of families may call a meeting ,,$Q\QXPEHURISHUVRQVQRWOHVVWKDQÀYHEHLQJKHDGVRIIDPLOLHVDQGIUHHKROGHUV or householders, resident within any School section of any Township, Incorporated Village or Town, or within any ward of any City or Town, and being Roman Catholics, may convene a public meeting of persons desiring to establish a Separate School for Roman Catholics in such School Section or ward, for the election of Trustees for the management of the same.

1

Editor’s Note: This version of The Act of 1863 is taken from a report of Egerton Ryerson, Superintendent of Education from 1844-1875, to the Legislative Assembly in 1858. He compares The Act of 1863 with the prior Taché Act, 1855. (The Taché Act, 1855 was substantially reproduced in the Consolidation of the Statutes of Upper Canada, Chapter LXV, An Act Respecting Separate Schools.) The comments throughout this document on particular sections of The Act of 1863 are from Ryerson’s report.

35

STATE SUPPORT FOR RELIGIOUS EDUCATION

Majority present to elect three Trustees III. A majority of the persons present, being freeholders or householders, and being Roman Catholics, and not candidates for election as Trustees, may, at any such meeting, elect three persons resident within such section or an adjoining section to act as Trustees for the management of such Separate School, and any person, being a British subject, not less than twenty-one years of age, may be elected as a Trustee, whether he be a freeholder or householder, or not. (Note.– In Common School Sections, any number present, however few, at a lawful meeting for the election of Trustees, can elect them. There is no reason for a different provision in regard to the number present for the election of Separate School Trustees.)

Notice of establishment of Separate School IV. Notice in writing that such meeting has been held and of such election of Trustees, shall be given by the parties present at such meeting to the Reeve or head of the Municipality, or to the Chairman of the Board of Common School Trustees, in the Township, Incorporated Village, Town, or City in which such School is about to be established, designating by their names, professions and residences, the persons elected in the manner aforesaid, as Trustees for the management thereof; and every such notice VKDOOEHGHOLYHUHGWRWKHSURSHURIÀFHUE\RQHRIWKH7UXVWHHVVRHOHFWHGDQGLWVKDOOEH WKHGXW\RIWKHRIÀFHUUHFHLYLQJDFRS\RIWKHVDPHWRHQGRUVHWKHUHRQWKHGDWHRIWKH UHFHLSWWKHUHRIDQGWRGHOLYHUDFRS\RIWKHVDPHVRHQGRUVHGDQGGXO\FHUWLÀHGE\KLP to such Trustee, and from the day of the delivery and receipt of every such notice, or LQWKHHYHQWRIWKHQHJOHFWRUUHIXVDORIVXFKRIÀFHUWRGHOLYHUDFRS\VRHQGRUVHGDQG FHUWLÀHGWKHQIURPWKHGD\RIWKHGHOLYHU\RIVXFKQRWLFHWKH7UXVWHHVWKHUHLQQDPHG shall be a body corporate, under the name of “The Trustees of the Roman Catholic Separate School for the Section number ____, in the township of ____, or for the Ward of ____, in the City or Town (as the case may be) or for the Village of ____, in the County of ____.” (a) (a) These sections embrace the eighteenth to twenty-second sections inclusive of the existing Separate School Act of 1855, and are the same in substance as they; as are the second and third sections substantially the same as the eighteenth and nineteenth sections of the present Separate School Act.

Board of Separate School Trustees in Cities and Towns V. The Trustees of Separate Schools heretofore elected, or hereafter to be elected according to the provisions of this Act, in the several Wards of any City or Town shall form one body Corporate, under the title of “The Board of Trustees of the Roman Catholic Separate Schools for the City (or Town) of ____.” (b) (b) This section is the substitute for the twenty-third section of the present Separate School Act [of 1855], and assimilates the provision of the law in regard to Separate Schools and their supporters, to that of the Common School Act.

36

1. CANADIAN LAW

Union of Separate Schools in one or more School Sections VI. It shall be lawful for the majority of the rate-paying supporters of the Separate School, in each Separate School Section, whether the Sections be in the same or adjoining Municipalities, at a public meeting duly called by the Separate School Trustees of each such Section, to form such Sections into a Separate School Union Section, of which XQLRQRI6HFWLRQVWKH7UXVWHHVVKDOOJLYHQRWLFHZLWKLQÀIWHHQGD\VWRWKH&OHUNRU&OHUNV of the Municipality or Municipalities, and to the Chief Superintendent of Education; and each such Separate School Union Section thus formed, shall be deemed one School Section for all Roman Catholic Separate School purposes, and shall every year thereafter be represented by three Trustees, to be elected as in Common School Sections.

Union Separate School Section – Corporation formed 2. And the said Trustees shall form a body corporate, under the title of “The Board of Trustees of the Roman Catholic United Separate Schools for the United Sections Nos. ____ (as the case may be,) in the ____ (as the case may be.)” (c) (c) This clause or section is designed to provide that the supporters of Separate Schools may form union Sections, the same as they may now do in the Cities and Towns, and which supporters of Common Schools may also do, as provided in the 41st, 42nd, 43rd and 44th sections of the Consolidated Common School Act. Previous to 1855, the Township Councils prescribed the boundaries of Separate as well as of Common School Sections; but as the names of all the petitioners for a Separate School had to be included in the Separate School Section to be formed, they virtually formed their own Section. By the Roman Catholic Separate School Act of 1855, the boundaries of a Separate School Section were made identical with those of the Common School Section, but no provision was made for the union of Separate Schools in adjoining Sections as had been made for the union of Common School Sections. This clause supplies the omission of the Roman Catholic Separate School Act of 1855.

Powers of Separate School Trustees VII. The Trustees of Separate Schools forming a body corporate under this Act, shall have the power to impose, levy and collect School rates or subscriptions, upon and from persons sending children to or subscribing towards the support of such Schools, and shall have all the powers in respect of Separate Schools, that the Trustees of Common Schools have and possess under the provisions of the Act relating to Common Schools. (d) (d) This section is the same as the twenty-fourth section of the present Roman Catholic Separate School Act.

Trustees may copy Assessment Roll of Municipality 9,,,7KHFOHUNRURWKHURIÀFHURID0XQLFLSDOLW\ZLWKLQRUDGMRLQLQJZKLFKD6HSDUDWH School is established, having possession of the Assessor’s or Collector’s roll of the said Municipality, shall allow any one of the said Trustees or their authorized collector to make a copy of such roll in so far as it relates to the persons supporting the Separate School under their charge. (e) (e) There is no provision in the present Roman Catholic Separate School Act [of 1855], by which the Trustees or their collector can have access to the assessor’s or collector’s roll, as is provided by law, in regard to the Trustees of a Common School and their collector. This section supplies the omission.

37

STATE SUPPORT FOR RELIGIOUS EDUCATION

'HFODUDWLRQRIRIÀFHE\6HSDUDWH6FKRRO7UXVWHHV IX. The Trustees of Separate Schools shall take and subscribe the following declaration before any Justice of the Peace, Reeve, or Chairman of the Board of Common Schools: “I, ____, will truly and faithfully, to the best of my judgment and ability, discharge the GXWLHVRIWKHRIÀFHRI6FKRRO7UXVWHHWRZKLFK,KDYHEHHQHOHFWHGµ²DQGWKH\VKDOO perform the same duties and be subject to the same penalties as Trustees of Common Schools: and teachers of Separate Schools shall be liable to the same obligations and penalties as teachers of Common Schools. (f) I 7KLVGHFODUDWLRQRIRIÀFHLVUHTXLUHGRI&RPPRQ6FKRRO7UXVWHHVE\WKH&RPPRQ6FKRRO$PHQGPHQW Act of 1860; and the duties and penalties here imposed upon Separate School trustees and teachers are WKHVDPHDVWKRVHLPSRVHGE\WKHWZHQW\ÀIWKVHFWLRQRIWKH5RPDQ&DWKROLF6HSDUDWH6FKRRO$FWRI 1855.

7HUPRIRIÀFHRI6HSDUDWH6FKRRO7UXVWHHV ;7KH7UXVWHHVRI6HSDUDWH6FKRROVVKDOOUHPDLQUHVSHFWLYHO\LQRIÀFHIRUWKHVDPH periods of time that the Trustees for Common Schools do, and as is provided by the thirteenth section and its sub-sections, for the Common School Act of the Consolidated Statutes for Upper Canada; but no Trustee shall be re-elected without his consent, XQOHVVDIWHUWKHH[SLUDWLRQRIIRXU\HDUVIURPWKHWLPHKHZHQWRXWRIRIÀFH3URYLGHG always, that whenever in any City or Town, divided into Wards, a united Board now exists, or shall be hereafter established, there shall be for every Ward two Trustees, HDFKRIZKRPDIWHUWKHÀUVWHOHFWLRQRI7UXVWHHVVKDOOFRQWLQXHLQRIÀFHWZR\HDUVDQG until his successor has been elected, and one of such Trustees shall retire on the second :HGQHVGD\LQ-DQXDU\\HDUO\LQURWDWLRQDQGSURYLGHGDOVRWKDWDWWKHÀUVWPHHWLQJ of the Trustees after the election on the second Wednesday in January next, it shall be GHWHUPLQHGE\ORWZKLFKRIWKHVDLG7UXVWHHVLQHDFKZDUGVKDOOUHWLUHIURPRIÀFHDW the time for one year longer. (g) (g) This section is a substitute for the twenty-sixth section of the Roman Catholic Separate School Act of 1855, and assimilates the Separate to the Common School law, in respect to the election of Trustees, DQGWKHLUFRQWLQXDQFHLQRIÀFHLQERWKVHFWLRQVDQGFLWLHVDQGWRZQV

3HULRGRIRIÀFH²7LPHDQGPRGHRIHOHFWLRQ ;,$IWHUWKHHVWDEOLVKPHQWRIDQ\6HSDUDWH6FKRROWKH7UXVWHHVWKHUHRIVKDOOKROGRIÀFH for the same period and be elected at the same time in each year that the Trustees of Common Schools are, and all the provisions of the Common School Act relating to the mode and time of election, appointments and duties of Chairman and Secretary at the DQQXDOPHHWLQJVWHUPRIRIÀFHDQGPDQQHURIÀOOLQJXSYDFDQFLHVVKDOOEHGHHPHG and held to apply to this Act. (h) (h) This section contains a general provision for assimilating the provisions of the Separate and Common School Acts.

38

1. CANADIAN LAW

R. C. Children admitted from other School Sections XII. The Trustees of Separate Schools may allow children from other School Sections, whose parents or lawful guardians are Roman Catholics, to be received into any Separate School under their management, at the request of such parents or guardians; and no children attending such School shall be included in the Return, hereafter required to be made to the Chief Superintendent of Education, unless they are Roman Catholics. (i) (i) This section corresponds precisely with the twenty-seventh section of the Roman Catholic Separate School Act of 1855.

7HDFKHUV·&HUWLÀFDWHRI4XDOLÀFDWLRQ XIII. The Teachers of Separate Schools under this Act shall be subject to the same H[DPLQDWLRQV DQG UHFHLYH WKHLU &HUWLÀFDWHV RI TXDOLÀFDWLRQ LQ WKH VDPH PDQQHU DV &RPPRQ6FKRRO7HDFKHUVJHQHUDOO\SURYLGHGWKDWSHUVRQVTXDOLÀHGE\ODZDV7HDFKHUVHLWKHULQ8SSHURU/RZHU&DQDGDVKDOOEHFRQVLGHUHGTXDOLÀHG7HDFKHUVIRUWKH purposes of this Act. (j) (j) This section is a substitute for the twenty-eighth section of the present Separate School Act [of 1855]; and is, all must admit, a very great improvement upon it.

Supporters of Separate Schools exempted from Common School Rates XIV. Every person paying rates, whether as proprietor or tenant, who, by himself or his DJHQWRQRUEHIRUHWKHÀUVWGD\RI0DUFKLQDQ\\HDUJLYHVRUZKRRQRUEHIRUHWKH ÀUVWGD\RI0DUFKRIWKHSUHVHQW\HDUKDVJLYHQWRWKH&OHUNRIWKH0XQLFLSDOLW\QRWLFH in writing that he is a Roman Catholic, and a supporter of a Separate School situated in the said Municipality, or in a Municipality contiguous thereto, shall be exempted from the payment of all rates imposed for the support of Common Schools, and of Common School Libraries, or for the purchase of land or erected of buildings for Common School purposes, within the City, Town, Incorporated Village, or section in which he resides, for the then current year, and every subsequent year thereafter, while he continues a supporter of a Separate School. – And such notice shall not be required to be renewed annually; and it shall be the duty of the Trustees of every Separate School to transmit to the Clerk of the Municipality or Clerks of Municipalities (as the case may be) on RUEHIRUHWKHÀUVWGD\RI-XQHLQHDFK\HDUDFRUUHFWOLVWRIWKHQDPHVDQGUHVLGHQFHV of all persons supporting the Separate Schools under their management; and every rate-payer whose name shall not appear on such list shall be rated for the support of Common Schools. (k) (k) This section is a substitute for the twenty-ninth section of the present Separate School Act [of 1855]. ,WVXEVWLWXWHVWKHÀUVWGD\RI0DUFKIRUWKHÀUVWGD\RI)HEUXDU\²ZKLFKFDQFDXVHLQFRQYHQLHQFHRU disadvantage to nobody, as municipal rates for School purposes are never levied until long after March. The proprietor or tenant, by himself or his agent, gives notice; and it has already been legally decided that a notice by the agent of a proprietor or tenant is as valid, according to the present Separate School Act [of 1855], as a notice by himself in person, and is so accepted and acted upon. It is unjust, therefore, to omit expressing what is already held to be the law, merely to afford an opportunity and pretext for vexing and annoying individuals in certain localities. Another provision in this section is, that the notice

39

STATE SUPPORT FOR RELIGIOUS EDUCATION

shall not be repeated by the individual annually, but shall be repeated, with his address, by the trustees, as his agent. This is the practice which has already been pursued in some municipalities. In Lower Canada, WKHVXSSRUWHURIWKHGLVVHQWLHQWRU6HSDUDWH6FKRROQHYHUUHSHDWVRUUHQHZVKLVÀUVWQRWLFHDVDVXSSRUWHU of such School; and why should the Roman Catholic be required to do that in Upper Canada which the Protestants are not required to do in Lower Canada, unless to inconvenience and annoy him as much as possible? This section requires each Roman Catholic, proprietor or tenant, to give notice to the Clerk of the Municipality when he desires to become a supporter of a Separate School; and the eighteenth requires him to give notice to the same clerk when he desires to cease being a supporter of such School; and in the interval, the trustees are required annually to give to same clerk (for the information of the municipal council in levying School rates) the name and residence of each supporter of a Separate School; and they are subject to a severe penalty in case they make an incorrect return.

&HUWLÀFDWHRIQRWLFHWREHHQGRUVHG XV. Every Clerk of a Municipality, upon receiving any such notice, shall deliver a FHUWLÀFDWHWRWKHSHUVRQJLYLQJVXFKQRWLFHWRWKHHIIHFWWKDWWKHVDPHKDVEHHQJLYHQ and showing the day of such notice.

Penalty for fraudulent notice XVI. Any person who fraudulently gives any such notice, or willfully makes any false statement therein, shall not thereby secure any exemption from rates, and shall be liable to a penalty of forty dollars, recoverable, with costs, before any Justice of the Peace, at the suit of the Municipality interested.

Exception as to Rates already imposed XVII. Nothing in the last three preceding sections contained, shall exempt any person from paying any rate for the support of Common Schools or Common School Libraries, or for the erection of a School House or School Houses, imposed before the establishment of such Separate School.

Persons may withdraw their support from Separate Schools XVIII. Any Roman Catholic who may desire to withdraw his support from a Separate School, shall give notice in writing to the clerk of the Municipality before the second Wednesday in January in any year, otherwise he shall be deemed a supporter of such School: Provided always, that any person who shall have withdrawn his support from any Roman Catholic Separate School, shall not be exempted from paying any rate for the support of Separate Schools or Separate School Libraries, or for the erection of a Separate School House, imposed before the time of his withdrawing such support from the Separate School.

6XSSRUWHUVRI6HSDUDWH6FKRROVGHÀQHG XIX. No person shall be deemed a supporter of any Separate School unless he resides within three miles (in a direct line) of the site of the School House. (l) (l) No explanatory remarks are required; and no one will object respecting the directions given, and the UHVWULFWLRQVDQGSHQDOWLHVLPSRVHGE\WKHÀIWHHQWKVL[WHHQWKVHYHQWHHQWKHLJKWHHQWKDQGQLQHWHHQWK sections of the Bill.

40

1. CANADIAN LAW

Conditions of sharing in Legislative School and other grants XX. Every Separate School shall be entitled to a share in the fund annually granted by the Legislature of this Province for the support of Common Schools, and shall be entitled also to a share in all other public grants, investments and allotments for Common School purposes now made or hereafter to be made by the Province or the Municipal authorities, according to the average number of pupils attending such School during the twelve next preceding months, or during the number of months which may have elapsed from the establishment of a new Separate School, as compared with the whole average number of pupils attending School in the same City, Town, Village, or Township. (m) P 7KLVVHFWLRQLVDVXEVWLWXWHIRUWKHÀUVWSDUWRIWKHWKLUW\WKLUGVHFWLRQRIWKHSUHVHQW6HSDUDWH6FKRRO$FW [of 1855]. The point of difference is, that this section gives Separate Schools the right of sharing in other ‘Public Grants, investments, and allotments for Common School purposes [’] than the Parliamentary School Grant. The only public grant or investment that can come within this provision, is the Clergy Reserve fund, when applied by Municipalities to Common School purposes. This fund is distributed by law among the several Municipalities according to the number of rate-payers in each – Roman Catholic rate-payers of course, as well as Protestant. This fund forms no part of the Common School fund, and is not subject to Common School regulations. When a Municipal Council chooses to apply the portion of the Clergy Reserve fund apportioned to its Municipality to Common School purposes, it ought to do so in the equal interest of all the ratepayers, and not in a way to exclude any portion. If the Common School law allows portions of those rate-payers, (both Protestant and Roman Catholic) to have Common Separate Schools, they are acting under law in availing themselves of this permission as much as those who avail themselves of the permission to establish Common Schools. For a Municipal Council to apply the share of the Clergy Reserve Fund placed under its control, to aid one class of these Schools and not the other, is as clearly to exclude one class of ratepayer from their rightful share of that fund as if they were proscribed by name. Some Municipal Councils have acted very justly and fairly in regard to both classes of Common Schools; and if any other Councils have done or should do otherwise, the Legislature should surely protect rights of the minority against any such proscription.

Shall not share in Municipal Assessment XXI. Nothing herein contained shall entitle any such Separate School within any City, Town, Incorporated Village or Township, to any part or portion of school moneys arising or accruing from local assessment for Common School purposes within the City, Town, Village or Township, or the County or Union of Counties within which the City, Town, Village or Township is situate. (n) (n) This section corresponds with the second proviso of the thirty-third section of the present Separate School Act [of 1855], and effectually protects all school moneys arising from local assessment against any claims in behalf of Separate Schools.

Return to be sent half-yearly to Chief Superintendent XXII. The Trustees of each Separate School shall, on or before the thirtieth day of June DQGWKHWKLUW\ÀUVWGD\RI'HFHPEHURIHYHU\\HDUWUDQVPLWWRWKH&KLHI6XSHULQWHQGHQW of Education for Upper Canada, a correct return of the names of the children attending such schools, together with the average attendance during the six next preceding months, or during the number of months which have elapsed since the establishment thereof, and the number of months it has been so kept open; and the Chief Superintendent shall 41

STATE SUPPORT FOR RELIGIOUS EDUCATION

thereupon determine the proportion which the Trustees of such Separate School are entitled to receive out of the Legislative grant, and shall pay over the amount thereof to such Trustees. (r) (r) This section is identical with the thirty-fourth section of the present Separate School Act [of 1855], except that part which requires the returns to be made on oath – a requirement never exacted of Common School Trustees, never required of Separate School Trustees before 1855 – not required of the Trustees of Protestant Separate Schools in Lower Canada since 1856 – and for which requirement no reason of justice or necessity exists, as the same penalties are imposed for making incorrect returns to obtain additional aid, as if they were made on oath.   ,WPD\KHUHEHUHPDUNHGWKDWWKHÀUVWSURYLVRLQWKHWKLUWHHQWKVHFWLRQRIWKHSUHVHQW6HSDUDWH6FKRRO Act [of 1855] (which says ‘that no Separate Schools shall be entitled to share in such fund unless the DYHUDJHQXPEHURISXSLOVDWWHQGLQJWKHVDPHEHÀIWHHQRUPRUH· KDVEHHQRPLWWHG,WZDVFRQWDLQHGLQ WKH%LOODVÀUVWLQWURGXFHGEXWZDVVWUXFNRXWDWWKHVXJJHVWLRQRIWKH&KLHI6XSHULQWHQGHQWZKRVWDWHG it to be useless and inoperative – not required in regard to Common Schools, the average half-yearly DWWHQGDQFH LQ VRPH RI ZKLFK IHOO EHORZ ÀIWHHQ ² DQG DOWKRXJK 6HSDUDWH 6FKRROV ZKRVH KDOI\HDUO\ DWWHQGDQFHGLGQRWDPRXQWWRÀIWHHQZHUHQRWlegally entitled to share in the Legislative School Grant, \HWWKDWDQ\VXFKVFKRRONHSWRSHQE\ORFDOOLEHUDOLW\DFFRUGLQJWRODZE\DOHJDOO\TXDOLÀHGWHDFKHU was equitably entitled to share in the Legislative School Grant, yet that any such school kept open by ORFDOOLEHUDOLW\DFFRUGLQJWRODZE\DOHJDOO\TXDOLÀHGWHDFKHUZDVequitably entitled to aid according WRLWVZRUNLQJZKHWKHULWVSXSLOVQXPEHUHGPRUHRUOHVVWKDQÀIWHHQ There is also another point on which a remark may here be made. It has been erroneously alleged that this Bill relaxes the existing law in regard to the time of keeping open schools each year. It will be VHHQE\UHIHUULQJWRWKHÀUVWSDUWRIWKHUGDQGWKHWKVHFWLRQRIWKHSUHVHQW6HSDUDWH6FKRRO$FW>RI 1855], that a Separate School is entitled to receive aid from the Legislative School Grant in proportion to the time (in connection with average attendance) it is kept open, whether more or less than six months and the twenty-second section of the Bill makes not the least change in that respect.

Who are Visitors of Separate Schools XXIII. All Judges, members of the Legislature, the heads of the Municipal bodies in their respective localities, the Chief Superintendent and Local Superintendent of Common Schools, and Clergymen of the Roman Catholic Church, shall be Visitors of Separate Schools. (s) (s) Hitherto none but clergymen of the Roman Catholic Church have been admitted as visitors of Separate Schools. This section contains important and liberal provisions in the right direction.   7KHSURYLVLRQVRIWKHWZHQW\IRXUWKDQGWZHQW\ÀIWKVHFWLRQVRIWKH%LOOQHHGQRUHPDUNDQGZLOOEH objected to by one.

Election of Trustees void in certain cases XXIV. The election of Trustees for any Separate School shall become void unless a Separate School be established under their management within three months from the election of such Trustees.

Supporters of Roman Catholic Schools not to vote at C. S. Election XXV. No person subscribing towards the support of a Separate School established as herein provided, or sending children thereto, shall be allowed to vote at the election of any Trustee for a Common School in the City, Town, Village or Township in which such Separate School is situate.

42

1. CANADIAN LAW

2IÀFLDO,QVSHFWLRQRI5&6HSDUDWH6FKRROV XXVI. The Roman Catholic Separate Schools (with their Registers) shall be subject to such inspection as may be directed from time to time by the Chief Superintendent of Education and shall be subject also to such regulations as may be imposed from time to time by the Council of Public Instruction for Upper Canada. (t) (t) The provisions of this section have not existed in any previous Act in respect to separate Schools; they bring the Separate Schools as completely under the control of public regulations and inspection as the Common Schools.

'LVDJUHHPHQWEHWZHHQ5&7UXVWHHVDQG2IÀFLDOV XXVII. In the event of any disagreement between Trustees of Roman Catholic Separate Schools, and Local Superintendents of Common Schools, or other municipal authorities, the case in dispute shall be referred to the equitable arbitrament of the Chief Superintendent of Education in Upper Canada; subject nevertheless to appeal to the *RYHUQRULQ&RXQFLOZKRVHDZDUGVKDOOEHÀQDOLQDOOFDVHV(u) (u) This is also a new legal provision. The latter par (sic) of this section is needless, and is not contained in the Grammar or Common School Act, as all decisions of the Chief Superintendent may be appealed from to the Governor in Council. His decisions have been appealed from in several instances, but have in every instance been sustained.

Commencement of this Act ;;9,,,7KLV$FWVKDOOFRPHLQWRIRUFHDQGWDNHHIIHFWIURPDQGDIWHUWKHWKLUW\ÀUVW day of December next: But all contracts and engagements made, and rates imposed, and all corporations formed under the Separate School Law, hereby repealed, shall remain in force as if made under the authority of this Act.

43

#2 Section 93, Constitution Act, 1867 (U.K.), 30 & 31 Vict., c.3, UHSULQWHGLQ56&$SS,,1R Section 93(1) of Canada’s Constitution Act states that “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.” This is the constitutional basis for public funding of Catholic separate school education in the province of Ontario.

Constitution Act, 1867 Education Legislation respecting Education

93. In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provision:(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: (2) All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen’s Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen’s Protestant and Roman Catholic Subjects in Quebec: (3) Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen’s Subjects in relation to Education: (4) In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section.50

45

STATE SUPPORT FOR RELIGIOUS EDUCATION

93A. Paragraphs (1) to (4) of section 93 do not apply to Quebec.50.1

Quebec Footnotes 50

Altered for Manitoba by section 22 of the Manitoba Act, 1870, 33 Vict., c. 3 &DQDGD FRQÀUPHGE\WKHConstitution Act, 1871), which reads as follows: 22. In and for the Province, the said 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 or practice in the Province at the Union: (2) An appeal shall lie to the Governor General in Council from any Act or decision of the Legislature of the Province, or of any Provincial Authority, affecting any right or privilege, of the Protestant or Roman Catholic minority of the Queen’s subjects in relation to Education: (3) In case any such Provincial Law, as from time to time seems to the Governor General in Council requisite for the due execution of the provisions of this section, is not made, or in case any decision of the Governor General in Council on any appeal under this section is not duly executed by the proper Provincial Authority in that behalf, then, and in every such case, and as far only as the circumstances of each case require, the Parliament of Canada may make remedial Laws for the due execution of the provision of this section, and of any decision of the Governor General in Council under this section. Altered for Alberta by section 17 of the Alberta Act, 4-5 Edw. VII, c. 3, 1905 (Canada), which reads as follows: 17. Section 93 of the Constitution 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 Northwest 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. (3) Where the expression “by law” is employed in paragraph 3 of the said section 93, it shall be held to mean the law as set out in the said chapters 29 and 30, and where the expression “at the Union” is employed, in the said 46

1. CANADIAN LAW

paragraph 3, it shall be held to mean the date at which this Act comes into force. Altered for Saskatchewan by section 17 of the Saskatchewan Act, 4-5 Edw. VII, c. 42, 1905 (Canada), which reads as follows: 17. Section 93 of the Constitution 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 Northwest 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. (3) Where the expression “by law” is employed in paragraph (3) of the said section 93, it shall be held to mean the law as set out in the said chapters 29 and 30; and where the expression “at the Union” is employed in the said paragraph (3), it shall be held to mean the date at which this Act comes into force. Term 17 of the Terms of Union of Newfoundland with Canada, set out in the penultimate paragraph of this footnote, was amended by the Constitution Amendment, 1998 (Newfoundland Act), (see SI/98-25) and now reads as follows: 17. (1) In lieu of section ninety-three of the Constitution Act, 1867, this term shall apply in respect of the Province of Newfoundland. (2) In and for the Province of Newfoundland, the Legislature shall have exclusive authority to make laws in relation to education, but shall provide for courses in UHOLJLRQWKDWDUHQRWVSHFLÀFWRDUHOLJLRXVGHQRPLQDWLRQ (3) Religious observances shall be permitted in a school where requested by parents. Prior to the Constitution Amendment, 1997 (Newfoundland Act), Term 17 of the Terms of Union of Newfoundland with Canada had been amended by the Constitution Amendment, 1987 (Newfoundland Act), (see SI/88-11) to read as follows: 17. (1) In lieu of section ninety-three of the Constitution Act, 1867, the following term shall apply in respect of the Province of Newfoundland: In and for the Province of Newfoundland the Legislature shall have exclusive authority to make laws in relation to education, but the Legislature will not

47

STATE SUPPORT FOR RELIGIOUS EDUCATION

have authority to make laws prejudicially affecting any right or privilege with respect to denominational schools, common (amalgamated) schools, or denominational colleges, that any class or classes of persons have by law in Newfoundland at the date of Union, and out of public funds of the Province of Newfoundland, provided for education, (a) all such schools shall receive their share of such funds in accordance with scales determined on a non-discriminatory basis from time to time by the Legislature for all schools then being conducted under authority of the Legislature; and (b) all such colleges shall receive their share of any grant from time to time voted for all colleges then being conducted under authority of the Legislature, such grant being distributed on a non-discriminatory basis. (2) For the purposes of paragraph one of this Term, the Pentecostal Assemblies of Newfoundland have in Newfoundland all the same rights and privileges with respect to denominational schools and denominational colleges as any other class or classes of persons had by law in Newfoundland at the date of Union, and the words “all such schools” in paragraph (a) of paragraph one of this Term and the words “all such colleges” in paragraph (b) of paragraph one of this Term include, respectively, the schools and the colleges of the Pentecostal Assemblies of Newfoundland. 7HUP  RI WKH 7HUPV RI 8QLRQ RI 1HZIRXQGODQG ZLWK &DQDGD FRQÀUPHG E\ WKH Newfoundland Act, 12-13 Geo. VI, c. 22 (U.K.)), which Term provided an alternative for Newfoundland, originally read as follows: 17. In lieu of section ninety-three of the Constitution Act, 1867, the following term shall apply in respect of the Province of Newfoundland: In and for the Province of Newfoundland the Legislature shall have exclusive authority to make laws in relation to education, but the Legislature will not have authority to make laws prejudicially affecting any right or privilege with respect to denominational schools, common (amalgamated) schools, or denominational colleges, that any class or classes of persons have by law in Newfoundland at the date of Union, and out of public funds of the Province of Newfoundland, provided for education, (a) all such schools shall receive their share of such funds in accordance with scales determined on a non-discriminatory basis from time to time by the Legislature for all schools then being conducted under authority of the Legislature; and (b) all such colleges shall receive their share of any grant from time to time voted for all colleges then being conducted under authority of the Legislature, such grant being distributed on a non-discriminatory basis. See also sections 23, 29 and 59 of the Constitution Act, 1982. Section 23 provides for new minority language educational rights and section 59 permits a delay in respect of

48

1. CANADIAN LAW

the coming into force in Quebec of one aspect of those rights. Section 29 provides that nothing in the Canadian Charter of Rights and Freedoms abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools. 50.1

Added by the Constitution Amendment, 1997 (Quebec). See SI/97-141.

49

#3 Canadian Charter of Rights and Freedoms, Schedule B, Canada Act (U.K.), S.C. 1982, c. 11, Part I, Sections 1, 2, 15, 23 and 29; Part VII, Section 52 Provisions of the Canadian Charter of Rights and Freedoms include the guarantee RIVSHFLÀFULJKWVDQGIUHHGRPVVXFKDVIXQGDPHQWDOIUHHGRPVV DQGHTXDOLW\ rights (s. 15), and also provides for their limitation (s. 1). Section 23 protects the right to education in the French or English language for linguistic minority populations. Section 29 preserves and protects the rights of denominational, separate or dissentient schools. Section 52 of the Constitution Act 1982 provides for the supremacy of the Constitution and renders laws which are inconsistent with it “of no force or effect”.

SCHEDULE B CONSTITUTION ACT, 1982 3$57 &$1$',$1&+$57(52)5,*+76$1')5(('206 Whereas Canada is founded upon prinicples that recognize the supremacy of God and the rule of law:

Rights and freedoms in Canada

Guarantee of Rights and Freedoms 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable OLPLWVSUHVFULEHGE\ODZDVFDQEHGHPRQVWUDEO\MXVWLÀHGLQDIUHH and democratic society. Fundamental Freedoms

Fundamental freedoms

2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media communication; (c) freedom of peaceful assembly; and (d) freedom of association. …

51

STATE SUPPORT FOR RELIGIOUS EDUCATION

Equality before and under law and equal protection DQGEHQHÀWRIODZ

$IÀUPDWLYHDFWLRQ programs

Equality Rights 15. (1) Every individual is equal before and under the law and has WKHULJKWWRWKHHTXDOSURWHFWLRQDQGHTXDOEHQHÀWRIWKHODZZLWKRXW discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, sex, age or mental or physical disability. …

Language of instruction

Minority Language Educational Rights 23. (1) Citizens of Canada D ZKRVH ZKRVHÀUVWODQJXDJHOHDUQHGDQGVWLOOXQGHUVWRRGLVWKDWRIWKH ÀUVW ODQJXDJH OHDUQHG DQG VWLOO XQGHUVWRRG LV WKDW RI WKH English or French linguistic minority population of the province in which they reside, or (b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province, have the right to have their children receive primary and secondary school instruction in that language in that province.

Continuity of language instruction

(2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language.

Application where numbers warrant

(3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province (a) applies wherever in the province the number of children of FLWL]HQVZKRKDYHVXFKDULJKWLVVXIÀFLHQWWRZDUUDQWWKHSURYLVLRQ to them out of public funds of minority language instruction; and (b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds. …

52

1. CANADIAN LAW

Rights respecting certain schools preserved

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. …

3$579,, *(1(5$/ Primacy of Constitution of Canada

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

Constitution of Canada

(2) The Constitution of Canada includes (a) the Canada Act 1982, including this Act; (b) the Acts and orders referred to in the schedule; and (c) any amendment to any Act or order referred to in paragraph (a) or (b).

Amendments to Constitution of Canada

(3) Amendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada.

53

#4(a) &RQVWLWXWLRQ$PHQGPHQW4XHEHF , SI/97-141, 22 December 1997, Canada Gazette Part II, Vol. 132, No. 2, 21/1/98 This document is the Constitutional amendment to section 93 of the Constitution Act 1867, which was adopted in order to change denominational school funding in the province of Quebec.

21/1/98 Canada Gazette Part II, Vol. 132, No. 2 Registration SI/97-141, 22 December 1997

SCHEDULE $0(1'0(17727+(&2167,787,212)&$1$'$ CONSTITUTION ACT, 1867 1. The Constitution Act, 1867, is amended by adding, immediately after section 93, the following: “93A. Paragraphs (1) to (4) of section 93 do not apply to Quebec.”

CITATION 2. This Amendment may be cited as the Constitution Amendment, year of proclamation (Quebec). (Government Business No. 4)

55

STATE SUPPORT FOR RELIGIOUS EDUCATION

#4(b) Education Act,564F,VDVDPHQGHGE\ 64FDQG64FV This document is the portion of the Legislative act by which the Province of Quebec changed its method of funding schools from a system based on religion (Catholic and Protestant) to one based on language (French and English).

Education Act,564DVDPHQGHG … CHAPTER V SCHOOL BOARDS DIVISION I ESTABLISHMENT OF FRENCH LANGUAGE AND ENGLISH LANGUAGE SCHOOL BOARDS Division into territories. 111. The Government shall, by order, divide the territory of Québec into two groups of territories: one of territories for French language school boards and the other, of territories for English language school boards. The territory of the Cree School Board, that of the Kativik School Board and that of the Commission scolaire du Littoral established by chapter 125 of the statutes of Québec, 1966-67, are excluded from such division, however. School board. A school board shall be established in each territory. Name. The order shall assign a name temporarily to each school board; the name may contain a number. Publication. The order shall be published in the *D]HWWHRIÀFLHOOHGX4XpEHF not later than 31 August and comes into force on the date of its publication.

56

#5(a) Amendment to The Constitution of Canada: Term 17 of the Terms of Union of Newfoundland with Canada (Report). Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 26, 17 July 1996 This report was produced by the Standing Senate Committee on Legal and Constitutional Affairs, Senate of Canada. The chair of the committee was the Honourable Sharon Carstairs. This report deals with a request by the Government of Newfoundland to change the Canadian Constitution in reference to one of the “Terms of Union”, namely Term 17. Term 17 dealt with educational rights in Newfoundland. The proposed change would allow the Government of Newfoundland to eliminate multiple denominational school systems and replace them with one school system that protected denominational education.

7+(6(1$7(2)&$1$'$

Amendment to the Constitution of Canada Term 17 of the Terms of Union of Newfoundland with Canada

Standing Senate Committee on Legal and Constitutional Affairs

Chair The Honourable Sharon Carstairs

Acting Deputy Chair The Honourable C. William Doody

JULY 17, 1996

57

STATE SUPPORT FOR RELIGIOUS EDUCATION

7+(6(1$7(2)&$1$'$ WEDNESDAY, July 17, 1996 The Standing Senate Committee on Legal and Constitutional Affairs has the honour to present its

7+,57((17+5(3257 Your Committee, which was authorized to consider the resolution to amend the Constitution of Canada, Term 17 of the Terms of Union of Newfoundland with Canada, has, in obedience to the Order of Reference of Thursday, June 13, 1996, examined the said resolution without amendment, but with dissenting opinion. Respectfully submitted,

6+$521&$567$,56 Chair

0(0%(562)7+(&200,77(( (As of July 17, 1996) The Honourable Senator Sharon Carstairs, Chair The Honourable Senator C. William Doody, Acting Deputy Chair and The Honourable Senators: Anderson Beaudoin Cogger *Fairbairn (or Graham) Gigantés Jessiman Kinsella Lewis Losier-Cool *Lynch-Staunton (or Berntson) Pearson Rompkey *([2IÀFLR0HPEHUV

58

1. CANADIAN LAW

(Quorum 4) Other Honourable Senators having participated in the hearings: Forest, Hébert, MacDonald (Halifax), Milne, Ottenheimer, Petten, Poulin, Prud’homme and Roberge. 5HVHDUFK2IÀFHUV0ROOLH'XQVPXLUDQG/DXUD6QRZEDOO/LEUDU\RI3DUOLDPHQW Staff: Heather Lank, Clerk of the Committee; Cathy Piccinin, Leglsiative Clerk and Colette Charlebois, Administrative Assistant.

25'(52)5()(5(1&( Extract from the Journals of the Senate, Thursday, June 13, 1996: Resuming debate on the motion of the Honourable Senator Fairbairn, P.C., seconded by the Honourable Senator Stanbury: WHEREAS section 43 of the Constitution Act, 1982 provides that an amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies; NOW THEREFORE the Senate resolves that an amendment to the Constitution of Canada be authorized to be made by proclamation issued by His Excellency the Governor General under the Great Seal of Canada in accordance with the schedule hereto. SCHEDULE AMENDMENT TO THE CONSTITUTION OF CANADA I. Term 17 of the Terms of Union of Newfoundland with Canada set out in the Schedule to the Newfoundland Act is repealed and the following substituted therefor: “17. In lieu of section ninety-three of the Constitution Act 1867, the following shall apply in respect of the Province of Newfoundland: In and for the Province of Newfoundland, the Legislature shall have exclusive authority to make laws in relation to education but (a) except as provided in paragraphs (b) and (c), schools established, maintained and operated with public funds shall be denominational schools, and any class of persons having rights under this Term as it read on January 1, 1995 shall continue to have the right to provide for religious education, activities and observances for the children of that class in those schools, and the group of classes that formed one integrated school system by agreement in 1969 may exercise the same rights under this Term as a single class of persons;

59

STATE SUPPORT FOR RELIGIOUS EDUCATION

(b) subject to provincial legislation that is uniformly applicable to all schools specifying conditions for the establishment or continued operation of schools, (i) any class of persons referred to in paragraph (a) shall have the right to have a publicly funded denominational school established, maintained and operated especially for that class, and (ii) the Legislature may approve the establishment, maintenance and operation of a publicly funded school, whether denominational or non-denominational; (c) where a school is established, maintained and operated pursuant to subparagraph (b) (i), the class of persons referred to in that subparagraph shall continue to have the right to provide for religious education, activities and observances and to direct the teaching of aspects or curriculum affecting religious beliefs, student admission policy and the assignment and dismissal of teachers in that school; (d) all schools referred to in paragraphs (a) and (b) shall receive their share of public funds in accordance with scales determined on a non-discriminatory basis from time to time by the Legislature; and (e) if the classes of persons having rights under this Term so desire, they shall have the right to elect in total not less than two thirds of the members of a school board, and any class so desiring shall have the right to elect the portion of that total that is proportionate to the population of that class in the area under the board’s jurisdiction.”

Citation 2. This Amendment may be cited as the Constitution Amendment, year of proclamation (Newfoundland Act); And on the motion in amendment of the Honourable Senator Doody, seconded by the Honourable Senator Kinsella, that the motion be not now adopted but that it be referred to the Standing Senate Committee on Legal and Constitutional Affairs; And on the motion in amendment of the Honourable Senator Murray P.C., seconded by the Honourable Senator Robertson, that the motion be further amended by adding thereto the following: That the Committee be authorized to permit coverage by the electronic media of its public proceedings with the least possible disruption of its hearings; That the Committee be instructed to travel to Newfoundland and Labrador to hear representation on the proposed Constitutional amendment; That the Committee present its report no sooner than September 30, 1996; and That the Committee be authorized to deposit its report with the Clerk of the Senate if the Senate is not sitting and that the said report shall thereupon be deemed to have been tabled in the Chamber.

60

1. CANADIAN LAW

After debate, With leave of the Senate and pursuant to Rule 30, the motion in amendment of the +RQRXUDEOH6HQDWRU0XUUD\3&ZDVPRGLÀHGE\GHOHWLQJWKHWKLUGSDUDJUDSK thereof and replacing it with the following: “That the Committee present its report no later than July 17, 1996; and” After debate, The question being put on the motion in amendment, as modified, it was adopted. Resuming debate on the motion in amendment, as amended, of the Honourable Senator Doody, seconded by the Honourable Senator Kinsella, that the motion be not now adopted but that it be referred to the Standing Senate Committee on Legal and Constitutional Affairs; That the Committee be authorized to permit coverage by the electronic media of its public proceedings with the least possible disruption of its hearings; That the Committee be instructed to travel to Newfoundland and Labrador to hear representation on the proposed Constitutional amendment; That the Committee present its report no later than July 17, 1996; and That the Committee be authorized to deposit its report with the Clerk of the Senate if the Senate is not sitting and that the said report shall thereupon be deemed to have been tabled in the Chamber. After debate, The question being put on the motion in amendment, as amended, it was adopted. Paul C. Bélisle Clerk of the Senate

7$%/(2)&217(176 0$-25,7<5(3257 I.

MANDATE AND BACKGROUND

II. ROLE OF THE SENATE 1. The Role of the Senate: Protecting Provincial Rights 2. Negotiated Agreement: The So-Called “Framework Agreement” III. MINORITY RIGHTS 1. Minority Rights Under the Proposed Term 17 2. Right to Uni-Denominational Schools: Proposed Amendment to Add “Where Numbers Warrant”

61

STATE SUPPORT FOR RELIGIOUS EDUCATION

3. Right to Uni-Denominational Schools: Proposed Amendment to Change “Direct” to “Determine and Direct” 4. Minority Rights: Striking a Balance 5. Other Minorities IV. EFFECT OF AMENDMENT ON OTHER PROVINCES V.

CONCLUSION

DISSENTING OPINION I.

SUMMARY OF EVIDENCE AS PREPARED BY THE COMMITTEE RESEARCH STAFF 1. Background and Expert Opinion a. Historical Background b. The Newfoundland educational system c. The Role of the Senate in a section 43 amendment d. Term 17 and denominational rights 2. The View From Ottawa a. The fairness of the process i. The history of the process ii. Whether a constitutional amendment is necessary iii. Other minority rights b. The effect on minority rights i. The nature of the proposed Term 17 ii. The nature and scope of “denominational education” iii. Criticisms and suggested amendments to Term 17 c. The effect on the national fabric 3. The view from Newfoundland a. Events following the Royal Commission Report b. The views of the protected denominations c. Teachers, parents, and non-denominational interests d. The House of Assembly

II. SOME ADDITIONAL VIEWS 1. The Impact of the Canadian Charter of Rights and Freedoms 2. Term 17 and Denominational Rights 3. Whether a Constitutional Amendment is Necessary 4. Whether the Constitutional Right Established by the Proposed Term 17 Should be Subject to Provincial Legislation 5. The Referendum 6. Other Issues III. MINORITY OBSERVATIONS APPENDIX “A” – List of witnesses

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1. CANADIAN LAW

0$-25,7<5(3257 ,0$1'$7($1'%$&.*5281' The task before the Senate Legal and Constitutional Affairs Committee was to consider the motion before the Senate to authorize an amendment to the Constitution of Canada, that would amend Term 17 of the Terms of Union of Newfoundland with Canada. 7RIXOÀOLWVPDQGDWHWKH&RPPLWWHHWUDYHOOHGWR1HZIRXQGODQGDQG/DEUDGRUZKHUH it heard testimony from over forty witnesses, and received written submissions from many individuals and organizations. Time was provided at several of the hearings for individuals in attendance to make representations to the Committee, on an unscheduled, “walk-on” basis, and approximately sixty people did so. In all, including a series of hearings conducted in Ottawa, the Committee heard from over seventy witnesses, including constitutional experts, representatives of religious organizations in Newfoundland and elsewhere in Canada, representatives of school boards in Newfoundland and elsewhere in Canada, members of the Government of Newfoundland and Labrador, leaders of the opposition parties in the Newfoundland and Labrador House of Assembly, and concerned parents and students from diverse religious denominations – both constitutionally protected denominations and unprotected denominations – within the Newfoundland and Labrador school system itself. While certain groups and individuals questioned the allocation of the limited time available for the hearings, suggesting that those opposed to the proposed amendment were afforded a greater opportunity to make their views known than those supporting LWWKHPHPEHUVRIWKH/HJDODQG&RQVWLWXWLRQDO$IIDLUV&RPPLWWHHZHUHVDWLVÀHGWKDW they received a full spectrum of views about the proposed amendment, in particular from within Newfoundland and Labrador.

,,52/(2)7+(6(1$7( Throughout our deliberations, we were conscious of the proper role of the Senate in this process. Sections 43 and 47 of the Constitution Act, 1982, as constitutional experts ZKR WHVWLÀHG EHIRUH WKH &RPPLWWHH UHPLQGHG XV ´JLYHV SUHFHGHQFH WR WKH HOHFWHG legislatures – the House of Commons and the provincial legislative body – in consideration of the amendments by providing the Senate with a suspensive veto as opposed to an absolute veto” [Testimony of Dr. Kathy Brock, June 18, 1996, 1010-1]. While the 6HQDWHLVHPSRZHUHGWRUHMHFWWKHDPHQGPHQWSDVVLWRUUHFRPPHQGPRGLÀFDWLRQV we were cautioned: +RZHYHUIRUWKH6HQDWHWRUHMHFWWKHDPHQGPHQWRUWRUHFRPPHQGPRGLÀFDWLRQVWR it, and thus to decline to accept the decisions of the elected legislative bodies and VXEVWLWXWHLWVRSHQFROOHFWLYHMXGJPHQWZRXOGUHTXLUHWKHÁDZVLQWKHDPHQGPHQW DQGSURFHGXUHWREHVLJQLÀFDQWLQDIXWXUHPRPHQW>7HVWLPRQ\RI'U.DWK\%URFN June 18, 1996, 1010-2]. We were impressed by the testimony of Professor Anne Bayefsky, a constitutional expert:

63

STATE SUPPORT FOR RELIGIOUS EDUCATION

From the outset, one must recognize that the Constitution is not immutable, that it ought to be open to modernization, that the process of amending the Constitution KDVWREHRQHZKLFKDFFRXQWVIRUDQGLQFOXGHVÁH[LELOLW\,WVHHPVWRPHWKDWRQH has to approach the whole project of amendment with an open mind, with the concept, as was said so many years ago, that the Constitution ought to be considered a living tree. The question of modernization, of keeping our Constitution up to date and responsive WRWKHQHHGVRI&DQDGLDQVRYHUWLPHPHDQVWKDWLWLVQRWDVXIÀFLHQWDQVZHUWRVD\ that there are rights here which hitherto have been entrenched and, therefore, in DQGRIWKHPVHOYHVDUHVXEMHFWWRFKDQJHWKDWWKH\PXVWEHDEDUULHU%\GHÀQLWLRQ WKDWZRXOGPDNHWKH&RQVWLWXWLRQLQÁH[LEOHDQGSUHYHQWFKDQJH Yes, there are rights that are affected. The questions to ask, then, are: Is it appropriate? Has it been done fairly? [Testimony of Professor Anne Bayefsky, June 18, 1996, 1020-2]. We agree with these enunciations of our role in this matter. Unquestionably, one of the traditional roles of the Senate has been to protect minorities against any “tyranny of the majority”. But that is not to say that the Senate must automatically defer to any minority whose rights are affected by a proposed change, any more than the Senate should act as a “rubber stamp” to amendments passed by a provincial legislature and the House of Commons. The framers of the Constitution gave the Senate a role, a mandate to consider proposed amendments. We believe – as was stated by constitutional experts who appeared before us – that this is a balancing role, a role of assessing the appropriateness of the change, and the fairness of the change. Contrary to the suggestion of some individuals during the hearings, the Constitution does not give any minority a right of veto over proposed changes that affect the minority, and we should not rewrite the Constitution to grant such a right of veto. In our opinion, to read such a right into the Constitution would be effectively to amend WKHDPHQGLQJSURYLVLRQVRIWKH&RQVWLWXWLRQ,WLVPRVWFOHDUO\DQGGHÀQLWHO\EH\RQG our powers and authority to purport unilaterally to make such a far-reaching change to our Constitution. Does the proposed Term 17 meet with the approval of every individual and group within Newfoundland? Without question, it does not. We heard objections ranging from technical drafting concerns, to objections that the proposed amendment goes too far, to objections that the proposed amendment does not go far enough. As the Minister of Justice, the Hon. Allan Rock, told us: There are minorities within the minorities and there are different views. For the whole process to become sclerotic because of the absence of unanimity or because of the expression of strongly held views against a proposition surely we would never achieve anything. Senator, what is in issue here is the desire of a provincial government to modernize its school system. There is no unanimity, there are those speaking out against it, but there has been a process that has been open, methodical and fair and now we are being asked to participate as a national government to make

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1. CANADIAN LAW

it happen. If you wish to only rely upon those who speak against it and say because there are those voices we must stop, then I think we are doing a disservice to the bilateral process of amendment to the Constitution [Testimony of the Hon. Allan Rock, Minister of Justice and Attorney-General, June 20, 1996, 1030- 27-28]. We agree. The fact that there are strongly-expressed views opposing the proposed Term 17 cannot, in itself, end our inquiry. It was evident that none of the protected religious PLQRULWLHVLQ1HZIRXQGODQGDQG/DEUDGRUFDQEHVDLGWRVSHDNZLWKDXQLÀHGYRLFH We heard differing views expressed within each denomination. Professor Mark Graesser, a professor of political science at Memorial University in Newfoundland and Labrador, who specializes in the analysis of public opinion, told the Committee of several surveys he has conducted in Newfoundland and Labrador on the question of denominational education. He told us that, “in all the surveys I have ever done, I have never seen anything close to unanimity among Catholics or Protestants on this issue” [July 9, 1996, 1630-11].

7KH5ROHRIWKH6HQDWH3URWHFWLQJ3URYLQFLDO5LJKWV We have also been aware that our role in considering this amendment is not only to protect religious minorities affected by the amendment; we are also entrusted under the Constitution with protecting provincial rights. And indeed, in the matter of education, the province possesses exclusive powers to make laws. While there is an exception in the Constitution with respect to most provinces, whereby there is a federal role in protecting religious educational rights, we note that under the existing Term 17, there is no counterpart federal role in the Constitution with respect to Newfoundland. This is not to suggest that the Senate lacks any role in protecting religious minorities in Newfoundland and Labrador, but simply to set out the context of the exercise of that role. The evidence is clear: the proposed amendment to Term 17 enjoys the full support of the Newfoundland government. Indeed, it enjoys the full support of the Newfoundland House of Assembly. Each of the leaders of the political parties represented in the House of Assembly came before this Committee, and urged us to pass the proposed amendment in its original form, and to do so speedily, so that the province can get on with the business before it, of reforming the educational system in Newfoundland. The proposed Term 17 was approved by the House of Assembly not just once, but twice – the second time, in a resolution that noted that “enactment of a revised Term 17 is essential if the government is to implement necessary and urgently needed changes in the province’s education system.” This resolution, which urged the Parliament of Canada to move speedily on the proposed amendment, was passed unanimously by the Newfoundland House of Assembly on May 23, 1996. The issue of the education reform that expressed itself in the amendment to Term 17 was the subject of years of public discussion in Newfoundland and Labrador. Some witnesses told us that, “In this province, we have been agonizing over this issue for a long time, as long as this system has been in place, and that is approximately 150 years” [Testimony of Mr. William McKim, July 9, 1996, 1630-6]. But it was clear that this particular change was the result of at least six years of discussions, beginning with 65

STATE SUPPORT FOR RELIGIOUS EDUCATION

the appointment of the Royal Commission on Education, appointed in August 1990. Throughout this period, there were extensive meetings and discussions between the Government and the various protected religious groups. There was considerable discussion during the proceedings before the Committee on the nature and effect of the referendum on Term 17, held in September, 1995, in which a 55 percent majority of voters approved the proposed amendment. We were particularly impressed by the statement of Mr. Loyola Sullivan, the Leader of the &RQVHUYDWLYH 2IÀFLDO2SSRVLWLRQLQ1HZIRXQGODQGDQG/DEUDGRUZKHQKHDSSHDUHG before us. He emphasized that: [T]he referendum was not binding on the House of Assembly. When we went into the House in October to debate this issue, amending Term 17 was nothing more than a proposal that had received majority support in a referendum. In the House, PHPEHUVGHÀQHGWKHLVVXHDQGPDGHWKHLUDUJXPHQWV Many of us, as members, after weighing the circumstances, voted in accordance with the wishes of the constituents in our respective districts. There were yes’s and no’s on both sides of the House. In the end, amending Term 17 was chosen as our course of act [sic] by a majority of MHAs. Amending Term 17 had become more than a proposal. It was the chosen course of action of the legislature on behalf of all Newfoundlanders and Labradorians. We have made our decision and the issue is now in the hands of the federal Parliament>7HVWLPRQ\RI0U/R\ROD6XOOLYDQ/HDGHURIWKH2IÀFLDO2SSRVLWLRQ of Newfoundland and Labrador, July 11, 1996, 0900-6, emphasis added]. And while we heard witnesses question whether voters truly understood the issue before them in the referendum, no one has questioned the fact that the Members of the House of Assembly fully understood the nature and import of the issue before them. In fact, Mr. Sullivan emphasized not the referendum results, but the results of the 1996 general election in Newfoundland and Labrador. As he explained, that election ZDVWKHÀUVWLQWKHSURYLQFHVLQFHWKH7HUPDPHQGPHQWEHFDPHDQLVVXH The denominations and the general public had the opportunity during the election campaign to challenge the government’s position on Term 17 and make the matter a major issue of contention. They did not. There was in the election campaign no strong movement to have the Term 17 resolution rescinded. In returning the JRYHUQPHQWWRRIÀFHZLWKDQHZPDQGDWHthe people of this province, in effect, approved the government’s Term 17 amendment strategy [Testimony of Mr. Loyola 6XOOLYDQ/HDGHURIWKH2IÀFLDO2SSRVLWLRQRI1HZIRXQGODQGDQG/DEUDGRU-XO\ 11, 1996, 0900-6, emphasis added]. Mr. Sullivan – himself a Roman Catholic, a parent, and former teacher in the Roman Catholic school system – noted that constitutional change to Term 17 “never became an issue in my district, which was probably a 97 percent Roman Catholic district. I may have had two or three calls or representations in the last three years on this issue in my district overall” [Id., 1000-6]. He summarized the views of the people of Newfoundland and Labrador as follows:

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1. CANADIAN LAW

It seemed to me that the government was going to pursue a course of action, and it seems that that was a fait accompli and that the people were willing to accept that. That is how I read it, and that is what happened [Id., 1000-6]. Mr. Sullivan summarized his own views, and those of the Conservative caucus, as follows: [I]n our caucus, we looked at basically the substance and tried to avoid speculation as to what may happen. We tried to deal with what is presented as such. I feel that there is provision in all schools in this province to have religious education, observance, and events. There is provision for unidenominational schools, subject, of course, to provincial legislation. That would be a sticky point. We wanted to see that. However, in total, on balance, we made our decision based upon the total presentation here and did not feel that we should delay any process just because we have not seen the particulars. … I look at this decision based on what will be best for the children of our province in WRXJKÀQDQFLDOWLPHVZLWKGHFOLQLQJHQUROOPHQWVDQGWREHDEOHWRGHOLYHUWKHEHVW possible education without stripping away certain rights or practices in religion that have developed into the school system over the years. That was the gist of our total discussion. We debated this at great length in caucus. I discussed it personally. I have been a part of this system for 20 years. I had three kids in the system. I served as our education critic. I am now in a different capacity. I have looked at this from numerous angles and numerous perspectives. … Our caucus feels that we should proceed and that it is in our best interests. We cannot be blinded by other factors. We must look at the goal, where we need to be and what we need to do, and not become deterred. As much as some people might like WROHWSROLWLFDORURWKHUHYHQWVUHVXOWLQWKHLUÀQDOGHFLVLRQLWLVLPSRUWDQWWKDWZH not stray from the course because it is the children out there who will be suffering DVDUHVXOW>7HVWLPRQ\RI0U/R\ROD6XOOLYDQ/HDGHURIWKH2IÀFLDO2SSRVLWLRQ July 11, 1996, 1000- 5-6].

1HJRWLDWHG$JUHHPHQW7KH6R&DOOHG´)UDPHZRUN$JUHHPHQWµ One of the issues before us for consideration was whether there was an attempt at nonconstitutional reform, and whether there were negotiations with the affected parties. The evidence was clear that there had been such negotiations and attempts, on-going for several years, but ultimately they were unsuccessful. There was extensive discussion of the so-called “Framework Agreement,” which some witnesses suggested could have eliminated any need for constitutional amendPHQW:HDUHVDWLVÀHGWKDWWKLVZDVQRWWKHFDVH)LUVWWKHHYLGHQFHZDVSODLQWKDWWKH Government’s position throughout the negotiations was that the Constitution would be amended to change Term 17 – the Framework Agreement was never intended as

67

STATE SUPPORT FOR RELIGIOUS EDUCATION

a substitute for the amended Term 17. As described by the Minister of Education, the Hon. Roger Grimes, the discussions proceeded “because there are substantial, VLJQLÀFDQWFRQWLQXLQJGHQRPLQDWLRQDOULJKWVWKDWZHZRXOGVWLOOKDYHWRZRUNZLWK the denominational representatives to see how they would be fundamentally and pragmatically exercised even under the new Term 17” [Testimony of the Hon. Roger Grimes, Minister of Education, Government of Newfoundland and Labrador, July 11, 1996, 1000-17]. Some denominations would have preferred to have a negotiated Framework Agreement substitute for constitutional change, but this preference cannot be said to have translated into government policy, which always was to proceed with the Term 17 revision. Second, the discussions simply were not successful. As the Minister described, “Several key and essential items remain unresolved…. Before we got back to the discussion of how general governance changes would impact at the school level, a number of churches withdrew their support for the framework because of public pressure exercised by their constituents” [Id, 1100-1]. In the result, as the Minister stated, “The framework attempt did not succeed. No agreement had been reached or signed” [Ibid]. Several senators on the committee expressed concern that the negotiations could still succeed. We do not believe that it is our role to dictate to the province or to the protected minorities how such negotiations should proceed, or when or how they should return to the negotiating table. We accept the testimony we heard, that no agreement was reached. 7KH0LQLVWHURI(GXFDWLRQWROGXVWKDW´7KHGLIÀFXOW\LVWKDWVHYHQJURXSVKROGULJKWV The government cannot strike side deals with one or two and not the others. We felt we needed agreement. When we came close to agreement with one, two or more, then we were further apart with agreement on several others” [Id., 1100-10].

,,,0,125,7<5,*+76 We recognize that the proposed amendment to Term 17 affects rights. But we agree with Professor Bayefsky, that our task is not concluded with this recognition; that ZRXOGLQGHHGPHDQWKDWRXU&RQVWLWXWLRQLVQRWÁH[LEOHDQGZRXOGEHLWVHOIDEDUULHU to modernization and evolution. If the Constitution is not to be a straitjacket, then its provisions must be allowed to change and evolve over time. Our role is to ensure that insofar as minority rights are affected by such changes, that effect is, as Professor Bayefsky said, both appropriate and accomplished by a process that is fair. Professor Bayefsky expressed the question before us as one of “ask[ing] whether minority rights have been oppressed as opposed to merely affected. Is this a disadvantage to a minority group which in some sense has not had an opportunity to participate in the process of renewal and change, which is so disadvantageously affected by the outcome that their objections ought to preclude change now and for the foreseeable future in the context of the education system in the province?” [Testimony of Professor Anne Bayefsky, June 18, 1996, 1120-3]. We recognize that many individuals of the Roman Catholic and Pentecostal faiths in particular have grave fears about the future of their ability to educate their children in their faith, if the proposed amendment to Term 17 is adopted. But in our opinion,

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after carefully studying the proposed amendment, listening closely to the testimony before us, and reading the numerous submissions made to us, there is nothing in the proposed amendment which can be said to oppress religious minorities. No one has suggested that any religious group was denied an opportunity to participate fully in the extensive, lengthy public process leading up to the proposed amendment – indeed, we were impressed by the organization of the Roman Catholic and Pentecostal groups, in ensuring that their views were presented to the Committee in full.

0LQRULW\5LJKWV8QGHUWKH3URSRVHG7HUP The fears expressed to us were that the amended Term 17 would take away the rights of the Roman Catholic and Pentecostal minorities to religious education. As expressed by the Catholic Education Council in their submission to the Committee, the new inter-denominational schools to be operated under the amended Term 17 are not denominational schools in the constitutionally understood sense of the word. They lack the essential indicia of denominational schools as enunciated by the Judicial Committee in the Hirsh case in 1928 and followed consistently up to the present time by the Supreme Court of Canada. In these new inter-denominational schools there would be no constitutional right to imbue the school with a Christian ambiance [Submission of the Catholic Education Council, dated July 9, 1996, page 31]. Without in any way doubting the sincerity of the fears expressed, we do not believe that they are well-founded. The language of proposed Term 17 is absolutely clear: schools established, maintained and operated with public funds shall be denominational schools, and any class having rights under this Term as it read on January 1, 1995 shall continue to have the right to provide for religious education, activities and observances for children of that class in those schools. ,DQ%LQQLHDZHOONQRZQFRQVWLWXWLRQDOH[SHUWWHVWLÀHGEHIRUHXVWKDWWKHFRUHYDOXHV RIGHQRPLQDWLRQDOULJKWVKDYHEHHQGHÀQHGE\WKH6XSUHPH&RXUWRI&DQDGDWREH precisely those rights enshrined in this proposed section: the right to provide for religious education, activities and observances [Testimony of Ian Binnie, June 26, 1996, 1340- 1-2]. It is clear to us that, contrary to the stated fears of some, the amended Term 17 would not abolish denominational schools, nor deprive any protected minority of judicially-recognized denominational rights. All schools – with very limited exceptions – established, maintained and operated with public funds under the revised Term 17 will be denominational schools:HKDYHIXOOFRQÀGHQFHLQWKHDELOLW\RI&DQDGLDQ courts to interpret “denominational schools” to mean denominational schools. And we DUHVWUHQJWKHQHGLQWKLVFRQÀGHQFHE\WKHIDFWWKDWWKHVHFWLRQLVH[SOLFLWLQHQWUHQFKLQJ the rights of the protected minorities to provide for religious education, activities and observances in those schools – those very rights that the Supreme Court has held to be the core values of denominational rights. We also note that the only groups authorized to provide for religious education, activities and observances are the Christian minorities protected under the existing 69

STATE SUPPORT FOR RELIGIOUS EDUCATION

Term 17: the Roman Catholics, Pentecostals, Seventh-day Adventists, Anglicans, Presbyterians, United Church, and Salvation Army. In other words, the only groups that will be constitutionally authorized to provide religious instruction and guidance in the schools, will be Christian.1 The amended Term 17 thus goes very far in seeking to ensure that all publicly-funded schools are imbued with a Christian ambiance.

5LJKWWR8QL'HQRPLQDWLRQDO6FKRROV3URSRVHG$PHQGPHQWWR$GG ´:KHUH1XPEHUV:DUUDQWµ The proposed Term 17 not only constitutionally guarantees the rights of the protected religious minorities to provide for religious education, activities and observances in the inter-denominational schools; it also enshrines in the Constitution the right to uni-denominational schools. This will authorize the continued operation, and new establishment of, exclusively Roman Catholic, Pentecostal or Seventh-day Adventist schools. Concern was expressed by some witnesses (and indeed by some senators) saying that as drafted, the rights may be more illusory than real, since they will be subject to provincial legislation. We do not share this concern. The right to uni-denominational schools will EHHQVKULQHGLQWKH&RQVWLWXWLRQ²DQGZHKDYHIXOOFRQÀGHQFHLQWKHDELOLW\RIRXUFRXUWV to uphold this right against any provincial legislation that attempts to nullify it. The Hon. Roger Grimes, Minister of Education for the Government of Newfoundland and Labrador, discussed the amendment proposed by some witnesses, and endorsed by some members of this Committee, to remove the phrase “subject to provincial legislation that is uniformly applicable to all schools specifying conditions for the establishment or continued operation of schools,” and replace it with “where numbers warrant”. The Minister of Education told the Committee that this issue was considered by the Newfoundland and Labrador House of Assembly, and rejected. As he expressed it: This issue is the crux of the matter. It dominated debate in the legislature in Newfoundland and Labrador and amendments that were moved and defeated. There is no doubt about that. If an amendment were to remove the clause “subject

1 Indeed, this gave rise to considerable concern. The role of the Senate is to protect minorities – not some minorities over others. We heard several witnesses speak eloquently of their position as nonChristian citizens sending their children through the school system. One witness (who appeared as a “walk-on”), told us that while he is a taxpayer, and thus pays for the school system, he and others like him “do not have any control or participation or rights like everyone else…. We do not exist. There is no recognition in the system to recognize a non-Christian” [Testimony of Mr. Azmy Aboulazm, July 9, 1996, 1630-7-8].

We heard how on one school board (one of the largest boards, representing 10,000 students), “[e]veryone on the school except for one seat had to be Christian. One seat was designated for a non-Christian faith, DQGLWZDVVSHFLÀFDOO\GHVLJQDWHG2WKHUWKDQWKDWDOOWKHRWKHUVHDWVKDYHWREHRI&KULVWLDQIDLWKµ [Testimony of Mr. Robert Mendoza, July 9, 1996, 2030-9]. That witness, who appeared with the panel of students, told the Committee that his father, who was Jewish, was prevented from continuing to serve on the school board because of that provision. The amended Term 17 would provide for the election at large of one-third of the school boards, which may result in enhanced access for individuals from other minorities.

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to provincial legislation that is uniformly applicable to all schools specifying conditions for the establishment or continued operation of schools,” then we need not have gone through this exercise in the province; we need not have troubled the legislature with it; we need not have gone through a referendum; we need not have gone to the House of Commons; and we need not be having these hearings. This is the crux of the matter. It would be dishonest for anyone to suggest anything other than that [Testimony of the Hon. Roger Grimes, Minister of Education, Government of Newfoundland and Labrador, July 11, 1996, 1100-3, emphasis added]. Later, the Minister was even more explicit about the potential effect of such an amendment, saying that “In fact, it may frustrate our efforts to go ahead with the reforms we want to achieve” [Id, 1100-5]. The Minister assured the Committee that: The phrase ‘subject to provincial legislation that is uniformly applicable’ does not at all threaten those rights and only leads to a legislature that must, by law and duty bound, provide legislation that ensures people can exercise the rest of the rights in the same term. This is not at all restrictive or dangerous. This is a further protection. )RUWKHÀUVWWLPHULJKWLQWKHFRQVWLWXWLRQDOSURYLVLRQWKHQHZ7HUPWHOOVXV what are the rights. If any legislature now, in 15 years time, 20 years time or 100 years time tries to pass legislation making it virtually impossible to exercise the rights spelled out, it will be stricken down by any court at any time [Testimony of the Hon. Roger Grimes, Minister of Education, Government of Newfoundland and Labrador, July 11, 1996, 1100-4]. 0U/R\ROD6XOOLYDQWKH/HDGHURIWKH2IÀFLDO2SSRVLWLRQLQ1HZIRXQGODQGDQG/DErador, expressed his concern about replacing provincial authority to establish viability standards, with a judicially-interpreted standard of “where numbers warrant”: ,WZRXOGEHUHDVRQDEO\GLIÀFXOWWREXLOGZKDWWKHVHQXPEHUVDUHLQWRWKHFRQVWLWXWLRQ taking into consideration that what constitutes an appropriate number today, with our shifting populations, may not constitute that in four years time, and especially considering the rate of net out migration in our province in certain areas. Do we come back for constitutional change every time? Our province is shifting more than other provinces, and they are declining numbers [Testimony of Mr. Loyola 6XOOLYDQ/HDGHURIWKH2IÀFLDO2SSRVLWLRQRI1HZIRXQGODQGDQG/DEUDGRU-XO\ 11, 1996, 1000-1]. Mr. Jack Harris, Leader of the New Democratic Party of Newfoundland and Labrador, also disagreed with the suggested amendment to add “where numbers warrant” [Testimony of Mr. Jack Harris, Leader of the New Democratic Party of Newfoundland and Labrador, July 11, 1996, 1000-11]. We note that, as drafted, the provincial legislation must be “uniformly applicable to all schools” – thus, no legislature could single out one or more religious minority for special treatment (or discrimination). They all must be treated uniformly. And we KDYHIXOOFRQÀGHQFHLQWKHDELOLW\RIRXUFRXUWVWRUHFRJQL]HGLVFULPLQDWRU\WUHDWPHQW

71

STATE SUPPORT FOR RELIGIOUS EDUCATION

HYHQZKHQLWLVGLVJXLVHGDVXQLIRUPWUHDWPHQW:HKDYHIXOOFRQÀGHQFHLQRXUFRXUWV to be able to apply this constitutional standard to assess provincial legislation. We had further concerns about the proposed phrase “where numbers warrant.” It emerged from the testimony of several witnesses that the addition of this phrase would establish a standard that certain of the protected minorities would not be able to meet. In particular, the Seventh-day Adventists are a small group, with small schools. We were told that historically, about forty years ago, the position of the Government of Newfoundland was that “a denominational school could have been started in Newfoundland with seven students of one religion. That was the government’s interpretation 40 years ago of ‘where numbers warrant’” [Testimony of Mr. George Morgan, July 9, 1996, 1200-4]. The Seventh-day Adventist representatives were clear when they appeared before us that in and of themselves, “the words ‘where numbers warrant’ are meaningless to us” [Ibid]. A constitutional lawyer, Mr. Colin Irving, went further. He was clear that the substitution of the phrase “where numbers warrant” for the existing proposed provincial legislation would effectively remove any protection for the Seventh-day Adventists. He stated that under such circumstances, “probably they do not have any protection” [Testimony, July 10, 1996, 1445-3]. This reinforced our conviction that such an amendment would be ill advised. The expressed purpose of the amendment, according to the witnesses who appeared before us arguing for it, and according to our colleagues who advocate it, is to protect the rights of the religious minorities who are presently protected by the existing Term 17. But it is clear from the testimony that such an amendment would assist only particular minorities – notably the Roman Catholics and Pentecostals, who together comprise 44 percent of the population of Newfoundland and Labrador. We recognize that the Seventh-day Adventists are a much smaller minority than the Roman Catholics and Pentecostals, but question whether that is cause for less protection on our part, or whether in fact in our role as protectors of minorities, it is the smaller minorities that require our more diligent efforts: if anything, they are less able to represent their interests. For all these reasons, we support the language adopted by the Newfoundland and Labrador House of Assembly, and accepted by the House of Commons, without amendment.

5LJKWWR8QL'HQRPLQDWLRQDO6FKRROV3URSRVHG$PHQGPHQWWR&KDQJH ´'LUHFWµWR´'HWHUPLQHDQG'LUHFWµ Under paragraph (c) of the proposed Term 17, the rights of the protected religious minorities with respect to uni-denominational schools would include the same rights extended for inter-denominational schools – the right to provide for religious education, activities and observances – and add the right to direct the teachings of aspects of the curriculum affecting religious beliefs, student admission policy and the assignment and dismissal of teachers in that school. The suggestion was made by certain witnesses, and endorsed by some senators on the Committee, that the verb “direct” be augmented, and the phrase changed to “determine

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and direct.” We heard extensive contradictory testimony from various witnesses, quoting GLIIHUHQWGLFWLRQDU\GHÀQLWLRQVRIWKHZRUGV:HZHUHQRWSHUVXDGHGWKDWWKHDGGLWLRQ of “determine” would add any real powers or authority to those encompassed within WKHWHUP´GLUHFWµDQGFHUWDLQO\QRQHVXIÀFLHQWO\VLJQLÀFDQWWRMXVWLI\RXUGHFOLQLQJWR accept the decisions of the elected legislative bodies and substituting our judgment. One can always quarrel with a particular choice of a legislative draftsperson, but in this FRQWH[WWKDWLVQRWVXIÀFLHQWWRZDUUDQWRXUDPHQGLQJWKHSURSRVHG7HUP :HZHUHVDWLVÀHGWKDWLQWKHZRUGVRI0U%LQQLH´/LQJXLVWLFDOO\WKHQDGGLQJ “determine and direct” does not add very much except to pander to the lawyers’ love of saying in several words what ordinary people say in one word” [Testimony of Mr. Ian Binnie, June 26, 1996, 1350-2].

 0LQRULW\5LJKWV6WULNLQJD%DODQFH We accept the view of the Hon. Allan Rock, Minister of Justice, when he stated that our task is to assure ourselves that the process by which the amendment came forward from the province was fair; and to evaluate whether there is a minority that has been unreasonably disadvantaged in the process that has been proposed. Professor Bayefsky VWDWHGWKDW´WKHTXHVWLRQRIULJKWVDQGZKHWKHUULJKWVKDYHEHHQVXIÀFLHQWO\SURWHFWHG must balance the rights of a whole series of different groups and that it would be wrong to focus only on one” [June 18, 1996, 1040-2]. Dr. Kathy Brock expressed the same principle, saying, “The criteria must be clearly developed that minority rights would be damaged and that that damage would not be offset by the gains in terms of educational quality or the rights which other groups within society gain. For example, you must balance minority rights against the right of parents to have control over where their children go to school” [June 18, 1996, 1010-2]. :HDJUHH:HDUHVDWLVÀHGWKDWWKHSURSRVHG7HUPHQVKULQHVYHU\H[WHQVLYHULJKWV for the protected religious minorities – indeed, several witnesses stated that under the proposed Term 17, the minorities would retain “a great deal more power and control than would be the case in a lot of other provinces” [Testimony of Professor Anne Bayefsky, June 18, 1996, 1040-1; the same view was expressed by Professor Dale Gibson, June 26, 1996, 1130-6]. All rights exist in the context of other rights. No right is absolute. We must balance not only the rights of each protected religious minority, but also the rights of the children, DQGWKHULJKWVRISDUHQWV0U/R\ROD6XOOLYDQ/HDGHURIWKH2IÀFLDO2SSRVLWLRQ5RPDQ Catholic parent and former teacher told the Committee: “I look upon the amendment as loosening the shackles to give parents the right to make a choice” [July 11, 1996, 0900-13]. And in our opinion, the rights of the children themselves must weigh heavily in the balance. We heard a panel of students, and were persuaded of the urgent need for reform in the educational system. We were impressed by the testimony of Mr. Sullivan, when he explained that his decision to support the proposed Term 17 was “based on what ZLOOEHEHVWIRUWKHFKLOGUHQRIRXUSURYLQFHLQWRXJKÀQDQFLDOWLPHVZLWKGHFOLQLQJ enrollments” [July 11, 1996, 1000-5].

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STATE SUPPORT FOR RELIGIOUS EDUCATION

There is no question: Newfoundland has experienced, and is still in the throes of, a transformation of its economy that strikes at the heart of its traditional way of life. ,WVÀQDQFLDOGLIÀFXOWLHVDUHZHOONQRZQ:HFDQQRWDVWKH6HQDWHRI&DQDGDVWDQGLQ the way of that province instituting educational reforms that could assist in positioning the province to take full advantage of the new information-based economy, in which the most treasured resource is a highly educated and skilled workforce, to replace the WUDGLWLRQDOFRGÀVKHU\ We believe that the Right Reverend Donald Harvey of the Anglican Church expressed the current situation in his province eloquently: As church leaders, most of us recognize all too painfully, the discontent, the suspicion and the real desire for change which exists in this province today. Some of these signs are not healthy, but it would be folly to ignore that they are there. Indeed, I can personally testify that, during 33 years of ordained ministry on the island and in Labrador, which included witnessing the implementation of the Warren report in the 1960s, I have never witnessed anything remotely like the genuine concern, dissatisfaction and even hostility over the manner in which a large core of people perceive this whole matter to have been manipulated and bungled at all levels. … Far too much of our time and resources in recent years have been deployed in a power struggle – and nothing but a power struggle – which has served to weaken and dilute the attainment of these objectives. Our hope now is that this bill will be passed and that the government, with its new authority, will listen to the dictates of its people as they attempt to frame a system which will embody the best of the SDVWZKLOHSURYLGLQJIRUHIÀFLHQF\DQGFRQVROLGDWLRQWRPHHWWKHUDSLGO\FKDQJLQJ demographics of this province. We owe our children nothing less [Testimony of the Right Reverend Donald Harvey, Anglican Church, 0830- 7-8].

5. Other Minorities The Committee also heard testimony and received submissions concerning the position of aboriginal people on the issue of education in Newfoundland and Labrador, and Term 17. There is now no explicit mention of aboriginal people in the Terms of Union between 1HZIRXQGODQG DQG &DQDGD:H EHOLHYH WKH7HUPV RI 8QLRQ VKRXOG EH FODULÀHG WR underscore the fact that there are aboriginal people in Newfoundland and Labrador, and that they have rights. The proposed Term 17 provides, in subparagraph (b)(ii), that “the Legislature may approve the establishment, maintenance and operation of a publicly-funded school, whether denominational or non-denominational.” We believe that this may provide an opportunity for aboriginal people to acquire control over their education. We strongly support these efforts. We believe that aboriginal rights must be respected in the restructuring of Newfoundland and Labrador’s educational system.

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We also heard testimony about the efforts of the “Fédération des parents francophones de Terre-Neuve et du Labrador” to establish a “commission scolaire” for the francophone population of the province. We were pleased to learn from the Hon. Roger Grimes, Minister of Education, that on July 10, the cabinet approved an amendment to the proposed new education legislation, that will enable the establishment of such a “commission scolaire.” There is therefore now authority to bring such legislation forward, along with the other legislation to implement the educational reforms following upon passage of the revised Term 17.

,9())(&72)$0(1'0(172127+(53529,1&(6 $ÀQDOLVVXHWKDWZDVSUHVHQWHGIRURXUFRQVLGHUDWLRQLQWKLVPDWWHULVWKHH[WHUQDOHIIHFW of the amendment on other provinces, and whether the Senate will be establishing a precedent that could imperil religious education elsewhere. :HDUHVDWLVÀHGWKDWWKLVDPHQGPHQWZLOOQRWHVWDEOLVKDQ\QHJDWLYHOHJDOSUHFHGHQW The situation in Newfoundland is unique. There is no other province in which all publicly-funded schools are denominational. There is no other province with an analogous school system, or with the same constitutional context for that system. Term 17 is distinct from section 93 of the Constitution, and from the alternative provisions substituted by other provinces for that section. The Minister of Justice, the Hon. Allan Rock, told this Committee that, “Precedents, to have value, require like facts or similar, if not identical, principles. It would be very GLIÀFXOWWRÀQGDIXWXUHFLUFXPVWDQFHHOVHZKHUHLQ&DQDGDWKDWZRXOGUHSOLFDWHWKH principles and circumstances that prevail in this instance” [Testimony of the Hon. Allan Rock, Minister of Justice and Attorney-General, June 20, 1996, 1030-7]. We believe that a precedent can equally be established by refusing to act, as by DFWLQJ$V3URIHVVRU%D\HIVN\SRLQWHGRXWLQRXUÀUVWKHDULQJRQWKLVPDWWHU The question of modernization, of keeping our Constitution up to date and responsive WRWKHQHHGVRI&DQDGLDQVRYHUWLPHPHDQVWKDWLWLVQRWDVXIÀFLHQWDQVZHUWRVD\ that there are rights here which hitherto have been entrenched and, therefore, in and RIWKHPVHOYHVDUHVXEMHFWWRFKDQJHWKDWWKH\PXVWEHDEDUULHU%\GHÀQLWLRQWKDW ZRXOGPDNHWKH&RQVWLWXWLRQLQÁH[LEOHDQGSUHYHQWFKDQJH>7HVWLPRQ\RI3URIHVVRU Anne Bayefsky, June 18, 1996, 1020-2]. :HEHOLHYHWKDWRXU&RQVWLWXWLRQLVRSHQWRPRGHUQL]DWLRQWKDWLWLVDÁH[LEOHLQVWUXPHQW capable of meeting the needs of Canadians over time. If any precedent can be established in this unique situation, it is that such an amendment can be achieved.

V. CONCLUSION ,QFRQFOXVLRQZHDUHVDWLVÀHGWKDWWKHSURFHVVRIJHQHUDWLQJWKHDPHQGPHQWWR7HUP was fair. Each of the protected minorities whose rights would be affected were afforded full opportunities to participate in the public debate leading up to this amendment, including the hearings before the Royal Commission on Education, the referendum and the general election of 1996. They actively participated in discussions with the Government of Newfoundland and Labrador.

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STATE SUPPORT FOR RELIGIOUS EDUCATION

:HDUHDOVRVDWLVÀHGWKDWRQEDODQFHWKHULJKWVRIWKHSURWHFWHGPLQRULWLHVZRXOGEH VXIÀFLHQWO\SURWHFWHGE\WKHSURSRVHGDPHQGPHQW:KLOHWKHPLQRULWLHVZRXOGFOHDUO\ be affected by the revision, they cannot be said to be oppressed by the change. The schools will continue to be denominational schools. Each of the protected minorities will continue to have the right to provide for religious education, activities and observances in the schools. With respect to uni-denominational schools – the right to which will be constitutionally entrenched – the rights will be even broader. Indeed, the rights of the protected minorities after the revision will be more extensive than those enjoyed by religious minorities in other provinces. +DYLQJFRQVLGHUHGDQGZHLJKHGWKHULJKWVDWLVVXHZHKDYHQRGLIÀFXOW\DJUHHing with the resolution moved in the Senate by Senator Fairbairn, resolving that an amendment to the Constitution of Canada be authorized to be made by proclamation issued by His Excellency the Governor General under the Great Seal of Canada, in accordance with the proposed Term 17 as authorized by the Newfoundland House of Assembly and by the House of Commons. We therefore recommend that the Senate adopt the resolution without amendment.

DISSENTING OPINION ,6800$5<2)(9,'(1&($635(3$5('%<7+(&200,77(( 5(6($5&+67$)) 1. Background and Expert Opinion a. Historical Background At confederation, the Constitution Act 1867 gave the provinces exclusive jurisdiction over education with two exceptions: the protection of denominational rights existing in law at the time of confederation, and a federal remedial role in protecting denominational HGXFDWLRQDOULJKWV$VHDFKRIQH[WÀYHSURYLQFHVMRLQHG&DQDGDWKHLUWHUPVRIXQLRQ either adopted (British Columbia and Prince Edward Island) or adapted (Manitoba, Alberta and Saskatchewan) section 93. Due to differing circumstances in the various provinces, denominational education rights established by law at the time Newfoundland joined Confederation existed only in Ontario, Quebec, Alberta and Saskatchewan. The issue of denominational educational rights was further complicated by the fact that, in many parts of Canada, the lack of constitutional protection for the Catholic school system tended to entail the loss of francophone schooling. In 1949, Newfoundland became the tenth and latest province to join confederation. In the Terms of Union, Term 17 dealt with denominational education. Term 17 was unique in three respects. The other nine provinces had guarantees for the legal rights enjoyed by religious denominations outside of the public education system, while Newfoundland had no public educational system. As well, the terms of union of the other nine provinces contemplated only the Protestant and Catholic religions, with the Catholic religion being in the minority in all provinces other than Quebec and Manitoba,

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while Newfoundland’s terms of union gave educational guarantees to seven different religious classes collectively representing over 95 percent of the population. Finally, all of the constitutional provisions regarding denominational education for the other nine provinces included an appeal to Parliament against any provincial legislation which did not respect those rights, as well as a provision for federal legislation overriding or amending such provincial legislation. Term 17 makes no reference to such a federal role, originally described in sections 93(3) and (4) of the Constitution. During the discussions surrounding the patriation of the Canadian constitution, some Newfoundland Members of Parliament expressed concerns as to whether the Charter of Rights and Freedoms would affect Term 17 and, more particularly, the rights of the Pentecostal Assemblies, which were not recognized in law until 1954 and therefore were not constitutionally protected by Term 17. When the Joint Committee of the House of Commons and the Senate studied the proposed Charter, an amendment was moved that the Charter not apply to Term 17. The amendment was expanded to provide an exemption for denominational educational rights throughout the country. The Pentecostal Assemblies were given constitutional protection by a separate constitutional amendment under section 43 in 1987. Section 29 of the Charter reads: 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.

b. The Newfoundland educational system 7KHÀUVWUHFRUGHGDUUDQJHPHQWWRSURYLGHHGXFDWLRQDOLQVWUXFWLRQLQ1HZIRXQGODQGDQG Labrador was established in the French community at Placentia and St. Pierre in the summer of 1686, when the inhabitants agreed to support a Roman Catholic priest, whose GXWLHVLQFOXGHGLQVWUXFWLQJWKHFKLOGUHQIRUIRXUPRQWKVHDFK\HDU%\WKHWLPHWKHÀUVW Education Act was passed in 1836, the population was primarily Church of England, Roman Catholic or Methodist and it was assumed by these groups that education was a responsibility of the family and the church rather than of the state. In effect, with the 1836 Act, the Legislature accepted a moral obligation to share some of the cost of education, leaving the authority with the church and family. The non-sectarian local school boards envisaged by the 1836 legislation failed to work largely because of a dispute between the Roman Catholic and Anglican board members over the appropriate version of the Bible to use. An amendment to the Act in 1838, banning Bible readings from any version, only served to increase the protests rather than mute them. In 1843, the government, convinced that no compromise was possible, provided for the establishment of a separate Roman Catholic school board and of a school board for the Church of England, with the Education Grant to be distributed proportionately between the two. The schools were also divided along denominational lines, and this marked the beginning of legislative provisions for the denominational system of education in Newfoundland. The Education Act of 1874 recognized the Church of England, the Roman Catholic Church, the Congregational Church, the Free Church of Scotland, the Kirk of Scotland and the Methodist Church as denominations for school board control. Two years later,

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new legislation provided for the appointment of three denominational Superintendents of Education, representing the Church of England, the General Protestant community and the Roman Catholic Church. The Salvation Army was recognized in 1892, the Seventh-day Adventists in 1912 and the Pentecostal Assemblies in 1954. The Education Act of 1927, the last major Education Act before Confederation in 1949, endorsed the existing denominational education system as the recognized and DSSURYHGVWDWHV\VWHPDQGLGHQWLÀHGIRXUDUHDVRIGHQRPLQDWLRQDORUFKXUFKFRQWURO in education: 1. a right to denominationally-based school boards which could own and operate schools; 2. the right of these boards to appoint and dismiss teachers; 3. the right of these schools to receive public funds on a non-discriminatory basis; and 4. the right to establish denominational colleges. These were the denominational educational rights given protection by Term 17 of Newfoundland’s Terms of Union with Canada. Throughout the last 100 years, there have been co-operative efforts to improve the educational system by co-ordination and amalgamation, with the impetus coming primarily from the grass-roots of the education system, such as parents and teachers. (YHQ WKH ÀUVW FRRSHUDWLYH HIIRUW LQ GHQRPLQDWLRQDO HGXFDWLRQ FDPH QRW IURP WKH government or churches, but from the classroom teachers. In 1890, they formed the 1HZIRXQGODQG7HDFKHUV·$VVRFLDWLRQZKLFKZDVVSHFLÀFDOO\PDQGDWHGDVDQLQWHU denominational organization whose purpose was to work for the good of all teachers DQGIRUWKHJHQHUDOJRRGRIHGXFDWLRQUHJDUGOHVVRIGHQRPLQDWLRQDODIÀOLDWLRQV In 1969, three denominational education councils were established, replacing the denominational superintendents: the Integrated Education Council, the Roman Catholic Education Council and the Pentecostal Education Council. The Integrated Education Council originally represented the Anglican, Salvation Army and United Churches. Later that year, the Presbyterian Church joined the Integrated Council, followed by the Moravian Church in 1977. The Seventh-day Adventist Church maintained their separate school board, and did not join the Integrated Council. At the time of integration in 1969, the existing 270 school boards were consolidated into 37 – 20 Integrated, 15 Roman Catholic, one Pentecostal and one Seventh-day Adventist. By 1992, as a result of co-operative efforts rather than legislation, the number of boards had been reduced to 27 – 16 Integrated, 9 Roman Catholic, one Pentecostal and one Seventh-day Adventist. The governance and operation of the education system was shared among a non-denominational Department of Education, the Denominational Educational Councils and the school boards, and this system has remained largely unchanged since 1969. The formal mechanism for co-operation and co-ordination between the denomiQDWLRQDOFRXQFLOVLVWKH-RLQW&RPPLWWHHFUHDWHGLQZKLFKSURYLGHVDQRIÀFLDO forum where each Council, through its Executive, can discuss issues of mutual concern, areas of co-operation, and shared services and facilities.

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In 1990 the Government of Newfoundland and Labrador appointed a Royal Commission, chaired by Dr. Len Williams, to study the delivery of educational programs and services in the province. The Commission submitted its report “Our Children, Our Future” in 1992. Dr. Williams appeared before the Committee to describe the educational system in Newfoundland and Labrador, and the results of the Royal Commission’s inquiry. He clearly stated the need, in his view and that of the Royal Commission, for reform of the denominational system. He explained that the reason Newfoundland had no public educational system was a scarcity of resources. With 100,000 students spread throughout the province, an alternative or parallel system to the denominational system would be too expensive to maintain. According to Dr. Williams, addressing the needs of all children requires a meaningful response to individuals and groups whose needs are not being adequately met: children with learning disabilities, children with special interests and talents, and children who are socially and economically disadvantaged. It also means addressing concerns about the quality of schooling and the competitiveness of the system. Dr. Williams stated that a severe decline in school population combined with the FXUUHQWÀVFDODQGHGXFDWLRQDOLQHIÀFLHQFLHVLPSHULOWKHRYHUDOOTXDOLW\RISURJUDPPLQJ For example, there has been a trend in the provincial educational system towards inclusion, i.e., the accommodation of children within the school system regardless of disability. Given the expense involved, Dr. Williams was of the opinion that it did not make sense to address the issue of inclusion on a denominational basis, but observed WKDWWKHGHQRPLQDWLRQDOEDUULHUVZHUHGLIÀFXOWWRFURVV+RZHYHU'U:LOOLDPVVWDWHG his conclusion that parents in Newfoundland were prepared to accept revisions to the denominational system but not its replacement. When asked why the Commission had not called for a constitutional amendment to Term 17, Dr. Williams replied that there had been hope that the recommendations of the Commission could be achieved by building on the historical model of collaboration and co-operation. However, the Commission recognized that the changes recommended could only come with the consensus of those who held the rights or with a constitutional amendment. He expressed his opinion that the “real losers” in the protracted debate over educational reform were the students, and supported the amendment because “evolution is a very slow process and we cannot afford to wait.”

c. The Role of the Senate in a section 43 amendment. Section 43 of the Constitution Act, 1982, is the amending formula which applies to changes to constitutional provisions which affect one or more, but not all, provinces. There was a general consensus among witnesses that the proposed amendment to Term 17 required the use of the section 43 formula. Dr. Kathy Brock, from the Political Science Department at Wilfrid Laurier University, and Professor Anne Bayefsky, a noted constitutional lawyer and author, gave testimony on section 43 amendments in general. Dr. Brock explained that section 43 provides for amendments to be made by an identical resolution initiated and passed by the province(s) concerned, the Senate,

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which has only a suspensive veto, and the House of Commons before being proclaimed into law. Dr. Brock suggested that the Senate may approve, reject or amend the resolution. However, the latter two actions involve substituting the judgement of the Senate for the decisions of elected legislative bodies and, in her view, would require the existHQFHRIVLJQLÀFDQWÁDZVLQWKHDPHQGPHQWRULQWKHSURFHVVIROORZHGLQGHYHORSLQJ the amendment. For example, it would be necessary to establish that minority rights would be damaged, and that such damage would not be offset by the gains in terms of educational quality or the rights which other groups within society gain. She stated the Senate has a traditional role in protecting minority rights. This is particularly important given the similarity of the existing Term 17 to provisions in section 93 of the Constitution Act, 1867, section 22 of the Manitoba Act and section 17 of the Saskatchewan and Alberta Acts. However, the existing Term 17 has distinct features from these provisions. In her testimony, Professor Bayefsky stressed that section 43 amendments should be inevitably linked to the question of constitutional amendment as a whole. The language of section 43 makes it appropriate that the Houses of Parliament not rubber stamp a proposal from the provincial government, but take a considered view of the motivation for the amendment and its effect on such matters as minority rights and the modernization of the Constitution. Professor Bayefsky noted that constitutional change may affect rights, and then the question becomes whether such change is appropriate and whether it has been fairly done. She suggested three criteria which should be considered by the Senate when exercising its judgement on the proposed amendment: Was the process of generating the proposed amendment fair? Is the amendment potentially oppressive to minorities? What are the consequences for the national fabric? With respect to the fairness of the process, Professor Bayefsky suggested that the Senate consider a series of questions. Did the amendment result from a process which was fair and democratic? Were there public hearings? Was there an attempt at nonconstitutional reform? Were there negotiations with the affected parties? Was there a referendum? Was there an election which turned, in part, on this particular proposal? As for the effect on minority rights, Professor Bayefsky posed another set of questions. Was the intention of the government to improve the quality of education, or was there some kind of suspect intention? What was the involvement of the minority in the process? Does the outcome still protect those minority rights in some form? Are the members of the minority left with a certain measure of protection? What is the impact of the Canadian Charter of Rights and Freedoms, which articulates such goals as equality, multiculturalism and freedom of conscience, on the concept of the minority rights involved? +DYLQJDVNHGWKHÀUVWWZRTXHVWLRQVRQZKHWKHUWKHSURFHVVZDVIDLUDQGZKHWKHU it nonetheless oppressed a disadvantaged minority, the Senate should consider the consequences for others. What are the external effects on other provinces, for example? 'RHV LW VHW D SUHFHGHQW"$UH WKH SHULSKHUDO HIIHFWV VLJQLÀFDQW DQG GDPDJLQJ WR WKH character of Canada, or is this a unique situation which is not analogous to the situation in other provinces? 80

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It was within these guidelines that the Committee commenced its study.

d. Term 17 and denominational rights Professor Benoit Pelletier, Faculty of Law, University of Ottawa and Professor Dale Gibson, Faculty of Law, University of Alberta, gave an independent assessment of the proposed amendment to Term 17. Although both experts agreed that section 43 was the appropriate formula for the proposed amendment to Term 17, Professor Pelletier expressed the viewpoint that section 93 could be divided into two parts: the introductory clause, which gives each province exclusive jurisdiction over education in the province; and the exemption for denominational rights contained in subsections (1) to (4). He suggested that any DPHQGPHQWWRWKHÀUVWSDUWRIWKHVHFWLRQH[FOXVLYHSURYLQFLDOMXULVGLFWLRQRYHUHGXFDtion, might well require the use of the section 38, which requires the approval of seven provinces which represent at least 50 percent of the total provincial population. Professor Pelletier expressed the view that the amendment to Term 17 affected only Newfoundland. However, he stated extreme caution is in order. If Parliament accepts DGLPLQXWLRQRIGHQRPLQDWLRQDOULJKWVLQ1HZIRXQGODQGLWPD\EHGLIÀFXOWWRUHIXVHD similar amendment to another province, particularly Quebec. Although one can argue that an amendment of section 93 might require the consent of two, four or six provinces, it is also possible that the Supreme Court would approve of an amendment agreed to by only Quebec and the federal legislature. Professor Pelletier’s view of the 1993 Supreme Court decision [Quebec Education Act Reference] on denominational school rights in Quebec was that the denominational education rights guaranteed to Catholics and Protestants in Montreal and Quebec City entitled those classes of persons to separate confessional schools and to the “structures” ZKLFKZRXOGDOORZWKHPWRPDQDJHWKRVHVFKRROV+RZHYHULWLVGLIÀFXOWWRGHWHUPLQH what is included in the court’s concept of “structures.” He noted that the existing Term 17 was the only provincial denominational education provision that did not include the possibility of intervention by the federal government. However, he cautioned against drawing the conclusion that the federal government had no protective role. His view was the absence of an appeal to the federal government in the existing Term 17 resulted simply from the fact that, by 1949, it seemed less appropriate to recognize the possibility of an appeal to the federal government or of Parliament adopting a remedial law. 3URIHVVRU3HOOHWLHUH[SODLQHGWKDWWKHUHZDVQRVLJQLÀFDQWUHODWLRQVKLSEHWZHHQWKH Newfoundland referendum, and any referendum on Quebec sovereignty. If Quebec became sovereign by virtue of international law, the Canadian Constitution would cease to apply in Quebec. Therefore, any question of amending the Canadian Constitution would no longer involve Quebec, Quebec institutions, Quebec citizens, or Quebec courts. Professor Gibson commenced his remarks by stating conclusively that the proposed amendment to Term 17, if accepted, would have no effect on the status of any future referendum in Quebec. First, there is no comparison between the amendment of one term of a provincial constitution under the bilateral section 43 formula, and an

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amendment which would remove a major part of the country. Second, the referendum LQ1HZIRXQGODQGZDVQRWDFUXFLDORUHYHQDVLJQLÀFDQWSDUWRIWKHDPHQGLQJSURFHVV Third, Parliament is under no obligation to accept a resolution which comes from a province. Professor Gibson agreed that an amended Term 17 still provided denominational rights beyond what is available in many provinces. However, he was of the opinion that the proposed resolution would diminish existing denominational rights by subjecting them to the legislative will. Professor Gibson also suggested that the rights listed in the proposed clause I(C)) do not include certain denominational education rights which probably are embedded in the existing Term 17. For example, at present each class of persons has the constitutional right to completely control the management of its own denominational school board. Reform pursuant to the proposed Term 17 could result in multi-denominational boards representing a variety of schools and a variety of denominations. The result ZRXOGEHDVLJQLÀFDQWRYHUDOOGLPLQXWLRQRIWKHPDQDJHPHQWDELOLWLHVRUULJKWVRIWKH denominational school supporters. Professor Gibson was of the opinion that the denominational education law existing when Term 17 was enacted in 1949 did not preclude the Newfoundland legislature from legislating in respect of publicly-funded education for non-protected groups, although such funding would not have constitutional protection. In his view, the 1987 amendment was not necessary to protect Pentecostal schooling rights, although it did give constitutional status to those rights. Professor Gibson stated that reforms relating to non-denominational schools, or to unprotected denominations, would not require a constitutional amendment. However, other reforms, such as achieving major cost savings by amalgamating school boards, would require a constitutional amendment because they would interfere with the entrenched right of denominational management of schools.

 7KH9LHZ)URP2WWDZD The views of the witnesses are framed under the three criteria: Was the process of generating the proposed amendment fair? Is the amendment potentially oppressive to minorities? What are the consequences for the national fabric?

a. The fairness of the process i. The history of the process 7KH 0LQLVWHU RI -XVWLFH GHVFULEHG WR WKH &RPPLWWHH WKH IDFWRUV WKDW LQÁXHQFHG WKH national government to support the proposed amendment. The government looked at all aspects of the process: the decades of discussion, the long-term negotiations between the government and the denominational groups, the Royal Commission’s report in 1992, the 1996 provincial election which the government won on a platform including educational reform, the state of the school system in Newfoundland, the nature of the proposed changes and the rights that would remain after the amendment. Finally, there was the fact that in May the Newfoundland House of Assembly adopted

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a unanimous resolution calling upon Parliament to act urgently to give effect to the proposed constitutional change. The Minister stated that the issue is the desire of the provincial government to modernize its school system. He stated that there has been no unanimity of view, but the process has been fair, and it was for this reason that the national Government was asked to participate. Dr. Brock noted that if a referendum is used, it must still be determined whether the minorities have been otherwise consulted through hearings or other public consultation mechanisms, whether the public is aware of the implications of the amendment, and whether the quality of the legislative debate was acceptable. ii. Whether a constitutional amendment is necessary The Minister of Justice stated that a constitutional amendment was necessary because there would be a change in the way in which denominational rights would be exercised. Professor Bayefsky was of the view that a constitutional amendment was the appropriate and necessary process because otherwise the threat of constitutional challenge would hang over any kind of suggested reform from the beginning, and the reforms would inevitably be bogged down in the courts for a long time. Mr. Ian Binnie, an ex-Associate Deputy Minister of Justice who recently provided the Government of Newfoundland with an opinion on the constitutionality of the proposed amendment, agreed that in the 1993 Quebec Education Act Reference the Supreme Court had given the Quebec government substantial leeway, even within the constraints of section 93, to reform its educational system along linguistic lines. However, he argued that this could not be applied to the Newfoundland situation. Mr. Binnie suggested that the 1948 context in Newfoundland, which was constitutionally entrenched by Term 17, was much more constraining than the 1867 context in Quebec. He referred in particular to section 76 of the 1948 Newfoundland legislation which appears to limit the government’s ability to fund schooling according to need rather than population. He agreed that the Newfoundland legislature could presently create new schools, but only in the context of the participation of all denominations under the practices and procedures as they existed in law in 1948. Creating and funding new schools would mean increasing the allocation of money to the denominations in accordance with population and not in accordance with need. Mr. Peter Lauwers, a lawyer who appeared with a number of Catholic organizations argued on the other hand that the system of education in Newfoundland could be restructured and reformed without the need for a constitutional amendment. Nothing prevents the Newfoundland government in principle or in law from establishing an interdenominational school system for those who voted to give up their denominational rights. The Evangelical Fellowship concurred that, while the existing Term 17 prohibits the provincial government from adversely affecting the protected groups, it does not LPSHGHRUSUHYHQWWKHJRYHUQPHQWIURPEHQHÀWWLQJRWKHUJURXSV Dr. Williams disagreed with the workability of such a non-constitutional option. He felt the proposed Term 17 is the next logical step in the history of education in

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Newfoundland because the changes proposed by the government would neither remove the churches from education, nor would they make the system non-denominational. A parallel secular system would be too expensive for Newfoundland to maintain, and would only dilute the system already in place. iii. Other minority rights The Minister of Justice noted that both Professor Bayefsky and Dr. Brock felt that this issue involves weighing and balancing interests. He quoted Professor Bayefsky’s RSLQLRQWKDW´WKHTXHVWLRQVRIULJKWVDQGZKHWKHUULJKWVKDYHEHHQVXIÀFLHQWO\SURWHFWHG must balance the rights of a whole series of different groups and it would be wrong to focus only on one.” He also cited Dr. Brock: “The criteria must be clearly developed that minority rights would be damaged and that that damage would not be offset by the gains in terms of educational quality or the rights which other groups within society gain.” Minister Rock described the rights affected by the proposed amendment as follows: “First, Newfoundland children and their right to the best possible education; next, parental rights, to have control over where their children go to school; third, the rights of each religious denomination; and fourth, the rights of the elected representatives of Newfoundland and Labrador to provide an appropriate educational system as they VHHÀWµ Grand Chief Ovide Mercredi of the Assembly of First Nations observed that there is nothing in the Newfoundland amendment that gives explicit protection to the First Nations in that province to maintain and operate with public funds their own schools under First Nations authority and jurisdiction. The First Nations want the aboriginal right to education to stand on its own, rather than existing implicitly in the context of other constitutional provisions. They are also concerned that the proposed Term 17 will make it easier for the federal government now to assert that First Nations education is, in Newfoundland, a provincial responsibility.

b. The effect on minority rights i. The nature of the proposed Term 17 7KH0LQLVWHURI-XVWLFHWHVWLÀHGWKDWWKHSURSRVHG7HUPZRXOGRQO\HIIHFWFKDQJHVLQ the manner in which denominational education rights are exercised, and denominational schools are administered. There would still be denominational schools, and a role for the churches in education. Minister Rock explained the government had considered the fact that there is no single majority denomination in Newfoundland, and that each of the seven denominations will be affected equally in proposed changes. Single denominational schools will H[LVWZKHUHUHTXHVWHGE\WKHSDUHQWVDQGZKHUHWKHUHDUHVXIÀFLHQWQXPEHUVRIVWXGHQWV IRUDYLDEOHVFKRRO+HDJUHHGZLWK3URIHVVRU%D\HIVN\WKDW´DVLJQLÀFDQWUROHLVVWLOO given to minorities within the educational system, in fact a great deal more power and control than would be the case in a lot of other provinces.” He noted that the mere existence of a 50-year-old term does not mean that it can never be changed, for the &RQVWLWXWLRQLVDOLYLQJDQGÁH[LEOHGRFXPHQWZKLFKPXVWDGDSW 84

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Mr. Ian Binnie voiced the opinion that the proposed Term 17 essentially deals with reorganisation. The diminished rights relate to the construction and funding of schools, and the machinery of the educational system; none of these are matters falling within the core or protected constitutional values of denominational education. According to Mr. Binnie, the essential question for the Senate should be whether Newfoundland is respecting what are truly the rights of denominations as denominations, while allowing the rights of Newfoundlanders as citizens and taxpayers to a rationalization of the school system. He argued that subsection 1(a) is essentially a grandfather clause permitting existing schools to continue to have the right to provide for religious education activities and observances, which he felt focused on the Supreme Court’s concept of the essence of denominational education. Subsection (b) insists that any criteria applied by the provincial legislature in the area of non-core values – that is, those that have nothing to do with religious education activities or observances – be uniformly applicable. However, witnesses from the affected denominations asserted that the proposed Term 17 would mean that parents in Newfoundland and Labrador will, in large part, have the right to educate their children in Catholic schools, taken away. Catholic schools, as the church understands that concept, may no longer be possible. The Federation of Independent Schools held the view that the proposed amendment to Term 17 was not about educational reform, but about who governs the school system and how it will be governed. Governance in their view was part and parcel of denominational education. The Committee also heard from Mr. Colin Irving, a lawyer who has acted as a constitutional advisor to the Catholic and Pentecostal Education Councils. Mr. Irving also appeared before the Supreme Court of Canada as counsel in a number of the most recent denominational education cases. In general, Mr. Irving’s arguments tend to support those witnesses who assert that the new Term 17 substantially impinges on the rights of parents to denominational education for their children. Mr. Irving observed that the present debate is essentially the same as that which led to the inclusion of section 93 in the 1867 Constitution Act. At that time, the Protestant view in Ontario and Quebec was that schools should be “Christian” but not churchgoverned. They desired a public school system, and did not wish to be subjected to a “Catholic” education in the event that the Protestants constituted a minority in any given VFKRROGLVWULFW´&DWKROLFµHGXFDWLRQE\GHÀQLWLRQZDVFKXUFKJRYHUQHG&RQVHTXHQWO\ section 93 was meant as a constitutional guarantee for minorities. Similarly, in 1949 Term 17 also was a protection of minority rights. According to Mr. Irving, although the integrated churches may be willing to give up certain of their rights in relation to education, they do not wish to exercise those rights in the same way as do the Catholic, Pentecostal, or Adventist classes of persons. ii. The nature and scope of “denominational education” The Canadian Conference of Catholic Bishops explained that a denominational school places the student in a framework where all of the important values are studied and understood. Mr. Lauwers argued that this concept of Catholic education has been

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recognized by the Supreme Court and is well accepted in Canadian jurisprudence. A Catholic education is holistic, and religious exercises and catechism once a week cannot in and of themselves fully constitute a “Catholic education.” The Evangelical Fellowship of Canada took the position that education is shaped by a framework of belief and values, sometimes called a “world view,” by which individuals make sense of their lives and the world around them. Thus, education is inherently religious or ideological, and at its foundation faith-based. As all education has a value basis, no schools can be called “neutral.” The Evangelical Fellowship also noted that, under the current Term 17, it is possible for the Roman Catholic, Seventh-day Adventist and Pentecostal schools to provide an hour-by-hour, subject-by-subject, infusion of Christian principles, thought, perceptions and interpretation. They felt that the new interdenominational system would make WKLVYHU\GLIÀFXOWLIQRWLPSRVVLEOH5DWKHUWKDQEHLQJDEOHWRVKDSHWKHZKROHRIWKH curriculum, denominations would be restricted to providing religious education classes and religious observances. Mr. Binnie, on the other hand, argued that a “holistic” understanding of denominational education is not consistent with Supreme Court of Canada jurisprudence. In 1989, the Montreal Protestant School Boards argued, before the Supreme Court, that the Protestant educational ethic touched every aspect of education and every aspect of the functioning of the school. The Court did not disagree, but ultimately held that the intention of denominational rights, as a constitutional value, was narrower than the educational ethic because there had to be a balance between the rights of the legislature to regulate the denominational system in the best interests of the population and the ULJKWRIGHQRPLQDWLRQDOVFKRROVWRGHÀQHZKDWSUHFLVHO\DUHWKHULJKWVWKDWSHUWDLQWR them. Mr. Binnie argued that the 1993 Quebec Education Act Reference made several crucial comments about the balance between provincial legislative rights and denominational educational rights. Section 93 and Term 17 grant exclusive legislative power over education to the provincial governments, as well as establishing that existing denominational rights are a limitation on that exclusive jurisdiction. Imposing too many limits on the provincial legislative power would prevent the province from exercising its jurisdiction over education effectively. Additionally, the Supreme Court has accepted that the machinery of education must be modernized and altered over a period of time to respond to evolving needs. Mr. Lauwers argued that the proposed Term 17 would make the exercise of a right to separate denominational schools entirely subject to “uniformly applicable provincial laws.” In consequence, the protected Newfoundland denominations would go from a situation of certainty to a situation of complete uncertainty, because the criteria for establishing separate denominational schools would be at the whim of the provincial government with the denominational classes having no effective recourse. Mr. Irving concurred. Although 17(1)(b) gives the appearance of granting a right, it also provides expressly that that right is defeasible by provincial legislation: the Government of Newfoundland is allocated the power to set conditions for the exercise of the right. Such conditions could make the right meaningless and/or impossible to exercise. 86

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iii. Criticisms and suggested amendments to Term 17 Several witnesses felt that the proposed Term 17 gave the term “denominational schools” a new meaning which is quite different from the rights protected in 1949. Although the proposed amendment refers to “denominational schools,” these witnesses felt the capacity of the schools to educate according to the parents’ religious beliefs will be minimal except in exceptional circumstances. 0U%LQQLHDUJXHGWKDWWKH6XSUHPH&RXUWKDVGHÀQHGWKHFRUHYDOXHVRIGHQRPLQDtional education, and it would be appropriate to measure the proposed Term 17 against those core values rather than an historical concept of “denominational schools.” Supporters of Roman Catholic and Pentecostal classes were most concerned that the proposed Term 17 would make their schools dependent on provincial legislation setting thresholds for viability. Dr. Brock noted that the Newfoundland government is saying to parents that if they get together, where numbers warrant and if the parents petition for a school, the government will stay with the denominational school. If the government holds to that principle, protection is in place, but the policy is only a political decision and can be changed at any point. If they give precedence to the common school where there are two schools in a district, or when student numbers begin to drop, there will be an erosion of denominational rights. Mr. Binnie, defending the proposed Term 17, argued that the Supreme Court of Canada has stated that there is a balance between the jurisdiction of the province to regulate the education system in the best interests of the population and the right of GHQRPLQDWLRQDOVFKRROVWRGHÀQHZKDWSUHFLVHO\DUHWKHULJKWVWKDWSHUWDLQWRGHQRPLnational schools. He noted that the Supreme Court has distinguished between the core values of religious and moral education, and non-denominational aspects which are not constitutionally protected. He suggested that Supreme Court decisions support the proposition WKDWOHJLVODWXUHVVKRXOGKDYHDUROHLQGHÀQLQJWKHQRQFRUHYDOXHV The Catholic School Boards in Quebec, however, shared their experience that where management of a board is shared amongst several groups, some more secular than others, religious programming is endangered and could ultimately disappear. Within the context of a multi- or non-denominational school board, the continued existence of a uni-denominational school could be fragile and tenuous. When asked if he would contemplate amendments to the resolution, the Minister of Justice replied that he would not because “I represent the riding of Etobicoke Centre and I do not presume from Etobicoke Centre to tell the Province of Newfoundland how it should word its legislation for the administration of its school system.” The Minister added that as long as there is democracy in the process, and fairness, and no abrogation of minority rights then the national Parliament should proceed without imposing capriciously from this distance words that may not be appropriate in the amendment. +RZHYHUZLWQHVVHVGLGVXJJHVWWZRVSHFLÀFDPHQGPHQWV6RPHDUJXHGWKDWWKH absence of an objective test, such as “where numbers warrant,” means that the affected denominational minorities would be left without any recourse to the courts. Mr. Irving was one such witness, stating that the proposed paragraph 17(1)(b), as drafted, would

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create “a right which is not a right.” He told the Committee that: “You are being asked to approve a constitutional guarantee which is no guarantee at all and could never be taken to a court of law.” Mr. Irving proposed that “where numbers warrant” be substituted for the entirety of the introductory “subject to” clause. Mr. Binnie and Mr. Irving agreed that such an amendment would broaden the right provided by the new Term 17; however, in Mr. Irving’s view, such an amendment would in fact be consistent with the promise made by the Newfoundland Government at the time of the referendum, namely that uni-denominational schools would exist “where numbers warrant.” Mr. Binnie noted that the phrase “where numbers warrant” involves the jurisprudence growing out of section 23 of the Charter, i.e., minority language educational rights. He argued that it would be inappropriate to import the tests for minority language rights and education rights into a section 93 context. Section 23 is a remedial provision, and Term 17 is not a remedial provision. Witnesses also expressed a concern that Term 17 only provides for a denominational right to “direct” certain aspects of uni-denominational schools. They felt that there is a difference between the right to direct and the right to determine, and that the word “determine” should be added to the proposed Term 17. 0U%LQQLHDUJXHGWKDWWKHXVXDOGLFWLRQDU\GHÀQLWLRQRI´GLUHFWLRQµOLNHO\ZRXOG include: carrying-out, organizing, supervising and determining the course of the activity being directed. Consequently, the addition of “determine” would only “pander to the lawyers’ love of saying in several words what ordinary people say in one.” Mr. Binnie suggested that lawyers would always argue about different ways of saying things, and WKHLVVXHZDVZKHWKHUGUDIWLQJLVVXHVZHUHVXIÀFLHQWWRSUHFLSLWDWHDUHZRUNLQJRIWKH whole process at this stage. Mr. Irving responded explicitly to Mr. Binnie’s argument, saying that a discussion of the distinction between the terms “direct” and “determine” is not a mere semantic quibble. In particular, Mr. Irving noted the Supreme Court of Canada’s 1989 decision in the Protestant School Boards of Greater Montreal case, where the Court ruled that the statutory power to “regulate” a course of study did not mean that the Boards had the power to “determine” the curriculum. Therefore, amending Term 17 so that the classes of persons only have powers of direction substantially reduces their constitutional rights.

c. The effect on the national fabric The Minister of Justice discussed the matter of whether or not the amendment could set a precedent that could imperil denominational education elsewhere. He noted that the situation in Newfoundland is unique in many respects and that precedents require like facts or similar principles to have value. Parliament must make an independent judgement in each and every instance of a proposed bilateral amendment. Term 17 should be discussed on its own merits, and the fact that there may be other constitutional rights that can be amended using the section 43 bilateral formula should not be an issue. Minister Rock also noted that changes to minority language education rights or to aboriginal rights could not be made using the bilateral section 43 formula. Such

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changes would require at least the general amending formula level of consensus, i.e., VHYHQSURYLQFHVZLWKDWOHDVWÀIW\SHUFHQWRIWKHSRSXODWLRQ However, various witnesses, including the Canadian Catholic School Trustees’ Association, indicated that the historic compromise in matters of education, which provided for a general school system with the right of Protestants in Quebec and Roman Catholics in Ontario to set up their own tax-supported schools, was the key to Confederation or “the arc of the covenant.” They indicated that any amendment affecting denominational rights might have serious consequences elsewhere in the country. Mr. Michael Harrington, legal counsel to the Canadian Conference of Catholic Bishops, QRWHGWKDWVHFWLRQRIWKH&KDUWHUHQDFWHGLQUHDIÀUPHGWKHPRGHUQLPSRUWDQFH of denominational education rights. Professor Gibson suggested that the proposed amendment would have no legal impact on minority rights outside Newfoundland and Labrador. He felt that the degree of political impact would depend upon the degree to which Parliament studied the matter on its individual merit, and accepted or rejected it on individual merit. If the amendment were to be rubber-stamped, for example, it might well create a political precedent. Whether Parliament accepts the amendment merely because the province requested it, or because Parliament agrees that denominational school rights should be diminished, RUEHFDXVH3DUOLDPHQWFRQFOXGHVWKDWWKHUHLVQRVLJQLÀFDQWGLPLQXWLRQRIPLQRULW\ rights, would have a major impact of the type of political precedent involved. Professor Robert Carney, from the University of Alberta, explained to the Committee the similarities he saw between the proposed amendment and the situation in Manitoba between 1870 and 1890. There was a move from two separate educational systems to a single public system. The rationale given was to save money and to improve the quality of schooling in Manitoba. Professor Carney noted that it is not clear if either of these results were achieved. Finally, the move was an expression of the will of the majority in Manitoba that affected minority rights. However, the Privy Council, at that point in time the highest judicial authority for Canada, found that no rights had been taken away. Professor Carney also found this very reminiscent of the Newfoundland debate today. He stated that a compromise was arranged by Prime Minister Laurier and Premier Greenway of Manitoba which provided time for religious education and the hiring of teachers in proportion to the religious denomination of the pupils (the LaurierGreenway compromise). However, between 1896 and 1916 there were a number of steps towards eroding those rights, particularly the erosion of linguistic rights in 1916. Professor Carney felt that passing the proposed Term 17 would result in the same type of controversy that existed in Manitoba 100 years ago.

3. The view from Newfoundland From the beginning of its deliberations, the Committee was very aware of the need to hear from the people of Newfoundland and Labrador directly. From July 9-11 1996, the Committee held 6 sessions in St. John’s, Newfoundland, hearing from all of the major participants in the debate. There were panel discussions involving representatives of the three educational councils (Pentecostal, Roman Catholic and Integrated), as well as

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the Seventh-day Adventist Church. There was also a youth panel, including participants representing all of the major denominations and the Franco-jeunes de Terre-Neuve et du Labrador, which discussed the issues with an enthusiasm and frankness which the Committee found enjoyable as well as enlightening. The Committee also heard from the Newfoundland and Labrador Home and School Federation, the Newfoundland and Labrador Teachers’ Association, the Newfoundland and Labrador Human Rights Association and the “Yes Means Yes” Committee. Two non-denominational minorities, the “Fédération des parents francophones de TerreNeuve et du Labrador” and the Labrador Métis Association, described how the proposed amendment might affect their educational interests. Finally, the Committee heard from representatives of the three political parties represented in the House of Assembly: the Honourable Roger Grimes, Minister of (GXFDWLRQ0U/R\ROD6XOOLYDQ/HDGHURIWKH2IÀFLDO2SSRVLWLRQRI1HZIRXQGODQGDQG Labrador; and Mr. Jack Harris, Leader of the New Democratic Party of Newfoundland and Labrador. 7KH &RPPLWWHH DOVR RSHQHG WKH ÁRRU WR PHPEHUV RI WKH SXEOLF WR PDNH VKRUW presentations. The opportunity to address the Committee was accepted by a large number of individuals. For the most part, these walk-on witnesses presented the arguments of their denominations with thoughtfulness and feeling.

a. Events following the Royal Commission Report In March 1992, the Royal Commission concluded that the province could not afford WRPDNHWKHNLQGRITXDOLWDWLYHFKDQJHVQHFHVVDU\ZLWKRXWQHZVWUXFWXUDOHIÀFLHQFLHV $PRQJLWVVSHFLÀFSURSRVDOVZHUHSXEOLFO\HOHFWHGVFKRROERDUGVIXQGHGRQWKHEDVLV of need, teachers employed on the basis of professional merit, church involvement at the provincial and school levels, and appropriate religious education programs for all school students. 7KH&RPPLVVLRQUHDOL]HGWKDWLWVSURSRVDOVPLJKWFRQÁLFWZLWKVRPHRIWKH&RQVWLtutional guarantees in the existing Term 17. However, it was hopeful that the churches, working together, could achieve the proposed changes by agreement, particularly since it was evident that the vast majority of Newfoundlanders were not in favour of creating a secular public system of schooling. Over the next three years, negotiations took place between the government and other affected parties. While agreement was reached on a number of issues, there were DQXPEHURIPDMRUGLIÀFXOWLHVRXWVWDQGLQJ0HDQZKLOHRWKHUUHFRPPHQGDWLRQVRIWKH Royal Commission were not implemented. On May 31, 1995, the House of Assembly adjourned. On June 23, Premier Wells announced that a referendum on amending Term 17 would be held on September 5. The referendum question was provided on July 25. The government’s public information campaign centred on a brochure entitled “The Education Referendum: A Decision on the Future of Education in Newfoundland and Labrador.” Some 55 percent of those who voted were in favour of the proposed amendment. Approximately 52 percent of eligible voters cast a vote.

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Several witnesses suggested to the Committee that, in part, the debate around the proposed amendment results from the fact that the timing of the Referendum did not allowed for a full and informed public debate, especially within the very educational system that was to be affected. On October 31, following seven days of debate, the legislature voted on the Term 17 amendment in a free vote. The resolution passed by a vote of 31 to 20. ,Q1RYHPEHUWKH6SHDNHURIWKH+RXVHRI$VVHPEO\VHQWDFHUWLÀHGFRS\ of the resolution to the Clerk of the Privy Council in Ottawa. On May 23, 1996, the Newfoundland House of Assembly passed a unanimous resolution, asking the House of Commons and the Senate “to consider the proposed Term 17 at their very earliest convenience, and to decide the issue before Parliament rises for the summer.” Meanwhile, the new Minister of Education had resumed discussions with denomination representatives, and a “framework agreement” was announced on April 18, 1996. 7KH&RPPLWWHHKHDUGDJUHDWGHDODERXWWKH´IUDPHZRUNDJUHHPHQWµDQGLWÀJXUHG predominantly in arguments that educational reforms could be realized without a constitutional amendment. The Minister of Education told this Committee that he initiated the framework discussions in order to ensure that the changes allowed by the amended Term 17 could be LQLWLDWHGHIÀFLHQWO\RQFHWKHDPHQGPHQWZDVSURFODLPHG7KH&DWKROLFDQG3HQWHFRVWDO denominations did not approve of the amendment, but were willing to discuss changes they would accept under the present Term 17 in the hope that if enough agreement was reached an amendment to Term 17 would not be necessary. The Integrated Schools were of the opinion that the “agreement” was more of a “working paper.” All parties agree that consensus was reached on two points: the establishment of 10 interdenominational school boards rather than the current 27 boards, and the establishment of a provincial school construction board to determine that school construction, renovation and extension would receive funding on the basis of need and provincial priorities. The Minister of Education, in his letter of June 5, 1996, to the Government House /HDGHURIWKH6HQDWHLGHQWLÀHGWKHIROORZLQJLWHPVDVNH\WRWKHSURYLQFH·VHGXFDWLRQ reforms, and yet to be resolved: the substance of provincial parameters governing school closures, consolidations and new construction; the designation of schools as uni-denominational; and a process for determining parental preference for the designation of schools. As the Framework Agreement became public, it became more controversial. By May 30, the Integrated Schools had issued a press release stating that they continued to want [sic] be a single church-schools system, and that the initiatives accepted in WKH)UDPHZRUN$JUHHPHQWGLGQRWUHVROYHWKHGLIÀFXOWLHVLQYROYHGZLWKUHWDLQLQJXQL denominational schools. In particular, the agreement failed to provide for neighbourhood VFKRROVDQGHPSOR\PHQWRIWHDFKHUVRQO\RQWKHEDVLVRIPHULWDQGTXDOLÀFDWLRQDVWKH referendum result had led people to expect. Moreover, a grass roots organization, “Yes Means Yes” sprang up, calling for the implementation of reforms they felt had been endorsed in the referendum: the establishment of inter-denominational schools open to all children without regard to their religion; the right of all children to attend their neighbourhood school; provision 91

STATE SUPPORT FOR RELIGIOUS EDUCATION

for uni-denominational schools where parental preference and numbers warrant; DSSRLQWPHQWRIWHDFKHUVWREHVROHO\RQWKHEDVLVRIPHULWDQGTXDOLÀFDWLRQVH[FHSWLQ XQLGHQRPLQDWLRQDOVFKRROVDQGFKXUFKLQÁXHQFHWREHFRQÀQHGWRUHOLJLRXVHGXFDWLRQ and pastoral care, except in uni-denominational schools. The Roman Catholic and Pentecostal educational councils argued that the Framework Agreement indicated a consensus was within reach, and called upon the Minister of Education to continue the framework discussions. The Minister of Education was of the view that the Integrated Churches had effectively withdrawn from the process, and that an agreement was not within reach. In his letter to Senator Fairbairn he stated: “It is the considered opinion of the Government of Newfoundland and Labrador that a negotiated agreement is not possible.”

b. The views of the protected denominations The various protected denominations in Newfoundland have differing views on what constitutes denominational education, and this may account for the differences in opinion as to what constitutes an appropriate degree of religious involvement in the educational structure. The Pentecostal Assemblies of Newfoundland told the Committee that “the role of the Pentecostal school system is to assist the parent in developing the whole child and in so doing help facilitate the child’s integration of life experiences with the Christian world view as understood and practiced by the Pentecostal Assemblies of Newfoundland.” The Catholic Education Council said: “We hold that Catholic schools have a unique and special philosophy… We refuse to separate spiritual growth from intellectual growth, faith from life, values from knowledge.” The Seventh-day Adventists shared a similar view of holistic education. The Integrated Education Council, on the other hand, describes itself as “an HFXPHQLFDO HQGHDYRXU RI ÀYH GHQRPLQDWLRQV $QJOLFDQ 0RUDYLDQ 3UHVE\WHULDQ Salvation Army, United Church) in the governance and operation of school districts GLUHFWHGDWSURPRWLQJWKHÀYHIROGGHYHORSPHQWRI\RXWK²LQWHOOHFWXDOSK\VLFDOVRFLDO emotional and spiritual.” The System employs a non-confessional, divergent approach aimed at providing for and encouraging young people to come to their own decisions on spiritual and moral commitments. They believe the church does not need to be involved in every aspect of the education system but ought to be actively involved in pastoral care, personal development and religious education. Thus all the protected denominations in Newfoundland believe that the educational system should have a strong religious component, but the denominations who are not involved in the Integrated system (Roman Catholic, Pentecostal Assemblies and Seventh-day Adventists) want considerably more involvement in the management of individual schools. The new Term 17 would provide for both interdenominational or “paragraph (a)” schools and uni-denominational, or “paragraph (b)” schools. For the protected denominations, this raises two issues. First, constitutional jurisprudence to date has dealt with only one type of “denominational” school. The Roman Catholic Education Council expressed the view that the interdenominational schools would be essentially

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secular schools, because an essential hallmark of a denominational school is that the school board which manages its operation is itself uni-denominational. The Integrated Education Council, while in favour of an interdenominational system, also expressed a concern that the courts would recognize only one denominational system, the uni-denominational schools. They felt that this might lead to the loss of constitutional protection for the interdenominational schools. However, they were willing to support the proposed Term 17 despite this reservation. The second issue was the absence of any standards to indicate when uni-denominational schools would be permitted. The existence of such schools would be subject to provincial legislation uniformly applicable to all schools. Supporters of interdenominational schools felt they had been guaranteed that such schools would be the norm, and were concerned that the Framework Agreement indicated otherwise. Supporters of uni-denominational schools felt that their rights would be entirely subject to future legislation on such issues as viability or the means of designating uni-denominational schools. Of the protected denominations who oppose the amendment, the Roman Catholic is the largest single religious group, with 208,900 adherents, or 37 percent of the population and operates 9 school boards. The Pentecostal Assemblies have some 40,000 members representing 7.6 percent of the population. The Pentecostal Assemblies Board of Education has one district, which covers the entire province. It operates 35 Pentecostal schools and is involved with 5 joint service schools, operated cooperatively with school boards of other denominations. The Seventh-day Adventists represent 700 people, or approximately 0.1 percent of WKHSRSXODWLRQDQGRSHUDWHÀYHVFKRROVXQGHURQHVFKRROERDUG7KH\IHHODSDUWLFXODU need for a separate school because their sabbath is Saturday, and their children cannot participate in extra-curricular activities held on Friday nights or Saturdays. As many as two-thirds of the children in their schools are from other, non-recognized, religions such as the Mormons, Jehovah’s Witnesses, Bible Believers, and Christadelphians. The Royal Commission Report listed every S.D.A. school in Newfoundland as “non-viable.” The churches who opposed the amendment presented detailed arguments. They criticized the Royal Commission report, and argued that the recommendation to DEROLVKWKHGHQRPLQDWLRQDOV\VWHPZDVQRWMXVWLÀHGE\WKHHYLGHQFHSUHVHQWHGWRWKH Commission. They argued that the existing denominational system is not as costly as was suggested E\WKH5R\DO&RPPLVVLRQSDUWO\EHFDXVHRIWKHUHOLDELOLW\RIWKHÀJXUHVDQGSDUWO\ EHFDXVHWKHVLJQLÀFDQWÀQDQFLDOFRQWULEXWLRQVRIWKH&KXUFKHVKDGQRWEHHQIDFWRUHG in. The Royal Commission had also suggested that there was excessive duplication of schools, as well as too many small schools, under the denominational system. The churches replied that major strides had already been made towards reducing duplication, and that the Framework Agreement showed that still more could be achieved by cooperation. The churches who opposed the amendment were critical of the referendum process, and noted the low turnout. The Seventh-day Adventists suggested that the referendum was a direct attempt to interfere with the internal governance of the denominations.

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All three denominations criticized the government for unfairly implying that reform of the educational system required a constitutional amendment. They also argued that government publicity had promised schools for separate denominations “where numbers warrant,” and this was not in the wording of the amendment. They stated that the amendment to Term 17 was not an issue in the 1996 provincial election, and that the government victory could not be seen as approval of the proposed amendment. Because it had been suggested in some quarters that Newfoundland education was inferior in quality, thus necessitating radical reform, these churches argued forcefully and effectively that the Newfoundland educational system met national standards. Finally, the churches who opposed the amendment argued that it took away their minority rights, and that the constitutionally protected rights of a minority have never before been taken away without their consent. The Roman Catholic church and Pentecostal Assemblies suggested two amendPHQWVZKLFKZRXOGDOOHYLDWHWKHLUFRQFHUQV7KHÀUVWZRXOGUHPRYHWKHFODXVHVWDUWLQJ “subject to provincial legislation that is uniformly applicable to all schools” from the section dealing with the operation of uni-denominational schools, and add instead the phrase “where numbers warrant.” The intent would be to set an objective standard for determining when a uni-denominational school could operate, rather than being subject to legislation that could change at any time. The Minister of Education told the Committee that this wording had been considered by the government and rejected. It would not set a more ascertainable standard, but rather place the criteria to be considered in the hands of a court, not the legislature. 7KHGHFLVLRQWRPDLQWDLQOHJLVODWLYHFRQWUROZDVÀUP The second proposed amendment was to the clause giving denominations the right “to direct” certain aspects of a uni-denominational school: the teaching of aspects of the curriculum affecting religious beliefs, student admission policy and the assignment and dismissal of teachers. The two denominations argued that the word “direct” was ambiguous, and that the phrase should be “to determine and direct.” The Minister of Education told the Committee that the word “determine” added nothing. He noted that he was on the public record as stating that “direct” included “determine” and, should there be any question as to the meaning, his public interpretation should be determinative. The largest denominational school system in Newfoundland is the Integrated system. The four protected denominations involved in the system are the Anglican (147,520), the Presbyterian (2,155), the Salvation Army (44,490) and the United Church (97,395), which together represent just over half of the population and have 16 school boards at present. On the whole, the Integrated denominations supported the proposed amendment to Term 17, notwithstanding the fact that they had numerous concerns about it. The greatest concern seemed to be that interdenominational schools would have less of a Christian ambiance, and the churches less of a role, than in the present Integrated system. Because interdenominational schools were a new concept, the Integrated churches feared that they might not have the protection guaranteed to existing denominational rights in 1982 when the Charter of Rights and Freedoms came into effect. The integrated denominations did not view the issue as one of minority rights. Indeed, the Right Reverend Donald Harvey of the Anglican Church stated that the denominational rights given by Term 17 in 1949 were Christian rights, given to the 94

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Christian majority. Although there may be differences within that Christian majority, the real minorities are those outside of the protected Christian group. In any case, Bishop Harvey did not think it was clear that rights would be taken away. The Integrated Education Council stated: “A true denominational school in the Canadian tradition is one wherein Christian religious values are fostered throughout the school and not just in the time allocated to the religious education curriculum.” Because the interdenominational schools will be open to all students, there is a concern that the Christian values which presently imbue such activities as school prayer, classroom worship, assemblies, concerts, entertainment and graduations may be ousted by judicial LQWHUYHQWLRQLQIDYRXURIPRUHVSHFLÀFULJKWVVXFKDVIUHHGRPRIFRQVFLHQFHRUUHOLJLRQ ,I WKH GHQRPLQDWLRQV DUH UHVWULFWHG WR XVLQJ VFKRRO IDFLOLWLHV IRU QDUURZO\ GHÀQHG purposes relating to students of their own class, the interdenominational schools will be indistinguishable from public secular schools. Although the integrated denominations do not have the same concerns as the Roman Catholics and the Pentecostal Assemblies with respect to provincial control over management and programs, some feel that the amended Term 17 may allow for provincial interference with religious education. The integrated denominations support the creation of a single church-school system. The Reverend Clarence Sellars of the United Church noted that is important to keep the rights of the students in mind. He felt that if all denominations operated their own schools, quality education would be impossible, and the bottom line has to be what is best for the students of the province. He added that the United Church still believes in a single system, but recognized the results of the referendum and the democratic system and did not wish to slow down reform.

c. Teachers, parents, and non-denominational interests The Home and School Federation explained that they remained neutral when the referendum was called, feeling that as a representative of all parents they should await the outcome of the vote. However, they think it is clear that people knew what they were voting for. People who had reservations or wanted the present system preserved voted “no.” People who voted “yes” either agreed with the compromise position of the government, or wanted a single interdenominational system. The Federation endorsed the creation of a single interdenominational system, while allowing for uni-denominational schools where parental preference and numbers warrant it. They urged the Senate to pass the proposed amendment to Term 17. Their main concern appeared to be the right of children to attend a neighbourhood school, where religious instruction and pastoral care remain, instead of the appropriate denominational school, so that children growing up together could also go to school together. The Federation appreciated the Senate’s respect for minority rights, but concluded that the proposed Term 17 will not deny rights to minorities. The Federation described the proposed Term 17 as a fair compromise, which respects everyone’s rights: “the losers will not be individuals or ‘classes of people’ but rather institutions, such as the Denominational Education Councils, which have enjoyed extraordinary power in this province.”

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The Newfoundland and Labrador Teachers’ Association is both a union and a professional association, and believes that the interests of teachers are consistent with the interests of the students and the schools. The Association was formed in 1890 as an inter-denominational body. They indicated that while they did not represent the views of all their members, their brief did represent the opinions of the majority. The Teachers’ Association believes that the present reform of the educational system EHJDQZLWKDEULHIWKH\SUHVHQWHGWRWKHJRYHUQPHQWLQ7KDWEULHILQGLFDWHGDÁDZ in the education delivery system: the economy of the province could not support four separate school systems and still allow for the production of the kind of education the Teachers’ Association believed possible. They support the interdenominational concept, but with provision for the retention of uni-denominational schools in areas of the SURYLQFHZKHUHWKHUHDUHVXIÀFLHQWQXPEHUVDQGZKHUHWKDWLVWKHZLVKRIWKHSDUHQW The weak economy, combined with a large, sparsely populated province, requires a OHDQDQGHIÀFLHQWGHOLYHU\V\VWHP7KHSURYLQFHVSHQGVSHUFHQWRILWVRYHUDOOEXGJHW on education, more than any other province, but the budget per child is still $1,000 less than the rest of the country. Even with reforms and consolidations, they believe the denominational system requires more schools than necessary and means that the trained and experienced teaching force could not be used as effectively as necessary: “All research in education, through all the millenniums, converge in a single conclusion – quality education takes place when highly trained, experienced, and caring teachers meet students in reasonable numbers under reasonable conditions. This factor was severely compromised by the uniqueness of our denominational system.” The Teachers’ Association categorically rejected the argument that the system is evolving, that number of schools is being reduced, that cooperation is increasing, and that therefore reform is not needed and a change to Term 17 is not required. The Teachers’ Association noted that much has been said about minority rights, linguistic rights, aboriginal rights, and church rights, but not about the rights of children born in the province of Newfoundland and Labrador. They requested that the Senate consider the rights of others, but not give them priority over the right of the silent majority of children to a top quality education. The Committee heard from representatives of the “Fédération des parents francophones de Terre-Neuve et du Labrador.” The Fédération is a provincial organisation representing the interests of francophone parents and students in education matters. The total number of students presently enrolled in francophone schools is 325, although the Fédération believes that between 300 and 600 other children also would be eligible for IUDQFRSKRQHVFKRROLQJ$WWKHPRPHQWÀYHIUDQFRSKRQHVFKRROVDQGRQHIUDQFRSKRQH pre-school operate under the jurisdiction of three different Catholic boards. The Fédération does not take a position for or against the deconfessionalization of schools, as its concerns are in relation to the process of education reform as a whole. However, there are fears that the particular interests and needs of francophone schools will be more easily threatened should the government proceed with its plans for the creation of ten large inter-denominational boards. It was argued that the obvious solution to fears of being submerged within the proposed “mega” boards would be the creation of a single provincial francophone board. The Fédération hopes that, with full control 96

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of their own schools, and control of the necessary resources, it will be able to attract the 300 to 600 francophone children who are not currently enjoying their constitutional rights to minority language education. The Fédération’s representatives advised the Committee that both Premier Tobin, and the Education Minister, Mr. Grimes, had publicly stated that the creation of a francophone school board for Newfoundland and Labrador could be anticipated once Term 17 had been amended. As of the date of their testimony, the Federation had not received any such undertaking in writing. Moreover, the Committee was advised that during the past winter, the draft provincial legislation which had appeared went only so far as allowing francophones limited veto powers within local subcommittees of the new boards. Given the present preoccupation with education reform, the Federation’s representatives asserted that the moment was ripe for the creation of a single francophone school board. Mr. Grimes, Minister of Education, announced cabinet approval for the creation of a francophone school board in his testimony to the Committee. The Committee heard from Mr. Todd Russell, the President of the Labrador Métis Association, and Mr. Ken Mesher, an elder and member of the Executive Council of WKH$VVRFLDWLRQ7KH$VVRFLDWLRQUHSUHVHQWVVRPHÀYHWRVL[WKRXVDQGSHUVRQVUHVLGLQJ in Labrador coastal communities. Mixed feelings were expressed with respect to the proposed amendment to Term 17. The Labrador Métis’ primary concern is to reacquire control over the education and future of their young people, whether from the churches or from a distant provincial administration. Mr. Russell argued that the aboriginal right of self-government must include effective control over “how our children are educated, over what values and what culture they are brought up with and in what languages.” Similar sentiments were expressed by Mr. Mesher: “Spirituality is essential to culture, and that means the spiritual content must be built into the curriculum.” However, the view expressed was that neither the existing denominational school system, nor the legislative proposals related to the Term 17 amendment, seem to offer any real hope of establishing community control over education. Mr. Russell argued that the proposed amendment to Term 17 directly affects aboriginal rights and education, even though it does not directly address these matters. The concern was expressed that the absence of any explicit reference to aboriginal rights would allow politicians “to forge ahead to further assimilate our people under the guise of a cost-cutting effort at consolidation.” He asserted that government statements of intention must be backed up by guarantees. Their proposed solution would be the addition of a general protection clause to the Terms of Union which would state that aboriginal rights, including the right to a full say in the education of aboriginal children, are not to be affected by the amendment to Term 17. The Association requested that the Senate make use of a companion resolution to tie its approval of the Term 17 amendment to approval by the Newfoundland House of Assembly, and by the House of Commons, of an amendment to the Newfoundland Terms of Union which would clearly protect aboriginal rights.

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d. The House of Assembly During our last session in Newfoundland, this Committee heard from the Honourable 5RJHU *ULPHV 0LQLVWHU RI (GXFDWLRQ 0U /R\ROD 6XOOLYDQ /HDGHU RI WKH 2IÀFLDO Opposition of Newfoundland and Labrador and Mr. Jack Harris, Leader of the New Democratic Party of Newfoundland and Labrador. Mr. Harris supported the amendment to Term 17, but expressed his discontent with the process by which the resolution was arrived at. He felt that the type of discussion that took place before this Committee in Newfoundland should have taken place prior to the referendum. In his view, Term 17 in its original form was not negotiated for the purpose of protecting minority rights, but rather to freeze the status quo in 1949. The proposed Term 17 would not deprive denominations of any rights, but would shift power and control from institutions to parents and members of the public. Mr. Harris explained that originally he had concerns about the way in which certain denominational rights were “subject to provincial legislation.” However, he now feels that the provision is limited in scope, and goes only to the issue of school size and YLDELOLW\$VZHOOWKHSURSRVHG7HUPLVVHWWLQJRXWVSHFLÀFULJKWV Mr. Harris acknowledged that there were structural problems with the education system, but emphasized the achievements of Newfoundland students are second to none. Mr. Sullivan began by announcing that the Progressive Conservative Caucus unanimously supported passage of the Term 17 amendment. 0U6XOOLYDQHPSKDVL]HGKRZHYHUWKDWWKHLVVXHZDVDGLIÀFXOWDQGGLYLVLYHRQH ZLWKFRPSHWLQJDUJXPHQWVFRQÁLFWLQJYDOXHVDQGRXWVWDQGLQJFRQFHUQV+HH[SUHVVHG his dismay that public hearings had not been previously held on the issue either in Newfoundland or by the House of Commons. Mr. Sullivan gave three reasons for the decision of Caucus: (1) Term 17 is the course of action that the House of Assembly has voted to undertake; (2) the Newfoundland JRYHUQPHQWUHFHLYHGDPDQGDWHLQWKHHOHFWLRQZKLFKDIÀUPHGWKLVFRXUVHRI DFWLRQDQG 3UHPLHU7RELQKDVFRPPLWWHGWRÀYHFRQGLWLRQVWKDWZLOODFKLHYHWKH kind of educational reform voted for in the referendum of September 1995. 7KH ÀYH FRQGLWLRQV DUH WKH RQHV WKDW UHFHLYHG FORVH WR  VLJQDWXUHV LQ WKH “Yes Means Yes” campaign. Although Mr. Sullivan would have preferred to see the draft legislation to implement the new Term 17, the Progressive Conservative party considers Premier Tobin’s public commitment substantive and one for which he will be held accountable. Finally, he noted his concern that some had been denigrating the quality of education in the province in order to establish the necessity for immediate action. He emphasized that in terms of academic performance, students in Newfoundland and Labrador are comparable with students in all other provinces. Structural reform of the education V\VWHPLVQHHGHGEHFDXVHRIGHFOLQLQJHQUROPHQWVDQGXQUHPLWWLQJÀVFDOUHVWUDLQWQRW because Newfoundland students perform poorly. The Minister of Education, the Honourable Roger Grimes, began his comments to the Committee with a brief overview of the current education situation in Newfoundland

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and Labrador, and the need for reform. He stressed that the education system in his province is unlike those in the rest of Canada in that there are no non-denominational public schools. He explained that, because many decisions at the school level are made by the denominations, the education system is highly complex and there is considerable GXSOLFDWLRQRIVFKRROERDUGVDGPLQLVWUDWLYHRIÀFHVVFKRROVDQGVWXGHQWWUDQVSRUWDWLRQ systems. Moreover, while funds for instructional and operating expenses are provided to the denominational boards on the basis of need, capital funding must be distributed according to the denominational population, regardless of need. 7KH VLWXDWLRQ LV PDGH PRUH GLIÀFXOW E\ D GHFOLQH LQ VWXGHQW SRSXODWLRQ DQG E\ economic constraints. In the last 24 years, the student population has declined from approximately 162,000 to about 110,000 in 1995/96. Population projections suggest that WKHÀJXUHZLOOIDOOEHORZZLWKLQWKHQH[WWKUHH\HDUVDQGWKLVVWXGHQWSRSXODWLRQ lives in hundreds of communities along a vast coastline. To further complicate matters, WKHHIIHFWRIWKHIDLOXUHRIWKHÀVKHU\DPRQJRWKHUHFRQRPLFGLIÀFXOWLHVKDVEHHQDQ out-migration from the rural areas. The Minister stated that the proposed reforms will alter the rights in education which are presently held by the denominations, and will move some of the rights currently exercised by the denominational authorities to the elected representatives. All schools will continue to be denominational in character and all students will continue to have the opportunity to participate in religious education, observances and celebrations at WKHLUVFKRRO,QDGGLWLRQZKHUHWKHSDUHQWVZLVKDQGZKHUHWKHUHLVDVXIÀFLHQWQXPEHU of students, a uni-denomination school can be operated. In these schools, the new Term 17 will provide for denominational rights comparable to those available in separate schools in other provinces. He noted that this Committee had been told consistently that the amendment will not affect religious rights in other provinces. There is, in his view, no counterpart to Term 17 in any other province. 7KH0LQLVWHUFRQÀUPHGDVVWDWHGE\3UHPLHU:HOOVSULRUWRWKHHOHFWLRQLQ that the government, would have preferred to have implemented reform by consensus. However, matters have now come to an impasse and, although people have different versions of why, clearly the political ability to come to an arrangement and a consensus is not present in the province at this time. He added that what had changed with the Framework Agreement was that “the GLVVHQWHUVÁLSSHGµ,QWKHWZRDQGKDOI\HDUVSULRUWRWKHHOHFWLRQLWDSSHDUHGWR be representatives of the Roman Catholic and Pentecostal Church who regularly were in public disagreement with the outcome of the discussions between the government and the denominations. The Integrated group was fairly quiet on the issue. After the Framework Agreement was announced, the roles reversed. He said that when the government comes closer to agreement with one, two or more groups, then it seems it is further apart from agreement with the others. The government is aware of the request for an amendment to remove the clause “subject to provincial legislation that is uniformly applicable to all schools specifying conditions for establishment or continued operation of schools” and replacing it with

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“where numbers warrant.” This issue, and the proposed amendment, dominated debate in the legislature of Newfoundland and Labrador. The amendment was defeated in the provincial legislature primarily because the phrase “where numbers warrant” has a legal history all of its own which developed around the linguistic education rights under section 23 of the Charter. Differing criteria are applied in each situation because there is no set number, and the elected politicians in this province did not want to be in that situation with respect to the exercise of denominational rights. As for the suggestion that the words “determine and” should be added to the clause giving the denominations the right to “direct” certain aspects of a uni-denominational school, the Minister commented the amendment was frivolous in relation to what the proposed Term 17 seeks to accomplish. The government would like to see a political solution to the question of which criteria are to be included in provincial legislation that is uniformly applicable rather than having the courts determine on an individual basis where numbers warrant unidenominational schools. Public consultations will begin in the fall, and the process ZLOOFRQWLQXHIURPWKHUH7KH0LQLVWHUFRQÀUPHGKRZHYHUWKDWWKHJRYHUQPHQWKDV been advised that if it attempts to bring in legislation that actually frustrates the right of the different denominations to uni-denominational schools, the government will be challenged in the courts and defeated. The government chose the term “interdenominational” rather than “public” because a public education system could lead to challenges to the denominational rights for observances and practices spelled out in the new Term 17. The Minister stated that the government could establish public schools today, although it would be easier under the new Term 17. The fact is that the government does not want them; the government is pleased to continue denominationally-based schools. The Minister informed the Committee that the government was in the process of bringing in legislation to have a francophone school board, a “commission scolaire,” for the francophone population who are exercising their rights under section 23. For years, the province indicated that numbers did not warrant a separate school board because the group was so small, but now the government has agreed to a “commission scolaire” rather than face a court challenge. The Minister added that the Premier had informed him the previous evening of Cabinet approval of the provision. The Minister concluded by noting that the protracted discussions on this issue have created a high degree of uncertainty within the school system. The elected representatives of the people of the province have indicated a desire that the Senate move quickly to approve the resolution, as the focus must always be on the children, their education and their futures. The issue has and continues to consume too much of the time and energy of educators in the province, and the uncertainty is negatively affecting the learning environment.

II. SOME ADDITIONAL VIEWS The Progressive Conservative Members of the Committee would add the following views to the narrative prepared by the Committee research staff.

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 7KH,PSDFWRIWKH&DQDGLDQ&KDUWHURI5LJKWVDQG)UHHGRPV In response to Professor Bayefsky’s question concerning the impact of the Canadian Charter of Rights and Freedoms, we observe that in light of the clear wording of section 29 of the Charter it has no impact on the matter of denominational education rights before the Committee.

 7HUPDQG'HQRPLQDWLRQDO5LJKWV It is to be noted that the remedial mechanisms, enshrined in section 93 of the Constitution Act, 1867 or its equivalent in certain provinces, have not been successful nor effective.

3. Whether a Constitutional Amendment is Necessary Whether an amendment to Term 17 is necessary – to achieve the provincial government’s stated intention of reforming the educational system – remains unclear. The question to be asked is: Can the reforms needed to enhance the quality of education and make LWPRUHFRVWHIÀFLHQWEHDFKLHYHGWKURXJKQHJRWLDWLRQVLQ1HZIRXQGODQGUDWKHUWKDQ through an amendment to the Canadian Constitution? :HÀQGWKDWWKHWHVWLPRQ\LQWKLVUHJDUGDVJLYHQE\&ROLQ,UYLQJRQHRIWKHOHJDOH[SHUWV who appeared before the Committee, is particularly à propos. Mr. Irving stated: In my opinion the changes in question do not require any amendment to Term 17. The approach of the courts to guarantees for denominational education has evolved considerably in recent years. There is now a clear inclination to resolve the tension between the need for retaining such guarantees and the authority of government to modernize and otherwise adapt the school system in favour of the rights of the local legislatures provided that rights essential to the maintenance of truly denominational schools are not thereby suppressed. It is clear that the Supreme Court of Canada in particular is inclined to this view. While judgments of that court on this subject continue of course to be written in terms of the legal principles involved there is LQP\YLHZQRGRXEWWKDWERWKWKHÀQDQFLDOFRQVWUDLQWVZKLFKFXUUHQWO\IDFHDOO Canadian governments and the need to adapt local school systems to a rapidly changing social and economic environment would weigh heavily against striking down educational reforms which appear to be reasonably required. The changes under discussion fall into this class.

:KHWKHUWKH&RQVWLWXWLRQDO5LJKW(VWDEOLVKHGE\WKH3URSRVHG7HUP Should be Subject to Provincial Legislation According to numerous witnesses including Colin Irving, the right to establish and maintain denominational schools, referred to as uni-denominational schools in the proposed amendment, is made entirely subject to provincial legislation: The “right” to establish and maintain uni-denominational schools is thus made entirely subject to provincial legislation. If the Newfoundland legislature were to enact legislation which would in purpose and effect make the right to establish or PDLQWDLQXQLGHQRPLQDWLRQDOVFKRROVGLIÀFXOWRULPSRVVLEOHthe Roman Catholic 101

STATE SUPPORT FOR RELIGIOUS EDUCATION

and Pentecostal minorities would have no legal remedy provided only that the law LQTXHVWLRQZDVXQLIRUPO\DSSOLFDEOHWRDOOVFKRROV,WLVQRWGLIÀFXOWWRLPDJLQH how such a result could be achieved. :HÀQGWKDWDFRQVWLWXWLRQDOULJKWLQRUGHUWREHJXDUDQWHHGPXVWEHMXVWLÀDEOH$V0U Irving states: “A constitutional guarantee which cannot be enforced in a court of law is no guarantee at all.” In a document tabled with the Committee, Professor Patrick Monahan, a constitutional lawyer, wrote: It has generally been assumed that the various constitutional guarantees for denominational education in different provinces are not subject to abrogation or amendment simply because a majority of the citizens in a particular province would support such a change. Indeed, to amend or abrogate these guarantees on such a basis would be inconsistent with the very principle that led to their entrenchment LQWKHÀUVWSODFH'HQRPLQDWLRQDOJXDUDQWHHVZHUHHQWUHQFKHGSUHFLVHO\VRDVWR put them beyond the reach of majority sentiment in favour of abrogating the rights of the minority. Therefore, I agree that a constitutional amendment to Term 17 that is not supported by all the classes of persons protected by that guarantee could be seen as a precedent that would permit other provinces to seek similar changes.

 7KH5HIHUHQGXP 0DQ\ZLWQHVVHVWHVWLÀHGEHIRUHWKH&RPPLWWHHWKDWWKHTXHVWLRQSXWLQWKHUHIHUHQGXP was confusing. Others stated that the promises made in government literature on the referendum including the promise of where numbers warranty (sic) is not provided in the present resolution. $V&ROLQ,UYLQJWHVWLÀHG If you choose to “respect” the referendum, then you may do that, in my opinion, by accepting the vote for reform but also by accepting the proposal which was put to the people who voted for it included denominational schools “where numbers warrant.” If the proposed language is taken out and replaced with the proviso “where numbers warrant,” then you would be respecting, I suggest, the referendum result and you would be turning it around so that it becomes a real constitutional guarantee like other constitutional guarantees. That is the only way you can do it.

6. Other Issues We note that a number of witnesses argued that paragraph (b) of the Term should also be amended in such a fashion so as to require parental consent concerning the designation of schools.

,,,0,125,7<2%6(59$7,216 It is the view of the Progressive Conservative members of the committee that several PDMRUFRQFHUQVDQGVLJQLÀFDQWÁDZVLGHQWLÀHGGXULQJWKH6HQDWH·VSXEOLFKHDULQJVRQ Term 17 can only be addressed by means of amendment to the resolution.

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Senators, in pursuing their study of this question were preoccupied with three general questions. Is the resolution potentially prejudicial to minorities? Was the process leading to the resolution fair? And what are the consequences to the national fabric?

Is the resolution prejudicial to minorities? Section 1 paragraph (b) would have the effect of placing the protection of the constitutionally protected right to establish and maintain uni-denominational schools “subject to provincial legislation.” The establishing and maintaining uni-denominational schools would thus, no longer be protected by Canada’s Constitution. The provisions contemplated in this resolution are a major departure from the protection enshrined in section 93 of the Constitution Act, 1867; section 22 of the Manitoba Act; section 17 of the Saskatchewan Act and the Alberta Act and in Newfoundland’s current Term 17. In all those sections, the power of the provinces to legislate is subject to the denominational rights enshrined in the Constitution. Under the proposed changes the protection for denominational rights in Newfoundland would be subject to a provincial law of general application and if accepted, create a dangerous precedent. The Committee heard the testimony of numerous witnesses who requested that the resolution be amended so as to substitute in paragraph (b) the well known legal expression “where numbers warrant” for the present introductory words. We observe that substituting a “numbers warrant” test would mean that the courts would remain the ultimate guardians of the rights of the classes of persons which the section seeks to confer. This is consistent with how other minority protections are dealt with in Canada. A second issue of concern raised by the affected classes of persons who would lose their present denominational school rights relates to the matter of who will determine and direct the programmes in the uni-denominational schools. Paragraph (c) of the proposed Term 17 resolution reads as follows: “…to direct the teaching of aspects of….” This would effectively abrogate a present constitutional right of the people of Newfoundland. It was the view of many groups that this could be mitigated if that section read as follows: “… to determine and to direct the teaching of aspects of…” Without these changes it is the view of the Progressive Conservative members of the Committee that the proposed resolution would be prejudicial to the constitutionally protected rights of certain classes of persons.

Was the process fair? The Committee, particularly while in Newfoundland, heard passionate testimony from members of the public representing those classes of persons directly affected by this proposed constitutional amendment. Their concerns cannot be overstated. These citizens hold that their rights are being taken away without their consent. These same people expressed gratitude towards the Committee for providing them the opportunity to express these concerns in a public forum. The Government of Newfoundland expressed its approval of the hearings and agreed that this should have occurred much earlier in the process.

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There is no disputing the fact that all elected representatives of Newfoundland and its citizenry have expressed a desire for reform to its education system. The Committee is unanimous in its support for that reform. Where members differ, however, is the means to achieve this goal. A constitutionally recognized class of person is involved here and this must be taken into consideration when contemplating changes to that status.

What are the implications for the national fabric? The Senate is a national institution and therefore obligated to examine this question from a national perspective. The Committee over the course of its study heard a wide range of opinions with respect to the national implications of the Term 17 proposal and process. The Progressive Conservative members of the Committee would remind the Government of Canada and Parliament that it too has an obligation to examine these questions from a national perspective. This was not done in this case.

Conclusion While the Committee as a whole unanimously sympathizes with the Newfoundland government’s efforts to reform the province’s education system, its Progressive Conservative members deplore the fact that the resolution proposed for adoption has not totally respected the constitutionally protected rights of certain classes of persons. A nation’s constitution is to protect rights, not to diminish them, and only by bringing in the appropriate amendments will the Governments of Canada and Newfoundland respect this fundamental principle.

$SSHQGL[´$µ List of witnesses June 18, 1996 Kathy Brock, Professor, Political Sciences, Wilfrid Laurier University. Anne Bayefsky, Constitutional Professor, author of “Canada’s Constitution Act, 1982 and Amendments; a Documentary History.”

June 20, 1996 Honourable Allan Rock, M.P., Minister of Justice and Attorney General of Canada.

June 25, 1996 Morning sitting: From the Canadian Conference of Catholic Bishops: Most Reverend Francis J. Spence, Archbishop of Kingston; President, Canadian Conference of Catholic Bishops; Most Reverend Henri Goudreault, OMI, Bishop of Labrador City – Schefferville; Co-Treasurer, Canadian Conference of Catholic Bishops;

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Mr. Peter Lauwers, Legal Counsel; Mr. Michael Harrington, Legal Counsel. From the Canadian Catholic School Trustees’ Association: Betty Mosely-Williams, Vice-President; Peter Lauwers, Lawyer. From the Ontario Separate School Trustees’ Association: Patrick Daly, President; Peter Lauwers, Legal Counsel. From the Ontario English Catholic Teachers’ Association: Paul Cavalluzzo, Lawyer; Jim Smith, Vice President.

Afternoon sitting: From the Evangelical Fellowship of Canada: Bruce Clemenger, Director of National Affairs; Danielle Shaw, Policy Coordinator; Dr. Glenn Smith, Chair, Taskforce on Education. Dr. Robert Carney, Department of Educational Policy Studies, University of Alberta. From the Ottawa Board of Education: Linda Hunter, Chairperson.

June 26, 1996 Morning sitting: From the Federation of Independent Schools: Frank Cvitkovitch, Q.C., President; Fred Herfst, Vice President (B.C) Gary Duthler, Executive Director. Benoit Pelletier, Faculty of Law, University of Ottawa Dale Gibson, Faculty of Law, University of Alberta

Afternoon sitting: Ian Binnie, Lawyer.

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Len Williams, Chair, “Royal Commission of Inquiry into the Delivery of Programs and Services in Primary, Elementary, Secondary Education, Government of Newfoundland and Labrador, March 1992.” From the “Coalition pour la confessionalité scolaire”: Jocelyne St-Cyr, Coordinator, President, Association des parents catholiques du Québec; Paul Fernandes, Chairman, Metropolitan Separate School Board (Toronto). From the “Commission des écoles catholiques de Montréal”: Michel Pallascio, President; Roger Dominguez, Independent Commissioner. From the Assembly of First Nations: Ovide Mercredi, National Chief; Alfred Linklater, Director of Education.

July 9, 1996 – St. John’s, Newfoundland Morning sitting: Participants in the Pentecostal Panel: Rev. Roy D. King, General Superintendent, Pentecostal Assemblies of Newfoundland; Mr. Domino Wilkins, Superintendent of Pentecostal Board of Education; Rev. A. Earl Batstone, Executive Director, Pentecostal Education Council; Mr. Michael Harrington, Legal Counsel, Pentecostal Assemblies of Newfoundland. From the Seventh-day Adventist Church: Pastor David S. Crook, President; Mr. George Morgan, Member of the Seventh-day Adventist School Board; 0U'DYLG56WUHLÁLQJ'LUHFWRU(GXFDWLRQDO6XSHULQWHQGHQW Christine Castagne, parent; Mr. Barry Bussey, Legal Counsel. Walk-ons: Mr. Robert Perreault; Mrs. Mary Kearsey; Dr. Leona English; Lois Clark; Mrs. Elizabeth Williams, St. Agnes and St. Michael’s Parish;

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Mr. Andrew Healey; Mrs. Ann Rideout; Mr. Ern Condon; Mrs. Sharon Whitt; Mr. Dave Jones; Mrs. Vee Osmond.

Afternoon sitting: Participants in the Catholic Panel: Most Reverend James H. MacDonald, D.D., Archbishop of St. John’s, Chair of the Catholic Education Council of Newfoundland and Labrador; Mr. Gerald P. Fallon, Executive Director, Catholic Education Council of Newfoundland and Labrador; Ms. Alice Prim-Furlong, Vice President, Association of Roman Catholic School Board of Newfoundland and Labrador; Ms. Janet Henley-Andrews, Alliance for Choice in Education. Walk-ons: Mr. Lawrence Jardine; Mrs. Dorice Marcil; Mr. William McKim; Mr. Azmy Aboulazm; Mr. Reilly Fitzgerald; Miss Suzanne Careen; Mrs. Barbara Bartlett; Miss Lisa Murphy; Mr. Mark Graesser; Mr. Geoffrey Aylward; Mr. Mike Tobin, State Deputy, Knights of Columbus, Newfoundland and Labrador; Mrs. Catherine Shiwak-Snow.

Evening sitting: Participants in the Youth Panel: Dwayne Pilgrim, Student Council President of the Deer Lake Pentecostal School; Jonathan Curlette, Seventh-day Adventist Church; Deirdre Cooper, Catholic schools; Brad Hodder, Integrated schools;

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Jeannine Benoît, Franco-jeunes de Terre-Neuve et du Labrador; Mark Hulett, Student Education Alliance; Robert Mendoza, President, Council of the Students’ Union, Memorial University.

July 10, 1996 – St. John’s, Newfoundland Morning sitting: Participants on the Integrated Schools Panel: Mr. David Carmichael, Integrated Education Council; Mr. Hubert Norman, Executive Director, Integrated Education Council; Bishop Donald Harvey, Anglican Church; Reverend Ian Wishart, Presbyterian Church; Lieutenant-Colonel Howard Moore, Salvation Army; Reverend Clarence Sellars, United Church. From the “Fédération des parent francophones de Terre-Neuve et du Labrador:” Mrs. Johanne Lacelle, Vice-President; Mr. Richard Charron, Past President. Walk-ons: Mrs. June Alteen; Mr. Brian Shortall, Superintendent, Roman Catholic School Board, St. John’s; Mr. Mike Finn, Appalachia Roman Catholic School Board; Prof. Susan McCorquodale; Mr. Bill Lee, Avalon School Board; Mrs. Suzanne Dyer; Mr. Glenn Moores; Mr. Daryl Prosper; Mr. Ali Chaisson; Mr. Michael Furlong; Mr. Robert Cormier; Mrs. Lucy Counsel; Mr. Patrick Counsel; Mrs. Lorraine Brown.

Afternoon sitting: Mr. Colin Irving, Lawyer.

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From the “Yes Means Yes” Committee: Tom Hann, Committee member; Mandy Cantle, Co-Chair; David Martin, Co-Chair. From the Newfoundland and Labrador Home and School Federation: Marie Law, President; Steve Wolinetz, 1st Vice President. From the Newfoundland and Labrador Teachers’ Association: Wayne Russell, Executive Director. From the Newfoundland and Labrador Human Rights Association: Mr. Geoff Budden, Lawyer, Vice President; Mr. Jerry Vink, Executive Director. From the Labrador Métis Association: Mr. Todd Russell, President; Mr. Ken Mesher, Elder. Walk-ons: Mrs. Karen O’Leary; Mrs. Maria Kelsey; Mrs. Helena Bragg; Mr. Kevin Power; Father Aidan Devine; Mrs. Mary Mulcahy; Mrs. Ann Aylward; Mrs. Carmel Doyle; Mrs. Dianne Barker; Mr. Patrick Howard; 0UV$QQH*ULIÀQ Mr. Patrick Furlong; Mr. Pat Collins; Mrs. Heather Conran-Paul; Mr. Morley Whitt; Mrs. Ann Walsh; Mr. Harry Bown;

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Mr. Eric Short; Mrs. Mary Arruda; Mr. Roger Nippard; Mr. Harold Flynn; Mrs. Fay Flynn.

July 11, 1996 – St. John’s, Newfoundland 0U/R\ROD6XOOLYDQ0+$/HDGHURIWKH2IÀFLDO2SSRVLWLRQRI1HZIRXQGODQGDQG Labrador. Mr. Jack Harris, Leader of the New Democratic Party of Newfoundland and Labrador.

$33($5,1* Hon. Roger Grimes, Minister of Education, Government of Newfoundland and Labrador.

110

#5(b) Report of the Special Joint Committee on the Amendment to Term 17 of the Terms of Union of Newfoundland with Canada, 3 December 1997 This report was produced by a special joint committee of the Senate of Canada and the House of Commons. The joint chairs were the Honourable Joyce Fairbairn, Senator, and Gerry Byrne, M.P. This document deals with the request by the Province of Newfoundland to change the Canadian constitution in reference to one of the “Terms of Union”, namely Term 17. Term 17 dealt with educational rights in Newfoundland. The proposed change addressed certain issues which had been raised, for example, by the July 1996 report of the Senate Standing Committee on this subject. In general, the proposed change to the Constitution would allow the Government of Newfoundland to eliminate multiple denominational school systems and replace them with one school system that protected denominational education. The change to the Canadian constitution was proclaimed on 8 January 1998.

Senate of Canada House of Commons REPORT OF THE SPECIAL JOINT COMMITTEE ON THE AMENDMENT TO TERM 17 OF THE TERMS OF UNION OF NEWFOUNDLAND Joint Chairs Hon. Joyce Fairbairn, Senator Gerry Byrne, M.P. December 1997

The Speaker of the House hereby grants permission to reproduce this documents, in whole or in part, for use in schools and for other purposes such as private study, research, criticism, review or newspaper summary. Any commercial or other use or reproduction of this publication requires the express prior written authorization of the Speaker of the House of Commons. If this document contains excerpts or the full text of briefs presented to the Committee, permission to reproduce these briefs in whole or in part, must be obtained from their authors. Also available on the Parliamentary Internet at the following address: http://www.parl.gc.ca

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63(&,$/-2,17&200,77((217+($0(1'0(17727(50 2)7+(7(5062)81,212)1(:)281'/$1' -2,17&+$,56 Hon. Joyce Fairbairn

Gerry Byrne

5(35(6(17,1*7+(6(1$7( Hon. William C. Doody

Hon. Lowell Murray

Hon. Philippe D. Gigantès

Hon. Landon Pearson

Hon. Noël A. Kinsella

Hon. William Rompkey

5(35(6(17,1*7+(+286(2)&200216 Claudette Bradshaw

Inky Mark

Pierre Brien

Bill Matthews

Elinor Caplan

Joe McGuire

Paul DeVillers

Lawrence O’Brien

Michelle Dockrill

Rey Pagtakhan

Sheila Finestone

Louis Plamondon

Raymonde Folco

Werner Schmidt

Peter Goldring

$662&,$7(0(0%(56 George Baker

Norman Doyle

Michel Bellehumeur

Jason Kenney

27+(50(0%(5+$9,1*3$57,&,3$7(',17+(+($5,1*6 Mauril Bélanger

Joint Clerks of the Committee Roger Préfontaine

Blair Armitage

Researchers, Library of Parliament Mollie Dunsmuir and Jack Stillborn 112

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25'(52)5()(5(1&(2)7+(6(1$7( Extract from the Journals of the Senate, Wednesday, November 5, 1997: The Honourable Senator Petten moved, seconded by the Honourable Senator Forest: That the Senate do unite with the House of Commons in the appointment of a Special Joint Committee of the Senate and the House of Commons to consider matters related to the proposed resolution respecting a proposed Amendment to Term 17 of the Terms of Union of Newfoundland with Canada concerning the Newfoundland school system; That seven Members of the Senate and sixteen Members of the House of Commons be members of the Committee; That the Committee be directed to consult broadly and review such information as it deems appropriate with respect to this issue; That the Committee have the power to sit during sittings and adjournments of the Senate; That the Committee have the power to report from time to time, to send for persons, papers, and records, and to print such papers and evidence as may be ordered by the Committee; That the Committee have the power to hear witnesses via videoconferencing; That the Committee have the power to retain the services of expert, professional, technical and clerical staff; That the quorum of the Committee be twelve members, whenever a vote, resolution or other decision is taken, so long as both Houses are represented, and that the Joint Chairpersons be authorized to hold meetings, to receive evidence and authorize the printing thereof, whenever six members are present, so long as both Houses are represented; That the Committee have the power to appoint, from among its members, such sub-committees as may be deemed advisable, and to delegate to such sub-committees all or any of its powers except the power to report to the Senate and the House of Commons; That the Committee have the power to authorize television and radio broadcasting of any or all of its proceedings; 7KDWWKH&RPPLWWHHSUHVHQWLWVÀQDOUHSRUWQRODWHUWKDQ'HFHPEHU That, notwithstanding usual practices, if the House or the Senate are not sitting when WKHÀQDOUHSRUWRIWKH&RPPLWWHHLVFRPSOHWHGWKHUHSRUWPD\EHGHSRVLWHGZLWKWKH Clerk of the House which is not sitting, and or the Clerks of both Houses if neither House is then sitting, and the report shall thereupon be deemed to have been presented in that House, or both Houses, as the case may be; and That a Message be sent to the House of Commons to acquaint that House accordingly. After debate,

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The question being put on the motion, it was adopted. ATTEST PAUL BÉLISLE Clerk of the Senate

25'(52)5()(5(1&(2)7+(+286(2)&200216 Extract from the Journals of the House of Commons of Tuesday, October 28, 1997: Pursuant to Order made Monday, October 27, 1997, the House resumed consideration of the motion of Mr. Dion (Minister of Intergovernmental Affairs), seconded by Mrs. Stewart (Minister of the Environment), – That a Special Joint Committee of the Senate and the House of Commons be appointed to consider matters related to the proposed resolution respecting a proposed Amendment to Term 17 of the Terms of Union of Newfoundland with Canada concerning the Newfoundland school system; That sixteen Members of the House of Commons and seven Members of the Senate be members of the Committee; That the Committee be directed to consult broadly and review such information as it deems appropriate with respect to this issue; That the Committee have the power to sit during sittings and adjournments of the House; That the Committee have the power to report from time to time, to send for persons, papers and records, and to print such papers and evidence as may be ordered by the Committee; That the Committee have the power to hear witnesses via videoconferencing; That the Committee have the power to retain the services of expert, professional, technical and clerical staff; That the quorum of the Committee be twelve members whenever a vote, resolution or other decision is taken, so long as both Houses are represented, and that the Joint Chairpersons be authorized to hold meetings, to receive evidence and authorize the printing thereof, whenever six members are present, so long as both Houses are represented; That the Committee have the power to appoint, from among its members, such subcommittees as may be deemed advisable, and to delegate to such sub-committees all or any of its power, except the power to report to the Senate and House of Commons; That the Committee have the power to authorize television and radio broadcasting of any or all of its proceedings; 7KDWWKH&RPPLWWHHSUHVHQWLWVÀQDOUHSRUWQRODWHUWKDQ'HFHPEHU

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That, notwithstanding usual practices, if the House or the Senate are not sitting when WKHÀQDOUHSRUWRIWKH&RPPLWWHHLVFRPSOHWHGWKHUHSRUWPD\EHGHSRVLWHGZLWKWKH Clerk of the House which is not sitting, or the Clerks of both Houses if neither House is then sitting, and the report shall thereupon be deemed to have been presented in that House, or both Houses, as the case may be; and That a Message be sent to the Senate requesting that House to unite with this House for the above purpose, and to select, if the Senate deems it advisable, Members to act on the proposed Special Joint Committee. (Government Business No. 5) Pursuant to Order made Monday, October 27, 1997, the House proceeded to the putting of the question on the main motion of Mr. Dion (Minister of Intergovernmental Affairs), seconded by Mrs. Stewart (Minister of the Environment). ATTEST ROBERT MARLEAU Clerk of the House of Commons

THE SPECIAL JOINT COMMITTEE ON THE AMENDMENT TO 7(502)7+(7(5062)81,212)1(:)281'/$1' has the honour to present its

5(3257 Pursuant to the Orders of Reference adopted by the Senate on November 5, 1997 and by the House of Commons on October 28, 1997, the Committee has considered the subject matter related to the proposed resolution respecting a proposed Amendment to Term 17 of the Terms of Union of Newfoundland with Canada concerning the Newfoundland school system, and having adopted the resolution on December 3, 1997, has agreed to report the following:

7$%/(2)&217(176 BACKGROUND 1.1 Section 43 amendments 1.2 The History of Term 17 WHAT THE COMMITTEE HEARD 2.1 Minority and Denominational Rights 2.2 Students’ Rights   &RXUVHV LQ 5HOLJLRQ WKDW DUH QRW 6SHFLÀF WR D 5HOLJLRXV 'HQRPLQDWLRQ DQG Religious Observances Permitted in a School Where Requested by a Parent 2.4 Opting Out of Religious Courses or Observances RECOMMENDATION

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STATE SUPPORT FOR RELIGIOUS EDUCATION

APPENDIX 1 – Newfoundland Referendum September, 1997 APPENDIX 2 – Section 43 Amendments APPENDIX 3 – Terms of Union of Newfoundland with Canada APPENDIX 4 – Constitution Act 1982 APPENDIX 5 – Universal Declaration of Human Rights APPENDIX 6 – List of witnesses APPENDIX 7 – List of submissions DISSENTING OPINION FROM THE REFORM PARTY DISSENTING OPINION FROM THE PROGRESSIVE CONSERVATIVE OPPOSITION IN THE SENATE MINUTES OF PROCEEDINGS

%$&.*5281' On 2 September 1997, Newfoundland and Labrador held a referendum on the issue of educational reform. Seventy-three percent of voters supported a constitutional amendment to Term 17 of the Newfoundland Terms of Union to replace the existing denominational school system with a single public school system where all children ZRXOGDWWHQGWKHVDPHVFKRROUHJDUGOHVVRIWKHLUUHOLJLRXVDIÀOLDWLRQ1 On 5 September 1997, the Newfoundland House of Assembly unanimously passed the required resolution. An identical resolution was placed before the House of Commons and the Senate of Canada in November 1997. Subsequently, this Special Joint Committee of the House of Commons and the Senate was appointed to study the two resolutions and report to both Houses of Parliament by 5 December 1997. 7RZHLJKWKHHYLGHQFHWKDWWKLV&RPPLWWHHKHDUGWKUHHIDFWXDOLVVXHVPXVWÀUVWEH considered: the nature of the bilateral amending formula under section 43 of the Constitution Act, 1982 and the role of the federal Parliament in such bilateral amendments; the unique nature of the educational system in Newfoundland and Labrador; and the important role that the evolution of that educational system has played in determining how this Parliament deals with bilateral amendments.

1.1 Section 43 Amendments Section 43 reads as follows: 43. An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces, including (a) any alteration to boundaries between provinces, and

1

See Appendix 1 for the results of the referendum vote. 116

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(b) any amendment to any provision that relates to the use of the English or the French language within a province, may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies. There was general agreement that section 43 is indeed the appropriate amending formula WREHXVHGLQDPHQGLQJ7HUP1RULVWKLVWKHÀUVWLQVWDQFHLQZKLFKWKH+RXVHRI Assembly of Newfoundland has requested that the federal Parliament join in a bilateral amendment to Term 17. Since Canada put in place a domestic amending formula in 1982, there have been six requests from various provinces for a bilateral section 43 amendment. Section 43 presents a way to allow provinces to approach such issues in a manner consistent with their own history and tradition.2

1.2 The History of Term 17 At Confederation, the Constitution Act, 1867 gave the provinces exclusive jurisdiction over education with two exceptions: the protection of denominational rights existing in law at the time of Confederation, and a federal remedial role in protecting GHQRPLQDWLRQDOHGXFDWLRQULJKWV$VHDFKRIQH[WÀYHSURYLQFHVMRLQHG&DQDGDWKHLU terms of union either adopted (British Columbia and Prince Edward Island) or adapted (Manitoba, Alberta and Saskatchewan) section 93. Due to differing circumstances in the various provinces, denominational education rights established by law at the time Newfoundland joined Confederation existed only in Ontario, Quebec, Alberta and Saskatchewan. In 1949, Newfoundland became the tenth and most recent province to join Confederation. In the Terms of Union, Term 17 continued the publicly-funded denominational education system in place in Newfoundland at that time.3 Term 17 was unique in three respects. The other nine provinces had guarantees for the legal rights enjoyed by religious denominations outside the public education system, while Newfoundland had no public educational system. As well, the terms of union of the other nine provinces contemplated only the Protestant and Catholic religions, with the Catholic religion being in the minority in all provinces other than Quebec. Newfoundland’s terms of union, on the other hand, gave educational guarantees to seven different religious classes collectively representing over 90% of the population. Finally, the constitutional provisions regarding denominational education for the other nine provinces all included an appeal to Parliament against any provincial legislation which did not respect those rights, as well as a provision for federal legislation overriding or amending such provincial

2

See Appendix 2.

3

See Appendix 3 for the original, amended and present Term 17. 117

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legislation. Term 17 makes no reference to such a federal role, originally described in sections 92(3) and (4) of the Constitution Act, 1867. During the patriation of the Canadian constitution, some Newfoundland Members of Parliament expressed concerns as to whether the Charter of Rights and Freedoms would affect Term 17 and, more particularly, the rights of the Pentecostal Assemblies, which were not recognized in law until 1954 and therefore were not constitutionally protected by Term 17. When the Joint Committee of the House of Commons and the Senate studied the proposed Charter, an amendment was moved that the Charter not apply to Term 17. Subsequently the amendment was expanded to provide an exemption for denominational HGXFDWLRQULJKWVWKURXJKRXWWKHFRXQWU\7KLVZDVLQSDUWLQÁXHQFHGE\WKHSRVLWLRQRI the government of Newfoundland that the Pentecostal Assemblies should more properly be given constitutional protection by a separate constitutional amendment under section 43, as indeed happened in 1987. Section 29 of the Constitution Act, 1982, reads: 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 Education Act of 1927, the last major Education Act before Confederation in 1949, HQGRUVHGWKHH[LVWLQJGHQRPLQDWLRQDOHGXFDWLRQV\VWHPDQGLGHQWLÀHGIRXUDUHDVRI denominational or church control in education: 1. a right to denominationally-based school boards which could own and operate schools; 2. the right of these boards to appoint and dismiss teachers; 3. the right of these schools to receive public funds on a non-discriminatory basis; and 4. the right to establish denominational colleges. These were the denominational education rights given protection by Term 17 of Newfoundland’s Terms of Union with Canada. There have been ongoing efforts to improve the educational system by co-ordination and amalgamation, with the impetus coming primarily from the grassroots of the HGXFDWLRQV\VWHPVXFKDVSDUHQWVDQGWHDFKHUV(YHQWKHÀUVWFRRSHUDWLYHHIIRUWLQ denominational education came not from the government or churches, but from the classroom teachers. In 1890, they formed the Newfoundland Teachers’ Association, ZKLFKZDVVSHFLÀFDOO\PDQGDWHGDVDQLQWHUGHQRPLQDWLRQDORUJDQL]DWLRQZKRVHSXUSRVH was to work for the good of all teachers and for the general good of education, regardless RIGHQRPLQDWLRQDODIÀOLDWLRQV In 1969, the government established three denominational education councils replacing the denominational superintendents: the Integrated Education Council, the Roman Catholic Education Council and the Pentecostal Education Council. The Integrated Education Council originally represented the Anglican, Salvation Army and United Churches. Later that year, the Presbyterian Church joined the Integrated Council, followed by the Moravian Church in 1977. The Seventh-Day Adventist Church maintained their separate school board, and did not join the Integrated Council.

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At the time of integration in 1969, the existing 270 school boards were consolidated into 37 boards: 20 Integrated, 15 Roman Catholic, one Pentecostal and one Seventh-Day Adventist. By 1992, as a result of co-operative efforts rather than legislation, the number of boards had been reduced to 27: 16 Integrated, 9 Roman Catholic, one Pentecostal and one Seventh-Day Adventist. The governance and operation of the education system was shared among a non-denominational Department of Education, the Denominational Educational Councils and the school boards. This administrative structure remained largely unchanged from 1969 to 1997. In 1990 the Government of Newfoundland and Labrador appointed a Royal Commission, chaired by Dr. Len Williams, to study the delivery of educational programs and services in the province. The Commission submitted its report “Our Children, Our Future” in 1992. When Dr. Williams appeared before the Senate Committee which studied the 1996 amendment to Term 17, he described the educational system in Newfoundland and Labrador, and the results of the Royal Commission’s inquiry. He clearly stated the need, in his view and that of the Royal Commission, for reform of the denominational system. He explained that the reason Newfoundland had no public educational system was a scarcity of resources. With 100,000 students spread throughout the province, an alternative or parallel system to the denominational system would be too expensive to maintain. The Senate Committee recommended that the resolution be approved, but the Senate PDGHWZRFKDQJHVLQWKHZRUGLQJRIWKHUHVROXWLRQ7KHPRVWVLJQLÀFDQWZRXOGKDYH added the words “where numbers warrant”, to clarify that there was a constitutional right to uni-denominational schools where numbers warranted. However, the Senate does not have an absolute veto over constitutional amendments. A proposed amendment can be made without Senate participation when the Senate has not passed the required resolution within six months, and the House of Commons then repasses the same resolution. The amended Term 17 passed the House of Commons for a second time in December 1996. Shortly afterward, the Newfoundland legislature passed a new Schools Act to implement the new educational regime. When the Minister of Education for Newfoundland and Labrador, the Honourable 5RJHU*ULPHVÀUVWDSSHDUHGEHIRUHWKLV&RPPLWWHHKHH[SODLQHGWKDWWKHDPHQGPHQWDOWKRXJKDWWHPSWLQJWRDGGUHVVWKHSUREOHPVLGHQWLÀHGE\WKH5R\DO&RPPLVVLRQ was not based on the model recommended by the Commission. Instead, it represented a compromise, arising out of three years of discussion, that would allow the retention of both interdenominational and some uni-denominational schools. Minister Grimes explained why the attempt to implement the compromise model failed. In January, the 27 denominational schools boards were dissolved and replaced by 10 new interdenominational school boards which assumed responsibility for the school system. … In the view of the government [registration of students to determine how many SHRSOHZLVKHGWRUHWDLQXQLGHQRPLQDWLRQDOVFKRROV@ZDVDQHFHVVDU\ÀUVWVWHSWKDW ZDVSXWLQWKHOHJLVODWLRQDQGLWDJDLQOHGWRWKHÀUVWHYLGHQFHRIQRWFRRSHUDWLRQ but complete lack of co-operation. I say that quite strongly and without hesitation … It wasn’t with any particular group, because in Newfoundland and Labrador

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what had occurred was a view from everyone that on one side of the equation the government had gone too far and on the other side of the equation that the government had not gone far enough. There was no consensus that we had done anything right in the compromise model that we put forward with the current Term 17. (18 November 1997, p. 1710-1715). Minister Grimes stated that the government’s position was that the school boards should optimize student educational opportunity, while recognizing the constitutional right of certain denominations to have separate denominational schools. Some denominational representatives took the position that the predominant right was to uni-denominational schools, regardless of the effect on educational opportunities for the students at large. By May, all school boards had decided on the designation for schools under their MXULVGLFWLRQDQGVFKRROVZHUHLGHQWLÀHGIRUFORVXUHDWWKHHQGRIWKHVFKRRO year. The Minister of Education asked the various denominational representatives, who had the right to reject teachers not of their own faith, to be tolerant in accepting the transfer of teachers who might be of a different denomination. According to Minister Grimes, no such accommodation took place, although certain witnesses later disagreed. )HHOLQJXQVDWLVÀHGZLWKWKHUHVXOWVRIWKHGHVLJQDWLRQSURFHVVUHSUHVHQWDWLYHVRIWKH Catholic and Pentecostal denominations applied to the Newfoundland Supreme Court, Trial Division, for an injunction to prevent alleged violations of their constitutionally guaranteed rights. The injunction was granted in July 1997, completely disrupting plans for the 1997-98 school year. In his decision, Judge Leo Barry emphasized that, under the language of the 1996 amendment, uni-denominational rights must take precedence to maximizing educational opportunities: [para. 63] If government is entitled to place the maximizing of educational opportunities ahead of providing uni-denominational schools, the rights enshrined in Term 17(b) [with respect to uni-denominational schools] are rendered meaningless. Parliament and the Legislature, in maintaining a denominational system of education by Term 17, must have known that this would result in less than the maximum educational opportunities for the children of this province. (Hogan v. Newfoundland School Boards, unreported, 8 July 1997). The provincial government complied with the terms of the injunction, but on 31 July 1997 announced that a referendum would be held on 2 September 1997 on the following question: Do you support a single school system where all children, regardless of their UHOLJLRXV DIÀOLDWLRQ DWWHQG WKH VDPH VFKRROV ZKHUH RSSRUWXQLWLHV IRU UHOLJLRXV education and observances are provided? In late August, the text of the proposed amendment was announced: 17. (1) In lieu of section ninety-three of the Constitution Act, 1867, this section shall apply in respect of the Province of Newfoundland.

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(2) In and for the Province of Newfoundland, the Legislature shall have exclusive authority to make laws in relation to education, but shall provide for courses in UHOLJLRXVUHOLJLRQWKDWDUHQRWVSHFLÀFWRDUHOLJLRXVGHQRPLQDWLRQ (3) Religious observances shall be permitted in a school where requested by parents. 7KHTXHVWLRQZDVDQVZHUHGDIÀUPDWLYHO\E\RIWKRVHYRWLQJZLWKDWXUQRXWRI just over 53% of all voters, and on 5 September 1997, the Newfoundland House of Assembly voted unanimously to approve the resolution. According to Minister Grimes, the government of Newfoundland, having pleased no one with the compromise approach embedded in the 1996 amendment, decided to ask the people whether they wished to continue the attempt to make the old model work or whether they wished to start afresh with a new vision of a single school system, with a religious component, guaranteeing equal rights for everyone and not just for certain denominations. The Committee also heard from Mr. Jack Harris, Leader of the New Democratic Party of Newfoundland and Labrador. Mr. Harris was of the view that a province-wide consensus had indeed been reached to reform the education system, so that providing the best possible education to the children of Newfoundland and Labrador become the predominant objective of the educational system. He felt that the time had come to leave behind arguments about governance, control, multiple bureaucracies, discrimination against teachers on the basis of religion, duplication of services, wasteful school busing, DQGWKHDOORFDWLRQRIÀQDQFHVWRYDULRXVGHQRPLQDWLRQV,QVKRUWKHFRQÀUPHGWKDWWKH “consensus of 1949 has now been replaced with the consensus of 1997 and the people of Newfoundland and Labrador wish to change the constitutional status of their school system to that of a single school system for all children regardless of denomination’’.

:+$77+(&200,77((+($5' The Committee heard from a wide variety of witnesses, most of whom were from Newfoundland and Labrador, over a two-week period. The Committee would like to express its sincere gratitude to these witnesses, many of whom travelled a long distance at short notice in order to assist the Committee in its deliberations. Because of their HIIRUWVWKH&RPPLWWHHIHHOVFRQÀGHQWWKDWLWKDVUHFHLYHGDQLQVLJKWLQWRDOOSRLQWVRI view in a complex and contentious matter. At the beginning of its deliberations, the Committee invited two experts in constitutional and international law to help us determine the nature of the legal and constitutional questions we should be considering. It later heard from other experts about various aspects of the legal background to this issue and, not surprisingly, the various lawyers at times differed in their approach. However, Ms. Bayefsky and Mr. Schneiderman suggested a useful framework at an early stage in our deliberations. This Committee invited several experts in constitutional law to discuss the factors that Parliament should consider when studying a bilateral amendment. The experts stressed the need for an independent parliamentary review.

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Ms. Anne Bayefsky, an expert in the international protection of human rights, international law, constitutional law, civil liberties, anti-discrimination law and ZRPHQ·VULJKWVZKRKDGDOVRWHVWLÀHGEHIRUHWKH6HQDWH&RPPLWWHHVWXG\LQJWKH DPHQGPHQWPDGHWKUHHEDVLFSRLQWV)LUVWWKH&RQVWLWXWLRQPXVWEHÁH[LEOHDQGDV EHÀWVWKHGHVFULSWLRQRI´DOLYLQJWUHHµPRGHUQL]HGDQGPDGHUHVSRQVLYHWRWKHQHHGV of the community over time. Ms. Bayefsky also noted that there is a responsibility on the federal Parliament to look at the human rights affected by the amendment, including those of minorities that might not have received full consideration in the provincial deliberations. Is the proposed amendment the result of a democratic process? Are the goals of the amendment laudable, or are they suspect? What is the outcome of the amendment with respect to the minorities involved? Are the changes to rights consistent with the Canadian Charter of Rights and Freedoms? Is the balancing of the various rights and interest of different groups within the province acceptable? Ms. Bayefsky noted that the people of Newfoundland were consulted in the ongoing process of educational reform. In the recent past, there have been public hearings, two referendums, and an election which in part turned on the government’s educational agenda. She also suggested that minorities had been consulted, and the changes affecting their rights had been done in a manner which continues to take account of their needs and sensitivities. The ability to educate their children in private schools remains, which is compatible with almost every other province in Canada. Finally, Ms. Bayefsky noted that the criteria for judging the acceptability of proposed FRQVWLWXWLRQDODPHQGPHQWVLQ&DQDGDDUHQRWVXIÀFLHQWO\GHYHORSHG6KHVWUHVVHGWKH QHHGLQWKHORQJHUWHUPWRGHYHORSDQGGHÀQHDSURFHVVIRUFRQVWLWXWLRQDODPHQGPHQWV which is clearly understood and available to all Canadians. Mr. David Schneiderman, the Executive Director of the Centre for Constitutional 6WXGLHVDWWKH8QLYHUVLW\RI$OEHUWDDOVRJDYHWKH&RPPLWWHHWKHEHQHÀWRIKLVFRQVLGered opinion. He fully agreed that Parliament, dealing with bilateral amendments, must act independently of the provinces. He also noted, however, that section 43 amendments SURYLGHV DQ LPSRUWDQW RSSRUWXQLW\ IRU ÁH[LELOLW\ DQG JURZWK LQ WKH &RQVWLWXWLRQ encouraging federal-provincial co-operation. Mr. Schneiderman suggested a four-part approach: C What is the subject matter of the amendment? C What is the purpose or object of the amendment? C What was the process by which the amendment arrived before Parliament? C What national interests might be at stake? If, for example, the subject matter of the amendment would ordinarily lie within provincial jurisdiction, as is the case with education, then a greater degree of deference to a provincial request might be appropriate. Mr. Schneiderman noted that, denominational rights aside, education is exclusively assigned to the provinces. Unlike section 93, and LWVYDULDQWVLQWKHQLQHSURYLQFHV7HUPGRHVQRWJLYH3DUOLDPHQWDVSHFLÀFUROHWR protect denominational education.

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Mr. Schneiderman also said that although Term 17 removes constitutional privileges that have been available to particular denominations, these privileges have not been available to all religions. He observed that the purpose of the new Term is to rationalL]HDQGPDNHPRUHHIÀFLHQWWKHHGXFDWLRQDOV\VWHP7KHHIIHFWRQPLQRULW\ULJKWVLV incidental to that goal, and not the primary object of the proposed amendment. As for the process involved, Mr. Schneiderman noted that Canadians are increasingly comfortable with the idea of a public role in such amendments. Was there an opportunity for debate and deliberation amongst the general public? Could the same result have been achieved through non-constitutional means? Was the subject matter of the amendment the subject of an election or a referendum? Were the communities of interest most directly affected consulted and given an opportunity for meaningful participation? 0U 6FKQHLGHUPDQ VSHFLÀFDOO\ GLG QRW VXJJHVW WKDW WKH FRQVHQW RI DQ DGYHUVHO\ affected minority is always required for an amendment to proceed. He instead referred to a number of more general circumstances: were they consulted? Did they have adequate resources to participate in public debate? If they have not consented, is that consent unreasonably withheld? Are there other statutory or constitutional protections available? Are the minorities being oppressed, or merely affected? In general, the expert witnesses felt that the move away from protected educational rights for only certain denominations was consistent with constitutional values. Ms. Bayefsky felt that the goal of a single public school system that would have equal access for all denominations to certain religious observances was in general compatible with the Charter. Groups that had no educational rights under the previous Term 17, such as the Jewish community, would now have equality with other religious groups. With respect to whether the proposed amendment might have precedental value, Minister Dion noted that, should another province come forward with a proposed change to its equivalent of section 93, it will be up to Parliament at that time to assess the facts and the appropriateness of the proposed amendment.

0LQRULW\DQG'HQRPLQDWLRQDO5LJKWV The Newfoundland and Labrador Human Rights Association addressed this issue in their presentation. Although extremely concerned about any effort to a state to take away a right, the Association concluded that there are occasions where the rights of others, including the rights of the majority, demand the removal or curtailment of a right. Rights should not be tampered with casually, but the process that has occurred in Newfoundland over the past number of years has been well-argued, well-debated, well thought-out and anything but casual. After 150 years, it does not seem unreasonable to stop and consider our denominational system in the context of a society that is no longer exclusively Christian and a society where the religious rights of Roman Catholics and of all citizens are protected by section 2 of the Charter of Rights and Freedoms, a right which obviously did not exist in any shape or form in 1867. 0U%RURYR\RIWKH&DQDGLDQ&LYLO/LEHUWLHV$VVRFLDWLRQFRQÀUPHGWKDWWKHSURSRVHG amendment represents “real progress’’. “The state of equality and fairness can only 123

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EHQHÀWE\WKHDEROLWLRQRIVSHFLDOSUHIHUHQFHVIRUDQ\GHQRPLQDWLRQDOJURXSVHYHQLI those denominations happen to comprise a large percentage of the population. This is an advance as far as we are concerned for the state of religious equality and fairness.” 6RPHRIWKHGHQRPLQDWLRQDOLQWHUHVWVWKDWWHVWLÀHGKDGVSHFLÀFFULWLFLVPVRIWKH referendum process. They argued that the original question left the impression that uni-denominational education courses would be allowed, that the actual text of the proposed resolution was released too late in the referendum process to allow for full debate, that religious denominations opposed to the amendment were denied government funding, and that scrutineers were not allowed. They also objected to government-funded advertising in favour to the resolution. Proponents of the amendment, on the other hand, had no doubt that the original question was clear. The legislation governing plebiscites or referendums in Newfoundland, which is in the Newfoundland Elections Act, does not mandate public funding for the various positions, as is also the case with the federal referendum legislation. The Committee invited the Fédération des parents francophones de Terre-Neuve et du Labrador to appear before the Committee, because they had made a presentation to the Senate Committee studying the previous amendment to Term 17. They communicated WRWKH&RPPLWWHHWKDWWKH\ZHUHQRZVDWLVÀHGWKDWWKHLUOLQJXLVWLFHGXFDWLRQDOULJKWV under section 23 of the CharterZHUHEHLQJIXOO\PHW7KH\ZHUHDOVRVDWLVÀHGWKDWWKH process of consultation, including the referendum, gave the government political and moral authorization to proceed with the proposed changes to Term 17.4 0LQLVWHU *ULPHV ZKHQ KH DSSHDUHG EHIRUH WKH &RPPLWWHH FRQÀUPHG WKDW WKH government of Newfoundland is now meeting all of its obligations under section 23 of the Charter, and intends to continue to do so. Although Term 17 has no effect on linguistic educational rights, the Committee was pleased to receive the Minister’s assurance. The Labrador Métis Association also appeared before this Committee. The Committee sympathizes with their concerns that they may tend to “fall between the FUDFNV··RIWKHWZROHYHOVRIJRYHUQPHQW+RZHYHUWKH&RPPLWWHHZDVVSHFLÀFDOO\ assured by both Minister Dion and Minister Grimes that nothing in the proposed Term would adversely affect aboriginal rights, and Term 17 is the only issue with which the Committee has a mandate to deal.

,QWHUQDWLRQDO&RYHQDQWV 5 0V%D\HIVN\FODULÀHGIRUWKH&RPPLWWHHWKHIDFWWKDWVHFWLRQRIWKHInternational Covenant on Civil and Political Rights does not say a state party to the treaty is required to provide public funding for denominational schools. Human rights are protected adequately by ensuring freedom of religion, and non-interference with religious education and the dissemination of religious views to children from parents.

4

See Appendix 4 for the wording of Section 23.

See Appendix 5 for the relevant sections of the Universal Declaration of Human Rights (Article 26), the International Covenant of Social, Economic and Cultural Rights (Article 13), and the International Covenant on Civil and Political Rights (Article 18). 5

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The Newfoundland and Labrador Human Rights Association also addressed the issue of international human rights agreements, and concluded that the proposed Term 17 was consistent with international declarations and covenants. 3URIHVVRU)OHPLQJRIWKH8QLYHUVLW\RI1HZ%UXQVZLFNVSHFLÀFDOO\DGGUHVVHGWKH issue of the interaction between the proposed Term 17 and international law. He felt that it would be virtually impossible to design the sort of objective, non-religious course on the history of religion and ethics that would comply with international obligations. Therefore, an optional alternative course would have to be provided.

Funding for Private Schools Minister Grimes noted that his government has consistently, as a matter of policy, refused to provide any funding for private schooling in the province. However, there is nothing in the proposed Term 17 to prevent some future government funding private schools should it choose to do so. At this time, at the secondary level Newfoundland has two private religious schools and one other private school. One of the religious schools is a private Baptist school. The other is a private Seventh-Day Adventist school, started when the publicly funded Seventh-Day Adventist schools were closed in 1997. A group of parents in St. John’s formed a new school board and applied for permission to operate a private school, funded one-third by tuition and two-thirds by local churches and the Seventh-Day Adventist Church in Canada. The parents requested funding from government and were refused. Representatives of the Seventh-Day Adventist Church, as well as of other denominations, told the Committee that it is unfair that parents wishing denominational education should be taxed for public schools and then also have to pay the full costs of private schools. They noted that they have funding arrangements with the governments of British Columbia, Alberta and Manitoba. For example, a small school in Manitoba is funded one-third from tuition, one-third from the local church and one-third from a government grant.

6WXGHQWV·5LJKWV The Committee felt it important to receive views directly from the students of Newfoundland and Labrador, and did so by means of two videoconferences. The two groups of students who took part in our youth videoconferencing panels, as well as the other students in Newfoundland and Labrador with whom our panelists undoubtedly consulted, made a particular contribution to our discussion of issues relating to the rights of students. To a degree, the issues debated by the students were the same as those we heard from the parents, teachers and religious groups. Their perspective, however, was invaluable. These were students talking about their own daily lives, and there was a freshness and reality about the discussion that gave life to the more structured and nuanced debates of their elders. Several members of the Committee were particularly concerned with the rights of students, and a number of witnesses shared the view that the balance of rights between VWXGHQWVDQGSDUHQWVKDVFKDQJHGVLJQLÀFDQWO\DQGWKDWLWPD\KDYHEHHQGHVLUDEOHWR

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more thoroughly canvass the views of the students themselves. The right of students to the best education possible was a priority for all. The Newfoundland Home and Schools Association and the Newfoundland and Labrador Teachers’ Association focused on issues of education quality and the needs of students. They described schools as often bare and poorly equipped. One witness noted that, on browsing through the Canadian politics books in his son’s high school OLEUDU\WKHPRVWUHFHQWRQHKHFRXOGÀQGZDVSXEOLVKHGLQ The Teachers’ Association also dealt with the rights of students, and explained WKDWWKH\KDGLGHQWLÀHGDPDMRUSUREOHPZLWKWKHGHQRPLQDWLRQDOV\VWHPLQDUHSRUW over ten years ago: isolation by denomination. Their representative was distressed by how seldom students were mentioned during the referendum process; how the rights of the churches and classes of people were discussed rather than the rights of students and teachers. Newfoundland teachers, for example, do not have the usual protection contained in the Charter and can be discriminated against on the basis of employment and religion. One matter on which almost all witnesses agreed was that the busing required to maintain denominational schools was unfair to students, and extremely stressful. Students who would be able to go to a neighborhood school in a single school system, now have to be bused considerable distances to the closest school of their denomination. One of the parents from Education First told of a grade seven student who attended primary school within walking distance of her home. Now she leaves the house at 7:30 to be bused past a Roman Catholic school 10 minutes away which has a grade seven, past another school 20 minutes away which also has a grade seven, and past yet another grade seven to nine school before she reaches her own school one hour later. The Committee also heard that there was an integrated junior high school in St. John’s with only 500 pupils which, nevertheless, has 10 buses used to transport non-city students past other schools of other denominations. Newfoundland students are subjected to extensive busing that would not be necessary in a single public system. 2QDQRWKHUPDWWHUDIIHFWLQJVWXGHQWVZHKHDUGFRQÁLFWLQJHYLGHQFHIURPYDULRXV witnesses on whether the additional costs involved in maintaining parallel denominational systems had impaired the quality of education in Newfoundland and Labrador. Some argued that students from Newfoundland and Labrador rated with the best in FRXQWU\DQGRUÀHUFHO\GHIHQGHGWKHLULQGLYLGXDOVFKRROV However, we also heard testimony that parents, teachers and students alike were concerned as to whether or not the children of the province would be able to compete with graduates from other parts of Canada, and from other countries. Our witnesses were aware that the world is changing quickly, and professional success increasingly depends upon international competitiveness. The Committee also heard from a representative of the francophone educational system, who decided it was important to come and address the Committee as a parent. He had only two concerns: would his daughter be able to compete nationally, in the francophone community, and would she be able to deal with the new world of technology to the best of her ability. From his point of view, whether or not she receives a denominational education is well down on the list of priorities.

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Newfoundland schools traditionally require a letter from the parent before a student can opt out of religious class. The view was expressed that in the implementation of Term 17, consideration should be given, to allowing senior level secondary students an enhanced role in the decision to opt out. Mr. Schneiderman, for one, noted that courts may be more observant of children’s rights in such circumstances since the advent of the Charter.

 &RXUVHVLQ5HOLJLRQWKDWDUHQRW6SHFLÀFWRD5HOLJLRXV'HQRPLQDWLRQ DQG5HOLJLRXV2EVHUYDQFHV3HUPLWWHGLQD6FKRRO:KHUH5HTXHVWHGE\ a Parent Ms. Bayefsky alerted the Committee to the potential that exempting children from religious courses and religious observances could be considered inconsistent with Charter provisions and Charter values. She stressed that the proposed amendment was not itself LQFRQÁLFWZLWKWKHCharter, but expressed the concern that its implementation might give rise to CharterFRQÁLFWV0U6FKQHLGHUPDQDOVRUHIHUUHGWRWKHSRVVLELOLW\RICharter challenges, depending on the manner in which the provisions for religious education and, more particularly, religious observances are implemented. He expressed a concern that constitutionalizing the right of religious observance, which is generally understood to include opening exercises, may not be consistent with Charter jurisprudence. Mr. Borovoy recognized the concern about consistency with the Charter, but noted that the courts might try to read Term 17 and the Charter as mutually consistent. This would mean, for example, that 17(2) would apply to courses promoting knowledge rather than a belief in any religion or religious indoctrination. Professor Malcomson, from the Faculty of Political Science, St. Thomas University, argued that an amendment of Term 17 after Newfoundland’s Union with Canada in 1949 would not have the same degree of protection from the application of the Charter as the original term. This view led him to conclude that the implementation of the proposed DPHQGPHQW DOWKRXJK UHÁHFWLQJ DQ KRQRXUDEOH FRPSURPLVH PLJKW FUHDWH DV PDQ\ problems as it solves. However, he agreed that the provisions could be implemented in a way that would take into account previous court decisions on these matters.

 2SWLQJ2XWRI5HOLJLRXV&RXUVHVRU2EVHUYDQFHV The Committee heard considerable testimony on the issue of “opting out”. Witnesses referred to Ontario court decisions which have held that allowing students to “opt out” of religious exercises is not enough to protect their rights to freedom of religion, as guaranteed by the CharterEHFDXVHLWLGHQWLÀHVDQGLVRODWHVWKHQRQFRQIRUPLQJ children. Witnesses from Newfoundland, however, argued strenuously that such jurisprudence would not be applicable in Newfoundland because of its special history and traditions, which include the accommodation of non-conforming children in denominational schools with no such feeling of exclusion. The representatives of the Newfoundland government made clear that the intent of the amendment was indeed to give religious education and religious observances, where requested, some Charter protection in the amended Terms of Union and in the Newfoundland school system. Mr. Ian Binnie, a constitutional expert and legal advisor

127

STATE SUPPORT FOR RELIGIOUS EDUCATION

to the provincial government, commented that the effect of the additional provisions on religious courses and religious observations is extremely limited, historically based, and approved by the people of Newfoundland. He also noted that the reference in the proposed Term 17 to courses in religion does not mandate content, and the content of the course would therefore be subject to the Charter rights having to do with the freedom of belief and religion and freedom of expression. Similarly, Term 17 does not mandate participation in religious observances, and the Charter would operate to ensure freedom of conscience and religion. Ms. Welsh added that there is a constitutional need to include these provisions because that is the basis on which the people of Newfoundland and Labrador voted for the proposed amendment. The evidence suggested that sub-sections 17(2) and 17(3) were carefully crafted to respond to complex historical, political and legal criteria. When asked whether thought KDGEHHQJLYHQWRHQWUHQFKLQJGHQRPLQDWLRQVSHFLÀFFRXUVHV0LQLVWHU*ULPHVLQGLFDWHG that this had been fully debated. Given the history and traditions of Newfoundland and Labrador, the government was given legal advice that entrenching a right to unidenominational religious education would also confer a right to have that course taught by a member of relevant denomination. This latter right would require the hiring of VRPHWHDFKHUVRQWKHEDVLVRIWKHLUUHOLJLRXVDIÀOLDWLRQDQGJLYHQUHGXFHGUHVRXUFHV lay-offs based on the same consideration. Finally, the Committee notes that it was suggested that a more appropriate amendment might be a simple statement that education is within the exclusive jurisdiction of the province. Alternatively, the suggestion was made that the proposed resolution should be reworded to clarify an intent to comply with Charter values. In dealing with this issue, the Committee gave due attention to the testimony of Ms. Gale Welsh, from the Department of Justice, Newfoundland and Labrador. Ms. Welsh noted that the wording of the referendum question and the proposed amendment are the result of a series of events and consultations that have taken place over many years in the province. References to a constitutionally guaranteed course in religion and to a constitutionally guaranteed right to religious observances were contained in both the referendum question and the resolution unanimously approved in the House of Assembly. As Ms. Welsh noted, the decision to move to a secular system in Newfoundland and Labrador contained a compromise, which was the retention of courses in religion and religious observances, as requested by parents of any denomination. “Now it may not be the system desired or accepted in other provinces, but it is the system desired and accepted in Newfoundland and Labrador,” she said. Any new resolution with different wording would alter the nature of the amendment that was endorsed by the people during the referendum. Witnesses from the Integrated Education system, in particular, indicated that the guarantee of a comprehensive religious education program was essential to their support of the “Yes” position in the referendum. The students who expressed their views in the two videoconferences also stressed the importance of a religious education program. Several made the point that understanding different religious points of view was vital to understanding the modern world. 128

1. CANADIAN LAW

I think that’s the kind of religious course that should be offered in schools [ethical choice and comparative religion] because most of the wars and… disturbances between countries, most civil wars actually, are brought upon on the basis of different religions. If we understand different religions, we can better understand our differences and maybe see them in a different light[;] instead of seeing that one religion [differs] from another, we can see the similarities. There are religious values in schools so long as the students bring them there with them… Ms. Welsh stressed that the generic course in religion would be available in all schools, even those where a denominational course might be locally developed at the request of parents. Even if there were to be a locally developed course, students would have a FKRLFHRIHLWKHUFRXUVH,WZRXOGQRWEHDPDWWHURIHLWKHUWKHQRQGHQRPLQDWLRQVSHFLÀF course or a locally developed denominational course.

5(&200(1'$7,21 Having heard the evidence of all the witnesses, this Committee is assured that: C the proposed amendment to Term 17 of the Terms of Union of Newfoundland with Canada can be most appropriately achieved by using the section 43 bilateral amending formula, and C that the consensus in Newfoundland and Labrador is such that the federal Houses of Parliament should endorse the amendment. We therefore recommend that both Houses of Parliament adopt the resolution to amend Term 17 of the Terms of Union of Newfoundland with Canada in the form referred to this Committee by the House of Commons on 28 October 1997, and by the Senate on 5 November 1997.

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STATE SUPPORT FOR RELIGIOUS EDUCATION

APPENDIX 1 1HZIRXQGODQG5HIHUHQGXP6HSWHPEHU Electoral District

% Pop’n Voted1

Voted Yes1

Voted No2

% Pop’n R. Cath.2

% Pop’n % Pop’n PenteR.C. & costal2 P’costal Notes

Baie Verte

45.2

57.9

42.1

23.0

25.0

48.0

48 Provincial District

Bay of Island

47.4

78.6

21.4

34.0

4.0

38.0

28 of 48 Districts > 50% voter turnout

Bellevue

49.4

75.4

24.6

36.0

6.0

42.0

47 of 48 District > 50% voted YES

Bonavista North

41.4

87.8

12.2

1.0

9.0

10.0

Bonavista South

38.4

76.4

23.6

18.0

5.0

23.0

Largest Denomination Group/district

Burgeo & La Poile

30.3

93.6

6.4

4.0

2.0

6.0

Roman Catholic = 28 Districts

Burin-Placentia West

47.2

64.7

35.3

59.0

2.0

61.0

Pentecostal = 4 Districts

Cape St. Francis

68.0

63.4

36.6

60.0

1.0

61.0

Anglican = 9 Districts

CarbonearHarbour

51.0

71.4

28.6

28.0

7.0

35.0

United Church = 6 Districts

CartwrightL’Anse au Clair

45.0

71.4

28.6

18.0

13.0

31.0

Other Protestant = 1 District

Conception Bay E. & Belle Isla

58.2

74.0

26.0

44.0

2.0

46.0

Conception Bay South

52.4

76.3

23.7

31.0

4.0

35.0

Roman Catholic Districts:

Exploits

53.0

63.7

36.3

16.0

26.0

42.0

27 of 28 Districts > 50% voted YES

Ferryland

49.6

58.4

41.6

85.0

1.0

86.0

20 of 28 > 50% voter turnout

Fortune Bay -Cape La Hune

41.7

82.2

17.8

34.0

2.0

36.0

13 Districts > 50% population Roman Cath.

Gander

58.1

84.2

15.8

27.0

7.0

34.0

12 of 13 Districts voted > 50% YES

Grand Bank

44.9

75.4

24.6

38.0

1.0

39.0

Grace

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1. CANADIAN LAW

% Pop’n Voted1

Voted Yes1

Voted No2

% Pop’n R. Cath.2

Grand FallsBuchans

65.9

68.9

31.1

36.0

12..0

48.0

Pentecostal Districts:

Harbour Main – Whitbourne

51.2

54.7

45.3

60.0

4.0

64.0

4 of 4 Districts > 50% voted YES

Humber East

66.3

79.5

20.5

34.0

5.0

39.0

3 of 4 Districts > 50% voter turnout

Humber Valley

51.9

77.6

22.4

11.0

16.0

27.0

Humber West

54.6

76.8

23.2

37.0

5.0

42.0

Kilbride

59.1

68.8

31.2

57.0

2.0

59.0

Labrador West

55.7

76.0

24.0

41.0

8.0

49.0

Lake Melville

46.7

76.4

23.6

30.0

7.0

37.0

Lawisporte

57.2

59.9

40.1

9.0

34.0

43.0

Electoral District

% Pop’n % Pop’n PenteR.C. & costal2 P’costal Notes

Mount Pearl

68.1

78.6

21.4

40.0

3.0

43.0

Placentia & St. Mary’s

46.2

43.8

56.2

91.0

0.0

91.0

Port au Port

48.4

50.4

49.6

78.0

3.0

81.0

Port de Grave

54.6

85.3

14.7

9.0

5.0

14.0

St. Barbe

41.6

84.9

15.1

29.0

5.0

34.0

St. George’s Stephenville East

41.4

67.5

32.5

70.0

2.0

72.0

St. John’s Centre

59.4

64.7

35.3

58.0

1.0

59.0

St. John’s East

79.7

68.9

31.1

50.0

0.0

50.0

St. John’s North

66.6

71.1

28.9

48.0

4.0

52.0

St. John’s South

56.7

67.8

32.2

61.0

1.0

62.0

St. John’s West

67.5

75.6

24.4

52.0

3.0

55.0

Signal Hill – Quidi Vidi

64.3

75.0

25.0

50.0

1.0

51.0

Terre Nova

47.5

87.5

12.5

11.0

6.0

17.0

The Straits & White Bay North

44.3

73.2

26.8

15.0

22.0

37.0

131

STATE SUPPORT FOR RELIGIOUS EDUCATION

Electoral District

% Pop’n Voted1

Voted Yes1

Voted No2

% Pop’n R. Cath.2

% Pop’n % Pop’n PenteR.C. & costal2 P’costal Notes

Topsail

69.5

80.4

19.6

34.0

3.0

37.0

Torngat Mountains

47.4

80.0

20.0

17.0

7.0

24.0

Trinity – Bay de Verde

51.2

84.5

15.5

20.0

3.0

23.0

Trinity North

48.6

90.0

10.0

9.0

4.0

13.0

Twillingate & Fogo

41.2

68.8

31.2

12.0

20.0

32.0

Virginia Waters

71.3

76.1

23.9

44.0

2.0

46.0

Waterford Valley

58.0

78.7

21.3

43.0

4.0

47.0

Windsor – Springdale

56.3

56.8

43.2

15.0

32.0

47.0

6RXUFHV²1HZIRXQGODQG3OHELVFLWH2IÀFLDO5HVXOWV²6WDWLVWLFV&DQDGD 1991 Census

APPENDIX 2 %,/$7(5$/6(&7,21$0(1'0(1766,1&( C In 1987, Term 17 of the Newfoundland Terms of Union was amended to extend to the Pentecostal denomination the same educational rights held by seven other, constitutionally protected denominations in Newfoundland and Labrador. C In 1993, section 16.1 was added to the Canadian Charter of Rights and Freedoms, HQWUHQFKLQJ WKH HTXDOLW\ RI WKH WZR RIÀFLDO ODQJXDJH FRPPXQLWLHV LQ 1HZ Brunswick. C In 1993, Prince Edward Island’s Terms of Union were amended to substitute a EULGJHRUÀ[HGOLQNIRUWKHIHUU\VHUYLFHJXDUDQWHHGLQWKH&RQVWLWXWLRQ C In 1996, Term 17 of the Newfoundland Terms of Union was again amended. C Earlier this year, a Special Joint Committee, similar to this one in composition, studied and recommended the passage of a resolution, previously passed unanimously by the National Assembly of Quebec, removing the requirement for publicly funded denominational schooling in Quebec.

132

1. CANADIAN LAW

APPENDIX 3 EXTRA NO. 4, Vol. 131 Canada Gazette Part II

277$:$)5,'$<0$< Registration SI/97-55 2 May, 1997 CONSTITUTION ACT, 1982

Constitution Amendment Proclamation, 1987 (Newfoundland Act) ROMÉO LeBLANC [L.S.] Canada Elizabeth the Second, by the Grace of God of the United Kingdom, Canada and Her other Realms and Territories QUEEN, Head of the Commonwealth, Defender of the Faith. By His Excellency the Right Honourable Roméo LeBlanc, Governor General and Commander-in-Chief of Canada To All To Whom these Presents shall come, Greeting: A Proclamation Whereas section 43 of the Constitution Act, 1982 provides that an amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies; And whereas section 47 of the Constitution Act, 1982 provides that an amendment to the Constitution of Canada made by proclamation under section 43 may be made without a resolution of the Senate authorizing the issue of the proclamation if, within one hundred and eighty days after the adoption by the House of Commons of a resolution authorizing its issue, the Senate has not adopted such a resolution and if, at any time after the expiration of the period, the House of Commons again adopts the resolution; And whereas the House of Commons adopted a resolution on June 3, 1996 authorizing an amendment to the Constitution of Canada and, the Senate not having adopted such

133

STATE SUPPORT FOR RELIGIOUS EDUCATION

a resolution, the House of Commons again adopted the resolution on December 4, 1996; And whereas Parliament was neither prorogued nor dissolved between June 3, 1996 and December 4, 1996; And whereas the Legislative Assembly of the Province of Newfoundland adopted a resolution on October 31, 1995 authorizing an amendment to the Constitution of Canada; And whereas the Queen’s Privy Council for Canada has advised me to issue this proclamation; Now know You that I do issue this proclamation amending the Constitution of Canada in accordance with the schedule hereto. In Testimony Whereof I have caused these Letters to be made patent and the Great Seal RI&DQDGDWREHKHUHXQWRDIÀ[HG $W*RYHUQPHQW+RXVHLQWKH&LW\RI2WWDZDWKLVWZHQW\ÀUVWGD\RI$SULOLQWKH
SCHEDULE 7(5062)81,212)1(:)281'/$1':,7+&$1$'$ [Note: In this schedule, the references to the “Constitution Acts, 1867 to 1940’’ replace the original references to the “British North America Acts, 1867 to 1946”. The B.N.A. Acts, 1943 and 1946 were repealed by the Constitution Act, 1982 (No. 44 infra).]

0(025$1'802)$*5((0(17(17(5(',172217+( (/(9(17+'$<2)'(&(0%(5%(7:((1&$1$'$$1' 1(:)281'/$1' Whereas a delegation appointed from its members by the National Convention of Newfoundland, a body elected by the people of Newfoundland, consulted in 1947 with the Government of Canada to ascertain what fair and equitable basis might exist for the union of Newfoundland with Canada; 134

1. CANADIAN LAW

Whereas, following discussions with the delegation, the Government of Canada sent to His Excellency the Governor of Newfoundland for submission to the National Convention a statement of terms which the Government of Canada would be prepared to recommend to the Parliament of Canada as a fair and equitable basis for union, should the people of Newfoundland desire to enter into confederation; Whereas the proposed terms were debated in the National Convention in Newfoundland and were before the people of Newfoundland when, by a majority at a referendum held on the twenty-second day of July, 1948, they expressed their desire to enter into confederation with Canada; Whereas the Governments of the United Kingdom, Canada and Newfoundland agreed after the referendum that representatives of Canada and Newfoundland should meet and VHWWOHWKHÀQDOWHUPVDQGDUUDQJHPHQWVIRUWKHXQLRQRI1HZIRXQGODQGZLWK&DQDGD And whereas authorized representatives of Canada and authorized representatives of Newfoundland have settled the terms hereinafter set forth as the Terms of Union of Newfoundland with Canada; It is therefore agreed as follows:

7(5062)81,21 Education 17. In lieu of section ninety-three of the Constitution Act, 1867, the following Term shall apply in respect of the Province of Newfoundland: In and for the Province of Newfoundland the Legislature shall have exclusive authority to make laws in relation to education, but the Legislature will not have authority to make laws prejudicially affecting any right or privilege with respect to denominational schools, common (amalgamated) schools, or denominational colleges, that any class or classes of persons have by law in Newfoundland at the date of Union, and out of public funds of the Province of Newfoundland, provided for education, (a) all such schools shall receive their share of such funds in accordance with scales determined on a non-discriminatory basis from time to time by the Legislature for all schools then being conducted under authority of the Legislature; and (b) all such colleges shall receive their share of any grant from time to time voted for all colleges then being conducted under authority of the Legislature, such grant being distributed on a non-discriminatory basis.

135

STATE SUPPORT FOR RELIGIOUS EDUCATION

SCHEDULE $0(1'0(17727+(&2167,787,212)&$1$'$ 1. Term 17 of the Terms of Union of Newfoundland with Canada set out in the schedule to the Newfoundland Act is repealed and the following substituted therefor: “17. In lieu of section ninety-three of the Constitution Act, 1867, the following shall apply in respect of the Province of Newfoundland: In and for the Province of Newfoundland, the Legislature shall have exclusive authority to make laws in relation to education but (a) except as provided in paragraphs (b) and (c), schools established, maintained and operated with public funds shall be denominational schools, and any class of persons having rights under this Term as it read on January 1, 1995 shall continue to have the right to provide for religious education, activities and observances for the children of that class in those schools, and the group of classes that formed one integrated school system by agreement in 1969 may exercise the same rights under this Term as a single class of persons; (b) subject to provincial legislation that is uniformly applicable to all schools specifying conditions for the establishment or continued operation of schools, (i) any class of persons referred to in paragraph (a) shall have the right to have a publicly funded denominational school established, maintained and operated especially for that class, and (ii) the Legislature may approve the establishment, maintenance and operation of a publicly funded school, whether denominational or non-denominational; (c) where a school is established, maintained and operated pursuant to subparagraph (b) (i) the class of persons referred to in that subparagraph shall continue to have the right to provide for religious education, activities and observances and to direct the teaching of aspects of curriculum affecting religious beliefs, student admission policy and the assignment and dismissal of teachers in the school; (d) all schools referred to in paragraphs (a) and (b) shall receive their share of public funds in accordance with scales determined on a non-discriminatory basis from time to time by the Legislature; and (e) if the classes of persons having rights under this Term so desire, they shall have the right to elect in total not less than two thirds of the members of a school board, and any class so desiring shall have the right to elect the portion of that total that is proportionate to the population of that class in the area under the board’s jurisdiction.’’ Citation 2. This Amendment may be cited as the Constitution Amendment, 1997 (Newfoundland Act).

136

1. CANADIAN LAW

20 / 1 / 88 Canada Gazette Part II, Vol. 122, No. 2 Registration S1/88/11 20 January, 1988 CONSTITUTION ACT, 1982

Constitution Amendment Proclamation, 1987 (Newfoundland Act) By Her Excellency the Right Honourable Jeanne Sauvé, Governor General and Commander-in-Chief of Canada To All to Whom these Presents shall come, Greeting: JEANNE SAUVÉ A Proclamation Whereas section 13 of the Constitution Act, 1982 provides that an amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies; And Whereas the Senate, the House of Commons and the House of Assembly of the Province of Newfoundland have, by resolution, authorized an amendment to the Constitution of Canada to be made by proclamation issued by the Governor General under the Great Seal of Canada; And Whereas the Queen’s Privy Council for Canada has advised me to issue this proclamation; Now Know You that I do issue this proclamation amending the Constitution of Canada in accordance with the schedule hereto. In testimony whereof I have caused these Letters to be made Patent and the Great Seal RI&DQDGDWREHKHUHXQWRDIÀ[HG At Government House, in the City of Ottawa, this twenty-second day of December in the Year of Our Lord One Thousand Nine Hundred and Eighty-seven. By Command, HARVIE ANDRE Registrar General of Canada

RAY HNATYSHYN Attorney General of Canada

BRIAN MULRONEY Prime Minister of Canada

137

STATE SUPPORT FOR RELIGIOUS EDUCATION

20 / 1 / 88 Canada Gazette Part II, Vol. 122, No. 2

SCHEDULE Amendment to the Constitution of Canada 1. (1) Section 3 of the Newfoundland Act is renumbered as subsection 3(1). (2) Section 3 of the said Act is further amended by adding thereto the following subsection: References: “(2) A reference to this Act, or a reference to the Terms of Union of Newfoundland with Canada set out in the Schedule to this Act, shall be deemed to include a reference to any amendments thereto.” 2. (1) Term 17 of the Terms of Union of Newfoundland with Canada set out in the Schedule to the said Act is renumbered as Term 17(1). (2) Term 17 of the Terms of Union of Newfoundland with Canada set out in the Schedule to the said Act is further amended by adding thereto the following: “(2) For the purposes of paragraph one of this Term, the Pentecostal Assemblies of Newfoundland have in Newfoundland all the same rights and privileges with respect to denominational schools and denominational colleges as any other class or classes of persons had by law in Newfoundland at the date of Union, and the words” all such schools’’ in paragraph (a) of paragraph one of this Term and the words “all such colleges’’ in paragraph (b) of paragraph one of this Term include, respectively, the schools and the colleges of the Pentecostal Assemblies of Newfoundland.” Citation 3. This Amendment may be cited as the Constitution Amendment, 1987 (Newfoundland Act).

138

1. CANADIAN LAW

APPENDIX 4 &2167,787,21$&7 3$57,&$1$',$1&+$57(52)5,*+76$1')5(('206 Minority Language Educational Rights Language of instruction 23. (1) Citizens of Canada  D  ZKRVHÀUVWODQJXDJHOHDUQHGDQGVWLOOXQGHUVWRRGLVWKDWRIWKH(QJOLVKRU)UHQFK linguistic minority population of the province in which they reside, or (b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province, have the right to have their children receive primary and secondary school instruction in that language in that province.(91) Continuity of language instruction (2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language. Application where numbers warrant (3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province (a) applies wherever in the province the number of children of citizens who have VXFKDULJKWLVVXIÀFLHQWWRZDUUDQWWKHSURYLVLRQWRWKHPRXWRISXEOLFIXQGVRI minority language instruction; and (b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.

139

STATE SUPPORT FOR RELIGIOUS EDUCATION

APPENDIX 5 8QLYHUVDO'HFODUDWLRQRI+XPDQ5LJKWV*$UHV$,,, 81 Doc A/810 at 71 (1948). Article 26 1. Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. 2. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. 3. Parents have a prior right to choose the kind of education that shall be given to their children.

,QWHUQDWLRQDO&RYHQDQWRQ(FRQRPLF6RFLDODQG&XOWXUDO5LJKWV *$UHV$;;, 81*$256XSS1R DW81'RF A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976. Article 13 1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace. 2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right: a. Primary education shall be compulsory and available free to all; b. Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education; c. Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;

140

1. CANADIAN LAW



G )XQGDPHQWDOHGXFDWLRQVKDOOEHHQFRXUDJHGRULQWHQVLÀHGDVIDUDVSRVVLEOHIRU those persons who have not received or completed the whole period of their primary education; e. The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.

3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions. 4. No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph I of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.

,QWHUQDWLRQDO&RYHQDQWRQ&LYLODQG3ROLWLFDO5LJKWV*$UHV$ ;;, 81*$256XSS1R DW81'RF$  999 U.N.T.S. 171, entered into force Mar. 23, 1976. Article 18 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

141

STATE SUPPORT FOR RELIGIOUS EDUCATION

APPENDIX 6 List of witnesses $VVRFLDWLRQVDQG,QGLYLGXDOV

'DWH

The Hon. Stéphane Dion

Tuesday, November 18, 1997

President of the Queen’s Privy Council for Canada and Minister of Education Department of Justice Mary Dawson, Associate Deputy Minister 3ULY\&RXQFLO2IÀFH Yves de Montigny, Director General, Constitutional Affairs Government of Newfoundland and Labrador The Hon. Roger Grimes, Minister of Education Deborah E. Fry, Deputy Minister Gale Welsh, Lawyer New Democratic Party of Newfoundland and Labrador Jack Harris, Leader York University

Thursday, November 20, 1997

Anne Bayefsky, Faculty of Law University of Alberta David Schneiderman, Executive Director, Centre of Constitutional Studies Newfoundland and Labrador Catholic Education Association Helena Bragg, Executive Director Alice Furlong, Vice-President 1HZIRXQGODQGDQG/DEUDGRU+XPDQ5LJKWV Association

Thursday, November 20, 1997

Geof Buddun, Vice-President Jerry Vink, Executive Director Government of Newfoundland and Labrador Gale Welsh, Lawyer, Department of Justice McCarthy, Tétrault, Barristers and Solicitors Ian Binnie, Solicitor

142

Friday, November 21, 1997

1. CANADIAN LAW

1HZIRXQGODQGDQG/DEUDGRU6FKRRO)HGHUDWLRQ Steve Wolinetz, Vice-President Canadian Catholic School Trustee’s Association

Monday, November 24, 1997

Debbie Ward, 1st Vice-President Louise Irwin, Board Member John J. Flynn, Executive Secretary Ontario Catholic Schools Trustee’s Association Patrick J. Daly, President Patrick V. Slack, Executive Director Arthur Lamarche, Regional Director Newfoundland and Labrador Teachers’ Association Brendan Doyle, President Wayne Noseworthy, Executive Director Seventh-Day Adventist Church of Canada George Morgan, Member Barry Bussey, Legal Counsel Pentecostal Parents Action Committee Ron Mosher, Member Sharron Collins, Secretary of the Committee St. Pius X Parent Teacher Association

Monday, November 24, 1997

Janet M. Henley Andrews, President Susan Hiscock, Vice-President Gonzaga High School Parents Association Patrick O’Shea, President Committee to Keep Gonzaga Jesuit Catherine Young, Member Canadian Civil Liberties Association Alan Borovoy, General Counsel St. Michael’s College School Father T. F. Mohan, Principal Integrated Education Council

Tuesday, November 25, 1997

+DUU\(OOLRWW([HFXWLYH2IÀFHU

143

STATE SUPPORT FOR RELIGIOUS EDUCATION

Anglican Church of Canada Rt. Reverend Donald F. Harvey University of New Brunswick Donald Fleming, Professor, Faculty of Law St. Thomas University Patrick Malcolmson, Professor, Faculty of Political Science %URWKHU5LFH+LJK6FKRRO John Whelan, Student, Roman Catholic Representative Eugene Vaters Pentecostal Collegiate High School Robyn Lamswood, Student, Pentecostal Representative Booth Memorial

Tuesday, November 25, 1997

Jennifer Bragg, Student Erin Riche, Student Tara Snelgrove, Student 5HJLQD+LJK6FKRRO Jennifer Thornhill, Student, Roman Catholic Representative Deer Lake Pentecostal School Erika Budgell, Student, Pentecostal Representative Heardman Collegiate Andrea Hall, Student Stéphanie Short, Student 5RPDQ&DWKROLF(GXFDWLRQ&RPPLWWHH

Wednesday, November 26, 1997

%RQDYHQWXUH)DJDQ([HFXWLYH2IÀFHU Catholic Education Council of Newfoundland and Labrador The Most Reverend James H. MacDonald, D. D., Archbishop of St. John’s and Chair of the Catholic Education of Newfoundland and Labrador Poole, Althouse, Clarke, Thompson & Thomas, Barristers and Solicitors Joseph S. Hutchings, Legal Council (GXFDWLRQ)LUVW Oonagh O’Dea, Member Brenda Bryant, Member École St. Anne Joe Benoit, Principal

144

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Pentecostal Assemblies of Newfoundland and the Pentecostal Education Committee

Thursday, November 27, 1997

0HOYLQ05HJXODU([HFXWLYH2IÀFHU Reverend A. Earl Batstone, Superintendent Labrador Metis Association Todd Russell, President Aboriginal Affairs Group Inc. Robert K. Groves, Principal Memorial University Mark Graesser, Professor Government of Newfoundland and Labrador Roger Grimes, Minister of Education The Hon. Stéphane Dion

Monday, December 1, 1997

President of the Queen’s Privy Council for Canada and Minister of Education Department of Justice Mary Dawson, Associate Deputy Minister 3ULY\&RXQFLO2IÀFH Yves de Montigny, Director General, Constitutional Affairs

APPENDIX 7 List of submissions Arsenault, Maurice and Bernadette Avalon West School District Bambrick, Garry J. Barry, Kevin Battoock, Sheila Benoit, Joseph A. Bird, Barbara and Robert Bishop O’Neill Collegiate School Council Brother Rice High School Canadian Catholic School Trustees’ Association Catholic Education Committee, Lewisporte/Gander School District No. 6 Congregation of Christian Brothers 145

STATE SUPPORT FOR RELIGIOUS EDUCATION

Corner Brook – Catholic Schools Darcy, Joseph B. Deer Lake Pentecostal Action Committee Denominational Education Commission Diocese Labrador City – Schefferville Diocese Dion, Hon. Stéphane Dyson, Theresa Education First Evangelical Fellowship of Canada “Fédération des Parents Francophones de Terre-Neuve et du Labrador” Federation of Independent Schools in Canada Fleming, Prof. Donald J. Friends of Public Education in Ontario Inc. G. Shaw Collegiate Gonzaga Parents’ Association Grimes, Roger Harris, Jack Integrated Education Committee Keats, Janet Keep Gonzaga Jesuit Committee Labrador Metis Association Lipsett, Edward H. Local Action Committee – Charisma School System Local Action Committee – Middle Arm Burlington-Smith’s Harbour MacDonald, James H. Marshall, Mary-Ann McCarthy, Tétrault, Barristers and Solicitors Newfoundland Denomination Schools / Archbishop Emeritus of Toronto Newfoundland and Labrador Catholic Education Association Newfoundland and Labrador Human Rights Association Newfoundland and Labrador Teachers’ Association O.L.Q.P. – Petitions Ontario Catholic School Trustees’ Association Our Lady of Lourdes Parish Our Lady Queen of Peace – Parent Action Committee Our Lady Queen of Peace Parish

146

1. CANADIAN LAW

Our Lady Queen of Peace School Pentecostal Assemblies of Newfoundland and the Provincial Pentecostal Education Committee Pentecostal Assemblies of Newfoundland – Petitions Pentecostal Parents’ Action Committee Poole, Althouse, Clarke, Thompson & Thomas, Barristers and Solicitors Ralph Laite School Council Roman Catholic Education Committee of the Denominational Education Commission Roman Catholics in District No 5 Roman Catholics in District No 10 R. W. Parsons Complex Seventh Day Adventist Church Shallow, William St. Pius X Parent Teacher Association St. Thomas University Taylor, Leo P. Vancouver College Vista School District – Roman Catholic Education Committee A copy of the relevant Minutes of Proceedings (Meetings Nos. 1 to 15) is tabled. Respectfully submitted, Hon. Joyce Fairbairn, Senator Gerry Byrne, M.P. Joint Chairs

147

STATE SUPPORT FOR RELIGIOUS EDUCATION

1(:)281'/$1'6&+22/6$0(1'0(17',66(17,1* 23,1,21)5207+(5()2503$57< For the second time in less than three years, the government of Newfoundland and Labrador is seeking Parliament’s approval of an amendment to Term 17 of the Articles RI8QLRQ7KHUHKDYHEHHQWZRUHIHUHQGXPVLQWKHSURYLQFHWKHÀUVWREWDLQHG approval and the proposed amendment was passed by Parliament. Implementing the new education system is a complicated business requiring the integration of different denominational systems, the creation of new school boards with advisory committees, the closing of schools and the laying off of 500 teachers. The Catholic and Pentecostal communities went to court and obtained an interim injunction against the implementation of the provisions of the Education Act. The Newfoundland government could have gone to full trial or amended the legislation to provide a more workable process for implementing the new Term 17. Instead, it decided to have another referendum. The court decision was handed down on July 8 and the referendum was called on July 31. There was no debate in the House of Assembly prior to the announcement of the referendum and no hearings on the proposed amendment. The proposed new Term 17 was only unveiled two days before the advanced poll and a week before the vote. Catholics and Pentecostals argued that the actual term did not conform with the question so that the informed consent of the electorate in general and the affected minorities in particular is questionable. The question referred to “opportunities for religious education” but the new Term only guarantees “courses in religion that DUHQRWVSHFLÀFWRDUHOLJLRXVGHQRPLQDWLRQµ7RWKHPFRXUVHVSUHVFULEHGIRUDOOWKDW GRQRWSURYLGHWKHVSHFLÀFVRIWKHLUGHQRPLQDWLRQDOEHOLHIVDUHQRWWKHHTXLYDOHQWRI religious education as it was understood by voters considering the question. 7KHUHIHUHQGXPREWDLQHGVXSSRUWVLJQLÀFDQWO\KLJKHUWKDQWKHVXSSRUWIRUWKH previous amendment and it carried in all but one of the province’s 48 ridings. In the circumstances, despite some reservations about the actual conduct of the referendum DQGWKHVKRUWWLPHIUDPHIRURSSRQHQWVRIWKHFKDQJHWRPRELOL]HZHÀQGWKDWWKHÀUVW test used by Reform in judging whether to support a constitutional change, namely democratic consent of the majority of the people affected by the change, has been met. Further, Term 17 clearly applies only to one province and so can be amended under section 43, the bilateral amending formula. In fact, Term 17 has already been amended twice under that provision, to add Pentecostals and to rewrite the Term. The court case which precipitated the second referendum did not challenge the validity of the new Term 17 itself. It challenged the process established by statute to bring the new educational system into being. We are therefore prepared to assume that the revised Term 17 meets the test of the rule of law. This does not settle the issue. As in the recent Quebec schools amendment, Parliament must be assured that the proposal is in the national interest. When the amendment affects entrenched rights as this amendment clearly does, Parliament must be especially vigilant that the democratic consent includes a demonstrated assent of the affected holders of those rights. Where rights are being enhanced, the assent can

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be assumed. In this case, it is undeniable that rights are being prejudicially affected. The named denominations will lose control of their schools although the new Term 17 does contain some new rights which can be exercised by the parents rather than the denominations. Determining the extent of consent among the members of the protected denominaWLRQVLVGLIÀFXOWEHFDXVHWKHVLWXDWLRQLQ1HZIRXQGODQGDQG/DEUDGRULVFRPSOH[7HUP 17 guarantees denominational education to eight named denominations. In practice, several of the denominations operated schools together to produce viable numbers. In the hearings, the issue was narrowed to consent of the Catholic and Pentecostal minorities. The question whether a majority of Catholics had voted in favour was the subject of differing analyses of the results in the Committee. Certainly, the Catholic hierarchy is opposed. It is generally accepted that the relatively small Pentecostals (7.1%) voted overwhelmingly against the proposed change. If the existing Term 17 is considered as covering all named denominations as a group then there has been consent. If it is viewed as providing individual guarantees then at least one and possible two affected denominations have dissented. Parliament is being asked to strip Term 17 of all guarantees of denominational educaWLRQDQGUHSODFHWKHPZLWKDJXDUDQWHHRI´FRXUVHVLQUHOLJLRQWKDWDUHQRWVSHFLÀFWRD religious denomination” and a guarantee that “religious observances shall be permitted in a school where requested by parents”. Is there a compelling reason to do so? In his brief, the Minister of Education of Newfoundland advanced the need to modernize the HGXFDWLRQDOV\VWHP´IRUHGXFDWLRQDOH[FHOOHQFHDQGÀVFDOUHVSRQVLELOLW\µ:HDJUHH wholeheartedly with those goals but question whether these goals cannot be achieved under the current Term 17. The system was being changed. Some schools were to be FORVHG(IÀFLHQFLHVZHUHEHLQJDFKLHYHG Where a minority objects, we submit that each Member of Parliament and Senator will have to decide whether it is in the Canadian national interest to approve the SURSRVHGFRQVWLWXWLRQDODPHQGPHQW7KHUHDUHFRQÁLFWLQJYDOXHVUDLVHGE\WKLVSURSRVHG amendment including the right of the minorities when a large majority has voted to eliminate their rights. Although Minister Dion argued that this was not a “fundamental right” like freedom of speech or freedom of religion which cannot be taken away by a majority vote, we are troubled by the distinction he has drawn and the precedent which Parliament is setting in this case. Since the vote on the Newfoundland schools amendment is presumed to be a “free vote”, we make no recommendation as to whether to oppose or support but commend the above arguments and concerns to each Member’s judgment.

',66(17,1*23,1,21)5207+(352*5(66,9( &216(59$7,9(23326,7,21,17+(6(1$7( The Members of the Joint Committee from the Progressive Conservative Opposition in the Senate, Senator William Doody, Senator Lowell Murray and Senator Noël A. Kinsella, disassociate themselves from this Report and the recommendations contained therein. 149

STATE SUPPORT FOR RELIGIOUS EDUCATION

0,187(62)352&((',1*6 Wednesday, December 3, 1997 (Meeting No. 15) [Text] The Special Joint Committee on the Amendment to Term 17 of the Terms of Union of Newfoundland met in camera at 4:46 p.m, this day, in room 536 Wellington, the Co-Chairs, Joyce Fairbairn and Gerry Byrne, presiding. Members of the Committee present: Pierre Brien, Gerry Byrne, Elinor Caplan, Paul DeVillers, Michelle Dockrill, Raymonde Folco, Peter Goldring, Inky Mark, Joe McGuire, Rey Pagtakhan, Werner Schmidt. Acting Member present: Mairo Bélanger for Claudette Bradshaw. Representing the Senate: Joyce Fairbairn, Philippe D. Gigantès, Noël A. Kinsella, Landon Pearson, William Rompkey. In attendance: From the Parliamentary Research Branch: Molly Dunsmuir and Jack 6WLOOERUQ5HVHDUFK2IÀFHUV Pursuant to the Orders of Reference adopted by the Senate on November 5, 1997 and by the House of Commons on October 28, 1997, the Committee met to consider matters related to the proposed resolution respecting a proposed Amendment to Term 17 of the Terms of Union of Newfoundland with Canada concerning the Newfoundland school system. The Committee continued consideration of its draft report. Bill Rompkey moved, – That the draft report, as amended, be concurred in. The question being put on the motion, it was agreed to on the following divisions: YEAS 12; NAYS 4. It was agreed, – That the Co-Chairs be authorized to make such grammatical and editorial changes to the report as may be necessary without changing the substance of the report. It was agreed, – That the Co-Chairs table the report to their respective House as soon as possible. It was agreed, – That 200 copies of the report be printed by the Senate and 550 copies of the report be printed by the House of Commons. On motion of Werner Schmidt, it was agreed, – That the Committee authorize the printing of dissenting opinions as appendices to the report, immediately after the signatures of the Joint Chairs. At 5:46 p.m., the Committee adjourned to the call of the Chair. Roger Préfontaine and Blair Armitage Co-Clerks of the Committee

150

#5(c) Constitution Amendment, 1998 (Newfoundland Act), SI/9825, 14 January 1998, Canada Gazette Part II, Vol. 132, No. 1, 14/1/98 Constitutional amendment of the denominational school system in Newfoundland, which had been in place since the 1948 Terms of Union, was subject to intense consultation. Ultimately, it resulted in an amendment which permitted in the public VFKRROVFRXUVHVLQUHOLJLRQWKDWDUHQRWVSHFLÀFWRDUHOLJLRXVGHQRPLQDWLRQ,W also provided that ”religious observances shall be permitted in a school where requested by parents”.

14/1/98 Canada Gazette Part II, Vol. 132, No. 1 Registration SI/98-25 14 January, 1998 Constitution Amendment, 1998 (Newfoundland Act) By His Excellency the Right Honourable Roméo LeBlanc, Governor General and Commander-in-Chief of Canada To All To Whom these Presents shall come, Greeting: A Proclamation Whereas section 43 of the Constitution Act, 1982 provides that an amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies; And whereas the Senate adopted a resolution on December 18, 1997 authorizing an amendment to the Constitution of Canada; And whereas the House of Commons adopted a resolution on December 9, 1997 authorizing an amendment to the Constitution of Canada; And whereas the House of Assembly of the Province of Newfoundland adopted a resolution on September 5, 1997 authorizing an amendment to the Constitution of Canada; And whereas the Queen’s Privy Council for Canada has advised me to issue this proclamation;

151

STATE SUPPORT FOR RELIGIOUS EDUCATION

Now Know You that I do issue this proclamation amending the Constitution of Canada in accordance with the schedule hereto. In testimony Whereof I have caused these Letters to be made patent and the Great Seal RI&DQDGDWREHKHUHXQWRDIÀ[HG At Government House, in the City of Ottawa, this eight day of January in the Year of Our Lord One Thousand Nine Hundred and Ninety-eight. By command, JEAN CHRÉTIEN Prime Minister of Canada ANNE MCLEAN Attorney General of Canada JOHN MANLEY Registrar General of Canada

SCHEDULE $0(1'0(17727+(&2167,787,212)&$1$'$ 1. Term 17 of the Terms of Union of Newfoundland with Canada set out in the Schedule to the Newfoundland Act is repealed and the following substituted therefor: “17. (1) In lieu of section ninety-three of the Constitution Act, 1867, this Term shall apply in respect of the Province of Newfoundland. (2) In and for the Province of Newfoundland, the Legislature shall have exclusive authority to make laws in relation to education, but shall provide for courses in UHOLJLRQWKDWDUHQRWVSHFLÀFWRDUHOLJLRXVGHQRPLQDWLRQ (3) Religious observances shall be permitted in a school where requested by parents.” 2. This Amendment may be cited as the Constitution Amendment, 1998 (Newfoundland Act).

152

(GXFDWLRQ$FW562F(VV    52, 159 and 234, as amended by S.O. 1997, c.3, s. 2(6); and S.O. 1997, c.31, ss. 1(5), 28, 73 and 113(1) [excerpts] In Ontario, the power conferred under section 93 of the Constitution Act is exercised through the Education Act. Sections 1(4) and 1(4.1) of the Education Act explicitly DIÀUPDQGSURWHFWWKHGHQRPLQDWLRQDOVFKRROULJKWVVHWRXWLQVHFWLRQRIWKH Constitution Act. The Education Act sets up a scheme setting out the rules for all legislation and regulations governing education funding, or all grant-making for educational purposes from money appropriated by the Legislature. Section 234(2)(a) requires that such legislation, regulations or grant-making “operate in a fair and non-discriminatory manner” “as between “English-language public boards”, which receive full public funding, and “English-language Roman Catholic boards”. Section 234(2)(b) of the Act also requires non-discrimination “as between French-language public district school boards and French-language separate district school boards”. A separate school can mean both “a school under the jurisdiction of a Roman Catholic board”, and “a school under the jurisdiction of a Protestant separate school board” (s. 1(1)). Section 159 of the Education Act provides that Protestant separate schools are funded through legislative grants in the same manner as an English public school. There is only one Protestant separate school board in existence in Ontario and it is an English language board. There are no religion class requirements and it operates in the same manner as a secular public school. In practice, therefore, full public funding of religious schools in Ontario is only provided to one religious group, Roman Catholics.

Education Act562F(DVDPHQGHG

INTERPRETATION, OTHER GENERAL MATTERS 1. (1) … “English-language public board” means, (a) an English-language public district school board, or (b) a public school authority; (“conseil public de langue anglaise”) … “English-language Roman Catholic board” means, (a) an English-language separate district school board, or (b) Roman Catholic school authority; (“conseil catholique de langue anglaise”) …

153

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“public school board” means, (a) a public district school board, or (b) a public school authority; (“conseil publique”) “public district school board” means, (a) an English-language public district school board, or (b) a French-language public district school board; (“conseil scolire de district public”) “public school” means a school under the jurisdiction of the public board; (“école publique”) “public school authority” means, (a) a board of a district school area, (b) a board of a secondary school district established under section 67, or (c) a board established under section 68; (“administration scolaire publique”) … “Roman Catholic board” means, (a) a separate district school board, or (b) a Roman Catholic school authority; (“conseil catholique”) “Roman Catholic school authority” means, (a) a board of a rural separate school zone, or (b) a board of a combined separate school zone; (“administration scolaire catholique”) … “separate district school board” means, (a) an English-language separate district school board, or (b) a French-language separate district school board; (“conseil scolaire de district séparé”) “separate school” means a school under the jurisdiction of a Roman Catholic school board except, (a) in the provisions of Part V, and (b) in any other provision where the context indicates that a school under the jurisdiction of a Protestant separate school board is meant; (“école séparée”) … Constitutional Rights and Privileges 1. (4) This act does not adversely effect any right or privilege guaranteed by section 93 of the Constitution Act, 1867, or by section 23 of the Canadian Charter of Rights and Freedoms. Same (4.1) Every authority given by this Act, including but not limited to every authority to make a regulation, decision or order and every authority to deliver a directive or guideline, shall be exercised in a manner consistent with and respectful of the rights 154

1. CANADIAN LAW

and privileges guaranteed by section 93 of the Constitution Act, 1867 and by section 23 of the Canadian Charter of Rights and Freedoms. … PART II.1 MISCELLANEOUS PROVISIONS RELATING TO PUBLIC SCHOOL BOARDS … Religious Instruction 51. (1) Subject to the regulations, a pupil shall be allowed to receive such religious instruction as the pupil’s parent or guardian desires or, where the pupil is an adult, as the pupil desires. Religious Exercises (2) No pupil in a public school shall be required to read or study in or from a religious book, or to join in an exercise of devotion or religion, objected to by the pupil’s parent or guardian, or by the pupil, where the pupil is an adult. … PROVISIONS RELATING TO ROMAN CATHOLIC BOARDS Religious Education 52. A Roman Catholic Board may establish and maintain programs and courses of study in religious education for pupils in all schools under its jurisdiction. … PART V SCHOOL AUTHORITIES – PROTESTANT … Protestant Board: Share of Legislative Grants 159. A Protestant separate school board shall share in the legislative grants in like manner as an English-language public school board. … PART IX DIVISION A GENERAL … LEGISLATIVE AND MUNICIPAL GRANTS Legislative Grants 234. (1) Subject to subsection (2) and (3), the Lieutenant Governor in Council may

155

STATE SUPPORT FOR RELIGIOUS EDUCATION

make regulations governing the making of grants for educational purposes from money appropriated by the Legislature. Same (2) Regulations made under subsection (1) shall ensure that the legislation and regulations governing education funding operate in a fair and non-discriminatory manner, (a) as between English-language public boards and English-language Roman Catholic boards; and (b) as between French-language public district school boards and French language separate district school boards. Same (3) regulations made under subsection (1) shall ensure that the legislation and regulations governing education funding operate so as to respect the rights given by section 23 of the Canadian Charter of Rights and Freedoms.

156

&DQDGLDQ5HYHQXH$JHQF\,QIRUPDWLRQ&LUFXODU,& 7XLWLRQ)HHVDQG&KDULWDEOH'RQDWLRQV3DLGWR3ULYDWHO\6XSSRUWHG6HFXODUDQG5HOLJLRXV6FKRROV6HSWHPEHU  This document is a circular produced by the Canadian Revenue Agency. It is the basis for partial tax relief to parents who send their children to privately supported secular and religious schools throughout Canada. The document recognizes that these schools are subject to provincial educational authorities, at the same time as the Federal government provides tax relief to the parents who send their children to these schools.

&DQDGLDQ5HYHQXH$JHQF\,QIRUPDWLRQ&LUFXODU,& 78,7,21)((6$1'&+$5,7$%/('21$7,2163$,'72 35,9$7(/<6833257('6(&8/$5$1'5(/,*,2866&+22/6 1. Tuition fees paid to an educational institution in Canada are deductible by the student in accordance with subsection 60(f) of the Income Tax Act. Such fees are not considered FKDULWDEOHGRQDWLRQVDQGRIÀFLDOUHFHLSWVGHVLJQHGIRUFKDULWDEOHGRQDWLRQVPD\QRWEH issued for such tuition fees even though the educational institution may be a registered &DQDGLDQFKDULWDEOHRUJDQL]DWLRQDVGHÀQHGLQSDUDJUDSK F RIWKH$FW 2. The purpose of this circular is to explain two exceptions to the above rule where a portion or all of an amount paid to a school, other than a post-secondary institution or a designated educational institution (see Appendix A), may be considered as a donation. The two types of such schools which give rise to these special circumstances are: (a) those which teach exclusively religion, and (b) those which operate in a dual capacity providing both secular (academic) and religious education. Religious Schools 3. If such a school teaches exclusively religion and thereby operates solely for the advancement of religion, payments for students attending that school are not considered to be tuition fees but will be considered as valid donations and, providing the school is DUHJLVWHUHG&DQDGLDQFKDULWDEOHRUJDQL]DWLRQRIÀFLDOUHFHLSWVIRUFKDULWDEOHGRQDWLRQV may be issued for such payments. Secular Schools 4. The provisions of the Income Tax Act do not permit a deduction, as a charitable donation, of an amount paid to a school for academic tuition, whether the amount was paid for set fees or was a voluntary contribution. A gift, to be allowable within the concept of paragraph 110(1)(a) of the Act, must be a voluntary transference of property without consideration. The consideration here is the academic training received by the

157

STATE SUPPORT FOR RELIGIOUS EDUCATION

children attending the school. On the other hand religious training is not viewed as FRQVLGHUDWLRQIRUSXUSRVHVRIWKHGHÀQLWLRQRIDJLIW 5. School fees are normally based on the costs of operation. However, there are some schools in Canada, usually connected with a church, which do not levy set fees and operate solely through contributions of parents or guardians and other members of the church. These schools, which are subject to the inspection of provincial educational authorities, operate in a dual capacity providing both secular and religious education. 6. Under certain circumstances receipts for charitable donations may be issued for a portion of an amount paid to attend schools, other than post-secondary institutions or designated educational institutions, which operate in this dual capacity. There are two methods of calculating the donation portion of amounts paid, depending on how the school maintains its accounting records. 7. The most favourable treatment will be received where the school can and does segregate the cost of operating the secular portion of the school and the cost of providing religious training. Under this method, the net cost of operating the secular portion of the school is to be pro-rated over the number of pupils enrolled during the school year WRGHWHUPLQHD´FRVWSHUSXSLOµIRUWKHVHFXODUWUDLQLQJ$QRIÀFLDOGRQDWLRQUHFHLSWFDQ be issued for that portion of a payment which is in excess of the pro-rated “cost per pupil” for academic training. If a taxpayer has more than one child in attendance at the school, the amount to be deducted from his total payment, to determine the donation portion, is the “cost per pupil” for academic training multiplied by the number of his children enrolled during the school year. 8. The net cost of operating the secular portion of the school will be determined to be the total operating costs of that portion of the school for a school year (excluding capital expenditures and depreciation) less miscellaneous income, grants received and donations received from persons with no children in attendance, unless such grants or donations were designated for a capital purpose. “Cost per pupil” would be the above described cost divided by the number of students enrolled during the school year. 9. Where such a school which operates in a dual capacity does not or cannot segregate the cost of operating the secular portion of the school and the cost of providing religious training, a donation receipt can be issued only for that part of the payment which is in excess of the net operating “cost per pupil” of the whole school for a school year. The net operating cost of the whole school in this case will be the total operating costs of the school including both secular and religious education (excluding capital expenditures and depreciation) less miscellaneous income, grants and donations from persons with no children in attendance, unless such grants or donations were designated for capital purposes. “Cost per pupil” will be the above described cost divided by the number of students enrolled during the school year. For taxpayers with more than one child in attendance, the rule in the last sentence of paragraph 7 above will apply using the “cost per pupil” of the whole school. 10. For purposes of either of the above methods, where a payment has been made to DVFKRROEHIRUH'HFHPEHUVWRIDVFKRRO\HDUDQGWKHVFKRROPXVWLVVXHDQRIÀFLDO

158

1. CANADIAN LAW

donation receipt for taxation purposes before the “cost per pupil” for the school year can be determined, the school may use the “cost per pupil” of the previous school year, if the school operated in that previous year. 11. The school must be prepared to substantiate that the “cost per pupil” for a school year has been determined from the books and records of the school in accordance with the above policy. 12. A payment to such a school by a person who is neither the parents or guardian of DSXSLOZKRDWWHQGVVXFKDVFKRRODQGIRUZKLFKQREHQHÀWLVGHULYHGTXDOLÀHVLQIXOO as a donation.

APPENDIX A Section 110(9) “For the purposes of paragraphs 1(g) and (h), (a) “designated educational institution” means (i) an educational institution in Canada that is (A) a university, college or other educational institution designated by the /LHXWHQDQW*RYHUQRULQ&RXQFLORIDSURYLQFHDVDVSHFLÀHGHGXFDWLRQDO institution under the Canada Student Loans Act or recognized by the Minister of Education of the Province of Quebec for the purposes of the Students Loans and Scholarships Act of the Province of Quebec, or (B) certified by the Minister of Manpower and Immigration to be an educational institution by which courses are conducted that provide or LPSURYHWKHTXDOLÀFDWLRQVRIDSHUVRQIRUHPSOR\PHQWRUIRUWKHFDUU\LQJ on of a business or profession, (ii) a university outside Canada at which the student referred to in paragraph (1)(g) or (h), as the case may be, was enrolled in a course, of not less than 13 consecutive weeks duration, leading to a degree, or (iii) if the student referred to in paragraph (1)(g) or (h), as the case may be, resided, during the whole of the year referred to therein, in Canada near the boundary between Canada and the United States, an educational institution in the United States to which he commuted that is a university, college or other educational institution providing courses at a post-secondary school level;” Updated: 2002-08-26

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2. International Treaties and Commentary #8 ,QWHUQDWLRQDO&RYHQDQWRQ&LYLODQG3ROLWLFDO5LJKWV, 999 UNTS 171 (in force 23 March 1976) The International Covenant on Civil and Political Rights (ICCPR) is a treaty. It was adopted by United Nations General Assembly resolution 2200A (XXI) of 16 December 1966. It entered into force on 23 March 1976. &DQDGDUDWLÀHGWKHWUHDW\0D\,WFDPHLQWRIRUFHIRU&DQDGD$XJXVW &DQDGDPDGHQRUHVHUYDWLRQVWRWKHWUHDW\ZKLFKPLJKWKDYHTXDOLÀHGLWV obligations. $UWLFOH  DGGUHVVHV WKH REOLJDWLRQV RI IHGHUDO VWDWHV ,W VSHFLÀHV WKDW IHGHUDO states are not relieved from the same responsibilities as other states on any ground UHODWLQJWRWKHLUIHGHUDOFKDUDFWHU$UWLFOHVWDWHVVSHFLÀFDOO\WKDWWKHSURYLVLRQV of the Covenant “extend to all parts of federal States without any limitations or exceptions.” 7KH&RYHQDQWVSHFLÀHVKXPDQULJKWVREOLJDWLRQVRIVWDWHVSDUWLHVDQGVHWVXSD Human Rights Committee to monitor compliance with those obligations. Article 26 of the Covenant provides for equality before the law and the equal protection of the law regardless of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

,QWHUQDWLRQDO&RYHQDQWRQ&LYLODQG3ROLWLFDO5LJKWV Preamble The States Parties to the present Covenant, Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Recognizing that these rights derive from the inherent dignity of the human person, Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights, Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms,

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Realizing that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant, Agree upon the following articles:

3$57, Article 1 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic FRRSHUDWLRQEDVHGXSRQWKHSULQFLSOHRIPXWXDOEHQHÀWDQGLQWHUQDWLRQDOODZ,QQR case may a people be deprived of its own means of subsistence. 3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

3$57,, Article 2 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant. 3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has EHHQFRPPLWWHGE\SHUVRQVDFWLQJLQDQRIÀFLDOFDSDFLW\ (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

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(c) To ensure that the competent authorities shall enforce such remedies when granted.

Article 3 The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.

Article 4 1. In time of public emergency which threatens the life of the nation and the existence RIZKLFKLVRIÀFLDOO\SURFODLPHGWKH6WDWHV3DUWLHVWRWKHSUHVHQW&RYHQDQWPD\WDNH measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision. 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

Article 5 1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant. 2. There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.

3$57,,, Article 6 1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the

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time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of *HQRFLGH7KLVSHQDOW\FDQRQO\EHFDUULHGRXWSXUVXDQWWRDÀQDOMXGJHPHQWUHQGHUHG by a competent court. 3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide. 4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases. 5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. 6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.

Article 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical RUVFLHQWLÀFH[SHULPHQWDWLRQ Article 8 1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited. 2. No one shall be held in servitude. 3. (a) No one shall be required to perform forced or compulsory labour; (b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court; (c) For the purpose of this paragraph the term “forced or compulsory labour” shall not include: (i) Any work or service, not referred to in subparagraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention; (ii) Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors; (iii) Any service exacted in cases of emergency or calamity threatening the life or well-being of the community; (iv) Any work or service which forms part of normal civil obligations.

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Article 9 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a MXGJHRURWKHURIÀFHUDXWKRUL]HGE\ODZWRH[HUFLVHMXGLFLDOSRZHUDQGVKDOOEHHQWLWOHG to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement. 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Article 10 1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. 2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons; (b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication. 3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.

Article 11 1RRQHVKDOOEHLPSULVRQHGPHUHO\RQWKHJURXQGRILQDELOLW\WRIXOÀODFRQWUDFWXDO obligation.

Article 12 1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order

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(ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. 4. No one shall be arbitrarily deprived of the right to enter his own country.

Article 13 An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

Article 14 1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. 2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any VXFKFDVHLIKHGRHVQRWKDYHVXIÀFLHQWPHDQVWRSD\IRULW (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

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(g) Not to be compelled to testify against himself or to confess guilt. 4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. 5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. :KHQDSHUVRQKDVE\DÀQDOGHFLVLRQEHHQFRQYLFWHGRIDFULPLQDORIIHQFHDQGZKHQ subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. 7. No one shall be liable to be tried or punished again for an offence for which he KDVDOUHDG\EHHQÀQDOO\FRQYLFWHGRUDFTXLWWHGLQDFFRUGDQFHZLWKWKHODZDQGSHQDO procedure of each country.

Article 15 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the OLJKWHUSHQDOW\WKHRIIHQGHUVKDOOEHQHÀWWKHUHE\ 2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.

Article 16 Everyone shall have the right to recognition everywhere as a person before the law.

Article 17 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.

Article 18 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 167

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3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

Article 19 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.

Article 20 1. Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

Article 21 The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

Article 22 1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. 2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.

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3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention.

Article 23 1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. 2. The right of men and women of marriageable age to marry and to found a family shall be recognized. 3. No marriage shall be entered into without the free and full consent of the intending spouses. 4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

Article 24 1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State. 2. Every child shall be registered immediately after birth and shall have a name. 3. Every child has the right to acquire a nationality.

Article 25 Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country.

Article 26 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

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Article 27 In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

3$57,9 Article 28 1. There shall be established a Human Rights Committee (hereafter referred to in the present Covenant as the Committee). It shall consist of eighteen members and shall carry out the functions hereinafter provided. 2. The Committee shall be composed of nationals of the States Parties to the present Covenant who shall be persons of high moral character and recognized competence in WKHÀHOGRIKXPDQULJKWVFRQVLGHUDWLRQEHLQJJLYHQWRWKHXVHIXOQHVVRIWKHSDUWLFLSDWLRQ of some persons having legal experience. 3. The members of the Committee shall be elected and shall serve in their personal capacity.

Article 29 1. The members of the Committee shall be elected by secret ballot from a list of persons SRVVHVVLQJWKHTXDOLÀFDWLRQVSUHVFULEHGLQDUWLFOHDQGQRPLQDWHGIRUWKHSXUSRVHE\ the States Parties to the present Covenant. 2. Each State Party to the present Covenant may nominate not more than two persons. These persons shall be nationals of the nominating State. 3. A person shall be eligible for renomination.

Article 30 1. The initial election shall be held no later than six months after the date of the entry into force of the present Covenant. 2. At least four months before the date of each election to the Committee, other than an HOHFWLRQWRÀOODYDFDQF\GHFODUHGLQDFFRUGDQFHZLWKDUWLFOHWKH6HFUHWDU\*HQHUDO of the United Nations shall address a written invitation to the States Parties to the present Covenant to submit their nominations for membership of the Committee within three months. 3. The Secretary-General of the United Nations shall prepare a list in alphabetical order of all the persons thus nominated, with an indication of the States Parties which have nominated them, and shall submit it to the States Parties to the present Covenant no later than one month before the date of each election. 4. Elections of the members of the Committee shall be held at a meeting of the States Parties to the present Covenant convened by the Secretary-General of the United Nations

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at the Headquarters of the United Nations. At that meeting, for which two thirds of the States Parties to the present Covenant shall constitute a quorum, the persons elected to the Committee shall be those nominees who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.

Article 31 1. The Committee may not include more than one national of the same State. 2. In the election of the Committee, consideration shall be given to equitable geographical distribution of membership and to the representation of the different forms of civilization and of the principal legal systems.

Article 32 1. The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated. However, the terms of nine of the members HOHFWHGDWWKHÀUVWHOHFWLRQVKDOOH[SLUHDWWKHHQGRIWZR\HDUVLPPHGLDWHO\DIWHUWKH ÀUVWHOHFWLRQWKHQDPHVRIWKHVHQLQHPHPEHUVVKDOOEHFKRVHQE\ORWE\WKH&KDLUPDQ of the meeting referred to in article 30, paragraph 4. (OHFWLRQVDWWKHH[SLU\RIRIÀFHVKDOOEHKHOGLQDFFRUGDQFHZLWKWKHSUHFHGLQJDUWLFOHV of this part of the present Covenant.

Article 33 1. If, in the unanimous opinion of the other members, a member of the Committee has ceased to carry out his functions for any cause other than absence of a temporary character, the Chairman of the Committee shall notify the Secretary-General of the United Nations, who shall then declare the seat of that member to be vacant. 2. In the event of the death or the resignation of a member of the Committee, the Chairman shall immediately notify the Secretary-General of the United Nations, who shall declare the seat vacant from the date of death or the date on which the resignation takes effect.

Article 34 :KHQDYDFDQF\LVGHFODUHGLQDFFRUGDQFHZLWKDUWLFOHDQGLIWKHWHUPRIRIÀFH of the member to be replaced does not expire within six months of the declaration of the vacancy, the Secretary-General of the United Nations shall notify each of the States Parties to the present Covenant, which may within two months submit nominations in DFFRUGDQFHZLWKDUWLFOHIRUWKHSXUSRVHRIÀOOLQJWKHYDFDQF\ 2. The Secretary-General of the United Nations shall prepare a list in alphabetical order of the persons thus nominated and shall submit it to the States Parties to the present &RYHQDQW7KHHOHFWLRQWRÀOOWKHYDFDQF\VKDOOWKHQWDNHSODFHLQDFFRUGDQFHZLWKWKH relevant provisions of this part of the present Covenant.

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$PHPEHURIWKH&RPPLWWHHHOHFWHGWRÀOODYDFDQF\GHFODUHGLQDFFRUGDQFHZLWK DUWLFOHVKDOOKROGRIÀFHIRUWKHUHPDLQGHURIWKHWHUPRIWKHPHPEHUZKRYDFDWHG the seat on the Committee under the provisions of that article.

Article 35 The members of the Committee shall, with the approval of the General Assembly of the United Nations, receive emoluments from United Nations resources on such terms and conditions as the General Assembly may decide, having regard to the importance of the Committee’s responsibilities.

Article 36 The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under the present Covenant.

Article 37 1. The Secretary-General of the United Nations shall convene the initial meeting of the Committee at the Headquarters of the United Nations. 2. After its initial meeting, the Committee shall meet at such times as shall be provided in its rules of procedure. 3. The Committee shall normally meet at the Headquarters of the United Nations or at WKH8QLWHG1DWLRQV2IÀFHDW*HQHYD

Article 38 Every member of the Committee shall, before taking up his duties, make a solemn declaration in open committee that he will perform his functions impartially and conscientiously.

Article 39 7KH &RPPLWWHHVKDOO HOHFWLWV RIÀFHUV IRU D WHUP RI WZR \HDUV7KH\ PD\ EH UH elected. 2. The Committee shall establish its own rules of procedure, but these rules shall provide, inter alia, that: (a) Twelve members shall constitute a quorum; (b) Decisions of the Committee shall be made by a majority vote of the members present.

Article 40 1. The States Parties to the present Covenant undertake to submit reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made in the enjoyment of those rights: (a) Within one year of the entry into force of the present Covenant for the States Parties concerned; 172

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(b) Thereafter whenever the Committee so requests. 2. All reports shall be submitted to the Secretary-General of the United Nations, who shall transmit them to the Committee for consideration. Reports shall indicate the factors DQGGLIÀFXOWLHVLIDQ\DIIHFWLQJWKHLPSOHPHQWDWLRQRIWKHSUHVHQW&RYHQDQW 3. The Secretary-General of the United Nations may, after consultation with the Committee, transmit to the specialized agencies concerned copies of such parts of the UHSRUWVDVPD\IDOOZLWKLQWKHLUÀHOGRIFRPSHWHQFH 4. The Committee shall study the reports submitted by the States Parties to the present Covenant. It shall transmit its reports, and such general comments as it may consider appropriate, to the States Parties. The Committee may also transmit to the Economic and Social Council these comments along with the copies of the reports it has received from States Parties to the present Covenant. 5. The States Parties to the present Covenant may submit to the Committee observations on any comments that may be made in accordance with paragraph 4 of this article.

Article 41 1. A State Party to the present Covenant may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communicaWLRQVWRWKHHIIHFWWKDWD6WDWH3DUW\FODLPVWKDWDQRWKHU6WDWH3DUW\LVQRWIXOÀOOLQJLWV obligations under the present Covenant. Communications under this article may be received and considered only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration. Communications received under this article shall be dealt with in accordance with the following procedure: (a) If a State Party to the present Covenant considers that another State Party is not giving effect to the provisions of the present Covenant, it may, by written communication, bring the matter to the attention of that State Party. Within three months after the receipt of the communication the receiving State shall afford the State which sent the communication an explanation, or any other statement in writing clarifying the matter which should include, to the extent possible and pertinent, reference to domestic procedures and remedies taken, pending, or available in the matter; (b) If the matter is not adjusted to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter to the Committee, by notice given to the Committee and to the other State; (c) The Committee shall deal with a matter referred to it only after it has ascertained that all available domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognized principles of international law. This shall not be the rule where the application of the remedies is unreasonably prolonged;

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(d) The Committee shall hold closed meetings when examining communications under this article; (e) Subject to the provisions of subparagraph (c), the Committee shall make available LWVJRRGRIÀFHVWRWKH6WDWHV3DUWLHVFRQFHUQHGZLWKDYLHZWRDIULHQGO\VROXWLRQ of the matter on the basis of respect for human rights and fundamental freedoms as recognized in the present Covenant; (f) In any matter referred to it, the Committee may call upon the States Parties concerned, referred to in subparagraph (b), to supply any relevant information; (g) The States Parties concerned, referred to in subparagraph (b), shall have the right to be represented when the matter is being considered in the Committee and to make submissions orally and/or in writing; (h) The Committee shall, within twelve months after the date of receipt of notice under subparagraph (b), submit a report: (i) If a solution within the terms of subparagraph (e) is reached, the Committee VKDOOFRQÀQHLWVUHSRUWWRDEULHIVWDWHPHQWRIWKHIDFWVDQGRIWKHVROXWLRQ reached; (ii) If a solution within the terms of subparagraph (e) is not reached, the ComPLWWHHVKDOOFRQÀQHLWVUHSRUWWRDEULHIVWDWHPHQWRIWKHIDFWVWKHZULWWHQ submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report. In every matter, the report shall be communicated to the States Parties concerned. 2. The provisions of this article shall come into force when ten States Parties to the present Covenant have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaraWLRQPD\EHZLWKGUDZQDWDQ\WLPHE\QRWLÀFDWLRQWRWKH6HFUHWDU\*HQHUDO6XFKD withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by DQ\6WDWH3DUW\VKDOOEHUHFHLYHGDIWHUWKHQRWLÀFDWLRQRIZLWKGUDZDORIWKHGHFODUDWLRQ has been received by the Secretary-General, unless the State Party concerned has made a new declaration.

Article 42 1. (a) If a matter referred to the Committee in accordance with article 41 is not resolved to the satisfaction of the States Parties concerned, the Committee may, with the prior consent of the States Parties concerned, appoint an ad hoc Conciliation &RPPLVVLRQKHUHLQDIWHUUHIHUUHGWRDVWKH&RPPLVVLRQ 7KHJRRGRIÀFHVRI the Commission shall be made available to the States Parties concerned with a view to an amicable solution of the matter on the basis of respect for the present Covenant;  E  7KH&RPPLVVLRQVKDOOFRQVLVWRIÀYHSHUVRQVDFFHSWDEOHWRWKH6WDWHV3DUWLHV concerned. If the States Parties concerned fail to reach agreement within three months on all or part of the composition of the Commission, the members of the

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Commission concerning whom no agreement has been reached shall be elected by secret ballot by a two-thirds majority vote of the Committee from among its members. 2. The members of the Commission shall serve in their personal capacity. They shall not be nationals of the States Parties concerned, or of a State not Party to the present Covenant, or of a State Party which has not made a declaration under article 41. 3. The Commission shall elect its own Chairman and adopt its own rules of procedure. 4. The meetings of the Commission shall normally be held at the Headquarters of the 8QLWHG1DWLRQVRUDWWKH8QLWHG1DWLRQV2IÀFHDW*HQHYD+RZHYHUWKH\PD\EHKHOG at such other convenient places as the Commission may determine in consultation with the Secretary-General of the United Nations and the States Parties concerned. 5. The secretariat provided in accordance with article 36 shall also service the commissions appointed under this article. 6. The information received and collated by the Committee shall be made available to the Commission and the Commission may call upon the States Parties concerned to supply any other relevant information. 7. When the Commission has fully considered the matter, but in any event not later than twelve months after having been seized of the matter, it shall submit to the Chairman of the Committee a report for communication to the States Parties concerned: (a) If the Commission is unable to complete its consideration of the matter within WZHOYHPRQWKVLWVKDOOFRQÀQHLWVUHSRUWWRDEULHIVWDWHPHQWRIWKHVWDWXVRILWV consideration of the matter; (b) If an amicable solution to the matter on the basis of respect for human rights as UHFRJQL]HGLQWKHSUHVHQW&RYHQDQWLVUHDFKHGWKH&RPPLVVLRQVKDOOFRQÀQH its report to a brief statement of the facts and of the solution reached; (c) If a solution within the terms of subparagraph (b) is not reached, the CommisVLRQ·VUHSRUWVKDOOHPERG\LWVÀQGLQJVRQDOOTXHVWLRQVRIIDFWUHOHYDQWWRWKH issues between the States Parties concerned, and its views on the possibilities of an amicable solution of the matter. This report shall also contain the written submissions and a record of the oral submissions made by the States Parties concerned; (d) If the Commission’s report is submitted under subparagraph (c), the States Parties concerned shall, within three months of the receipt of the report, notify the Chairman of the Committee whether or not they accept the contents of the report of the Commission. 8. The provisions of this article are without prejudice to the responsibilities of the Committee under article 41. 9. The States Parties concerned shall share equally all the expenses of the members of the Commission in accordance with estimates to be provided by the Secretary-General of the United Nations.

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10. The Secretary-General of the United Nations shall be empowered to pay the expenses of the members of the Commission, if necessary, before reimbursement by the States Parties concerned, in accordance with paragraph 9 of this article.

Article 43 The members of the Committee, and of the ad hoc conciliation commissions which may be appointed under article 42, shall be entitled to the facilities, privileges and immunities of experts on mission for the United Nations as laid down in the relevant sections of the Convention on the Privileges and Immunities of the United Nations.

Article 44 The provisions for the implementation of the present Covenant shall apply without SUHMXGLFHWRWKHSURFHGXUHVSUHVFULEHGLQWKHÀHOGRIKXPDQULJKWVE\RUXQGHUWKH constituent instruments and the conventions of the United Nations and of the specialized agencies and shall not prevent the States Parties to the present Covenant from having recourse to other procedures for settling a dispute in accordance with general or special international agreements in force between them.

Article 45 The Committee shall submit to the General Assembly of the United Nations, through the Economic and Social Council, an annual report on its activities.

3$579 Article 46 Nothing in the present Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations and of the constitutions of the specialized agencies which GHÀQHWKHUHVSHFWLYHUHVSRQVLELOLWLHVRIWKHYDULRXVRUJDQVRIWKH8QLWHG1DWLRQVDQGRI the specialized agencies in regard to the matters dealt with in the present Covenant.

Article 47 Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.

3$579, Article 48 1. The present Covenant is open for signature by any State Member of the United Nations or member of any of its specialized agencies, by any State Party to the Statute of the International Court of Justice, and by any other State which has been invited by the General Assembly of the United Nations to become a Party to the present Covenant. 7KHSUHVHQW&RYHQDQWLVVXEMHFWWRUDWLÀFDWLRQ,QVWUXPHQWVRIUDWLÀFDWLRQVKDOOEH deposited with the Secretary-General of the United Nations.

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3. The present Covenant shall be open to accession by any State referred to in paragraph 1 of this article. 4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations. 5. The Secretary-General of the United Nations shall inform all States which have VLJQHGWKLV&RYHQDQWRUDFFHGHGWRLWRIWKHGHSRVLWRIHDFKLQVWUXPHQWRIUDWLÀFDWLRQ or accession.

Article 49 1. The present Covenant shall enter into force three months after the date of the deposit ZLWK WKH 6HFUHWDU\*HQHUDO RI WKH 8QLWHG 1DWLRQV RI WKH WKLUW\ÀIWK LQVWUXPHQW RI UDWLÀFDWLRQRULQVWUXPHQWRIDFFHVVLRQ 2. For each State ratifying the present Covenant or acceding to it after the deposit of the WKLUW\ÀIWKLQVWUXPHQWRIUDWLÀFDWLRQRULQVWUXPHQWRIDFFHVVLRQWKHSUHVHQW&RYHQDQW shall enter into force three months after the date of the deposit of its own instrument RIUDWLÀFDWLRQRULQVWUXPHQWRIDFFHVVLRQ

Article 50 The provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions.

Article 51 $Q\6WDWH3DUW\WRWKHSUHVHQW&RYHQDQWPD\SURSRVHDQDPHQGPHQWDQGÀOHLWZLWK the Secretary-General of the United Nations. The Secretary-General of the United Nations shall thereupon communicate any proposed amendments to the States Parties to the present Covenant with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposals. In the event that at least one third of the States Parties favours such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted to the General Assembly of the United Nations for approval. 2. Amendments shall come into force when they have been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of the States Parties to the present Covenant in accordance with their respective constitutional processes. 3. When amendments come into force, they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of the present Covenant and any earlier amendment which they have accepted.

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Article 52 ,UUHVSHFWLYH RI WKH QRWLÀFDWLRQV PDGH XQGHU DUWLFOH  SDUDJUDSK  WKH 6HFUHWDU\ General of the United Nations shall inform all States referred to in paragraph 1 of the same article of the following particulars:  D  6LJQDWXUHVUDWLÀFDWLRQVDQGDFFHVVLRQVXQGHUDUWLFOH (b) The date of the entry into force of the present Covenant under article 49 and the date of the entry into force of any amendments under article 51.

Article 53 1. The present Covenant, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations. 7KH6HFUHWDU\*HQHUDORIWKH8QLWHG1DWLRQVVKDOOWUDQVPLWFHUWLÀHGFRSLHVRIWKH present Covenant to all States referred to in article 48.

178

#9 2SWLRQDO3URWRFROWRWKH,QWHUQDWLRQDO&RYHQDQWRQ&LYLODQG Political Rights, 999 UNTS 171 (in force 23 March 1976) The Optional Protocol to the International Covenant on Civil and Political Rights was adopted by United Nations General Assembly resolution 2200A (XXI) of 16 December 1966. It entered into force on 23 March 1976. &DQDGD UDWLÀHG WKH WUHDW\ RQ  0D\  ,W FDPH LQWR IRUFH IRU &DQDGD RQ 19 August 1976. Canada made no reservations to this treaty which might have TXDOLÀHGLWVREOLJDWLRQV The Optional Protocol to the ICCPR enables individuals to complain of violations of the rights in the Covenant by states parties. Those complaints are addressed to the United Nations Human Rights Committee. By ratifying the Optional Protocol, states parties accept the authority of the Human Rights Committee to consider complaints, to render views on whether or not those complaints reveal violations of the Covenant, and to request appropriate remedies in cases of violations. The Optional Protocol also contains an article applying its norms equally to federal states. In its words, the provisions “extend to all parts of federal States without any limitations or exceptions” (Article 10).

Optional Protocol to the International Covenant on Civil and 3ROLWLFDO5LJKWV The States Parties to the present Protocol, Considering that in order further to achieve the purposes of the International Covenant on Civil and Political Rights (hereinafter referred to as the Covenant) and the implementation of its provisions it would be appropriate to enable the Human Rights Committee set up in part IV of the Covenant (hereinafter referred to as the Committee) to receive and consider, as provided in the present Protocol, communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant. Have agreed as follows:

Article 1 A State Party to the Covenant that becomes a Party to the present Protocol recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant. No communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a Party to the present Protocol.

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Article 2 Subject to the provisions of article 1, individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration.

Article 3 The Committee shall consider inadmissible any communication under the present Protocol which is anonymous, or which it considers to be an abuse of the right of submission of such communications or to be incompatible with the provisions of the Covenant.

Article 4 1. Subject to the provisions of article 3, the Committee shall bring any communications submitted to it under the present Protocol to the attention of the State Party to the present Protocol alleged to be violating any provision of the Covenant. 2. Within six months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.

Article 5 1. The Committee shall consider communications received under the present Protocol in the light of all written information made available to it by the individual and by the State Party concerned. 2. The Committee shall not consider any communication from an individual unless it has ascertained that: (a) The same matter is not being examined under another procedure of international investigation or settlement; (b) The individual has exhausted all available domestic remedies. This shall not be the rule where the application of the remedies is unreasonably prolonged. 3. The Committee shall hold closed meetings when examining communications under the present Protocol. 4. The Committee shall forward its views to the State Party concerned and to the individual.

Article 6 The Committee shall include in its annual report under article 45 of the Covenant a summary of its activities under the present Protocol.

Article 7 Pending the achievement of the objectives of resolution 1514(XV) adopted by the General Assembly of the United Nations on 14 December 1960 concerning the

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Declaration on the Granting of Independence to Colonial Countries and Peoples, the provisions of the present Protocol shall in no way limit the right of petition granted to these peoples by the Charter of the United Nations and other international conventions and instruments under the United Nations and its specialized agencies.

Article 8 1. The present Protocol is open for signature by any State which has signed the Covenant. 7KH SUHVHQW 3URWRFRO LV VXEMHFW WR UDWLÀFDWLRQ E\ DQ\ 6WDWH ZKLFK KDV UDWLÀHG RU DFFHGHG WR WKH &RYHQDQW ,QVWUXPHQWV RI UDWLÀFDWLRQ VKDOO EH GHSRVLWHG ZLWK WKH Secretary-General of the United Nations. 7KHSUHVHQW3URWRFROVKDOOEHRSHQWRDFFHVVLRQE\DQ\6WDWHZKLFKKDVUDWLÀHGRU acceded to the Covenant. 4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations. 5. The Secretary-General of the United Nations shall inform all States which have signed WKHSUHVHQW3URWRFRORUDFFHGHGWRLWRIWKHGHSRVLWRIHDFKLQVWUXPHQWRIUDWLÀFDWLRQ or accession.

Article 9 1. Subject to the entry into force of the Covenant, the present Protocol shall enter into force three months after the date of the deposit with the Secretary-General of the United 1DWLRQVRIWKHWHQWKLQVWUXPHQWRIUDWLÀFDWLRQRULQVWUXPHQWRIDFFHVVLRQ 2. For each State ratifying the present Protocol or acceding to it after the deposit of WKHWHQWKLQVWUXPHQWRIUDWLÀFDWLRQRULQVWUXPHQWRIDFFHVVLRQWKHSUHVHQW3URWRFRO shall enter into force three months after the date of the deposit of its own instrument RIUDWLÀFDWLRQRULQVWUXPHQWRIDFFHVVLRQ

Article 10 The provisions of the present Protocol shall extend to all parts of federal States without any limitations or exceptions.

Article 11 $Q\6WDWH3DUW\WRWKHSUHVHQW3URWRFROPD\SURSRVHDQDPHQGPHQWDQGÀOHLWZLWK the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate any proposed amendments to the States Parties to the present Protocol with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposal. In the event that at least one third of the States Parties favours such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted to the General Assembly of the United Nations for approval.

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2. Amendments shall come into force when they have been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of the States Parties to the present Protocol in accordance with their respective constitutional processes. 3. When amendments come into force, they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of the present Protocol and any earlier amendment which they have accepted.

Article 12 $Q\6WDWH3DUW\PD\GHQRXQFHWKHSUHVHQW3URWRFRODWDQ\WLPHE\ZULWWHQQRWLÀFDWLRQ addressed to the Secretary-General of the United Nations. Denunciation shall take effect WKUHHPRQWKVDIWHUWKHGDWHRIUHFHLSWRIWKHQRWLÀFDWLRQE\WKH6HFUHWDU\*HQHUDO 2. Denunciation shall be without prejudice to the continued application of the provisions of the present Protocol to any communication submitted under article 2 before the effective date of denunciation.

Article 13 ,UUHVSHFWLYH RI WKH QRWLÀFDWLRQV PDGH XQGHU DUWLFOH  SDUDJUDSK  RI WKH SUHVHQW Protocol, the Secretary-General of the United Nations shall inform all States referred to in article 48, paragraph 1, of the Covenant of the following particulars:  D  6LJQDWXUHVUDWLÀFDWLRQVDQGDFFHVVLRQVXQGHUDUWLFOH (b) The date of the entry into force of the present Protocol under article 9 and the date of the entry into force of any amendments under article 11; (c) Denunciations under article 12.

Article 14 1. The present Protocol, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations. 7KH6HFUHWDU\*HQHUDORIWKH8QLWHG1DWLRQVVKDOOWUDQVPLWFHUWLÀHGFRSLHVRIWKH present Protocol to all States referred to in article 48 of the Covenant.

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#10 Letter from the Premier of Ontario to the Prime Minister of &DQDGD&RQFHUQLQJ5DWLÀFDWLRQRI,QWHUQDWLRQDO+XPDQ5LJKWV Treaties, 30 May 1969 On 30 May 1969 Ontario Premier John Robarts wrote to the Prime Minister of &DQDGD3LHUUH(7UXGHDXFRQFHUQLQJ2QWDULR·VYLHZVRIWKHSURSRVHGUDWLÀFDWLRQ by Canada of three treaties, including the International Covenant on Civil and Political Rights, and the Optional Protocol to the International Covenant on Civil DQG3ROLWLFDO5LJKWV7KH&RYHQDQWRQ&LYLODQG3ROLWLFDO5LJKWVFRQWDLQHGVSHFLÀF provisions on equality, non-discrimination, education and freedom of religion. The Optional Protocol permitted Canadians to complain of violations of those rights regardless of where they lived in Canada or whether their complaint related to federal or provincial laws or policies. Premier Robarts wrote his letter in response to WKHIHGHUDOHIIRUWWRVHHNSURYLQFLDODSSURYDOSULRUWR&DQDGLDQUDWLÀFDWLRQ+HZURWH that Ontario “supports wholeheartedly the principles contained in these documents (the International Covenant on Civil and Political Rights and the Optional Protocol to the International Covenant on Civil and Political Rights) and has no objections whatsoever to the Federal Government entering into such agreements”.

May 30, 1969 Dear Mr. Prime Minister Some time ago, your predecessor, The Right Honourable Lester B. Pearson, wrote in regard to a resolution adopted by the General Assembly of the United Nations in its 1966 Session, containing an International Covenant on Economic, Social and Cultural Rights, an International Covenant on Civil and Political Rights, and an Optional Protocol to the International Covenant on Civil and Political Rights. In light of the renewed interest that has been expressed in this matter, I have had these documents reviewed again by my colleagues. I am pleased to be able to report that the Ontario Government supports wholeheartedly the principles contained in these documents and has no objection whatsoever to the Federal Government entering into such agreements. Yours very truly, John P. Robarts The Right Honourable Pierre E. Trudeau, P.C., Prime Minister of Canada, House of Commons, Ottawa, Ontario

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 +XPDQ 5LJKWV &RPPLWWHH General Comment 3, (1981) $$QQXDO5HSRUWRIWKH81+XPDQ5LJKWV&RPPLWWHH Annex VII Documents #11-#14 are General Comments adopted by the Human Rights Committee, the Committee created by the International Covenant on Civil and Political Rights to monitor compliance by states parties with their Covenant obligations. The Committee contributes to the development and understanding of international human rights standards through, among other things, the process of writing “General Comments”. These are commentaries on the nature of obligations associated with particular treaty rights and freedoms. There are a number of these *HQHUDO&RPPHQWVZKLFKUHODWHVSHFLÀFDOO\WRQRQGLVFULPLQDWLRQ General Comment 3 deals with Article 2 of the Covenant and its implementation at the national level. The General Comment emphasizes that the implementation of Article 2 “does not depend solely on constitutional or legislative enactments, which in themselves are often not per se VXIÀFLHQWµ Article 2 provides: “Article 2 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant. 3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the YLRODWLRQKDVEHHQFRPPLWWHGE\SHUVRQVDFWLQJLQDQRIÀFLDOFDSDFLW\ (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.”

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*(1(5$/&200(171RDUWLFOH Implementation at the national level 1. The Committee notes that article 2 of the Covenant generally leaves it to the States parties concerned to choose their method of implementation in their territories within the framework set out in that article. It recognizes, in particular, that the implementation does not depend solely on constitutional or legislative enactments, which in themselves are often not per se VXIÀFLHQW 7KH &RPPLWWHH FRQVLGHUV LW QHFHVVDU\ WR GUDZ WKH attention of States parties to the fact that the obligation under the Covenant is not FRQÀQHGWRWKHUHVSHFWRIKXPDQULJKWVEXWWKDW6WDWHVSDUWLHVKDYHDOVRXQGHUWDNHQ to ensure the enjoyment of these rights to all individuals under their jurisdiction. This DVSHFWFDOOVIRUVSHFLÀFDFWLYLWLHVE\WKH6WDWHVSDUWLHVWRHQDEOHLQGLYLGXDOVWRHQMR\ their rights. This is obvious in a number of articles (e.g. art. 3 which is dealt with in General Comment 4 below), but in principle this undertaking relates to all rights set forth in the Covenant. 2. In this connection, it is very important that individuals should know what their rights under the Covenant (and the Optional Protocol, as the case may be) are and also that all administrative and judicial authorities should be aware of the obligations which the State party has assumed under the Covenant. To this end, the Covenant should be SXEOLFL]HGLQDOORIÀFLDOODQJXDJHVRIWKH6WDWHDQGVWHSVVKRXOGEHWDNHQWRIDPLOLDUL]H the authorities concerned with its contents as part of their training. It is desirable also to give publicity to the State party’s cooperation with the Committee.

186

 +XPDQ 5LJKWV &RPPLWWHH General Comment 18, (1990) $ 9ROXPH $QQXDO 5HSRUW RI WKH 81 +XPDQ 5LJKWV Committee, Annex VI The Human Rights Committee, the Committee created by the International Covenant on Civil and Political Rights, monitors compliance by states parties with their Covenant obligations. The Committee contributes to the development and understanding of international human rights standards through, among other things, the process of writing “General Comments”. These are commentaries on the nature of obligations associated with particular treaty rights and freedoms. General Comment 18 deals with the subject of non-discrimination. It emphasizes that the principle of non-discrimination is basic to the protection of human rights, so fundamental in fact that it is mentioned numerous times in many different articles of the Covenant.

*(1(5$/&200(171RQRQGLVFULPLQDWLRQ 1. Non-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitutes a basic and general principle relating to the protection of human rights. Thus, article 2, paragraph 1, of the International Covenant on Civil and Political Rights obligates each State party to respect and ensure to all persons within its territory and subject to its jurisdiction the rights recognized in the Covenant without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 26 not only entitles all persons to equality before the law as well as equal protection of the law but also prohibits any discrimination under the law and guarantees to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 2. Indeed, the principle of non-discrimination is so basic that article 3 obligates each State party to ensure the equal right of men and women to the enjoyment of the rights set forth in the Covenant. While article 4, paragraph 1, allows States parties to take measures derogating from certain obligations under the Covenant in time of public emergency, the same article requires, inter alia, that those measures should not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. Furthermore, article 20, paragraph 2, obligates States parties to prohibit, by law, any advocacy of national, racial or religious hatred which constitutes incitement to discrimination. 3. Because of their basic and general character, the principle of non-discrimination as well as that of equality before the law and equal protection of the law are sometimes expressly referred to in articles relating to particular categories of human rights. Article 14, paragraph 1, provides that all persons shall be equal before the courts and 187

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tribunals, and paragraph 3 of the same article provides that, in the determination of any criminal charge against him, everyone shall be entitled, in full equality, to the minimum guarantees enumerated in subparagraphs (a) to (g) of paragraph 3. Similarly, article 25 provides for the equal participation in public life of all citizens, without any of the distinctions mentioned in article 2. 4. It is for the States parties to determine appropriate measures to implement the relevant provisions. However, the Committee is to be informed about the nature of such measures and their conformity with the principles of non-discrimination and equality before the law and equal protection of the law. 5. The Committee wishes to draw the attention of States parties to the fact that the Covenant sometimes expressly requires them to take measures to guarantee the equality of rights of the persons concerned. For example, article 23, paragraph 4, stipulates that States parties shall take appropriate steps to ensure equality of rights as well as responsibilities of spouses as to marriage, during marriage and at its dissolution. Such steps may take the form of legislative, administrative or other measures, but it is a positive duty of States parties to make certain that spouses have equal rights as required by the Covenant. In relation to children, article 24 provides that all children, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, have the right to such measures of protection as are required by their status as minors, on the part of their family, society and the State.  7KH&RPPLWWHHQRWHVWKDWWKH&RYHQDQWQHLWKHUGHÀQHVWKHWHUP´GLVFULPLQDWLRQµ nor indicates what constitutes discrimination. However, article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination provides that the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, VRFLDOFXOWXUDORUDQ\RWKHUÀHOGRISXEOLFOLIH6LPLODUO\DUWLFOHRIWKH&RQYHQWLRQ on the Elimination of All Forms of Discrimination against Women provides that “discrimination against women” shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in WKHSROLWLFDOHFRQRPLFVRFLDOFXOWXUDOFLYLORUDQ\RWKHUÀHOG  :KLOHWKHVHFRQYHQWLRQVGHDORQO\ZLWKFDVHVRIGLVFULPLQDWLRQRQVSHFLÀFJURXQGV the Committee believes that the term “discrimination” as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. 8. The enjoyment of rights and freedoms on an equal footing, however, does not mean identical treatment in every instance. In this connection, the provisions of the 188

2. INTERNATIONAL TREATIES AND COMMENTARY

Covenant are explicit. For example, article 6, paragraph 5, prohibits the death sentence from being imposed on persons below 18 years of age. The same paragraph prohibits that sentence from being carried out on pregnant women. Similarly, article 10, paragraph 3, requires the segregation of juvenile offenders from adults. Furthermore, article 25 guarantees certain political rights, differentiating on grounds of citizenship. 9. Reports of many States parties contain information regarding legislative as well as administrative measures and court decisions which relate to protection against discrimination in law, but they very often lack information which would reveal discrimination in fact. When reporting on articles 2 (1), 3 and 26 of the Covenant, States parties usually cite provisions of their constitution or equal opportunity laws with respect to equality of persons. While such information is of course useful, the Committee wishes to know if there remain any problems of discrimination in fact, which may be practiced either by public authorities, by the community, or by private persons or bodies. The Committee wishes to be informed about legal provisions and administrative measures directed at diminishing or eliminating such discrimination. 10. The Committee also wishes to point out that the principle of equality sometimes UHTXLUHV 6WDWHV SDUWLHV WR WDNH DIÀUPDWLYH DFWLRQ LQ RUGHU WR GLPLQLVK RU HOLPLQDWH conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population SUHYHQWRULPSDLUWKHLUHQMR\PHQWRIKXPDQULJKWVWKH6WDWHVKRXOGWDNHVSHFLÀFDFWLRQ to correct those conditions. Such action may involve granting for a time to the part RI WKH SRSXODWLRQ FRQFHUQHG SUHIHUHQWLDO WUHDWPHQW LQ VSHFLÀF PDWWHUV DV FRPSDUHG with the rest of the population. However, as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant. 11. Both article 2, paragraph 1, and article 26 enumerate grounds of discrimination such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The Committee has observed that in a number of constitutions and laws not all the grounds on which discrimination is prohibited, as cited in article 2, paragraph 1, are enumerated. The Committee would therefore like to UHFHLYHLQIRUPDWLRQIURP6WDWHVSDUWLHVDVWRWKHVLJQLÀFDQFHRIVXFKRPLVVLRQV 12. While article 2 limits the scope of the rights to be protected against discrimination to those provided for in the Covenant, article 26 does not specify such limitations. That is to say, article 26 provides that all persons are equal before the law and are entitled to equal protection of the law without discrimination, and that the law shall guarantee to all persons equal and effective protection against discrimination on any of the enumerated grounds. In the view of the Committee, article 26 does not merely duplicate the guarantee already provided for in article 2 but provides in itself an autonomous ULJKW,WSURKLELWVGLVFULPLQDWLRQLQODZRULQIDFWLQDQ\ÀHOGUHJXODWHGDQGSURWHFWHG by public authorities. Article 26 is therefore concerned with the obligations imposed on States parties in regard to their legislation and the application thereof. Thus, when legislation is adopted by a State party, it must comply with the requirement of article 26 that its content should not be discriminatory. In other words, the application of the

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STATE SUPPORT FOR RELIGIOUS EDUCATION

principle of non-discrimination contained in article 26 is not limited to those rights which are provided for in the Covenant. 13. Finally, the Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.

190

 +XPDQ 5LJKWV &RPPLWWHH General Comment 22, (1993) $ 9ROXPH $QQXDO 5HSRUW RI WKH 81 +XPDQ 5LJKWV Committee, Annex VI The Human Rights Committee, the Committee created by the International Covenant on Civil and Political Rights, monitors compliance by states parties with their Covenant obligations. The Committee contributes to the development and understanding of international human rights standards through, among other things, the process of writing “General Comments”. These are commentaries on the nature of obligations associated with particular treaty rights and freedoms. General Comment 22 deals with the right to freedom of thought, conscience and religion and states that these rights are “far-reaching and profound”. In paragraph WKH&RPPHQWVD\VWKDWHYHQLID6WDWHKDVDQRIÀFLDORUWUDGLWLRQDOUHOLJLRQWKLV “shall not result in any impairment of the enjoyment of any of the rights under the Covenant, including articles 18 and 27, nor in any discrimination against adherents of other religions or non-believers.” Article 18 of the Covenant provides: “1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.” Article 27 of the Covenant provides: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.”

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STATE SUPPORT FOR RELIGIOUS EDUCATION

*(1(5$/&200(171RDUWLFOH 1. The right to freedom of thought, conscience and religion (which includes the freedom to hold beliefs) in article 18 (1) is far-reaching and profound; it encompasses freedom of thought on all matters, personal conviction and the commitment to religion or belief, whether manifested individually or in community with others. The Committee draws the attention of States parties to the fact that the freedom of thought and the freedom of conscience are protected equally with the freedom of religion and belief. The IXQGDPHQWDOFKDUDFWHURIWKHVHIUHHGRPVLVDOVRUHÁHFWHGLQWKHIDFWWKDWWKLVSURYLVLRQ cannot be derogated from, even in time of public emergency, as stated in article 4 (2) of the Covenant. 2. Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms belief and religion are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reasons, including the fact that they are newly established or represent religious minorities that may be the subject of hostility by a predominant religious community. 3. Article 18 distinguishes the freedom of thought, conscience, religion or belief from the freedom to manifest religion or belief. It does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one’s choice. These freedoms are protected unconditionally, as is the right of everyone to hold opinions without interference in article 19 (1). In accordance with articles 18 (2) and 17, no one can be compelled to reveal his thoughts or adherence to a religion or belief. 4. The freedom to manifest religion or belief may be exercised “either individually or in community with others and in public or private”. The freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts. The concept of worship extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including the building of places of worship, the use of ritual formulas and objects, the display of symbols, and the observance of holidays and days of rest. The observance and practice of religion or belief may include not only ceremonial acts but also such customs as the observance of dietary regulations, the wearing of distinctive clothing or head coverings, participation in rituals associated with certain stages of life and the use of a particular language customarily spoken by a group. In addition, the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as, inter alia, the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications. 5. The Committee observes that the freedom to “have or to adopt” a religion or belief necessarily entails the freedom to choose a religion or belief, including, inter alia, the right to replace one’s current religion or belief with another or to adopt atheistic views, 192

2. INTERNATIONAL TREATIES AND COMMENTARY

as well as the right to retain one’s religion or belief. Article 18 (2) bars coercion that would impair the right to have or adopt a religion or belief, including the use or threat of physical force or penal sanctions to compel believers or non-believers to adhere to their religious beliefs and congregations, to recant their religion or belief or to convert. Policies or practices having the same intention or effect, such as, for example, those restricting access to education, medical care, employment or the rights guaranteed by article 25 and other provisions of the Covenant are similarly inconsistent with article 18 (2). The same protection is enjoyed by holders of all beliefs of a non-religious nature. 6. The Committee is of the view that article 18 (4) permits public school instruction in subjects such as the general history of religions and ethics if it is given in a neutral and objective way. The liberty of parents or legal guardians to ensure that their children receive a religious and moral education in conformity with their own convictions, set forth in article 18 (4), is related to the guarantees of the freedom to teach a religion or belief stated in article 18 (1). The Committee notes that public education that includes instruction in a particular religion or belief is inconsistent with article 18 (4) unless provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents and guardians. 7. According to article 20, no manifestation of religions or beliefs may amount to propaganda for war or advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. As stated by the Committee in its general comment No. 11 (19), States parties are under the obligation to enact laws to prohibit such acts. 8. Article 18 (3) permits restrictions on the freedom to manifest religion or belief only if limitations are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others. The freedom from coercion to have or to adopt a religion or belief and the liberty of the parents and guardians to ensure religious and moral education cannot be restricted. In interpreting the scope of permissible limitation clauses, States parties should proceed from the need to protect the rights guaranteed under the Covenant, including the right to equality and QRQGLVFULPLQDWLRQRQDOOJURXQGVVSHFLÀHGLQDUWLFOHVDQG/LPLWDWLRQVLPSRVHG must be established by law and must not be applied in a manner that would vitiate the rights guaranteed in article 18. The Committee observes that article 18, paragraph 3, is WREHVWULFWO\LQWHUSUHWHGUHVWULFWLRQVDUHQRWDOORZHGRQJURXQGVQRWVSHFLÀHGWKHUHHYHQ if they would be allowed as restrictions to other rights protected in the Covenant, such as national security. Limitations may be applied only for those purposes for which they ZHUHSUHVFULEHGDQGPXVWEHGLUHFWO\UHODWHGDQGSURSRUWLRQDWHWRWKHVSHFLÀFQHHGRQ which they are predicated. Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner. The Committee observes that the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition. Persons already subject to certain legitimate constraints, such as prisoners, continue to enjoy their rights to manifest their religion or belief to the fullest extent compatible with

193

STATE SUPPORT FOR RELIGIOUS EDUCATION

WKHVSHFLÀFQDWXUHRIWKHFRQVWUDLQW6WDWHVSDUWLHV·UHSRUWVVKRXOGSURYLGHLQIRUPDWLRQ on the full scope and effects of limitations under article 18 (3), both as a matter of law DQGRIWKHLUDSSOLFDWLRQLQVSHFLÀFFLUFXPVWDQFHV 9. The fact that a religion is recognized as a State religion or that it is established as RIÀFLDORUWUDGLWLRQDORUWKDWLWVIROORZHUVFRPSULVHWKHPDMRULW\RIWKHSRSXODWLRQVKDOO not result in any impairment of the enjoyment of any of the rights under the Covenant, including articles 18 and 27, nor in any discrimination against adherents of other religions or non-believers. In particular, certain measures discriminating against the latter, such as measures restricting eligibility for government service to members of the predominant religion or giving economic privileges to them or imposing special restrictions on the practice of other faiths, are not in accordance with the prohibition of discrimination based on religion or belief and the guarantee of equal protection under article 26. The measures contemplated by article 20, paragraph 2, of the Covenant constitute important safeguards against infringements of the rights of religious minorities and of other religious groups to exercise the rights guaranteed by articles 18 and 27, and against acts of violence or persecution directed toward those groups. The Committee wishes to be informed of measures taken by States parties concerned to protect the practices of all religions or beliefs from infringement and to protect their followers from discrimination. Similarly, information as to respect for the rights of religious minorities under article 27 is necessary for the Committee to assess the extent to which the freedom of thought, conscience, religion and belief has been implemented by States parties. States parties concerned should also include in their reports information relating to practices considered by their laws and jurisprudence to be punishable as blasphemous.  ,IDVHWRIEHOLHIVLVWUHDWHGDVRIÀFLDOLGHRORJ\LQFRQVWLWXWLRQVVWDWXWHVSURFODPDtions of the ruling parties, etc., or in actual practice, this shall not result in any impairment of the freedoms under article 18 or any other rights recognized under the Covenant nor LQDQ\GLVFULPLQDWLRQDJDLQVWSHUVRQVZKRGRQRWDFFHSWWKHRIÀFLDOLGHRORJ\RUZKR oppose it. 11. Many individuals have claimed the right to refuse to perform military service (conscientious objection) on the basis that such a right derives from their freedoms under article 18. In response to such claims, a growing number of States have in their laws exempted from compulsory military service citizens who genuinely hold religious or other beliefs that forbid the performance of military service and replaced it with alternative national service. The Covenant does not explicitly refer to a right of conscientious objection, but the Committee believes that such a right can be derived from DUWLFOHLQDVPXFKDVWKHREOLJDWLRQWRXVHOHWKDOIRUFHPD\VHULRXVO\FRQÁLFWZLWKWKH freedom of conscience and the right to manifest one’s religion or belief. When this right is recognized by law or practice, there shall be no differentiation among conscientious objectors on the basis of the nature of their particular beliefs; likewise, there shall be no discrimination against conscientious objectors because they have failed to perform military service. The Committee invites States parties to report on the conditions under which persons can be exempted from military service on the basis of their rights under article 18 and on the nature and length of alternative national service.

194

 +XPDQ 5LJKWV &RPPLWWHH, General Comment 23, (1994) $ 9ROXPH $QQXDO 5HSRUW RI WKH 81 +XPDQ 5LJKWV Committee, Annex V The Human Rights Committee, the Committee created by the International Covenant on Civil and Political Rights, monitors compliance by states parties with their Covenant obligations. The Committee contributes to the development and understanding of international human rights standards through, among other things, the process of writing “General Comments”. These are commentaries on the nature of obligations associated with particular treaty rights and freedoms. General Comment 23 deals with Article 27 and the right of ethnic, religious, or linguistic minorities to “enjoy their own culture, to profess and practice their own religion, or to use their own language.” The Committee emphasizes in paragraph WKDW´$UWLFOHUHODWHVWRULJKWVZKRVHSURWHFWLRQLPSRVHVVSHFLÀFREOLJDWLRQV on State parties.” Article 27 of the Covenant provides: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.”

*(1(5$/&200(171RDUWLFOH 1. Article 27 of the Covenant provides that, in those States in which ethnic, religious or linguistic minorities exist, persons belonging to these minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. The Committee observes that this article establishes and recognizes a right which is conferred on individuals belonging to minority groups and which is distinct from, and additional to, all the other rights which, as individuals in common with everyone else, they are already entitled to enjoy under the Covenant. 2. In some communications submitted to the Committee under the Optional Protocol, the right protected under article 27 has been confused with the right of peoples to selfdetermination proclaimed in article 1 of the Covenant. Further, in reports submitted by States parties under article 40 of the Covenant, the obligations placed upon States parties under article 27 have sometimes been confused with their duty under article 2 (1) to ensure the enjoyment of the rights guaranteed under the Covenant without discrimination and also with equality before the law and equal protection of the law under article 26. 3.1 The Covenant draws a distinction between the right to self-determination and the rights protected under article 27. The former is expressed to be a right belonging to

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peoples and is dealt with in a separate part (Part I) of the Covenant. Self-determination is not a right cognizable under the Optional Protocol. Article 27, on the other hand, relates to rights conferred on individuals as such and is included, like the articles relating to other personal rights conferred on individuals, in Part III of the Covenant and is cognizable under the Optional Protocol.1 3.2 The enjoyment of the rights to which article 27 relates does not prejudice the sovereignty and territorial integrity of a State party. At the same time, one or other aspect of the rights of individuals protected under that article – for example, to enjoy a particular culture – may consist in a way of life which is closely associated with territory and use of its resources.2 This may particularly be true of members of indigenous communities constituting a minority. 4. The Covenant also distinguishes the rights protected under article 27 from the guarantees under articles 2(1) and 26. The entitlement, under article 2(1), to enjoy the rights under the Covenant without discrimination applies to all individuals within the territory or under the jurisdiction of the State whether or not those persons belong to a minority. In addition, there is a distinct right provided under article 26 for equality before the law, equal protection of the law, and non-discrimination in respect of rights granted and obligations imposed by the States. It governs the exercise of all rights, whether protected under the Covenant or not, which the State party confers by law on individuals within its territory or under its jurisdiction, irrespective of whether they EHORQJWRWKHPLQRULWLHVVSHFLÀHGLQDUWLFOHRUQRW3 Some States parties who claim that they do not discriminate on grounds of ethnicity, language or religion, wrongly contend, on that basis alone, that they have no minorities. 5.1 The terms used in article 27 indicate that the persons designed to be protected are those who belong to a group and who share in common a culture, a religion and/or a language. Those terms also indicate that the individuals designed to be protected need not be citizens of the State party. In this regard, the obligations deriving from article 2(1) are also relevant, since a State party is required under that article to ensure that the rights protected under the Covenant are available to all individuals within its territory and subject to its jurisdiction, except rights which are expressly made to apply to citizens, for example, political rights under article 25. A State party may not, therefore, restrict the rights under article 27 to its citizens alone. 5.2 Article 27 confers rights on persons belonging to minorities which “exist” in a State party. Given the nature and scope of the rights envisaged under that article, it is not relevant to determine the degree of permanence that the term “exist” connotes. Those rights simply are that individuals belonging to those minorities should not be denied the right, in community with members of their group, to enjoy their own culture, to practice their religion and speak their language. Just as they need not be nationals or citizens, they need not be permanent residents. Thus, migrant workers or even visitors in a State party constituting such minorities are entitled not to be denied the exercise of those rights. As any other individual in the territory of the State party, they would, also for this purpose, have the general rights, for example, to freedom of association, of assembly, and of expression. The existence of an ethnic, religious or linguistic minority

196

2. INTERNATIONAL TREATIES AND COMMENTARY

in a given State party does not depend upon a decision by that State party but requires to be established by objective criteria. 5.3 The right of individuals belonging to a linguistic minority to use their language among themselves, in private or in public, is distinct from other language rights protected under the Covenant. In particular, it should be distinguished from the general right to freedom of expression protected under article 19. The latter right is available to all persons, irrespective of whether they belong to minorities or not. Further, the right protected under article 27 should be distinguished from the particular right which article 14 (3) (f) of the Covenant confers on accused persons to interpretation where they cannot understand or speak the language used in the courts. Article 14(3) (f) does not, in any other circumstances, confer on accused persons the right to use or speak the language of their choice in court proceedings.4 6.1 Although article 27 is expressed in negative terms, that article, nevertheless, does recognize the existence of a “right” and requires that it shall not be denied. Consequently, a State party is under an obligation to ensure that the existence and the exercise of this right are protected against their denial or violation. Positive measures of protection are, therefore, required not only against the acts of the State party itself, whether through its legislative, judicial or administrative authorities, but also against the acts of other persons within the State party. 6.2 Although the rights protected under article 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language or religion. Accordingly, positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practice their religion, in community with the other members of the group. In this connection, it has to be observed that such positive measures must respect the provisions of articles 2(1) and 26 of the Covenant both as regards the treatment between different minorities and the treatment between the persons belonging to them and the remaining part of the population. However, as long as those measures are aimed at correcting conditions which prevent or impair the enjoyment of the rights guaranteed under article 27, they may constitute a legitimate differentiation under the Covenant, provided that they are based on reasonable and objective criteria. 7. With regard to the exercises of the cultural rights protected under article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, specially in the case of indigenous SHRSOHV7KDWULJKWPD\LQFOXGHVXFKWUDGLWLRQDODFWLYLWLHVDVÀVKLQJRUKXQWLQJDQGWKH right to live in reserves protected by law.5 The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them. 8. The Committee observes that none of the rights protected under article 27 of the Covenant may be legitimately exercised in a manner or to an extent inconsistent with the other provisions of the Covenant.

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9. The Committee concludes that article 27 relates to rights whose protection imposes VSHFLÀFREOLJDWLRQVRQ6WDWHSDUWLHV7KHSURWHFWLRQRIWKHVHULJKWVLVGLUHFWHGWRHQVXUH the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole. Accordingly, the Committee observes that these rights must be protected as such and should not be confused with other personal rights conferred on one and all under the Covenant. States parties, therefore, have an obligation to ensure that the exercise of these rights is fully protected and they should indicate in their reports the measures they have adopted to this end.

NOTES See 2IÀFLDO5HFRUGVRIWKH*HQHUDO$VVHPEO\7KLUW\QLQWK6HVVLRQ6XSSOHPHQW No. 40 (A/39/40), annex VI, General Comment No. 12(21) (article 1), also issued in document CCPR/C/21/Rev.1; ibid. )RUW\ÀIWK6HVVLRQ6XSSOHPHQW1R (A/45/40), vol. II, Annex IX, Sect. A, communication No. 167/1984 (Bernard Ominayak, Chief of the Lubicon Lake Band, v. Canada), views adopted on 26 March 1990.

1

2

See ibid., Forty-third Session, Supplement No. 40 (A/43/40), annex VII, sect. G, communication No. 197/1985 (Kitok v. Sweden), views adopted on 27 July 1988.

3

See ibid., Forty-second Session, Supplement No. 40 (A/42/40), annex VIII, sect. D, communication No. 182/1984 (F.H. Zwaan-de Vries v. the Netherlands), views adopted on 9 April 1987; ibid. sect. C, communication No. 180/1984 (L.G. Danning v. the Netherlands), views adopted on 9 April 1987. See ibid. )RUW\ÀIWK 6HVVLRQ 6XSSOHPHQW 1R , (A/45/40), Vol. II, Annex X, sect. A, communication No. 220/1987 (T.K. v. France), decision of 8 November 1989; ibid. sect. B, communication No. 222/1987 (M.K. v. France), decision of 8 November 1989.

4

5

See Notes 1 and 2 above, communication No. 167/1984 (Bernard Ominayak, Chief of the Lubicon Lake Band, v. Canada), views adopted on 26 March 1990 and communication No. 197/1985 (Kitok v. Sweden), views adopted on 27 July 1988.

198

3. Government Data #15 Census of Canada, 1870-71 ´7DEOH ,, 3RSXODWLRQ E\ 5HOLJLRQV 3URYLQFH RI 2QWDULRµ9ROXPH , SS  2WWDZD 1878 This Table, entitled “Population by Religions”, breaks down the population of Ontario in 1870-71 by religious groupings. It indicates that in 1870 in the Province of Ontario there were 274,162 Catholics (16.9%) of a total population of 1,620,851. The vast majority of the rest of the population was Protestant Christian.

&(16862)&$1$'$ 1870–71 VOLUME I OTTAWA 1878

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TABLE II – Population by Religions CENSUS OF CANADA, 1870 -1871, VOLUME I [Editor’s Note: Excerpts] PROVINCE OF ONTARIO Baptists Total Population

African Advent- Assocists iation

DISTRICTS

SUB -DISTRICTS

84. Nipissing (North)

e. Matawan, North f. Jacko River g. Montreal River h. Temiscamang, West i. Tamagamingue Total

101 8 102 36 145 848

a. Morrison b. Muskoka c. Monck d. Watt, Cardwell e. Humphrey, Medora f. Wood g. Conger h. Draper, Ryde, Oakly… i. Macaulay j. Stephenson k. McLean, Brunel, Ridout, Franklin … l. Lake Vernon Total

601 482 535 711 582 90 40 521 868 505

9 7 22 8 8 8

238 227 5,400

9 6 119

a. The Sound b. Aumick Lake c. Maganetawan Total

1,052 106 307 1,519

20 5 7 32

940 864 207 2,011

38

85. Muskoka

86. Parry Sound

87. Manitoulin a. Manitoulin, East b. Manitoulin, Centre c. Manitoulin, West Total 88. Algoma (East)

a. Killarney b. Spanish River c. Mississauga Total

Baptists

Union

Tunkers

Bible Believers Christian

1 4

5 3 9

12 30

8

11 23

8 11

11

38

220 544 213 977

3

1 2

89. Algoma (Centre)

a. Bruce Minea b. Sault Ste. Marie Total

1,298 879 2,177

1 2 3

90. Algoma (West)

a. Batchewaning b. Michipicoten c. Pic d. St. Ignace e. Nipigon f. Kaminstikuia Total

145 228 371 168 438 503 1,853

1

Grand Total of Ontario

Free Will or Christian

1 13 15

1,620,851 1,449 1,854 62,945 10,231

200

162

11,438

93

1,513

3. GOVERNMENT DATA

TABLE II – Population by Religions CENSUS OF CANADA, 1870 -1871, VOLUME I PROVINCE OF ONTARIO Bretheran

Plymouth

United

1

Catholics

Christian Conferance

77 2 89 36 143 646

1

28 9 35 26 57 12 13

8 12

20

4

1

13 14 239

5 10

77 19 151 247

10 10

1,689

598

Congregational

Irvingites

Jews

6

1

108

2

129 174 174 262 199 27 149 299 162 90 59 1,724

49 12 4 15 6

16 4

9 1 6

33 3

3 56

1 106

221 74 44 339

8

2

8

2

326 5 331

4 4

1

1

6

141 176 87 404

29 47 7 83

1

333 442 775

273 236 509

1 1

116 148 131 61 118 274 848

1

274,162

Greek

MahomeLutherans tan

5

21 11

907 280 142 1,329

Church of England

Evangelical Association

11,881

6

1

50 3 41 95

4

19

4

3 22

330,995

12,858

201

4,522

842

518

32,399

13

STATE SUPPORT FOR RELIGIOUS EDUCATION

TABLE II – Population by Religions CENSUS OF CANADA, 1870 -1871, VOLUME I PROVINCE OF ONTARIO Methodists

DISTRICTS 84. Nipissing… (North)

85. Muskoka…

86. Parry Sound…

87. Manitoulin…

88. Algoma… (East)

89. Algoma… (Centre) 90. Algoma… (West)

SUBDISTRICTS

Methodists

e. f. g. h. i. Total a. b. c. d. e. f. g. h. i. j. k. l. Total a. b. c. Total a. b. c. Total

Wesleyan

Episcopal

Calvinistic

Bible Christians

Mormons Pagans

8

2 5

28 100

2 13

3

118 25

25 9 9

60 74 79 86 79 1 8 106 229 155 65 102 1,044

Presbyterians

10 21

61

41 6 6

18 33 122 1 3

8 29 21 15

31 91 20 3

157

322

378 20 57 455

10 7 10 27

45 7 52

9 3

96 85 98

1

17 4 157 53 20 71 33

3

23 11 116

30

4

490

142 69 14 5 11 579

20 2

3

2

53

22

3

2

9 62

140 29 28 197

65 2 1 68

2

3

6

117

9

2

3

6

117

9

2

36

2

a. b. Total

406 95 501

9 9

33 1 49 83 9 289 41 339

79

1

8

15

172

79

1

8

15

172

28 184

8 8

315 100 627

1

25

86 86 2

41 48 4 7 48

Canada and Lower Provinces

1 1

19 17

Grand Total Ontario

British Episcopal

1 1

a. b. c. Total

a. b. c. d. e. f. Total

Primitive

New connection

27

1 78

17

52 81

8,128 286,911 92,198 24,045 30,889 1,824 44 18,225 460 1,884 50,847 230,465

202

3. GOVERNMENT DATA

TABLE II – Population by Religions CENSUS OF CANADA, 1870 -1871, VOLUME I PROVINCE OF ONTARIO Without Creed

Presbyterians Connected w Ch. of Scotland

Reformed

Evangelical Union

Amer- Protest- Quakican ants ers

Sweden Borgians

Unitarians

Universalists

Other DenomInations

Atheists

Deists

No Religion

Not Given

8 3

30

2 2

3 15

72

2

1

2

6 14 15

5

2 16

8 49 3 26 115

1 9 5 34

3

73

2

13 1

1

14

1

9 10 5 9

3 6

59 1

4

3

1 20

94

1

3

1

3

8

10

3

8

10

3

15 11 5 31

3 2 73 78

10 10

1 1

1 1

5 5

3 2 1 11 11 63,167 11,318

1 3

3 153

492

5,758 7,106

779

1,088

203

1,722

1 4,429

19

239

4,650 13,849

#16 Canada Yearbook, 1992. Table 3.17, Principal Religious Denominations of the Population, Selected Years, 1871-1981 This table shows the percentage distribution by religion of the whole of Canada’s population for different decades between the years 1871 -1981.

205

42.9

--

Roman Catholic

Ukrainian Catholic

--

18.6

0.1

1.9

1.1

6.8

--

17.2

--

--

0.1

1.6

100.0

Lutheran

206

Baptist

Pentecostal

Other Protestant 3

Eastern Orthodox

Jewish

No religion

Other 6

Total

100.0

0.1

--

6.9

1.1

15.8

16.2

Presbyterian

13.6

--

14.1

--

56.0

--

41.9

41.9

1881

Anglican

United Church

55.4

42.9

Catholic

Protestant

1871

100.0

100.0

1.9 100.0

2.0

0.4

0.1

4

1.8

1.0

1.2

17.3

--

5.3

3.2

15.6

14.5

--

55.9

--

39.4

39.4

1911

0.3

0.3

19.3

--

5.9

1.8

15.8

12.8

--

55.6

--

41.7

41.7

1901

0.1

--

19.1

--

6.4

1.4

15.9

13.7

--

56.5

--

41.6

41.6

1891

100.0

1.9

0.2

1.4

1.9

15.5

0.1

4.8

3.3

16.1

16.1

0.1

56.0

--

38.7

38.7

1921

100.0

1.6

0.2

1.5

1.0

2.3 2

0.3

4.3

3.8

8.4 2

100.0

1.5

0.2

1.5

1.2

2.4

0.5

4.2

100.0

1.4

0.4

1.5

1.2

2.5

0.7

3.7

3.2

5.6

7.2 3.5

14.7

15.2

20.5

19.2

19.5 2 15.8

50.9

1.4

43.3

44.7

1951

52.2

1.6

41.8

43.4

1941

54.4

1.8

39.5

41.3

1931

Percentage distribution

100.0

1.2

0.5

1.4

1.3

3.4

0.8

3.3

3.6

4.5

13.2

20.1

48.9

1.0

45.7

46.7

1961

100.0

1.2

4.3 5

1.3

1.5

3.7

1.0

3.1

3.3

4.0

11.8

17.5

44.4

1.1

46.2

47.3

1971

100.0

1.5

7.3

1.2

1.5

4.9

1.4

2.9

2.9

3.4

10.1

15.6

41.2

0.8

46.5

47.3

1981 1

35,1&,3$/5(/,*,286'(120,1$7,2162)7+(3238/$7,216(/(&7('<($56

Religion



STATE SUPPORT FOR RELIGIOUS EDUCATION

3. GOVERNMENT DATA

Notes 1

Excludes inmates of institutions (numbering 260,000 in 1981).

2

Between 1911 and 1931, the United Church denomination was formed through an amalgamation of the Methodists, Congregationalists and about one-half of the 3UHVE\WHULDQJURXS)RUDQGWKHUHDIWHUWKHÀJXUHVIRU3UHVE\WHULDQUHÁHFWWKH segment that did not amalgamate with the United Church.

3

Other Protestants denominations include Methodists and Congregationalists up to 1921, and other denominations such as Adventist, Churches of Christ, Disciplines and the Salvation Army. The “Other” group also includes a certain proportion of smaller Protestant denominations.

4

Included in “Other”.

5

In 1971, the introduction of self-enumeration methodology may have been in part a cause of the large increase in the proportion of the population reporting “No religion”. +RZHYHUWKHDQGÀJXUHVIRUWKLVJURXSDUHFRPSDUDEOH

6

In 1981, many of these smaller denominations were disaggregated and are counted in the “Other Protestant” category. The remainder of the “Other” group includes Eastern Non-Christian religions such as Islam, Hindu, Sikh and Buddhist, as well as Para-religious groups such as New Thought and Fourth Way.

207

&HQVXV$QDO\VLV6HULHV²5HOLJLRQLQ&DQDGDTop 10 Religious Denominations, Canada, 2001. Statistics Canada, 2003. http://www12.statcan.ca/english/census01/Products/Analytic/ companion/rel/canada.cfm (Adapted from the 2001 Census, Statistics Canada) 5HVSRQGHQWVLQWKH&HQVXVZHUHLQVWUXFWHGWRUHSRUWDVSHFLÀFGHQRPLQDWLRQ or group, even if they were not practicing members of their group. Consequently, WKHVHGDWDLQGLFDWHRQO\UHOLJLRXVDIÀOLDWLRQ For more than 100 years in Canada, Protestants outnumbered Catholics. In 1901, Protestant faiths accounted for well over one-half (56%) of the total population, FRPSDUHGZLWKIRU5RPDQ&DWKROLFV+RZHYHUE\IRUWKHÀUVWWLPHVLQFH Confederation, Catholics outnumbered Protestants as the sources of immigration to Canada began to change. In 1971, Roman Catholics represented 46% of the population, and Protestants 44%. Between 1991 and 2001, the number of Roman Catholics in Canada increased slightly up 4.8%, while the number adhering to Protestant denominations continued a long-term decline falling by 8.2%. In 2001, Roman Catholics were the largest religious group in Canada, just under 12.8 million people, or 43% of the population. The proportion of Protestants, the second largest group, declined to 29%, or about 8.7 million people.

7235(/,*,286'(120,1$7,216&$1$'$ Number

%

Roman Catholic

12,793,125

43.2

No religion

4,796,325

16.2

United Church

2,839,125

9.6

2,035,495

6.9

Anglican 1

Christian, not included elsewhere

780,450

2.6

Baptist

729,475

2.5

Lutheran

606,590

2.0

Muslim

579,640

2.0

Protestant, not included elsewhere

549,205

1.9

Presbyterian

409,830

1.4

2

1. Includes persons who report “Christian”, as well as those who report “Apostolic”, “Born-again Christian” and “Evangelical”. 2.

Includes persons who report only “Protestant”.

209

&HQVXV$QDO\VLV6HULHV²5HOLJLRQLQ&DQDGDMajor Religious Denominations, Canada, 1991 and 2001. Statistics Canada, 2003. http://www12.statcan.ca/english/census01/Products/Analytic/companion/rel/canada.cfm (Adapted from the 2001 Census, Statistics Canada) Protestant denominations still comprised the second largest major religious group in 2001. Most of the decline in Protestant denominations during the 1990s occurred within the six largest denominations. The largest decline occurred among Presbyterians, whose numbers fell 36% to about 409,800. Pentecostals recorded the second largest decline, their numbers falling 15% to almost 369,500. The number of United Church adherents declined 8% to over 2.8 million; the number of Anglicans fell 7% to about 2.0 million; and the number reporting Lutheran dropped 5% to 606,600. 7KHWZRPDMRULQÁXHQFHVLQWKHGHFOLQHVDPRQJWKHODUJHVW3URWHVWDQWGHQRPLQDWLRQV have been immigration and the fact that there are fewer young people reporting these denominations. 7KH ODUJHVW JDLQV LQ UHOLJLRXV DIÀOLDWLRQV RFFXUUHG DPRQJ IDLWKV FRQVLVWHQW ZLWK changing immigration patterns toward more immigrants from regions outside of Europe, in particular Asia and the Middle East. Among this group, those who LGHQWLÀHGWKHPVHOYHVDV0XVOLPUHFRUGHGWKHELJJHVWLQFUHDVHPRUHWKDQGRXEOLQJ from 253,300 in 1991 to 579,600 in 2001. These individuals represented 2% of the total population in 2001, up from under 1% a decade earlier. 7KHQXPEHURISHRSOHZKRLGHQWLÀHGWKHPVHOYHVDV+LQGXLQFUHDVHGWR 7KRVHZKRLGHQWLÀHGWKHPVHOYHVDV6LNKURVHWRZKLOHWKHQXPEHURI Buddhists increased 84% to about 300,300. Each represented around 1% of the total population. Immigration was a key factor in the increases for all these groups. In terms of age, each of these religions had relatively young populations. The median age of Muslims was 28 years, Sikhs 30, and Hindus 32, all well below the median of 37 for the overall population. Ontario was home to 73% of the Hindu population in 2001, 61% of all Muslims, and 38% of all Sikhs. -XVWRYHUSHRSOHLGHQWLÀHGWKHPVHOYHVDVPHPEHUVRID&KULVWLDQ2UWKRGR[ religion in the 2001 Census, a 24% increase from 1991. They represented 1.6% of the total population, up slightly from 1.4% in 1991. Ontario was home to more than one-half of people who were adherents of the Christian Orthodox faith. 7KH QXPEHU RI LQGLYLGXDOV ZKR LGHQWLÀHG WKHPVHOYHV DV -HZLVK LQFUHDVHG  during the 1990s to nearly 330,000. They accounted for 1.1% of the population in 2001, virtually unchanged during the decade. Well over one-half of these individuals, about 190,800, lived in Ontario. Jewish people accounted for only 1% of the 1.8 PLOOLRQLPPLJUDQWVZKRFDPHWR&DQDGDGXULQJWKHV7KRVHZKRLGHQWLÀHG themselves as Jewish were a relatively older population. The median age of people of Jewish faith was 41.5 years, compared with 37 for the total population.

211

STATE SUPPORT FOR RELIGIOUS EDUCATION

0$-255(/,*,286'(120,1$7,216&$1$'$1 AND 2001 2001

1991

Number

%

Number

%

Percentage change 1991-2001

Roman Catholic

12,793,125

43.2

12,203,625

45.2

4.8

Protestant

8,654,845

29.2

9,427,675

34.9

-8.2

Christian Orthodox

479,620

1.6

387,395

1.4

23.8

Christian, not included elsewhere2

780,450

2.6

353,040

1.3

121.1

Muslim

579,640

2.0

253,265

0.9

128.9

Jewish

329,995

1.1

318,185

1.2

3.7

Buddhist

300,345

1.0

163,415

0.6

83.8

Hindu

297,200

1.0

157,015

0.6

89.3

Sikh No religion

1.

278,415

0.9

147,440

0.5

88.8

4,796,325

16.2

3,333,245

12.3

43.9

For comparability purposes, 1991 data are presented according to 2001 boundaries.

2. Includes persons who report “Christian”, as well as those who report “Apostolic”, “Born-again Christian” and “Evangelical”.

212

&HQVXV$QDO\VLV6HULHV²5HOLJLRQLQ&DQDGDTop 10 Religious Denominations, Ontario, 2001. Statistics Canada, 2003. http://www12.statcan.ca/english/census01/Products/Analytic/ companion/rel/on.cfm This table shows the percentage distribution by religion of Ontario’s population IRU5HVSRQGHQWVLQWKH&HQVXVZHUHLQVWUXFWHGWRUHSRUWDVSHFLÀFGHnomination or group, even if they were not practicing members of their group.

7235(/,*,286'(120,1$7,216217$5,2 Number

%

Roman Catholic

3,866,350

34.3

No religion

1,809,535

16.0

United Church

1,334,570

11.8

Anglican

985,110

8.7

Muslim

352,525

3.1

Christian, not included elsewhere

301,935

2.7

Baptist

289,455

2.6

Presbyterian

279,195

2.5

Protestant, not included elsewhere

263,000

2.3

Hindu

217,560

1.9

1

2

1. Includes persons who report “Christian”, as well as those who report “Apostolic”, “Born-again Christian” and “Evangelical”. 2.

Includes persons who report only “Protestant”.

213

&HQVXV$QDO\VLV6HULHV²5HOLJLRQLQ&DQDGDMajor Religious Denominations, Ontario, 1991 and 2001. Statistics Canada, 2003. http://www12.statcan.ca/english/census01/Products/Analytic/companion/rel/on.cfm (Adapted from the 2001 Census, Statistics Canada) Protestant denominations accounted for 35% of the province’s population, slightly more than the share of 34% for Roman Catholics. In 1991, the gap was much wider, Protestants accounting for 43%, and Roman Catholics 35%. The situation occurred as the result of a decline among Protestant faiths, accompanied by a gain among Roman Catholics. The census counted 3,935,700 Protestants, down 8% from 1991, and 3,866,300 Roman Catholics, a 10% increase from 1991. At the same time, the number of Ontario residents who reported that they had no religion increased 48% to more than 1.8 million. They accounted for 16% of the population in 2001, compared with 12% in 1991. After Roman Catholic, no religion was the second most frequent religion response in 2001. All major Protestant denominations, except one, declined during the 1990s. The only gain occurred among Baptists, whose numbers rose 9% to almost 289,500. The 1.3 million members of the United Church, the largest of the Protestant faiths, accounted for 12% of the province’s population. The second largest Protestant group was Anglican, followed by Baptist and Presbyterian. The number of Muslims, Buddhists, Hindus and Sikhs grew substantially in Ontario. The census enumerated more than 352,500 Muslims, well over double the total of 145,600 a decade earlier. Muslims in Ontario accounted for 61% of all Muslims in Canada. There were also substantial increases in the number of Buddhists (+96%), and in Hindus and Sikhs, whose ranks also doubled. The vast majority of Muslims, Buddhists, Hindus and Sikhs lived in the census metropolitan area of Toronto. Its Muslim population more than doubled during the decade to more than 254,100. They accounted for just over 5% of Toronto’s population, up from about 3%. Both Islam, Hinduism and Buddhism were among the top 10 religions for Toronto in 2001. Roman Catholics accounted for one-third (33%) of Toronto’s population in 2001, down from 35% in 1991. The share of Protestant denominations fell from 33% to 24%. Anglicans and members of the United Church, the largest Protestant faiths, each represented about 7% of Toronto’s population. Members of Christian Orthodox religions represented 4% of Toronto’s population, while the Jewish population accounted for 3.5%. Some 770,850 Toronto residents reported no religion in 2001, up 39% from 1991. They represented 17% of its population, up from 14% a decade earlier.

215

STATE SUPPORT FOR RELIGIOUS EDUCATION

0$-255(/,*,286'(120,1$7,216&$1$'$1 AND 2001 2001

1991

Number

%

Number

%

Percentage change 1991-2001

Roman Catholic

3,866,350

34.3

3,506,820

35.1

10.3

Protestant

3,933,745

34.9

4,291,785

43.0

-8.3

Christian Orthodox

264,055

2.3

187,905

1.9

40.5

Christian, not included elsewhere2

301,935

2.7

136,515

1.4

121.2

Muslim

352,530

3.1

145,560

1.5

142.2

Jewish

190,800

1.7

175,650

1.8

8.6

Buddhist

128,320

1.1

65,325

0.7

96.4

Hindu

217,560

1.9

106,705

1.1

103.9

Sikh No religion

1.

104,785

0.9

50,085

0.5

109.2

1,809,535

16.0

1,226,300

12.3

47.6

For comparability purposes, 1991 data are presented according to 2001 boundaries.

2. Includes persons who report “Christian”, as well as those who report “Apostolic”, “Born-again Christian” and “Evangelical”.

216

#21 Ontario Ministry of Education, 2000-01 Financial Statements, Total School Board Net Expenditures This data was prepared by the Ontario Ministry of Education, and depicts the costs associated with educating children in 2000-2001 for certain Boards of Education in Ontario. The table entitled “Classroom Net Expenditure per Pupil” shows the classroom instructional costs for each school board, on a per pupil basis. The table entitled “Total Net Expenditure per Pupil” shows the total educational costs for each school board, on a per pupil basis.

TOTAL SCHOOL BOARD NET EXPENDITURE The Net Expenditure per pupil reports show the net expenditure per day school pupil by board for 2000-01 for each category of expenditure in the Student Focused Funding Model. It is the board’s total expenditure in a particular category less miscellaneous revenues (such as tuition fee revenue, reserve funds, restructuring grants and other provincial and federal grants) that have been allocated by the board to the particular expenditure category. In some caes, a board may erroneously allocate more miscellaneous revenue to a category than it spends in that category, thereby creating a negative net expenditure for that category. No attempt has been made by the ministry to correct the board’s allocation. Board by board comparison may not always be appropriate since a boards’ needs may differ based upon, for example their student demographics.

217

218

3,857.30

4,538.60

4,199.48

3,192.92

3,505.98

CSD du Nord-Est de l’Ontario

DSB of Niagara

DSB Ontario North East

3,775.44

CSD catholique du Nouvel-Ontario

CSD du Grand Nord de l’Ontario

3,272.58

CSD catholique du Centre-Est de l’Ontario

CSD du Centre Sud-Ouest

3,789.05

CSD catholique des Grandes Riviéres

3,726.69

4,564.78

CSD catholique des Aurores boréales

CSD des écoles publiques de l’Est de l’Ontario

3,341.77

CSD catholique de l’Est ontarien

3,237.16

2,967.59

CSD catholique Centre-Sud

3,312.84

2,977.29

Catholic DSB of Eastern Ontario

CSD des écoles catholiques du Sud-Ouest

3,147.89

Bruce-Grey Catholic DSB

CSD catholique Franco-Nord

3,438.42

3,051.71

Avon Maitland DSB

Brant Haldimand Norfolk Catholic DSB

3,113.86

Algonquin and Lakeshore Catholic DSB

Bluewater DSB

3,512.71

3,138.47

Algoma DSB

Classroom Teachers

BOARD

147.61

97.67

289.28

193.68

104.19

114.71

126.70

390.78

151.59

134.12

247.37

137.11

205.10

238.88

118.34

72.98

120.01

103.52

111.41

120.68

123.24

Occasional/Supply Teachers

333.34

143.91

463.62

776.63

215.49

304.38

250.39

424.38

250.82

301.82

334.34

1,057.80

252.55

271.80

342.80

298.90

235.57

232.78

320.96

316.48

330.68

Teacher Assistants

365.76

241.84

685.09

312.99

341.86

292.32

211.60

310.26

304.69

358.12

250.00

256.07

231.91

435.55

203.57

279.20

168.45

178.80

185.30

228.85

233.87

Texts, Supplies & Equipment

172.29

84.23

298.37

66.85

117.66

207.03

115.29

238.98

183.28

124.94

60.78

133.93

60.96

132.77

58.11

130.97

83.28

37.69

87.14

78.92

123.96

Classroom Computers

260.88

147.17

343.95

643.74

306.20

180.67

217.84

160.20

210.23

279.91

282.52

178.53

197.97

216.16

103.21

100.03

113.26

87.78

108.77

167.38

153.21

Prof. Paraprof. & Tech. Support

131.76

143.96

40.27

233.52

169.87

30.13

170.60

173.22

191.81

94.28

76.37

154.60

141.73

99.65

126.99

174.11

113.36

95.27

193.64

114.15

163.99

Library & Guidance

Classroom Net Expenditure per Pupil, 2000-01 Financial Statements

17.55

18.93

72.82

22.13

19.72

46.54

26.32

31.08

21.75

57.41

63.03

9.54

18.01

5.35

24.81

30.15

21.89

61.07

7.90

16.69

9.41

$ 4,935.18

$ 4,070.63

$ 6,392.88

$ 6,788.13

$ 5,132.28

$ 4,902.46

$ 4,431.58

$ 4,966.05

$ 5,089.62

$ 4,623.18

$ 5,103.46

$ 6,492.36

$ 4,450.01

$ 4,367.76

$ 3,955.13

$ 4,234.24

$ 3,907.53

$ 4,235.31

$ 4,128.99

$ 4,181.63

$ 4,651.07

Staff Develop- TOTAL CLASSROOM NET ment EXPENDITURE

STATE SUPPORT FOR RELIGIOUS EDUCATION

219

2,960.00

3,266.34

3,061.16

3,262.38

3,192.76

2,956.71

3,296.97

3,209.10

Halton Catholic DSB

Halton DSB

Hamilton-Wentworth Catholic DSB

Hamilton-Wentworth DSB

Hastings and Prince Edward DSB

Huron-Perth Catholic DSB

Huron-Superior Catholic DSB

Kawartha Pine Ridge DSB

3,254.83

3,230.43

3,119.33

3,516.46

2,937.72

Lambton Kent DSB

Limestone DSB

English Language Catholic District School Board #38

Near North DSB

Niagara Catholic DSB

3,489.80

3,191.34

Greater Essex County DSB

Lakehead DSB

3,353.45

Grand Erie DSB

3,719.69

2,995.21

Durham DSB

3,215.16

2,975.51

Durham Catholic DSB

Kenora Catholic DSB

3,051.59

Dufferin-Peel Catholic DSB

Keewatin-Patricia DSB

Classroom Teachers

BOARD

113.89

96.90

122.00

109.31

113.94

101.96

91.37

209.89

96.15

132.25

91.66

77.64

121.46

102.75

107.82

77.97

91.75

78.43

113.28

89.62

115.11

Occasional/Supply Teachers

291.88

245.76

260.41

377.27

185.77

343.30

565.59

299.35

223.20

283.98

362.52

433.49

218.38

332.79

234.58

260.45

148.46

273.64

257.34

257.92

158.86

Teacher Assistants

246.68

161.79

221.18

211.18

212.62

144.50

394.51

267.34

282.07

252.68

248.69

149.23

223.63

214.47

164.27

185.52

230.61

195.48

161.87

190.63

175.49

Texts, Supplies & Equipment

80.92

104.41

74.68

43.43

63.76

56.16

245.07

68.96

118.29

137.08

119.34

67.74

39.46

50.91

74.97

41.96

58.34

122.65

123.73

112.37

42.67

Classroom Computers

122.53

124.97

147.35

186.36

107.64

156.72

132.23

147.49

99.60

119.61

74.58

147.07

111.24

137.86

160.64

143.65

218.69

80.37

136.03

123.19

181.72

Prof. Paraprof. & Tech. Support

131.41

61.88

135.96

108.31

125.96

140.85

129.31

130.91

142.02

92.23

79.43

106.84

127.05

182.67

159.00

124.23

130.14

161.39

169.32

129.77

123.92

Library & Guidance

8.13

16.70

9.68

14.88

21.11

18.62

46.40

16.67

21.98

60.03

15.36

21.20

16.66

12.36

15.46

11.88

16.51

10.52

11.06

13.17

10.45

$ 3,933.15

$ 4,328.86

$ 4,090.60

$ 4,281.17

$ 4,085.63

$ 4,451.91

$ 4,819.64

$ 4,860.31

$ 4,192.41

$ 4,374.83

$ 3,948.29

$ 4,195.96

$ 4,120.25

$ 4,094.96

$ 4,183.07

$ 3,805.66

$ 4,085.84

$ 4,275.94

$ 3,967.83

$ 3,892.19

$ 3,859.81

Staff Develop- TOTAL CLASSROOM NET ment EXPENDITURE

3. GOVERNMENT DATA

Classroom Teachers

3,147.12

3,244.95

2,616.45

3,209.71

3,329.77

3,245.80

2,690.96

3,347.22

3,503.79

3,225.03

2,974.22

2,991.21

3,019.30

3,073.63

3,278.67

3,360.49

3,886.73

3,203.62

3,214.61

3,387.13

3,353.99

3,136.64

BOARD

Nipissing-Parry Sound Catholic DSB

Northeastern Catholic DSB

Northwest Catholic DSB

Ottawa-Carleton Catholic DSB

Ottawa-Carleton DSB

Peel DSB

Peterborough V.N.C. Catholic DSB

Rainbow DSB

Rainy River DSB

Renfrew County Catholic DSB

Renfrew County DSB

Simcoe County DSB

Simcoe Muskoka Catholic DSB

220

St. Clair Catholic DSB

Sudbury Catholic DSB

Superior North Catholic DSB

Superior-Greenstone DSB

Thames Valley DSB

Thunder Bay Catholic DSB

Toronto Catholic DSB

Toronto DSB

Trillium Lakelands DSB

99.81

108.19

96.94

114.36

116.79

151.85

114.98

120.09

105.18

138.79

132.28

87.47

97.41

191.57

101.88

113.47

105.72

79.87

106.06

216.63

74.94

130.15

Occasional/Supply Teachers

320.02

244.27

191.01

215.93

227.89

326.23

669.48

207.25

271.23

247.05

216.83

195.69

570.01

398.13

217.70

439.72

216.17

242.11

263.44

322.62

416.01

555.27

Teacher Assistants

204.90

231.35

214.32

209.25

179.45

259.65

370.40

233.62

149.15

206.40

152.62

194.45

163.19

267.74

106.01

204.32

207.43

86.90

202.79

260.03

297.20

187.27

Texts, Supplies & Equipment

94.97

56.95

60.50

95.10

58.10

141.91

(36.32)

111.09

104.41

61.40

83.13

74.82

71.46

167.00

55.65

146.73

52.58

48.09

71.52

160.97

187.13

138.71

Classroom Computers

84.24

233.31

180.79

169.58

152.36

165.47

81.26

189.63

152.22

103.35

70.70

172.81

258.47

141.79

91.01

119.21

147.32

257.96

105.67

124.96

132.79

159.43

Prof. Paraprof. & Tech. Support

152.45

175.15

141.92

197.25

162.26

243.37

55.80

138.47

117.83

146.58

196.71

110.40

71.66

225.42

223.92

204.12

164.31

11.08

135.77

66.38

79.41

150.88

Library & Guidance

19.18

14.53

13.33

19.53

17.47

43.37

25.94

26.47

29.58

8.46

12.74

25.81

46.71

48.74

14.15

(3.60)

13.09

41.27

11.70

16.29

29.99

30.31

$ 4,112.21

$ 4,417.75

$ 4,285.93

$ 4,235.63

$ 4,117.93

$ 5,218.59

$ 4,642.04

$ 4,305.29

$ 4,003.24

$ 3,931.33

$ 3,856.23

$ 3,835.66

$ 4,503.95

$ 4,944.18

$ 4,157.53

$ 3,914.93

$ 4,152.43

$ 4,097.04

$ 4,106.66

$ 3,784.32

$ 4,462.41

$ 4,499.14

Staff Develop- TOTAL CLASSROOM NET ment EXPENDITURE

STATE SUPPORT FOR RELIGIOUS EDUCATION

Classroom Teachers

3,154.96

3,185.38

2,993.53

3,447.32

2,868.29

3,151.84

3,064.55

3,170.63

3,228.07

BOARD

Upper Canada DSB

Upper Grand DSB

Waterloo Catholic DSB

Waterloo Region DSB

Wellington Catholic DSB

Windsor-Essex Catholic DSB

York Catholic DSB

York Region DSB

Provincial Average

107.73

94.44

75.52

97.27

205.98

97.96

92.69

80.91

65.55

Occasional/Supply Teachers

245.80

206.45

222.52

253.83

263.15

198.48

172.27

244.61

411.12

Teacher Assistants

204.93

203.44

177.37

217.89

232.99

179.01

222.33

220.69

160.93

Texts, Supplies & Equipment

72.87

75.17

101.50

53.63

65.14

62.97

64.27

56.90

58.98

Classroom Computers

158.53

100.51

125.47

137.13

112.55

83.21

200.43

183.24

106.51

Prof. Paraprof. & Tech. Support

145.96

151.49

165.31

132.32

132.20

193.13

152.56

152.74

149.95

Library & Guidance

17.66

10.38

24.29

14.62

10.65

18.77

27.30

7.68

21.46

$ 4,181.55

$ 4,012.51

$ 3,956.52

$ 4,058.52

$ 3,890.95

$ 4,280.86

$ 3,925.38

$ 4,132.16

$ 4,129.45

Staff Develop- TOTAL CLASSROOM NET ment EXPENDITURE

3. GOVERNMENT DATA

221

36.52

40.76

61.03

82.07

Brant Haldimand Norfolk Catholic DSB

Bruce-Grey Catholic DSB

Catholic DSB of Eastern Ontario

CSD catholique Centre-Sud

222

103.61

75.37

DSB of Niagara

CSD des écoles publiques de l’Est de l’Ontario

CSD du Nord-Est de l’Ontario

61.66

CSD des écoles catholiques du Sud-Ouest

62.15

95.11

CSD catholique Franco-Nord

114.15

71.49

CSD catholique du Nouvel-Ontario

CSD du Grand Nord de l’Ontario

45.94

CSD catholique du Centre-Est de l’Ontario

CSD du Centre Sud-Ouest

88.23

85.45

CSD catholique des Grandes Riviéres

54.84

48.45

Bluewater DSB

170.30

33.16

Avon Maitland DSB

CSD catholique des Aurores boréales

74.11

Algonquin and Lakeshore Catholic DSB

CSD catholique de l’Est ontarien

69.60

Algoma DSB

BOARD

Co-ordinators & Consultants

402.73

602.64

707.29

550.89

335.14

461.00

474.81

564.35

469.82

579.45

498.50

381.94

408.79

407.74

393.66

456.21

426.62

466.22

444.92

504.82

Teacher’s Prep Time

341.74

790.58

591.02

572.02

405.83

421.78

435.06

444.16

340.34

370.67

1,126.19

358.69

395.30

320.22

312.25

363.66

316.82

371.35

351.55

390.06

Principal’s & Vice-Principal’s

175.35

472.62

345.18

227.28

189.08

212.20

294.87

225.72

173.86

289.28

540.07

220.20

186.12

172.57

141.05

153.77

179.60

158.12

191.87

202.93

School Secretaries

11.63

0.17

0.00

0.22

2.99

13.41

11.64

10.15

9.61

27.94

0.00

10.52

6.25

9.38

12.16

17.70

2.19

13.53

12.44

14.26

Dept. Heads

265.76

799.08

542.13

1,373.44

597.39

609.54

693.60

527.61

597.92

622.32

760.56

666.32

1,059.68

818.39

656.44

353.26

461.29

416.87

491.59

492.78

Pupil Transportation

620.89

1,196.53

1,239.98

1,029.40

972.83

788.19

977.51

856.22

696.63

743.03

974.21

717.86

813.43

642.29

638.47

586.94

666.23

595.50

669.07

861.15

School Operations & Maintenance

25.38

0.00

8.74

8.18

34.42

13.52

10.95

10.95

43.72

18.80

0.00

14.63

1.63

55.27

(0.32)

9.86

19.79

17.93

132.51

88.26

Cont. Ed. & Summer School

Non-classroom Net Expenditure per Pupil, 2000-01 Financial Statements

143.47

988.25

548.15

337.55

304.68

508.90

367.12

327.89

271.04

319.53

1,428.98

246.88

263.56

226.30

340.10

195.40

247.02

169.29

255.37

256.68

Board Admin & Governance

$ 2,062.32

$ 4,953.47

$ 4,096.65

$ 4,161.13

$ 2,904.02

$ 3,123.64

$ 3,337.06

$ 3,012.99

$ 2,688.40

$ 3,059.24

$ 5,498.81

$ 2,671.88

$ 3,216.82

$ 2,713.19

$ 2,534.58

$ 2,173.31

$ 2,368.00

$ 2,241.98

$ 2,623.43

$ 2,880.55

TOTAL NON-CLASSROOM NET EXP

STATE SUPPORT FOR RELIGIOUS EDUCATION

223

68.33

162.00

95.68

55.84

39.63

49.18

52.13

Kenora Catholic DSB

Lakehead DSB

Lambton Kent DSB

Limestone DSB

English Language Catholic District School Board #38

Near North DSB

57.25

Keewatin-Patricia DSB

66.60

30.39

Hamilton-Wentworth Catholic DSB

Kawartha Pine Ridge DSB

60.13

Halton DSB

Huron-Superior Catholic DSB

67.68

Halton Catholic DSB

78.88

64.75

Greater Essex County DSB

65.85

57.31

Grand Erie DSB

Huron-Perth Catholic DSB

51.00

Durham DSB

Hastings and Prince Edward DSB

54.96

Durham Catholic DSB

50.53

61.43

Dufferin-Peel Catholic DSB

Hamilton-Wentworth DSB

108.40

DSB Ontario North East

BOARD

Co-ordinators & Consultants

459.15

432.90

484.06

426.52

281.06

489.99

434.33

421.23

440.57

391.65

418.33

412.31

415.57

442.52

463.85

400.83

447.61

389.74

353.70

451.24

501.14

Teacher’s Prep Time

356.64

307.15

306.10

290.37

355.25

443.97

336.56

306.07

328.46

321.22

295.46

316.89

259.79

296.23

267.64

298.59

313.00

299.35

280.01

301.86

409.27

Principal’s & Vice-Principal’s

192.26

128.58

177.10

157.02

172.02

179.31

259.46

188.77

204.54

164.30

207.40

172.27

170.03

170.50

133.94

157.76

188.13

152.65

143.23

161.26

211.21

School Secretaries

10.79

10.74

12.27

11.33

0.00

9.62

0.00

15.21

7.39

11.36

11.47

11.20

10.15

12.23

20.28

14.63

13.22

10.95

9.51

12.79

13.76

Dept. Heads

600.68

449.58

381.92

328.49

356.37

444.44

446.53

335.19

422.19

692.94

495.32

186.40

188.91

205.72

186.75

240.72

278.95

241.36

258.69

209.75

585.18

Pupil Transportation

690.90

606.93

701.15

592.55

692.04

676.79

773.28

560.69

759.26

555.34

628.09

678.83

628.88

614.57

529.32

664.08

601.28

623.15

626.33

537.57

955.63

School Operations & Maintenance

17.13

58.84

35.54

36.07

19.58

0.00

47.95

20.98

60.69

0.00

22.65

41.01

138.45

21.80

64.20

30.97

25.67

28.13

58.50

101.08

21.00

Cont. Ed. & Summer School

249.42

217.59

201.49

143.28

250.30

553.88

231.07

198.11

293.76

279.51

223.90

190.69

211.29

190.27

213.14

172.95

200.46

201.05

142.66

202.25

331.33

Board Admin & Governance

$ 2,629.09

$ 2,261.50

$ 2,339.26

$ 2,041.46

$ 2,222.30

$ 2,960.01

$ 2,597.52

$ 2,103.50

$ 2,583.46

$ 2,495.21

$ 2,368.46

$ 2,060.12

$ 2,053.47

$ 2,013.97

$ 1,946.80

$ 2,045.26

$ 2,125.64

$ 1,997.38

$ 1,927.59

$ 2,039.22

$ 3,136.92

TOTAL NON-CLASSROOM NET EXP

3. GOVERNMENT DATA

224

4.84

52.97

72.39

52.86

Thames Valley DSB

Thunder Bay Catholic DSB

Toronto Catholic DSB

65.00

Sudbury Catholic DSB

42.55

74.36

St. Clair Catholic DSB

Superior-Greenstone DSB

65.54

Superior North Catholic DSB

44.43

Simcoe Muskoka Catholic DSB

Rainbow DSB

Simcoe County DSB

67.57

Peterborough V.N.C. Catholic DSB

43.66

51.27

Peel DSB

26.77

69.42

Ottawa-Carleton DSB

Renfrew County DSB

48.25

Ottawa-Carleton Catholic DSB

Renfrew County Catholic DSB

71.72

Northwest Catholic DSB

135.29

165.24

Northeastern Catholic DSB

Rainy River DSB

68.10

106.74

Nipissing-Parry Sound Catholic DSB

43.86

Niagara Catholic DSB

BOARD

Co-ordinators & Consultants

446.93

458.58

432.27

579.73

394.85

448.01

394.58

260.13

406.51

416.72

403.86

502.33

484.04

458.91

405.69

434.39

449.87

399.96

389.12

431.15

361.72

Teacher’s Prep Time

312.18

338.28

325.61

429.25

740.38

313.30

304.86

317.53

284.62

299.62

395.17

415.31

315.52

340.05

305.89

303.22

310.88

360.48

398.74

359.95

280.26

Principal’s & Vice-Principal’s

153.80

177.74

161.10

306.21

253.42

175.77

157.15

161.86

176.25

181.28

187.70

307.70

212.12

198.76

149.73

139.49

174.13

194.28

212.34

186.48

136.81

School Secretaries

10.46

11.02

10.96

25.97

(0.01)

8.40

11.23

12.08

8.36

24.86

12.55

16.92

12.49

19.27

11.29

11.61

13.24

0.00

12.07

0.00

12.49

Dept. Heads

170.11

495.07

308.15

463.63

412.72

521.26

427.96

448.85

269.63

423.21

634.20

597.99

449.22

518.88

214.42

291.77

496.66

597.21

673.35

821.02

283.55

Pupil Transportation

661.99

564.60

631.43

1,149.34

746.65

694.73

599.85

596.76

622.27

675.67

603.38

875.42

808.97

495.70

567.56

674.03

603.81

548.14

787.05

726.57

687.46

School Operations & Maintenance

178.77

12.73

73.68

7.41

0.00

70.66

4.70

3.79

21.15

16.00

4.72

4.37

31.62

0.00

65.39

49.19

167.81

3.68

0.00

69.99

130.19

Cont. Ed. & Summer School

201.94

290.65

197.21

485.31

697.12

287.87

225.05

208.96

174.83

208.38

332.35

331.07

219.09

210.18

196.54

188.18

197.29

555.19

492.96

385.84

211.58

Board Admin & Governance

$ 2,189.02

$ 2,421.05

$ 2,193.38

$ 3,489.41

$ 3,249.96

$ 2,585.00

$ 2,199.73

$ 2,075.52

$ 2,008.04

$ 2,289.39

$ 2,600.69

$ 3,186.40

$ 2,600.64

$ 2,293.01

$ 1,985.93

$ 2,140.14

$ 2,485.43

$ 2,824.19

$ 3,072.37

$ 3,049.11

$ 2,147.93

TOTAL NON-CLASSROOM NET EXP

STATE SUPPORT FOR RELIGIOUS EDUCATION

57.68

52.36

41.87

26.67

42.19

Waterloo Catholic DSB

Waterloo Region DSB

Wellington Catholic DSB

Windsor-Essex Catholic DSB

York Catholic DSB

59.52

46.19

Upper Grand DSB

Provincial Average

69.57

Upper Canada DSB

43.91

60.78

Trillium Lakelands DSB

York Region DSB

76.11

Toronto DSB

BOARD

Co-ordinators & Consultants

225 426.46

414.94

497.57

429.28

339.23

367.76

440.38

414.33

444.48

424.00

430.71

Teacher’s Prep Time

314.11

285.52

269.87

284.51

287.02

296.51

278.76

291.97

311.83

306.27

322.20

Principal’s & Vice-Principal’s

167.95

165.34

173.52

149.81

158.22

173.84

168.38

162.81

197.46

155.94

158.03

School Secretaries

12.15

10.62

13.31

15.71

37.68

24.14

10.08

9.45

11.82

14.78

12.21

Dept. Heads

301.20

273.19

259.70

241.89

399.75

177.77

245.09

291.25

581.27

512.63

118.14

Pupil Transportation

654.01

592.93

596.98

589.75

618.26

562.16

513.20

650.35

629.61

607.35

779.71

School Operations & Maintenance

67.20

82.91

64.69

38.65

65.52

45.83

71.52

51.80

13.56

7.04

126.83

Cont. Ed. & Summer School

203.52

159.96

205.24

209.10

241.98

181.72

72.05

185.36

204.47

192.22

190.76

Board Admin & Governance

$ 2,206.11

$ 2,029.31

$ 2,123.07

$ 1,985.36

$ 2,189.55

$ 1,882.10

$ 1,857.15

$ 2,103.51

$ 2,464.07

$ 2,281.01

$ 2,214.70

TOTAL NON-CLASSROOM NET EXP

3. GOVERNMENT DATA

$ 4,367.76

$ 4,450.01

$ 6,492.36

$ 5,103.46

$ 4,623.18

$ 5,089.62

$ 4,966.05

$ 4,431.58

$ 4,902.46

$ 5,132.28

$ 6,788.13

$ 6,392.88

$ 4,070.63

$ 4,935.18

CSD catholique des Aurores boréales

CSD catholique des Grandes Riviéres

CSD catholique du Centre-Est de l’Ontario

CSD catholique du Nouvel-Ontario

CSD catholique Franco-Nord

CSD des écoles catholiques du Sud-Ouest

CSD des écoles publiques de l’Est de l’Ontario

CSD du Centre Sud-Ouest

CSD du Grand Nord de l’Ontario

CSD du Nord-Est de l’Ontario

DSB of Niagara

DSB Ontario North East

$ 3,955.13

Catholic DSB of Eastern Ontario

CSD catholique de l’Est ontarien

$ 4,234.24

Bruce-Grey Catholic DSB

CSD catholique Centre-Sud

$ 4,235.31

$ 4,128.99

Avon Maitland DSB

$ 3,907.53

$ 4,181.63

Algonquin and Lakeshore Catholic DSB

Brant Haldimand Norfolk Catholic DSB

$ 4,651.07

Algoma DSB

Bluewater DSB

Total classroom exp

BOARD

226 $ 3,136.92

$ 2,062.32

$ 4,953.47

$ 4,096.65

$ 4,161.13

$ 2,904.02

$ 3,123.64

$ 3,337.06

$ 3,012.99

$ 2,688.40

$ 3,059.24

$ 5,498.81

$ 2,671.88

$ 3,216.82

$ 2,713.19

$ 2,534.58

$ 2,173.31

$ 2,368.00

$ 2,241.98

$ 2,623.43

$ 2,880.55

Total nonclassroom exp

$ 8,072.10

$ 6,132.95

$ 11,346.36

$ 10,884.78

$ 9,293.41

$ 7,806.48

$ 7,555.22

$ 8,303.12

$ 8,102.61

$ 7,311.59

$ 8,162.70

$ 11,991.17

$ 7,121.89

$ 7,584.57

$ 6,668.32

$ 6,768.82

$ 6,080.84

$ 6,603.31

$ 6,370.97

$ 6,805.06

$ 7,531.62

Total operating

154.96

135.75

134.10

157.99

0.00

0.00

111.08

179.81

133.93

121.07

220.98

164.57

112.61

135.59

0.00

104.87

113.21

97.77

142.27

95.88

142.13

School Renewal

(0.00)

0.00

113.93

131.17

0.00

323.85

0.00

0.00

0.00

89.98

0.00

0.00

0.00

0.00

(0.00)

0.00

19.00

0.46

0.00

44.43

0.00

75.09

54.84

103.44

0.00

327.38

35.68

79.24

14.78

36.15

194.11

0.00

0.00

92.24

117.28

102.04

0.00

76.53

115.67

28.36

171.05

10.29

New Pupil Direct Capital & Places Approved Debt

$ 230.05

$ 190.59

$ 351.46

$ 289.16

$ 327.38

$ 359.53

$ 190.32

$ 194.59

$ 170.08

$ 405.16

$ 220.98

$ 164.57

$ 204.85

$ 252.88

$ 102.04

$ 104.87

$ 208.74

$ 213.90

$ 170.63

$ 311.36

$ 152.42

Total capital

(0.00)

0.09

0.00

0.00

0.00

(24.94)

41.88

0.00

0.00

0.04

(201.65)

0.00

2.01

57.34

0.17

0.00

0.00

0.16

2.32

(0.00)

(149.10)

Other Non-Operating Exp

Total Net Expenditure per Pupil, 2000-01 Financial Statements

0.00

(1.92)

13.06

1.37

191.11

57.90

0.00

65.35

131.94

82.33

299.25

923.38

47.19

329.04

342.51

412.46

229.29

19.61

0.00

141.97

114.61

Provision for Reserves

$ 8,302.15

$ 6,321.72

$ 11,710.88

$ 11,175.31

$ 9,811.90

$ 8,198.97

$ 7,787.41

$ 8,563.06

$ 8,404.63

$ 7,799.12

$ 8,481.28

$ 13,079.12

$ 7,375.95

$ 8,223.83

$ 7,113.04

$ 7,286.14

$ 6,518.87

$ 6,836.98

$ 6,543.92

$ 7,258.39

$ 7,649.54

TOTAL NET EXPENDITURE

STATE SUPPORT FOR RELIGIOUS EDUCATION

227

$ 4,085.63

$ 4,281.17

$ 4,090.60

$ 4,328.86

$ 3,933.15

Limestone DSB

English Language Catholic District School Board #38

Near North DSB

Niagara Catholic DSB

$ 4,451.91

Lambton Kent DSB

$ 4,819.64

$ 4,195.96

Hastings and Prince Edward DSB

Lakehead DSB

$ 4,120.25

Hamilton-Wentworth DSB

Kenora Catholic DSB

$ 4,094.96

Hamilton-Wentworth Catholic DSB

$ 4,860.31

$ 4,183.07

Halton DSB

$ 4,192.41

$ 3,805.66

Halton Catholic DSB

Keewatin-Patricia DSB

$ 4,085.84

Greater Essex County DSB

Kawartha Pine Ridge DSB

$ 4,275.94

Grand Erie DSB

$ 4,374.83

$ 3,967.83

Durham DSB

Huron-Superior Catholic DSB

$ 3,892.19

Durham Catholic DSB

$ 3,948.29

$ 3,859.81

Dufferin-Peel Catholic DSB

Huron-Perth Catholic DSB

Total classroom exp

BOARD

$ 2,147.93

$ 2,629.09

$ 2,261.50

$ 2,339.26

$ 2,041.46

$ 2,222.30

$ 2,960.01

$ 2,597.52

$ 2,103.50

$ 2,583.46

$ 2,495.21

$ 2,368.46

$ 2,060.12

$ 2,053.47

$ 2,013.97

$ 1,946.80

$ 2,045.26

$ 2,125.64

$ 1,997.38

$ 1,927.59

$ 2,039.22

Total nonclassroom exp

$ 6,081.08

$ 6,957.95

$ 6,352.10

$ 6,620.43

$ 6,127.09

$ 6,674.22

$ 7,779.65

$ 7,457.83

$ 6,295.91

$ 6,958.29

$ 6,443.50

$ 6,564.42

$ 6,180.38

$ 6,148.43

$ 6,197.04

$ 5,752.46

$ 6,131.10

$ 6,401.59

$ 5,965.21

$ 5,819.78

$ 5,899.03

Total operating

75.36

105.73

63.61

117.81

130.25

109.65

158.06

55.72

106.94

202.49

135.29

127.63

53.93

109.23

107.93

30.14

121.98

113.62

49.58

80.31

83.23

School Renewal

13.41

0.00

206.08

0.00

0.00

0.00

265.14

28.20

3.68

0.00

160.46

0.00

0.00

92.21

5.16

51.03

0.00

0.00

199.58

(3.19)

167.69

231.36

66.19

168.20

31.68

23.96

253.02

299.82

175.62

97.86

44.44

23.44

7.76

158.18

194.22

286.21

198.67

101.08

64.38

86.69

161.19

163.22

New Pupil Direct Capital & Places Approved Debt

$ 320.14

$ 171.92

$ 437.89

$ 149.48

$ 154.21

$ 362.67

$ 723.02

$ 259.53

$ 208.48

$ 246.93

$ 319.19

$ 135.39

$ 212.11

$ 395.67

$ 399.31

$ 279.84

$ 223.06

$ 178.01

$ 335.85

$ 238.31

$ 414.13

Total capital

0.00

1.34

0.00

(6.88)

(16.85)

0.00

0.00

0.26

1.45

8.99

4.21

11.19

0.00

1.68

(49.03)

(4.47)

(0.41)

0.48

(7.07)

(135.12)

2.54

Other Non-Operating Exp

195.99

143.24

40.23

11.19

151.15

145.63

104.37

339.60

65.18

41.81

103.38

8.78

67.55

118.50

21.15

515.89

19.26

6.62

168.62

678.16

133.32

Provision for Reserves

$ 6,597.22

$ 7,274.44

$ 6,830.22

$ 6,774.23

$ 6,415.60

$ 7,182.52

$ 8,607.04

$ 8,057.22

$ 6,571.02

$ 7,256.01

$ 6,870.28

$ 6,719.78

$ 6,460.03

$ 6,664.27

$ 6,568.48

$ 6,543.72

$ 6,373.01

$ 6,586.69

$ 6,462.61

$ 6,601.14

$ 6,449.03

TOTAL NET EXPENDITURE

3. GOVERNMENT DATA

$ 4,305.29

$ 4,642.04

$ 5,218.59

$ 4,117.93

$ 4,235.63

$ 4,285.93

$ 4,417.75

$ 4,112.21

Superior-Greenstone DSB

Thames Valley DSB

Thunder Bay Catholic DSB

Toronto Catholic DSB

Toronto DSB

Trillium Lakelands DSB

$ 4,503.95

Renfrew County Catholic DSB

Superior North Catholic DSB

$ 4,944.18

Rainy River DSB

Sudbury Catholic DSB

$ 4,157.53

Rainbow DSB

$ 4,003.24

$ 3,914.93

Peterborough V.N.C. Catholic DSB

$ 3,931.33

$ 4,152.43

Peel DSB

St. Clair Catholic DSB

$ 4,097.04

Ottawa-Carleton DSB

Simcoe Muskoka Catholic DSB

$ 4,106.66

Ottawa-Carleton Catholic DSB

$ 3,856.23

$ 3,784.32

Northwest Catholic DSB

Simcoe County DSB

$ 4,462.41

Northeastern Catholic DSB

$ 3,835.66

$ 4,499.14

Nipissing-Parry Sound Catholic DSB

Renfrew County DSB

Total classroom exp

BOARD

228 $ 2,281.01

$ 2,214.70

$ 2,189.02

$ 2,421.05

$ 2,193.38

$ 3,489.41

$ 3,249.96

$ 2,585.00

$ 2,199.73

$ 2,075.52

$ 2,008.04

$ 2,289.39

$ 2,600.69

$ 3,186.40

$ 2,600.64

$ 2,293.01

$ 1,985.93

$ 2,140.14

$ 2,485.43

$ 2,824.19

$ 3,072.37

$ 3,049.11

Total nonclassroom exp

$ 6,393.22

$ 6,632.46

$ 6,474.95

$ 6,656.68

$ 6,311.31

$ 8,708.00

$ 7,892.00

$ 6,890.28

$ 6,202.98

$ 6,006.85

$ 5,864.27

$ 6,125.05

$ 7,104.65

$ 8,130.59

$ 6,758.17

$ 6,207.94

$ 6,138.36

$ 6,237.18

$ 6,592.09

$ 6,608.51

$ 7,534.78

$ 7,548.25

Total operating

51.10

119.92

120.83

111.03

95.38

108.33

155.00

120.13

102.85

0.00

83.09

54.19

136.11

66.19

186.58

2.15

121.90

127.40

120.29

56.64

116.39

258.42

School Renewal

0.00

0.00

158.18

7.15

0.00

0.00

0.00

0.00

25.33

0.00

10.96

0.00

19.88

0.00

0.00

0.00

344.08

32.25

71.80

0.00

0.00

0.00

387.74

190.03

307.61

133.98

189.33

77.71

175.76

96.38

227.03

283.15

271.19

42.84

158.83

305.89

7.95

336.76

78.21

143.07

95.23

0.00

206.26

151.62

New Pupil Direct Capital & Places Approved Debt

$ 438.84

$ 309.95

$ 586.62

$ 252.16

$ 284.70

$ 186.04

$ 330.76

$ 216.51

$ 355.21

$ 283.15

$ 365.24

$ 97.03

$ 314.83

$ 372.08

$ 194.53

$ 338.90

$ 544.19

$ 302.71

$ 287.32

$ 56.64

$ 322.66

$ 410.03

Total capital

1.81

0.00

0.00

1.51

0.00

2.06

0.00

3.65

(33.52)

1.58

(52.45)

(3.35)

0.98

34.09

0.00

14.74

0.00

9.75

1.21

(5.69)

0.00

0.00

Other Non-Operating Exp

168.14

38.94

42.20

142.71

78.21

97.45

1,796.07

20.57

128.24

570.40

375.34

173.51

0.00

76.13

311.08

347.23

10.68

45.29

58.61

862.17

538.06

181.31

Provision for Reserves

$ 7,002.00

$ 6,981.35

$ 7,103.77

$ 7,053.06

$ 6,674.22

$ 8,993.54

$ 10,018.83

$ 7,131.02

$ 6,652.90

$ 6,861.99

$ 6,552.40

$ 6,392.23

$ 7,420.45

$ 8,612.89

$ 7,263.78

$ 6,908.81

$ 6,693.23

$ 6,594.93

$ 6,939.24

$ 7,521.62

$ 8,395.49

$ 8,139.60

TOTAL NET EXPENDITURE

STATE SUPPORT FOR RELIGIOUS EDUCATION

Total classroom exp

$ 4,129.45

$ 4,132.16

$ 3,925.38

$ 4,280.86

$ 3,890.95

$ 4,058.52

$ 3,956.52

$ 4,012.51

$ 4,181.55

BOARD

Upper Canada DSB

Upper Grand DSB

Waterloo Catholic DSB

Waterloo Region DSB

Wellington Catholic DSB

Windsor-Essex Catholic DSB

York Catholic DSB

York Region DSB

Provincial Average

$ 2,206.11

$ 2,029.31

$ 2,123.07

$ 1,985.36

$ 2,189.55

$ 1,882.10

$ 1,857.15

$ 2,103.51

$ 2,464.07

Total nonclassroom exp

128.27

164.36

118.78

112.41

109.45

60.23

0.00

82.93

School Renewal

$ 6,387.66 104.14

$ 6,041.82

$ 6,079.58

$ 6,043.89

$ 6,080.50

$ 6,162.96

$ 5,782.53

$ 6,235.67

$ 6,593.52

Total operating

68.81

229.92

162.75

0.00

0.00

155.76

100.06

(55.90)

15.28

161.12

250.60

382.25

196.00

175.34

92.48

310.51

55.90

45.46

New Pupil Direct Capital & Places Approved Debt

$ 334.07

$ 608.79

$ 709.36

$ 314.78

$ 287.75

$ 357.69

$ 470.81

$-

$ 143.67

Total capital

(3.32)

0.00

18.88

26.93

0.00

0.00

133.55

0.00

0.25

Other Non-Operating Exp

105.37

0.00

82.45

43.79

317.19

0.00

155.67

362.15

58.47

Provision for Reserves

$ 6,823.78

$ 6,650.60

$ 6,890.28

$ 6,429.39

$ 6,685.44

$ 6,520.64

$ 6,542.57

$ 6,597.82

$ 6,795.92

TOTAL NET EXPENDITURE

3. GOVERNMENT DATA

229

#22 Ontario (Ministry of Education), 2004. Enrolment in Publicly Funded Schools by School Type and Level in 2002-2003 This chart shows total enrolment in the Ontario public school system, broken down into Public (secular) and Roman Catholic (religious) schools. This table has been provided by the Information Management Branch of the Ontario Ministry of Education, 2004.

(152/0(17,138%/,&/<)81'('6&+22/6%<6&+22/ TYPE AND LEVEL IN 2002-2003

Enrolment

Number of Schools

Male

Female

Total

Public

2,588

502,662

472,192

974,854

Roman Catholic

1,383

241,573

234,714

476,287

Total

3,971

744,235

706,906

1,451,141

Public

606

262,351

243,157

505,508

Roman Catholic

242

103,085

105,206

208,291

Total

848

365,436

348,363

713,799

Public

3,194

765,013

715,349

1,480,362

Roman Catholic

1,625

344,658

339,920

684,578

Total

4,819

1,109,671

1,055,269

2,164,940

School Type Elementary

Secondary

All Schools

Source: As reported by schools in the School October Report, 2002-2003. Data include public and Roman Catholic schools Data exclude hospital and provincial schools, care & treatment facilities.

231

#23 Ontario (Ministry of Education), 2004. Enrolment in Private 6FKRROVE\5HOLJLRXV$IÀOLDWLRQLQ This chart indicates the number of schools and student enrolment for different SULYDWHVFKRROVLQ2QWDULR7KHWDEOHLVEURNHQGRZQE\UHOLJLRXVDIÀOLDWLRQRI the schools. Total numbers include non-religious private schools. This table has been provided by the Information Management Branch of the Ontario Ministry of Education, 2004.

(152/0(17,135,9$7(6&+22/6%<5(/,*,286 $)),/,$7,21,1 Number of Schools

Enrolment

Amish schools

17

480

Armenian schools

3

523

Christian

173

27,353

2002-2003

First Nations schools

27

4,561

2002-2003

International schools in Ontario

21

5,270

2002-2003

Islamic schools

28

4,036

2002-2003

Jewish schools

39

11,857

2002-2003

Learning Centre schools

14

486

2002-2003

Mennonite schools

76

3,475

2002-2003

Montessori schools

99

15,629

Year

5HOLJLRXV$IÀOLDWLRQ

2002-2003 2002-2003 2002-2003

2002-2003

1RQGHQRPLQDWLRQDOQRQDIÀOLDWHG

126

23,388

2002-2003

Other (specify)

90

14,632

2002-2003

Overseas schools

12

4,318

2002-2003

Roman Catholic Schools

11

2,556

2002-2003

Seventh Day Adventist schools

10

1,105

2002-2003

Unknown

61

711

2002-2003

Waldorf schools

8

1,067

815

121,447

TOTAL

Source: As reported by private schools in the School October Report for Private Schools, 2002-2003, Section I Data include First Nation and overeas schools.

233

2IILFLDO5HSRUWV #24 Report of the Royal Commission on Education in Ontario 7KH+RSH5HSRUW 7RURQWR4XHHQ·V3ULQWHU&KDSWHUV I, II and XVIII only The Report of the Royal Commission on Education in Ontario (the Hope Report) was established by the Government of Ontario on 21 March 1945 and was chaired by the Honourable Mr. Justice John Andrew Hope. At the time, Mr. Justice Hope was a Judge of the High Court of Justice, Supreme Court of Ontario. The report was submitted on 15 December 1950 to the Lieutenant-Governor of Ontario, Honourable Ray Lawson. The mandate of the Commission was to conduct an inquiry and report upon the provincial education system and all schools under the jurisdiction of the Department of Education. As well, the Commission was to report upon the selection and WUDLQLQJRIWHDFKHUVLQVSHFWRUVDQGRWKHURIÀFLDOVRIWKHSURYLQFLDODQGORFDOVFKRRO administrations in Ontario. Included here are three of the thirty chapters, chapters I, II, and XVIII. These are the same three chapters presented to the Court of Appeal for Ontario in the “Adler” case. Chapter I is entitled “The Educational Scene” and gives an overview of life and education in Ontario as it was in 1950. The chapter also describes the history of education in Ontario and divides the history into four periods: the Pioneer Period (1800-1840), the Period of Expansion (1840-1870), the Period of Consolidation (1870-1900), and the Twentieth Century (1900-1950). Chapter II is entitled “Aims of Education” and deals with such topics as fundamental issues in education, cardinal virtues, the force of habits, customs, and conventions, the general scope of curriculum, the role of the teacher, and the development of the whole child. The chapter concludes by elaborating on the aims of education. Chapter XVIII is entitled “Origin and Development of Separate Schools in 2QWDULRµDQGGHVFULEHVHGXFDWLRQLQ2QWDULRVSHFLÀFDOO\LQUHODWLRQWR6HSDUDWH (Catholic) schools. This chapter describes the educational rights and privileges of Catholic citizens of Ontario and their development prior to and after Confederation (1867).

235

STATE SUPPORT FOR RELIGIOUS EDUCATION

[Editor’s Note: footnotes renumbered]

5(3257 2)7+( 52<$/&200,66,21 ON EDUCATION ,1217$5,2 1950 725217238%/,6+('%<%$37,67-2+16721 Printer to the King’s Most Excellent Majesty

0(0%(562) 7+(52<$/&200,66,2121('8&$7,21,1217$5,2

7+(+21285$%/(05-867,&(-2+1$1'5(:+23( D.S.O., M.C., V.D., (Chairman) Marshall Archibald Campbell, Esquire A. Vance Chapman, Esquire William Henry Clarke, Esquire, B.A. Charles Richard Conquergood, Esquire Edward Fawcett Henderson, Esquire Ruth S. Houck, B.SC. (Mrs. John E. Houck) Blanche Marshall, B.A., LL.D. (Mrs. Robert J. Marshall) Norman McLeod, Esquire, M.A., B.PAED. Ralph James Neelands, Esquire, M.B. Helen Isabel New, C.B.E. (Mrs. Ryland H. New) Joseph M. Pigott, Esquire, C.B.E., K.C.S.G. Loftus Henry Reid, Esquire Charles Ruper Sanderson, Esquire, M.A., B.SC. Miss Helen Margaret Sheppard Sidney Earle Smith, Esquire, K.C., M.A., LL.B., LL.D., D.C.L., F.R.S.C. Henri Saint-Jacques, Esquire, K.C., B.A., B.PH. The Venerable Archdeacon W. A. Townshend, L.TH., D.D. William L. Whitelock, Esquire, D.D.S. 236

4. OFFICIAL REPORTS

Secretary:

R. W. B. Jackson, Esquire, B.A., PH.D.

Assessor:

F. S. Rivers, Esquire, B.A., B.PAED.

Counsel:

Major Angus Dunbar, K.C.

The late Mr. Fred Molineux, O.B.E., was also a member of the Royal Commission on Education in Ontario. The late Dr. V. K. Greer, M.A., LL.D., was, until his death in 1945, Assessor to the Commission.

CHAPTER I THE EDUCATIONAL SCENE1 1. So wide is the panorama of education in Ontario that the individual may well stand amazed at its many aspects: the complexity of the administrative machinery; the multiplicity of studies and activities; and the diversity of ideas regarding purpose and SUDFWLFH7KHZKROHLVGLIÀFXOWWRFRPSUHKHQGDQGRQO\WKHVSHFLDOLVWNQRZVWKHSDUWV in detail. It is, however, the variety rather than the size of the provincial educational organization which is most impressive: public schools; separate schools; technical institutes; schools operated by the Department of Education for the deaf and the blind; schools for the training of educational personnel – all these and more are found in the great organization which has evolved over the years for the development of the province’s greatest natural resource, its young citizens. 2. It will be generally agreed that such an organization should be subjected to periodic UHYLHZLQRUGHUWKDWLWVHIÀFLHQF\DQGSUDFWLFHVPD\EHDSSUDLVHGDQGQHFHVVDU\LPprovements effected. Nations emerging from war have frequently made such reviews; indeed there is a direct relationship between warfare and educational development. In war, human effort is stretched to its utmost; emphasis is placed upon human and spiritual rather than upon materialistic values; and the national awareness of the virtues RIOR\DOW\SDWULRWLVPFRRSHUDWLRQDQGVDFULÀFHLVUHQHZHGDQGLQYLJRUDWHG$WVXFK times, man naturally turns to the improvement of education, wherein lies his greatest hope for the realization of his ideals. 3. At the outset of such a review, it must be recognized that the aims as well as the RUJDQL]DWLRQDQGDGPLQLVWUDWLRQRIHGXFDWLRQKDYHDOZD\VEHHQLQÁXHQFHGE\VRFLDO geographic, and economic conditions. It is necessary, therefore, to note some of the FRQGLWLRQVZKLFKKDYHGHHSO\LQÁXHQFHGWKHGHYHORSPHQWDQGHYHQWKHSXUSRVHVRI our educational system.

1 Except where otherwise stated, statistics in this chapter are taken from A Conspectus of the Province of Ontario, 1947, published by authority of the Provincial Treasurer.

237

STATE SUPPORT FOR RELIGIOUS EDUCATION

4. Ontario, the second largest province in the Dominion of Canada, has a total area of 412,582 square miles, including 49,300 squares miles of lakes and rivers, and a total population of approximately 4,000,000. Lying between the provinces of Quebec and Manitoba, it extends 1,000 miles from east to west and more than 1,000 miles northward from the Great Lakes to Hudson Bay. Some three and one-half times as large in area as the British Isles, it is approximately equal in size to the combined areas of Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Ohio, Michigan, Indiana, Illinois, and Wisconsin. 5. Although our province is actually made up of several geological formations, it is commonly divided into three sections – the St. Lawrence Lowlands, the Canadian Shield, and the Hudson Bay Coastal Plain. The St. Lawrence Lowlands include most of what is usually known as “Southern Ontario”. This section is divided into two parts – Eastern and Western – by the Niagara Escarpment, a line of cliffs, 250-300 feet high, extending from Queenston Heights near Niagara Falls to the Bruce Peninsula. The fertile soil and favourable climate of Southern Ontario support well developed farming communities and thriving commercial and industrial centres. The Great Lakes and The St. Lawrence River, containing the greatest volume of fresh water in the world, form an inland waterway shared by Canada and the United States, which carries much of the commerce of the central part of the continent and gives access to the Atlantic Ocean. More than two-thirds of Ontario’s urban population is located along its shores. 6. The Canadian Shield includes more than two-thirds of the province. It covers practically all of Northern Ontario except the Hudson Bay Coastal Plain, and a portion of the south-eastern part of the province. Its heavily glaciated surface is generally rugged, composed of a succession of rounded hills. It has countless rivers and lakes of irregular shape and varying size. Most of it is ill suited for agriculture, though there are some areas suitable for this purpose – particularly the famous Clay Belt which gives great promise for agricultural development. The latter area is served in part by the Ontario Northland Railway and attracts an increasing number of settlers each year. The Shield is an almost incredibly rich storehouse of mineral and forest wealth, an important source of water-power, and a popular vacation-land. It is sparsely settled despite the existence of centres of mining, lumbering, pulp and paper manufacture, transportation, and power development. Much of the Canadian Shield – and most of the Hudson Bay Coastal Plain, an area of more than 80,000 square miles – remains unsurveyed. 7. Ontario’s climate is healthy and invigorating. Much of the province enjoys approximately 2,000 hours of sunshine a year and some of it more. Temperatures are generally moderated by the Great Lakes and Hudson Bay, although in some areas they run to extremes. The average annual rainfall for the past 64 years has been more than 24 inches, and the average annual snowfall has exceeded 6 feet. 8. Because of her rich natural endowment, Ontario has a per capita production more than 20 per cent higher than that for Canada as a whole. Many industries have been developed in the province; in 1945 the net value of the products of manufacturing was nearly four times that of agriculture, seven times that of forestry, and nine times that of PLQLQJ7KHJURZWKRIVSHFLDOVHUYLFHVVXFKDVPHUFKDQGLVLQJFRQVWUXFWLRQÀQDQFH

238

4. OFFICIAL REPORTS

transportation, and communication – a growth which accompanies expanding industry and a growing population – places Ontario in a very strong economic position. 9. Ontario is well served by the two great transcontinental railway systems, the Canadian 1DWLRQDODQGWKH&DQDGLDQ3DFLÀF7KH2QWDULR1RUWKODQG5DLOZD\RZQHGDQGRSHUDWHG by the Provincial Government, serves the area from North Bay to Moosonee. The Great Lakes and the St. Lawrence River permit shipping to move from the Head of the Lakes to the Atlantic Ocean. The network of the King’s Highways spreads over Ontario. Air travel is rapidly increasing throughout the province. 10. For purposes of municipal organization, the province is divided into 12 territorial districts in the north and into 43 counties in the south. The districts include 85 per cent of the total area, but the counties contain more than 85 per cent of the total population. As recorded in the 1941 census, the population is predominantly British; 72 per cent trace their origin to the British Isles. The next largest group, containing nearly 10 per cent of the population, is French and is concentrated mainly in the Ottawa Valley, in Essex and Kent Counties, and in Northern Ontario. Other groups are German, Netherlands, Jewish, Italian, Polish, Ukrainian, North American Indian, Scandinavian, and Finnish. These groups range in size from 4.4 per cent to .7 per cent of the total population. Over 30,000 North American Indians and Eskimos live in the province. However, more than 90 per cent of the people of Ontario speak English; 7.5 per cent speak both English and French; less than 2 per cent speak French only; and about one-half of one per cent speak neither English nor French. Of the many religious denominations, 6 have more than 100,000 members. These, in order of size, are: the United Church, Roman Catholic, Anglican, Presbyterian, Baptist, and Lutheran. More than two-thirds of the total is FRQWDLQHGLQWKHÀUVWWKUHHJURXSV 11. A special study of the population trend in Ontario made by the Ontario Department of Health in August, 1944, indicated that the population of Ontario should increase, assuming a normal rate of immigration, by 400,000 within 17 years. This estimate will undoubtedly be exceeded; conditions are now favourable for selective immigration, and many immigrants have settled in Ontario since the close of the Second World War. More striking than the increase in population, however, is the growth of cities, towns, and suburban areas. Fifty years ago the ratio of urban to rural population was two to three; today it is reversed. This urbanization is closely associated with the great industrial development of the province during the same period of time. 12. It is natural that such a large province, with great variety in climate, natural resources, and type of population, should present many educational problems. Climatic conditions affect the type of school building, the transportation of pupils, and school holidays. The varying density of population makes it almost impossible to provide a uniform system of education, though this is being more and more nearly achieved. The rapid growth in population, in particular that caused by immigration, has created many problems. Educational facilities must be provided not only for a greatly increased school population, but also for many thousands of persons who do not know our language and culture. Our freedom of religious worship gives rise to special considerations relating to instruction in UHOLJLRXVNQRZOHGJH8QGHUO\LQJDOORXUHGXFDWLRQDOSUREOHPVLVWKHTXHVWLRQRIÀQDQFLDO

239

STATE SUPPORT FOR RELIGIOUS EDUCATION

resources. In this respect, the people of Ontario are especially fortunate in that they are able to support a relatively high standard of educational service.2 The manner in which the authorities have attempted to solve these problems is indicated in the following brief survey of the organization of publicly supported education3 in Ontario today. 13. In this organization, elementary schools are known as either public or separate, and secondary schools include collegiate institutes, high schools, continuation schools, and vocational schools. In terms of years, the organization is commonly described as an 8-5 plan. The elementary schools normally offer a programme given in eight grades, exclusive of the kindergarten; the secondary schools give courses from grades IX to XIII. In the former the age of pupils is generally from 6 to 14, and in the latter, from 14 to 19 years. Some elementary schools offer courses in grades IX and X, sometimes UHIHUUHGWRDVÀIWKFODVVHVDJRRGQXPEHURIWKHPKDYHDNLQGHUJDUWHQ6RPHVHFRQGDU\ schools give courses only to the end of grade XII; among these are the majority of the continuation schools, several vocational schools, and very small high schools employing only two teachers. 14. In the elementary schools, the subjects of study for grades I to VI are as follows: English, arithmetic, social studies, health and physical training, natural science, music, and art. In grades VII and VIII, crafts, agriculture, and industrial arts and crafts or home economics may be added at the discretion of the local school board. 15. A number of children who live in sparsely settled parts of Northern Ontario are beyond the reach of the regular school system. To meet their needs, correspondence courses, including special courses for children whose mother tongue is French, have been arranged by the Department of Education. These courses are available also to children who cannot attend school on account of illness or physical disability, to children of missionaries and others who are temporarily outside Canada, to children in sanatoria and preventoria where there is no resident teacher, and to prisoners in penitentiaries and reform schools in Ontario. In addition, on the recommendation of the local elementary school inspector or high school principal, any pupil attending school may be enrolled for correspondence courses in any subject, academic or vocational, not provided in the local school. Over a period of 22 years, the annual enrolment of pupils in these courses has increased from 200 to 1,600. Lessons are supplied in academic subjects for all grades from I to XII and in vocational subjects in grade IX. The courses are given free of charge and textbooks are provided up to and including grade VII. Special courses for adults in some elementary school subjects are also available. 16. In a similar way, Ontario’s unique “School on Wheels” has been developed to meet the needs of children living in isolated areas but within reach of a railway. The “school”

2

K. F. Argue, Wealth, Children and Education in Canada, Report on the Financing of Education in Canada, prepared at the request of the Alberta Teachers’ Association for presentation at the National Convention of the Canadian Teachers’ Federation, Vancouver, B.C., August 13-17, 1945, pp. 12-13.

3

By the phrase “publicly supported education” we mean education in public, separate, continuation, high, and vocational schools, collegiate institutes, school for the blind, school for the deaf, normal schools, and other schools and classes below the university level conducted in accordance with the provisions of the various school Acts and in receipt of legislative grants made under The Department of Education Act.

240

4. OFFICIAL REPORTS

is a specially equipped railway car containing a classroom and living quarters for the teacher. Seven such cars, operating over a total distance of more than 1,000 miles, offer educational opportunities to more than 200 boy and girls. The railways provide the cars, the transportation, and part of the cost of building spur lines; the Department of Education pays for the renovation of the cars and for the instruction, and pays a percentage of the railway’s investment in the undertaking. 17. The provisions for the education of handicapped children in auxiliary classes and in the provincial school for the blind and the provincial school for the deaf is described in a subsequent chapter. 7KHFRXUVHVLQVHFRQGDU\VFKRROVDUHGLYHUVLÀHGWRPHHWWKHQHHGVRIWKHDGROHVFHQW pupil. In collegiate institutes, high schools, and continuation schools, the General Course is offered. For grade IX it includes the following subjects:4 English, social studies, physical education, guidance (occupations), mathematics, general science or agricultural science, French, either art or music or art and music, shop work or home economics, agriculture, and either typewriting or business practice or typewriting and EXVLQHVVSUDFWLFH7KHÀUVWÀYHVXEMHFWVDUHREOLJDWRU\DQGWKHUHPDLQGHUDUHOLVWHGDV options. For a complete year’s work any three of the options are taken in addition to the ÀYHREOLJDWRU\VXEMHFWV$QDGGLWLRQDORSWLRQPD\EHWDNHQE\DSXSLODWWKHGLVFUHWLRQ of the board of trustees.5 In schools which have a department organized for the purpose, there is practical work in agriculture. In grades X, XI, XII and XIII some subjects are obligatory. In grade X these are English, social studies (history and geography), and physical education. In grades XI and XII, history replaces social studies; and in grade XIII, English and physical education are the only obligatory subjects. In many of the smaller schools, because of the limited number of subjects taught, the individual student has no choice in the selection of subjects qualifying for the graduation diploma. 19. In vocational schools the following courses may be offered: industrial, agricultural, home economics, commercial, and art. These are normally four-year courses, providing DJHQHUDOHGXFDWLRQFRPELQHGZLWKVSHFLDOL]HGWUDLQLQJLQVRPHSDUWLFXODUÀHOGRIZRUN Technical institutes have recently been established at Haileybury, Hamilton, Toronto, and Port Arthur-Fort William. The institute at Toronto is polytechnical; the one at Haileybury specializes in mining; the one at Hamilton concentrates on textiles; and the institute at Port Arthur-Fort William offers technical courses in mining and forestry as well as the ÀUVW\HDUXQLYHUVLW\FRXUVHVLQJHQHUDODUWVDSSOLHGVFLHQFHDQGSURIHVVLRQDOIRUHVWU\ 7KHIROORZLQJFHUWLÀFDWHVDQGGLSORPDVLQHOHPHQWDU\DQGVHFRQGDU\HGXFDWLRQDUH awarded by the Department of Education:6    7KH,QWHUPHGLDWH&HUWLÀFDWH – to students who have successfully completed the prescribed courses for grades VII, VIII, and IX and one of the prescribed courses for grade X.

4

See Circular H. S. I, 1950.

5

Department of Education, Memorandum, May, 1950.

6

See Circular H. S. I, 1950.

241

STATE SUPPORT FOR RELIGIOUS EDUCATION

(2) The Secondary School Graduation Diploma – to students who have successfully FRPSOHWHGRQHRIWKHFRXUVHVSUHVFULEHGIRUJUDGHV;,DQG;,,RUVXFKPRGLÀFDtions of these courses as the Minister may approve at the beginning of the school year. (3) The Secondary School Honour Graduation Diploma – to students who have completed a course of study prescribed for grade XIII and hold standing in English composition and English literature and in six grade XIII papers chosen from the optional subjects. 7KH ,QWHUPHGLDWH &HUWLÀFDWH IRU ZKLFK WKHUH DUH QR GHSDUWPHQWDO H[DPLQDWLRQV LV awarded on the recommendation of the principal of a secondary or elementary school, but the recommendation of an elementary school principal is subject to the approval of his inspector. The Secondary Honour Graduation Diploma are awarded on the recommendation of a principal of a secondary school, but, for the latter diploma, credits in grade XIII subjects are prescribed, which can be obtained only by passing the upper school examinations set and marked under the supervision of the Department of Education. 21. The pronounced trend toward universal education at the secondary school level has made necessary a curriculum designed not exclusively for university entrance, but to meet a great variety of needs. Among the changes which have resulted are an increase in the number of optional subjects, a reduction in the number of external examinations, an increased emphasis on extra-curricular activities, and the provision of special direction and supervision for music, art and crafts, health activities, guidance, and audio-visual aids. The need to make adequate provision for bright children, for backward children, and for other atypical children has been recognized, but action has been delayed by the GLIÀFXOW\RISURYLGLQJIRULQGLYLGXDOGLIIHUHQFHV$QGGHVSLWHDQH[WHQVLYHEXLOGLQJ SURJUDPPHDGHÀFLHQF\RIDFFRPPRGDWLRQH[LVWV7KLVKDVEHHQDJJUDYDWHGE\WKH postponement of construction during the years of depression and the Second World War. 22. Our educational system has evolved slowly over the years; it has conformed to changing conceptions of education and has been adapted to meet special local conditions as society developed and new needs arose. Many of the problems associated with the system today have their origin in history and hence cannot be understood or resolved without a knowledge of the past. 23. Only a brief summary of the developments of the past 150 years need be given at this point. They fall conveniently into four periods: the Pioneer Period, 1800-1840; the Period of Expansion, 1840-1870; the Period of Consolidation, 1870-1900; and the Twentieth Century. The Pioneer Period, 1800-1840 24. At the opening of the nineteenth century, the population of Upper Canada was 70,000. Nearly all the settlers lived in scattered clearings hewn from the forest. By 1841 the number of inhabitants had increased to more than 450,000. Life was rigorous; FRPPXQLFDWLRQDQGWUDYHOZHUHGLIÀFXOWPRQH\DQGPDQXIDFWXUHGJRRGVZHUHVFDUFH and almost everything had to be grown or made on the farm. There were few books

242

4. OFFICIAL REPORTS

and newspapers; and there was little leisure or opportunity for intellectual or aesthetic pursuits of any kind. 25. The schools were generally regarded as existing primarily for those who might be expected to enter the professions or take positions in the government. This is not surprising, since at this time no country in the world had a scheme of general schools arising from a belief in universal education. Land grants for grammar schools and a university had been set aside in 1797, but these had had little effect. The District Public School Act of 1807,7 which provided grants of £100 a year each to the masters of eight public (grammar) schools, was more successful. In addition to the institutions which resulted from these efforts, some private schools and a few academies founded as voluntary undertakings by religious bodies or by townspeople came into existence. By 1839 there were about 40 or 50 schools which might be described as secondary on the grounds that they offered advanced instruction. Of these, 13 were public (grammar) schools, and perhaps a quarter of the remainder might qualify as academies. Attempts were also made to establish institutions of higher education. Through the efforts of John Strachan, a charter for an Anglican university was secured in 1827; but there was opposition to its religious exclusiveness, and it was found possible to set up only a superior grammar school – Upper Canada College which offered some instruction at the higher level and VHUYHGDVDWHPSRUDU\XQLYHUVLW\IURPXQWLOZKHQ.LQJ·V&ROOHJHZDVÀQDOO\ opened in Toronto. Meanwhile, the Methodists, led by Egerton Ryerson, opened Upper Canada Academy in 1837; this became Victoria College in 1841. 26. Elementary schools were established more slowly. The representatives in the Legislative Assembly who were vigorous in denouncing provincial expenditure on grammar schools for the few were less vigorous in advocating education for the many. In 1816, however, an Act8 was passed to provide for the operation of elementary schools. It set aside £6,000 – largely for payment of teachers’ salaries – to supplement the rate-bills and other contributions collected from parents. Each school was to have three elected trustees. Shortly afterwards attempts were made to establish monitorial schools of the type operated in England by the National Society9 and to bring all education under the direction of the central authority. The success of these efforts, however, was limited and short-lived. The General Board of Education, appointed by the Legislature in 1823, H[HUWHGVRPHLQÁXHQFHWKURXJKWKHIUHHGLVWULEXWLRQRI0DYRU·V6SHOOHUEXWLQDFRXQWU\ where the population was scattered and transportation slow there was little hope of securing conformity to regulations and no excuse whatever for monitorial schools, designed as they were for hundreds of pupils in a classroom. It is not surprising, therefore, that the General Board was disbanded in 1833, and that in the same year grants to elementary schools under local control were substantially increased.

7 An Act to Establish Public Schools in each and every District of this Province, 47 Geo. III, Ch. 6, S.U.C. 8 An Act Granting to His Majesty a sum of money to be applied to the use of Common Schools throughout this Province, and to provide for the Regulations of said Common Schools, 56 Geo. III, Ch. 36, S.U.C. 9 The National Society for Promotion of the Education of the Poor in the Principles of the Established Church throughout England and Wales.

243

STATE SUPPORT FOR RELIGIOUS EDUCATION

27. In 1830, when the population of Upper Canada was about 200,000, there were approximately 400 elementary schools, enrolling a total of some 10,000 pupils. The typical elementary school at this time was a structure of logs, about 18 feet by 20, equipped only with rough benches, a slanting board along the wall for writing, a lectern-type desk IRUWKHWHDFKHUDÀUHSODFHDSDLODQGGLSSHUIRUGULQNLQJZDWHUDQGDVXSSO\RIELUFK rods. The teacher had his textbooks – a spelling book which might, like Mavor’s, serve every purpose, probably also a speller and a reader of more advanced type, an arithmetic, possibly a grammar and a geography, and certainly a Bible. The pupil brought such textbooks as were available, a slate, and such paper as could be found. Ink, pens, and rulers were usually home-made. 28. As a rule, the common school was in operation for six months during the winter. The WHDFKHUZDVRIWHQDQROGVROGLHURUDQHZFRPHUZLWKRXWFDSLWDOLOOTXDOLÀHGIRUPRUH lucrative pursuits, who was willing to accept free board, a small Government grant, and the prospect of collecting a small amount from rate-bills on parents for his half-year’s hire. The common-school teacher of 1830 had, himself, only a common school education DQGQRSURIHVVLRQDOWUDLQLQJKLVHVVHQWLDOTXDOLÀFDWLRQZDVDELOLW\WRVXSSUHVVGLVRUGHU while the pupils committed to memory the lessons of the textbook and recited them for him. The pupils, usually 12 to 24 in number, attended on a voluntary basis. They were for the most part 6 to 10 years of age; but young men and women of 18 or 20 sometimes returned to school for the winter in cases where a competent teacher had been engaged. In some places a school for girls and young children who could be spared from the work at home might be conducted by a woman. Only too frequently, some schools remained closed for a full year or more because no teachers could be found. 29. From the scanty evidence available, it appears likely that nearly all children remained at school long enough to learn to read in a halting, mechanical fashion and to spell orally a considerable number of words. This required a labourious pilgrimage of from 9 to 15 months in the spelling book. The pupils progressed from the alphabet to words of two and three syllables; and they had parallel lessons in reading. The latter began with sentences composed of two-letter words, such as SO HE IS UP, and arrived as quickly as possible at sententious narratives, strongly moral and religious in tone. After about 15 PRQWKVRIVSHOOLQJDQGUHDGLQJDSSUR[LPDWHO\IRXUÀIWKVRIWKHSXSLOVUHPDLQHGWROHDUQ ZULWLQJDQGDULWKPHWLFDQGWRUHDGDQGVSHOOIURPPRUHGLIÀFXOWERRNV$ERXWQLQHPRQWKV appears to have been the average time required for this. Only a small minority of pupils UHPDLQHGORQJHUWKHVHVWXGLHGJUDPPDUDQGJHRJUDSK\ZKHUHWKHWHDFKHUZDVTXDOLÀHG to instruct in these subjects. The usual common school education, therefore, consisted mainly of the study of spelling, reading, writing, and arithmetic during four six-month periods of voluntary attendance. There was also religious and moral instruction, which consisted of memorizing New Testament verses and reading the Bible. Meagre as such an education was, it at least equalled, if indeed it did not surpass, that generally received by children in England and other countries at this time. 30. The selection and arrangement of the content of the courses of study in this old-time schooling, while perfectly logical from an adult point of view, were uninteresting and probably almost unintelligible to the child. Partly as a consequence, discipline was

244

4. OFFICIAL REPORTS

harsh. The range of the content was narrow, but it should be remembered that the aims of education were limited. Most parents thought that children derived little advantage from more than the minimum of “book learning” required for the simple business of contemporary life. Leaders in church and state emphasized the need for obedience and conformity. It was not fashionable to encourage initiative in the child. The pupil in school was expected to memorize and not to question. The sort of thing he memorized LVLOOXVWUDWHGE\WKHGHÀQLWLRQZKLFKKHOHDUQHGE\KHDUWDVDQLQWURGXFWLRQWRDQHZ SURFHVVLQDULWKPHWLF´0XOWLSOLFDWLRQWHDFKHVRIWZRQXPEHUVJLYHQWRÀQGDWKLUGZKLFK shall contain either of the given numbers as often as the other contains a unit.” 31. The 11 grammar schools in operation during the year 1829 had a total of only 280 pupils enrolled. Of these, 61 were learning to read and write, 112 were studying grammar and mathematics, and 108 had reached the secondary level and begun the study of Latin. Although the grammar schools were intended only for boys, girls were sometimes admitted if their parents refused on social grounds to send them to common school. Obviously, therefore, a grammar school did not cater only to advanced students. The grammar school master – usually a clergyman of the Church of England – was competent to impart a knowledge of Latin and mathematics, and occasionally of Greek, by the traditional methods which he had acquired at grammar school and university. Since a pupil in the classics paid substantial fees and often paid also for fuel, repairs, and board, the total income of the master, including the Government grant of …DQGKLVVWLSHQGDVPLQLVWHUZDVVXFKWKDWKHFRXOGOLYHZLWKWKHGLJQLW\EHÀWWLQJ his position. School was conducted in the master’s house, in rented premises, or in a school-house. The pupils ranged in age from 5 to 17 years, and the school year was usually ten months or more in length. Teaching procedure was generally by way of the routine individual assignment and recitation. The curriculum included English grammar, Latin, mathematics, religious knowledge, and some history and geography. Since each school was virtually a law unto itself, an exceptional master like the brilliantly gifted Strachan might enrich the content and enliven the nature of the instruction he gave; but the average teacher kept to the narrow grind. 32. The progress of education was impeded during the period by jealousy and distrust between opposing political factions. The grammar schools were attacked by those who objected to a disproportionate expenditure of public money on education designed for relatively few children. The common schools were disliked by others on the grounds that they were following the pattern of the American district school; and their teaching was distrusted if it happened to be done by American teachers or through the medium of American textbooks. Some supporters of the Family Compact, opposed to the growing spirit of “insubordination and equality” among the people, favoured a differentiated education for the few. The political struggle of the time had its repercussions on the development of education; indeed, it occasionally brought both grammar schools and common schools to a rather sorry plight. The Period of Expansion, 1840-1870 33. Between the census years 1841 and 1871 the population of Ontario grew from WRRYHU7KHUHZDVDUDSLGULVHLQWKHÀUVWGHFDGHRZLQJWRDÁRRG 245

STATE SUPPORT FOR RELIGIOUS EDUCATION

of immigration, and afterwards a steady increase. Urban centres increased in size and in QXPEHU:KHUHDVLQWKHUHZHUHRQO\ÀYHFHQWUHVZLWKRUPRUHLQKDELWDQWV in 1871, there were 12 with over 5,000 and 26 with over 2,000. Transportation and communications were greatly improved in the 1850’s through the building of railways and the introduction of cheap, prepaid postage and the telegraph. Wealth, comforts, DQGERRNVLQFUHDVHGDQGUHDGLQJEHFDPHPRUHSRSXODU7KHQHZLQÁX[RILPPLJUDQWV coincided with the extension of political responsibilities; in the 1840’s democratic control over politics was established, locally by the Municipal Acts, and provincially WKURXJKWKHDWWDLQPHQWRIUHVSRQVLEOHJRYHUQPHQW7KHLQÁX[FRLQFLGHGDOVRZLWKD rapid expansion of educational facilities and a marked improvement in educational practice and ideas. 34. The man of the hour was Egerton Ryerson. It was he who, as Superintendent of Education10 from 1844 to 1875, fashioned and constructed the Ontario school system. He set up a strong central authority to prepare regulations, to draw up a course of study for the whole province, to enforce the use of a single set of authorized textbooks, and WRFRQWUROWKHTXDOLÀFDWLRQVRIWHDFKHUV$WWKHVDPHWLPHKHOHIWWRWKHORFDOERDUGV GHÀQLWHUHVSRQVLELOLWLHVLQFOXGLQJWKHHQJDJHPHQWRIWHDFKHUVDQGWKHPDLQWHQDQFHRI the school. By 1850 he had not only achieved all this in spite of opposition, but had also introduced normal school training and some degree of supervision over schools by county boards and local superintendents. During the 20 years that followed, he SHUVXDGHGRXWRIVFKRROERDUGVWRÀQDQFHHGXFDWLRQHQWLUHO\IURPORFDO taxes and thus provide free schools. This and other improvements he brought about by the persistent missionary zeal, through public statements and addresses, and through his annual reports in the Journal of Education. 35. A few statistics will indicate the extent of the educational expansion during this period. Between 1845 and 1871, enrolment in common schools increased at a rate approximately twice that of the population – from about 96,000 to 446,000. The school year, which was less than eight months long in 1844, had been extended to over eleven months by 1871. At the latter date the ordinary period of schooling was probably about ÀYH\HDUVRUQHDUO\WZLFHDVORQJLQPRQWKVDVWKDWIRUWKHSLRQHHUFKLOG7KHWRWDO amount spent on salaries of teachers and maintenance of schools was over four times as great in 1870 as in 1850. At the beginning of the period there were no common school libraries; in 1870 there were 1,146, with a total of 240,000 volumes. 36. As might be expected, the typical common school of 1860 was an ungraded rural school, although graded schools existed in cities and towns. The school-house was of frame construction and had a blackboard, maps, and desks instead of benches for the pupils. The teacher was still a man who had neither normal school training nor grammar school education. The curriculum included two new subjects which were thought to be valuable for citizens of a democracy – grammar for clear thought and accurate speech, and geography for a knowledge of the world. The most striking innovation, however, was the new method of class teaching – by oral question and answer. This, of course,

 +LVH[DFWWLWOHYDULHGEXWWKHYDULDWLRQVDUHRIPLQRUVLJQLÀFDQFH

10

246

4. OFFICIAL REPORTS

ZDVWKHUHVXOWRI3HVWDOR]]LDQLQÁXHQFH5\HUVRQVSUHDGLWE\ZD\RIWKHJournal of Education and the normal schools. Graduates of these schools taught the gospel in county teachers’ associations. The new method was made possible largely by the adoption of uniform textbooks for all pupils in the schools. 37. But, while education in the elementary schools was developing rapidly, it was in the secondary schools that a fundamental change occurred. This did not happen until Ryerson KDGEHHQLQRIÀFHIRUVRPHWLPH$OWKRXJKDQ$FWKDGEHHQSDVVHGLQ11 to increase the number of grammar schools, Ryerson paid little attention to such schools until he was able to bring them under the central authority. In 1853 an Act12 was passed which PDGHWZRIXQGDPHQWDOFKDQJHVÀUVWO\LWUHTXLUHGWKHFRXQW\FRXQFLOVWRDSSRLQWWKH trustee boards, thus instituting an indirect type of local control; secondly, it encouraged the establishment in smaller centres of the so-called union schools, which consisted of grammar schools linked to common schools. The aim of this second change was to make secondary education available to more young people. At the same time Ryerson introduced the grammar school entrance examination to keep elementary school pupils out of the grammar schools and to make the latter a true secondary stage of education between common school and university. Unfortunately, however, when the grammar schools were thus made a part of the common educational system, it was not possible to go far in introducing a suitable curriculum. Science, for example, was included; but WKHUHZHUHIHZWHDFKHUVTXDOLÀHGWRJLYHLQVWUXFWLRQLQLW7KXVWKHQHZSXSLOVRIWKH grammar schools, however little taste or use they might have for what they acquired, were obliged to follow the traditional academic curriculum. On the other hand, the quality of secondary education suffered by the pretence that such an education could be given in small union schools without adequate staff or facilities. 38. In 1860 there were 86 grammar schools with enrolments ranging from 24 to 150 and a total enrolment of 4,400 pupils. Although they varied greatly, we may select a school of 50 pupils as reasonably typical of this time. It would be housed in a freehold brick EXLOGLQJHTXLSSHGZLWKEODFNERDUGVPDSVDQGJOREHVEXWZLWKRXWDOLEUDU\VFLHQWLÀF apparatus, or other modern facilities. Pupils paid about $18 a year in fees and usually remained in school for two years or a little more, frequently for the purpose of qualifying IRUDQHOHPHQWDU\VFKRROWHDFKLQJFHUWLÀFDWH$VIRUWKHWHDFKHUVWKHKHDGPDVWHURIWKH typical school was probably a university graduate, and his assistant, if any, was most OLNHO\FHUWLÀFDWHGDVKDYLQJORZHUEXWDFFHSWDEOHDFDGHPLFDWWDLQPHQWV7KHLUVDODULHV might be $700 and $400 a year, respectively. These salaries were low enough, but were better than they appear to be since skilled and unskilled labourers at that time received about the same wage per day as they receive now per hour. 39. Of the 50 pupils attending our typical grammar school in 1860, nearly all were VWXG\LQJ %ULWLVK DQFLHQW RU &DQDGLDQ KLVWRU\ XVXDOO\ WKH ÀUVW DERXW KDOI UHFHLYHG instruction in Latin, about one-quarter in French, and about one-seventh in Greek.

11

An Act to Provide for the Advancement of Education in this Province, 2 Vict., Ch. 10, Sec. 8, S.U.C.

12

An Act to Amend the Law Relating to Grammar Schools in Upper Canada, 16 Vict., Ch. 186, Sec. 10 and 11 (4), S.P.C.

247

STATE SUPPORT FOR RELIGIOUS EDUCATION

About half the pupils were also recorded in the register as students of science; but this meant little more than that they were studying the selections on science in the authorized UHDGHU2QKLVYLVLWWRWKHVFKRROWKHJUDPPDUVFKRROLQVSHFWRUZRXOGÀQGWKHWHDFKLQJ RIPRVWVXEMHFWVWREHVXSHUÀFLDOLWZRXOGQRWVWLPXODWHWKRXJKWDQGXQGHUVWDQGLQJLW ZRXOGUHTXLUHFKLHÁ\DPHPRUL]DWLRQRIGHÀQLWLRQVDQGIDFWV2QO\RQHSXSLOLQWKLUW\ who entered a grammar school passed the easy matriculation examinations, although there were now a number of universities, including Victoria College, founded in 1841, Queen’s College, 1842, the University of Toronto (formerly King’s College), 1849, and Trinity University, 1852. The Period of Consolidation, 1870-1900 40. These were years of broadening outlook. Ontario was now a member of a growing federation, linked to other provinces by three-cent postage in 1868, by the Intercolonial 5DLOZD\ LQ  DQG E\ WKH &DQDGLDQ 3DFLÀF 5DLOZD\ LQ  7KH QHZ FRQWDFWV extended beyond the Canadian borders; the International Bridge at Niagara was opened in 1873; in the nineties there was a large exportable surplus of Canadian wheat; in the last year of the century a Canadian contingent went to the Boer War. At the same time new horizons were opening up for a good many individual citizens; during these same years the prejudice against reading as a pastime almost entirely disappeared. Whereas in pioneer days little was read except the Bible and an occasional newspaper, and in the mid-century only purposeful reading of factual books was regarded as reasonably UHVSHFWDEOH LQ WKH SHULRG IROORZLQJ &RQIHGHUDWLRQ ÀFWLRQ DQG SRHWU\ ZHUH ZLGHO\ read. 7KHVHEURDGHUKRUL]RQVZHUHUHÁHFWHGLQHGXFDWLRQ7KHVFKRROUHDGHUVZHUHUHSODFHG by texts containing more imaginative prose and poetry of literary merit. Literature and music were added to the elementary school curriculum. In the secondary schools more time was spent on literature, modern languages, and science; and there was a widening choice of optional subjects. In 1871 the common schools, with the exception of separate schools, were designated “Public Schools” and made free and open to all.13 In the same year the grammar schools became high schools. In these, pupils were charged moderate fees or none at all. Enrolment increased nearly 300 per cent during the period, while WKHJHQHUDOSRSXODWLRQLQFUHDVHGRQO\SHUFHQW7KHRIÀFHRI&KLHI6XSHULQWHQGHQW of Education was discontinued in 1875;14 instead, the direction of publicly supported education was placed under a Minister of Education responsible through the Government and Legislature to the people. 'XULQJWKHVDPHSHULRGWKHUHZHUHLQFUHDVHGHIIRUWVWRVHFXUHHIÀFLHQF\LQLQVWUXFtion in the classroom. Some of these were, unfortunately, governed almost entirely by considerations of cost and were short-sighted and niggardly. In 1871, for example, an attempt was made to raise standards in high schools by using examination results as

13

An Act to Improve the Common and Grammar Schools of Ontario, 34 Vict., Ch. 33, Sec. 1, S.O., 1870-

71. 14

An Act Respecting the Education Department of Ontario, 39 Vict., Ch. 16, S.O., 1875-76.

248

4. OFFICIAL REPORTS

a basis for distributing legislative grants. The direct consequence, of course, was an LQFUHDVHRISUHVVXUHDQG´FUDPµLQWKHVHVFKRROV7HDFKHUV·MRXUQDOVZHUHÀOOHGZLWK examination questions and answers; English literature books were published with two pages of notes for every page of text; pedagogical skill tended to consist only in drilling into the student whatever could be made use of in a test. The scheme was discontinued LQEXWLWZDVSUREDEO\LQÁXHQWLDOLQUDLVLQJWKHZULWWHQH[DPLQDWLRQWRDSRVLWLRQ of dominance which it was to retain long after 1882. 43. Another illustration of the same attitude may be found in the means adopted to provide training for all teachers. In 1875 less than 25 per cent of the elementary school teachers in service had received professional training. Accordingly, a second training centre, the Ottawa Normal School, was established. This improved the situation, but QRWVXIÀFLHQWO\DQGLQWKH*RYHUQPHQWGHYLVHGDSODQWRVWDIIWKHHOHPHQWDU\ schools with teachers who had a minimum of training, at very little cost to the central authority and the employing boards. According to this plan, a non-professional Third &ODVV&HUWLÀFDWHZDVRIIHUHGRQWKHEDVLVRIDQH[DPLQDWLRQZKLFKFRXOGEHSDVVHGDIWHU D\HDURIFUDPPLQJDWKLJKVFKRROLQDGGLWLRQDSURIHVVLRQDOFHUWLÀFDWHZDVDZDUGHG after 13 weeks’ attendance at a county model school. This was a selected elementary school at which the teacher in training secured instruction, advice, and practice under the guidance of the master in charge. Teachers who remained in the profession were UHTXLUHGWRLPSURYHWKHLUDFDGHPLFDQGSURIHVVLRQDOTXDOLÀFDWLRQVDWKLJKVFKRRODQG normal school, but the effect of this easy entrance into teaching was that more than half the schools of the province became staffed with transients. Teaching tended to become a mere avenue to other occupations. After 1872 the number of women teachers began to exceed the number of men. Moreover, the county-model-school plan resulted in too great a supply of teachers; and, as a consequence, salaries declined and even enlightened boards in prosperous communities were tempted to offer the lowest prevailing rates. 44. In spite of changes, good or bad, that occurred in education in the name of progress or economy, the school system developed in the mould which had been designed by Egerton Ryerson. For example, there had been various divisions of elementary schools into classes and grades in the 25 years before 1870, but in the following decade the four-book, or eight-grade, scheme became the accepted pattern. Similarly, there were two distinct courses in the high schools when the period began; subsequently, an increasing number of subjects were made optional for different graduation examinations. But in WKHQLQHWLHVDXQLÀHGKLJKVFKRROSURJUDPPHZDVGHVLJQHGWROHDGWRDXQLÀHGVHWRI examinations, and “matriculation” became the gold standard of educational currency. 2QHPD\ORRNEDFNWRWKHODVW\HDUVRIWKHQLQHWHHQWKFHQWXU\DQGÀQGPDQ\RWKHU archetypes of the educational machinery of today. There is, indeed, from an educational point of view, good reason for regarding “the period of consolidation” as falling within these years. 45. In 1890 the population of Ontario was roughly 2,114,000. There were 5,700 public schools and more than 8,000 teachers. Almost half a million pupils were enrolled, of whom about a quarter of a million were in attendance on an average day. There were also about 260 Roman Catholic separate schools with 35,000 pupils on the roll. Graded

249

STATE SUPPORT FOR RELIGIOUS EDUCATION

elementary schools were operating in towns and cities, and kindergartens were established in some city schools. The one-room rural school, of brick or frame construction, was, however, the most common type. In most places the elementary school was open for the full school year of 208 days. About seven-eights of the pupils progressed as far as the fourth reader (grades VII and VIII). Two-thirds of the teachers were women. 46. During any one day in an average public elementary school of 1890, all the pupils studied the three R’s; nearly all engaged in drawing; two-thirds were taught geography, grammar, and composition; about a third learned some Canadian history, drill and calisthenics, music, and hygiene; and about one-quarter spent some time on English history. These ratios varied in different schools. They were affected by the number of grades in which a subject was taught and by the fact that rural schools did not offer all VXEMHFWV7KH\GRQRWUHÁHFWWKHSURSRUWLRQDWHWLPHDOORWWHGWRDQ\VXEMHFWEXWWKH\GR give some indication of content and emphasis in the elementary school programme. $ERXWDÀIWKRIWKHSXSLOVLQWKHIRXUWKERRNFODVVHVUHPDLQHGIRUD\HDURUVRWRVWXG\ FRPPHUFLDOZRUNDQGPDWKHPDWLFV²DQGVRPHWLPHVVFLHQFH²LQWKHÀIWKERRN 47. By way of the entrance examination a highly selected group of pupils entered the high schools and collegiate institutes. In 1890-91, only 22,000 of 85,000 pupils in the fourth book wrote either the December or July entrance examination, and only 12,000 passed. Moreover, of the 19,400 enrolled in the secondary schools, nearly 15,000 were LQWKHÀUVWIRUPDQGDERXWLQWKHVHFRQG7KHUHZHUHRQO\LQWKHWKLUGDQG in the fourth form, and about 500 might be expected to matriculate, most of them with MXQLRUPDWULFXODWLRQIURPWKHWKLUGIRUP7KRVHZKRUHFHLYHGFRPPHUFLDOFHUWLÀFDWHV were more than four times as numerous as those who matriculated; and more than one student in four left high school to become a teacher. 48. The 31 collegiate institutes were substantial institutions, invariably equipped with OLEUDULHVDQGVFLHQWLÀFDSSDUDWXV7KH\KDGDQDYHUDJHHQUROPHQWRISXSLOVDQG employed some specialist teachers. The 89 high schools were about one-third as large. They varied in staff and facilities. The original distinction between a high school and a collegiate institute had been based on the fact that the latter institution had to have at least 60 boys studying Latin, but in the 1880’s examination results were made the basis for distinguishing between the two institutions. It seems permissible to describe a typical secondary school as an institution combining the features of a collegiate institute and a high school and to discuss its curricular programme. 49. The typical secondary school of 1891 offered about 24 of 28 studies listed in the departmental returns, though some studies were merely divisions of subjects. Practically all pupils studied English grammar, composition, and literature; history; geography; arithmetic; and algebra. Two-thirds or more studied reading, spelling, writing, drawing, geometry, and bookkeeping (which included “commercial transactions”). Between 40 and 50 per cent had lessons in French, précis writing, and indexing and had calisthenics or drill. Between 25 and 40 per cent studied Latin, physics, and botany and practised gymnastics. The percentages of students who took chemistry, German, Greek, and trigonometry were 18, 12, 6 and 4, respectively. Vocal music, temperance and hygiene, shorthand, and zoology were taught in a few schools. It must be remembered, of course,

250

4. OFFICIAL REPORTS

that subjects studied by more than 25 per cent of the pupils must have been begun in WKHÀUVWIRUPLQZKLFKPRVWRIWKHSXSLOVZHUHHQUROOHG2ISXSLOVLQWKHW\SLFDO school, only three would matriculate at the junior level and only one at the senior. The Twentieth Century 50. In comparison with any previous period, the twentieth century has been marked by large-scale organization in private business and in governmental affairs. Ontario, as the chief industrial province of the country, has perhaps been most affected by the results of mechanization and industrial organization. The developments in industry have LQHYLWDEO\EHHQUHÁHFWHGLQFKDQJHVLQWKHÀHOGRIHGXFDWLRQ 'XULQJWKHÀUVW\HDUVRIWKHFHQWXU\HOHPHQWDU\VFKRROVVKRZHGRQO\DPRGHUDWH gain in enrolment in proportion to total population, but in reality the expansion was greater than it seems. In 1901, when the total population of Ontario was 2,182,947, the number of young people between the ages of 5 and 24 was 904,538; in 1941 the corUHVSRQGLQJÀJXUHVZHUHDQG7KXVWKHSRWHQWLDOVFKRROSRSXODWLRQ increased in the ratio of three to four; but during the same period, although the enrolment in elementary schools increased only from 459,000 to 534,000, average attendance LQFUHDVHGIURPWR7KHUDWLRLQWKLVODWWHUFDVHLVWKDWRIÀYHWRQLQH 52. At the same time that this increase occurred, the elementary school programme was broadened. In 1904, nature study, art, manual training, and household science were added to the curriculum, although the latter two subjects were provided in only a few schools. Even more important was the introduction of new programmes of study in 1937 and 1938. Although in these the better features of earlier courses were retained, the revision was one of the most revolutionary that has taken place our educational system. In comparison ZLWKWKHROGFXUULFXOXPWKHQHZRQHZDVVXJJHVWLYHUDWKHUWKDQSUHVFULSWLYHDQGÁH[LEOH rather than uniform and standardized. It gave greater freedom to pupils and encouraged them to participate actively in the school programme. It encouraged selection and enrichment of the content of the courses, at the discretion of the teacher, and provided for group undertakings of the comprehensive, life-situation variety. Emphasis was placed on creative work and aesthetic appreciation, and social studies were encouraged with a view to solving the problems of leisure and citizenship. Teaching became more skilful. Textbooks became more attractive and were better prepared. 53. The expansion of secondary education during the same period was even more striking. In proportion to population, the average attendance of students in all types of secondary schools was three times greater in 1939-40 than at the beginning of the century. Much of this increase was caused by The Adolescent School Attendance Act,15 which became operative in September, 1921, and which raised the upper limit of the compulsory school attendance age, with certain exemptions, to 16 years. Largely as a result, the average daily attendance in all secondary schools almost doubled between 1919-20 and 1924-25. Some of the increase was also caused by a rapid growth in vocational education, stimulated by grants from the Federal Government. The average

15

9 Geo. V., Ch. 78, S.O., 1919.

251

STATE SUPPORT FOR RELIGIOUS EDUCATION

daily attendance in vocational courses rose from 2,771 in 1919-20 to 35,130, in 1939-40, but the majority of secondary school students continued to be enrolled in collegiate institutes, high schools, and continuation schools. 7KHVHFRQGDU\VFKRROFXUULFXOXPOLNHWKDWRIWKHHOHPHQWDU\VFKRROVZDVPRGLÀHG WRÀWWKHWLPHV6XEVWDQWLDOFKDQJHVLQWKHZKROHÀHOGRIVHFRQGDU\HGXFDWLRQZHUH instituted in 1921 and subsequent years. The major innovations were: enforcement of The Adolescent School Attendance Act; abolition of fees; increased legislative grants DQGRWKHUFKDQJHVLQÀQDQFLQJUHYLVLRQRIFRXUVHVRIVWXG\DQGDUDGLFDOWUDQVIRUPDtion of the examination system. The traditional course of the secondary schools was UHGXFHGWRÀYH\HDUVE\PDNLQJXSSHUVFKRRODRQH\HDULQVWHDGRIDWZR\HDUFRXUVH DQGWKHORZHUDQGPLGGOHVFKRROSURJUDPPHVZHUHUHGXFHGWRDPLQLPXPRIÀYHDQGD maximum of eight subjects in each year. The courses were divided into obligatory and optional subjects; only a limited number of subjects were prescribed; and the optional list became extensive through permission granted to local school boards to add subjects that appeared to meet local needs. 55. At the same time the rigidity of the examination system was relaxed by a series of changes. As an alternative to departmental examinations, recommendation of candidates by the principal of the school was introduced – in 1923 for lower school, in 1932 for middle school, and in 1935 for upper school standing. The purpose was to give the school and the teacher, in relation to the various subjects, greater freedom to determine the content and placement of emphasis. The lower school and middle school departmental examinations were later abolished, but in 1939-40 recommendation for upper school standing was discontinued and all upper school students were required to pass a departmental examination. Requirements for university entrance were relaxed, thereby giving greater freedom in the arrangement of courses in secondary schools. ,QDGGLWLRQWKHIRUPHUÀUVW\HDURIWKH$UWV&RXUVHRIWKH8QLYHUVLW\RI7RURQWRZDV discontinued in 1931-32 and, in effect, was transferred to collegiate institutes and high schools. 7KHWZHQWLHWKFHQWXU\ZLWQHVVHGDQRWKHUUHODWHGGHYHORSPHQWRIJUHDWVLJQLÀFDQFH This was the rapid expansion of vocational education at the secondary school level, referred to above. The number of pupils in vocational schools and courses increased between the two World Wars from a negligible proportion to 30 per cent of the total secondary school enrolment. Vocational education began as a result of The Industrial Education Act16 of 1911, was continued by the Vocational Education Acts of 192117 and 1930,18 and was co-ordinated with apprenticeship training through apprenticeship classes by Acts of 1921.19 The vocational courses were successfully made general and at the same time practical. However, some educationists, whose main interest was to increase the number of students who completed their education in the secondary school, opposed

16

1 Geo. V, Ch. 79, S.O.

17

11 Geo. V, Ch. 90, S.O.

18

20 Geo. V, Ch. 64, S.O.

19

18 Geo. V, Ch. 25, S.O.

252

4. OFFICIAL REPORTS

WKHVHJUHJDWLRQRIWKHQHZYRFDWLRQDOFRXUVHV$FRQÁLFWDURVHEHWZHHQSURSRQHQWVRI YRFDWLRQDODQGDFDGHPLFVXEMHFWV+DSSLO\WKHFRQÁLFWLQJYLHZVZHUHODUJHO\UHFRQFLOHG during the latter part of the period under review. 57. With the expansion of elementary and secondary education came an enlargement of the responsibilities of the administrative bodies and of the schools. In 1909, for example, the Department of Education began to provide summer courses for teachers. $WÀUVWWKHVHZHUHRIIHUHGWRDIHZWHDFKHUVRIVSHFLDOVXEMHFWVVXFKDVDUWDJULFXOWXUH and physical training; but by the beginning of the Second World War they were availDEOHWRZHOORYHUWHDFKHUVLQDYDULHW\RIÀHOGV,Q20 the appointment of elementary school inspectors, except in a number of urban centres, was assumed by the central authority, and in recent years an expanded programme has made necessary WKHDSSRLQWPHQWRISURYLQFLDOGLUHFWRUVDQGDVVLVWDQWVLQÀHOGVZKLFKDUHQHZRUKDYH recently become more important. Larger provincial grants have been made in an effort to secure equity in educational opportunity throughout the province; these covered about 13 per cent of approved school costs in 1900, 20 per cent in 1930, 25 per cent in 1943, and approximately 40 per cent in recent years. Nor has the administration of education remained unchanged; on the contrary, it has been largely transformed in much of the province through the establishment of township school areas for elementary education and larger high school districts for secondary education. 58. New activities and new points of contact between the schools and society may be illustrated by the development of Junior Red Cross and Home and School Associations, which grew to prominence in the interval between the two World Wars, and by the growth of interest in schools as community centres. Schools have also extended their responsibilities in religious education and in educational and vocational guidance. 59. At the same time there has been a steady increase in the assistance offered to all types of students. Early in the century, free textbooks were provided in the public schools of several cities, and in 1904,21 in order to extend this service, special grants were made available to rural schools. Quite recently, Dominion-Provincial Student-Aid Bursaries were introduced to supplement the scholarships offered by the universities. The Federal Government has established family allowances and has also helped to support large numbers of veterans during their university careers. A beginning has been made in school care for the health of the child. Following to some extent the example set by England after the Boer War, Ontario in 1907 gave permissive power to school trustees to provide and pay for medical and dental inspection. After the First World War, grants were offered toward the cost of such inspection, and city boards were empowered to offer treatment for minor defects. At the present time, about two-thirds of the children in the elementary grades are in schools where some type of health service is provided, in most cases under unit or local boards of health.

20

20 Geo. V, Ch. 63, Sec. 10, S.O.

21

4 Edw. VII, Ch. 29, S.O.

253

STATE SUPPORT FOR RELIGIOUS EDUCATION

60. Many educators believe that such services and assistance should be increased. England, it is said, has gone much further in providing health services. In parts of the United States the proportion of young people in high school and college is greater than LQ2QWDULR,WLVVRPHZKDWGLVTXLHWLQJWRGLVFRYHUIURPWKHFHQVXVÀJXUHVRIWKDW the number of people in Ontario with from one to four years of schooling is 75 per cent greater than the number with 13 years or more. In our schools today there are about half as many pupils in grade X as in grade VII or grade VIII, and there about half as many in grade XII as in grade X. There is compulsory attendance to the age of 16 years, subject WRFHUWDLQH[HPSWLRQV,QVSLWHRIWKLVWKHUHDUHRQO\DERXWIRXUÀIWKVDVPDQ\SXSLOV aged 15 as there are aged 14; at age 16 this proportion drops to nearly one-half; and at age 17 it drops to less than one-third. These facts suggest that the lengthening which has occurred in the minimum period of schooling is largely the result of compulsory attendance; leaving school is, for many students, an escape; it occurs because of disinterest or economic necessity, or because of the attitude of the parent. Some educators have VXJJHVWHGWKDWDWSUHVHQWWKHPRVWGLIÀFXOWOHVVRQWREHOHDUQHGDERXWHGXFDWLRQLVWKDW the criterion of quantity has served its purpose with the establishment of free elementary and secondary education for all the children of all the people, and that the need today is for quality reckoned in terms of value to the pupil and of the excellence of the teacher. 2WKHUVDUJXHWKDWWKHJUHDWSUREOHPLVWRH[WHQGVFKRROVHUYLFHVDQGÀQDQFLDODVVLVWDQFH to such an extent that no child will be deprived of his opportunity for a full education and at the same time to strengthen a sense of responsibility in pupil and parent. Is it possible now, many educators ask, to obtain such appreciation of education by the pupil and the public that there will be no longer any need to make length of schooling alone one of the main objectives for which we have to strive?

CHAPTER II $,062)('8&$7,21 1. Education is everybody’s business. In our society we all go to school; and later most of us have children in whose education we are particularly interested. No one can be entirely indifferent to the processes whereby young people learn to feel, to think, to behave, and to act. Our schools, together with the two other essential institutions, the home and the church, are directly charged with the grave responsibility of educating our youth. 2. Nearly everyone has opinions about education. Persons who have little knowledge of the subject make strong and sweeping statements about what the schools should do. Experienced educators and thoughtful parents are usually more cautious, since WKH\ UHDOL]H WKH GLIÀFXOW\ RI DSSO\LQJ DQ\ RQH WKHRU\ RU DQ\ RQH SUDFWLFH XQGHU DOO circumstances and to all young people. They have studied the views of others with an open mind and have come to appreciate the reasons for views which modify or are contrary to their own. For example, uninformed persons may say, “Freedom is folly – children should be disciplined,” or “Discipline depraves – children should be free.” Both views are at the same time right and wrong. Neither offers exclusively more than

254

4. OFFICIAL REPORTS

an obvious half-truth and proof of personal bias. But the thoughtful person searches for a formula that will reduce the error and enlarge the truth of both statements. It will EHDZRUNDEOHIRUPXODÁH[LEOHHQRXJKIRUDGDSWDWLRQZLWKLQEURDGOLPLWVWRGLIIHUHQW situations and different personalities. 3. This chapter on the aims of education is a record of our efforts to think through and express in simple terms some of the more general problems of education. An attempt ZLOOEHPDGHÀUVWO\WRVNHWFKWKHEDVHVIRUYDULRXVHGXFDWLRQDOSKLORVRSKLHVRUWKHRULHV secondly, to identify fundamental issues in education; thirdly, to discuss certain cardinal YLUWXHVIRXUWKO\WRFRQVLGHUWKHIRUFHRIKDELWVFXVWRPVDQGFRQYHQWLRQVÀIWKO\WR outline the general scope of the curriculum; sixthly, to deal with the role of the teacher; VHYHQWKO\WRPDNHUHIHUHQFHWRWKHGHYHORSPHQWRIWKHZKROHFKLOGDQGÀQDOO\WRVHW forth nine aims of education.

%$6(6)259$5,286('8&$7,21$/3+,/2623+,(625 7+(25,(6 4. We shall refer to only two main schools of thought, commonly designated as “the traditional” and “the progressive”. To identify them, we may think of the traditionalist as one who believes in strict discipline and the mastering of school subjects, and of the progressive as one who puts emphasis on interest and learning by experience. But in practice no educator is an exclusive traditionalist or progressive. This twofold FODVVLÀFDWLRQPRUHRYHULVFRPSOLFDWHGE\RWKHUGLYLVLRQV5HOLJLRXVFRQYLFWLRQIRU example, may affect or determine one’s educational philosophy. Frequently, too, those who support a particular practice in education are quite unaware of the assumptions on which their statements are based. Hence, the same individual may urge teachers to do things which are contradictory in their educational implications. We can therefore get OLWWOHHQOLJKWHQPHQWIURPDFODVVLÀFDWLRQRIWKHVFKRROVRIHGXFDWLRQDOWKRXJKWXQOHVV ZHÀUVWWU\WRXQGHUVWDQGZK\SHRSOHWKLQNDVWKH\GR $VVXJJHVWHGDERYHVRPHSHRSOHDUHLQÁXHQFHGPRUHFRQVLVWHQWO\WKDQRWKHUVE\ DQ\WKLQJZKLFKKDVGHHSSHUVRQDOVLJQLÀFDQFHIRUWKHP1HDUO\HYHU\RQHKROGVKLV own life dear, has loved-ones whom he regards with peculiar affection, and sets a special value on his own possessions. But people vary in the degree of their personal attachment, especially when the list is extended to ideas, habits, and institutions: the church and tenets of faith; the school attended and type of schooling received; one’s native or adopted country; and any way of doing things that has brought success or satisfaction. Indeed, we may bring to mind a person who warmly defends any opinion he has expressed, and becomes even more heated and obstinate when the arguments of others reveal the weakness of his own position. 6. Life without warmth of feeling would not be life as we know it. Moreover, because of our limitations, our irrational passions, and our mistakes, we are compelled frequently to face crises and tragedies in which only the strength of our faith will sustain us. A glorious illustration of faith is to be found in the qualities which enabled Churchill and Britain to save democracy when cold reason might have demonstrated that their cause was lost. 255

STATE SUPPORT FOR RELIGIOUS EDUCATION

:LWKWKLVEDFNJURXQGLWLVQRWGLIÀFXOWWRXQGHUVWDQGZK\VRPHSHRSOHDUHLQVLVWHQW that a greater effort should be made in school to ensure a passionate love of country, strong personal attachment to established ways of living, knowledge and appreciation of cultural achievements, and acceptance of recognized values and articles of faith. Strict GLVFLSOLQHLVIUHTXHQWO\GHPDQGHGEHFDXVHLWLVQHHGHGWRDFKLHYHWKHVHVSHFLÀFHQGV /HWXVQRZFRQVLGHUDQRWKHUYLHZSRLQW7KHUHDUHSHUVRQVZKRDUHLQÁXHQFHGOHVV than others by the current scene. They are more impressed by change, and they see little reason for regarding the external form of anything as permanent or as constantly valid. Some of them, however, may see more or less constancy in the ideas and ideals of which these forms are an expression; they may believe that it is possible to state precisely what these enduring ideas or values are. Those who hold this view are almost certain to be strong supports of existing institutions as embodiments of these verities, and their views on education are likely to be similar to those described in the foregoing paragraph. Many others, however, are reluctant to assert the universal or abiding truth of any belief, principle, or criterion of value. They regard it as self-evident that learning is essential to life, and they assume that free access to facts and ideas, and the disclosure of full information, are at once rights and obligations. But they do not believe that it is possible to make any general statement that must always be accepted by others as true. They may assume that fullness of life is good, and that what restricts or curtails life is bad. They refuse, however, to prescribe any set pattern of living for others, or to limit the meaning of “good” or “bad” by prescribed rules of conduct. From their assumptions it may follow that deception and violence are wrong and that honesty and equity are right. But they prefer not to speak in terms of “should” and “ought”, or “sin” and “evil”, because they believe that values have meaning for others only as they arise in experience and operate in practice. 9. It is apparent that those who profess these latter ideas are optimistic about the ability RISHRSOHWRÀQGDZD\RIOLYLQJDQGWRZRUNRXWDVROXWLRQWRKXPDQSUREOHPV7KH\ KDYHFRQÀGHQFHLQGHPRFUDF\DVDQLGHDORUZD\RIOLIHEXWWKH\GRQRWEHOLHYHLQ a dominant attachment to any existing institution or ideal. They see less need for steadfastness, loyalty, and courage, than for resourcefulness to meet new situations. They are impressed by the achievements of science in the relatively brief period that LQYHVWLJDWLRQ RI WKH QDWXUDO ZRUOG KDV EHHQ XQKDPSHUHG E\ À[HG EHOLHIV DQG RWKHU controls of authority. Hence, they declare that it is not only desirable but imperative that men should be similarly free to work out a solution for peaceful living in national and international societies, and that no cherished pattern of thinking should be allowed WRVWDQGLQWKHZD\7KH\FRQWHQGWKDWWKHUHFRUGRIVFLHQWLÀFYLFWRULHVRYHUGLVHDVHLV VXIÀFLHQWHYLGHQFHIRUEHOLHYLQJWKDWKDUGVKLSVDQGGLVDVWHUVVXFKDVSRYHUW\DQGZDUDUH not inevitable, provided the minds of men are freed from prejudice and other restraints against intelligent action.

)XQGDPHQWDO,VVXHVLQ(GXFDWLRQ 10. Once this point of view is understood, it becomes clear why some people have a concept of education basically different from that of others. Instead of insisting on a knowledge of history, civics, and national literature to inculcate patriotism, they 256

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would have pupils investigate modern problems in social studies in order to extend their understanding of the world. Instead of requiring acceptance by young persons of values, beliefs, and modes of behaviour, they would encourage critical and honest LQTXLU\LQHYHU\ÀHOG7KH\ZRXOGUHO\FKLHÁ\RQWKHLQKHUHQWLQWHUHVWRIVWXGHQWVLQ their work, and they would allow the learners to discipline themselves. In their opinion, no subject or organized scheme of knowledge should be held to be of value in itself. They maintain that the important thing in the learning situation is what happens to the learner and that, unless the pupil sees a genuine need for learning what is taught, he may acquire notions and attitudes decidedly at variance with the course of study and the teacher’s intentions. It is as vain, they say, to expect that insistence on memory of organized facts will result in predictable knowledge and wisdom as it is to think that mental gymnastics in a subject such as mathematics will train the mind to cope with any problem of life. Accordingly, they contend that the school should broaden its scope to provide for the full development of the whole child and to meet the needs of different individuals. From this point of view, the content and the method of instruction should have all the vitality of out-of-school experience; for learning is the reconstruction of experience and not merely the memory of facts and mastery of skills. 11. When one appreciates the strength of the reasons for thinking about life and education in these different ways, and is tolerant enough to understand views with which he does not agree, he will not resort to sweeping denunciations of either the traditional or the progressive point of view. 2QHRIWKHPRVWGLIÀFXOWRIWKHSUREOHPVEDVLFWRDOOHGXFDWLRQDOWKRXJKWLVWKH relationship between the individual and society. It has always been a vexed question, and it cannot be solved in all its details for all time. No one can, however, make useful SURQRXQFHPHQWVRQWKHDLPVRIHGXFDWLRQZLWKRXWDGRSWLQJVRPHGHÀQLWHSRVLWLRQLQ regard to it. Has the individual a right to respect as an individual? How much freedom for the individual, and what kinds of freedom, are compatible with the requirements of society? How much authority, and what kinds of authority, in society and social institutions are reconcilable with individual freedom? Is the authority of society the basic right and the worth of the individual of secondary importance? 13. The individual has a right to respect and freedom as one who shares in the dual heritage of the Western World. Respect for the individual has a basis in Christianity and Judaism, and freedom of thought has a basis in our intellectual heritage from Greece. The authority of society is a necessity, but certainly not a right to be expanded DUELWUDULO\7KHDXWKRULW\RIVRFLHW\VKRXOGEHGHÀQLWHO\PDLQWDLQHGEXWRQO\ZLWKLQWKH necessary minimum limits. Educationally, this means a general approval of a programme for personal development, and a resolution to keep obligatory requirements of subject matter and other external controls on the school and pupil within the limits of what is truly essential. The following paragraphs set forth more exactly the educational implications of this position. 14. There are few educators who would not agree that the schools should be concerned, above everything else, with the kind of person they are helping to produce. We should QHYHUIRUJHWWKDWWKHYHUE´WRHGXFDWHµDVGHÀQHGLQWKHConcise Oxford Dictionary,

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means “to give intellectual and moral training”. It is the duty of the school to aid its pupils to develop strength of character. Knowing the evil that sharp intellects, unsupported by moral foundations, have wrought in recent years in many countries, we make no apology IRUGLVFXVVLQJÀUVWWKHVHFRQGSURQJRIWKHGHÀQLWLRQ²´WRJLYH«PRUDOWUDLQLQJµ:H do not believe, however, that education is on the horns of the awful dilemma of choosing EHWZHHQÀUVWFODVVEUDLQVDQGVHFRQGFODVVFKDUDFWHUVRQWKHRQHKDQGDQGRQWKHRWKHU VHFRQGFODVVEUDLQVDQGÀUVWFODVVFKDUDFWHUV,QFKDUDFWHUIRUPDWLRQWKHSUREOHPLVWR determine the extent to which society should go in demanding conformity to approved patterns of thought and behaviour. If the school and other institutions were to give no direction or assistance to boys and girls, the anticipated result would be moral chaos. Less obviously, but no less truly, if we go too far in insisting that youth concur entirely in the views of their elders, we may expect continued dependence and weakness in PRUDOÀEUH7KHVFKRROLWVHOIFDQQRWPRYHIDULQHLWKHUGLUHFWLRQIURPH[DPSOHVVHW elsewhere by adult society. To be much more exacting is to encourage lip-service and hypocrisy. To give much more freedom is to invite disaster. Moreover, individual pupils differ in this respect no less than in mental ability, although the cause may more often be found in parental attitudes than in native endowment. Some young people are ready to accept any statement without question, prefer to be told what to do, and need to be compelled to do it. Others show, in varying degrees, more independence in thought and more willingness and ability to accept responsibility. Since adults differ in their attitudes and in their powers of self-appraisal, they may err by advising what suits themselves and not what is suitable for a younger generation. It follows that we must be careful in our recommendations to allow discretion to individual principals and teachers. Our hope is that they will have the sensitivity and wisdom to see and do the best that may be done in particular circumstances.

Cardinal Virtues 15. There are two virtues about which there can be no question – honesty, and Christian ORYH7KH\UHÁHFWWKHLQWHOOHFWXDODQGUHOLJLRXVKHULWDJHRI:HVWHUQ&LYLOL]DWLRQ+RQHVW\ means truthfulness and fair dealing, which are the very foundations of freedom. Christian love means kindness and consideration for others, which are mandatory by the Golden Rule. Honesty and love must be taught by precept and even more by example, as absolute rights, or eternal verities, which everyone must accept, defend, and strive to practise. To insist on their acceptance will do no violence to the conscience of any child or parent. No earnest Christian or Jew, or sincere adherent of any other enduring faith or philosophy of intelligence and good will, could have conscientious scruples regarding these two virtues. They may be taught whole-heartedly and without reservation. 16. Without honesty, society disintegrates. Fair dealing is the indispensable basis of community life. Truthfulness and respect for truth, no less than free access to truth, are essential to the operation of democracy and to the safeguarding of democracy against false doctrines which may threaten to overthrow it. Without love of our fellow-men life is not worth living. There is need for more consideration toward those with whom we come into immediate contact, and need for more consideration toward those who will be affected less directly but no less surely by our beliefs and our practices. There

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is a warning to the world in the recent spread of ideologies under which kindness is weakness and pity is evidence of guilt. For the preservation of our society the school must teach honesty and Christian love. 17. But the school must not be content with theory. It must teach honesty and love in practice, and thus educate for service to one’s fellow-men, to one’s country, and to God. As the pupil recognizes the obligation to be honest, he must give value in his work and in every transaction. Because he recognizes the obligation of love, he must seek to translate it into action. Whether in relation to one other person, to several persons, or WRDOO²ZKHWKHUDWKRPHDWVFKRROLQEXVLQHVVRUDVDFLWL]HQ²KHPXVWIXOÀOWKLVGXDO obligation to the best of his ability. In his education, the school must help him not only to understand and to accept these obligations, but also to acquire the disposition, the will, and the ability, to live daily by the application of this divine precept. 18. In teaching these universal values the school cannot work alone. The enemy of KRQHVW\DQGORYHLQDFWLRQLVWKHXELTXLWRXVGHPRQQDPHGVHOÀVKQHVV7KHFKXUFKLQ particular, must build and continuously strengthen the spiritual foundations of the basic virtues. The home must provide security for their growth in understanding the practice. School, home, and church should stand together to counteract more effectively those LQÁXHQFHVLQVRFLHW\ZKLFKRIIHUUHZDUGVIRUVHOÀVKQHVV*UDGXDOO\WKHZKROHVRFLDO environment of future generations may then perceptibly improve as an educative agency. A century ago, when formal education for all boys and girls was about to become a reality, there were optimistic predictions that the goals would be empty when the schools ZHUHÀOOHG,ISURJUHVVWRGDWHKDVEHHQVORZWKHOHVVRQVWREHOHDUQHGDUHWKDWWKHVFKRRO has partly failed in this regard, that it is not the only instrument of education, and that it cannot achieve its high purpose without assistance. In an age of specialization it is easy to forget a truism of the ancients that everything in the life of the community is a teacher. The school must seek every ally if it is to prove that falsehood and deceit, VHOÀVKQHVVDQGYLROHQFHDUHZURQJWKDWWUXWKIXOQHVVIDLUGHDOLQJDQGORYHDUHULJKW DQG WKDW ZKDW LV VRPHWLPHV FDOOHG VHOIVDFULÀFH LV YROXQWDU\ VHUYLFH E\ WKRVH ZKR understand the obligations of freedom. 19. Honesty and Christian love are the absolutes of a free society. They may therefore be taught by the strongest means at the school’s command – an explicit acceptance that they are right. If this be indoctrination we accept the stricture. )URPWKHEDVLFFRQFHSWVRIKRQHVW\DQGORYHWKHUHÁRZRWKHUFDUGLQDOYLUWXHV/RUG Elton refers to some of these in his book entitled St. George or the Dragon:22 “They are the basis of civilisation itself – loyalty, courage, endurance, discipline … they can all be UHGXFHGWRDVLQJOHTXDOLW\²XQVHOÀVKQHVVµ+HGHVFULEHVWKHPDVWKHPLOLWDU\YLUWXHV but he does not mean that they represent militarism: he believes that militarism adapts them to its own use. They may, indeed, be distorted in pursuit of unworthy ends, or be carried too far in obedience to arbitrary authority, as may be seen all too clearly in the evidence of the Nuremburg trials, and in the confessions nearer home of blind adherents

22

Lord Elton, St. George or the Dragon, London: Collins, 1942, pp. 24-25.

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to Communism. It is imperative that the young citizen of a democracy be trained to exercise these virtues with critical judgment. His loyalty will have the strength of sincerity if he voluntarily accepts the object as good after thorough and frank investigation. His loyalty, courage, endurance, and discipline should be related to purposes which he has found by his own experience to be desirable. The aim should be not merely to overcome weakness but, from discrimination, to develop strength. As intimated above, the pursuit of truth must be a main purpose of education in a democracy. We cannot allow our youth to mouth, without regard to their own ideas or convictions, the dogmas or clichés prescribed by some gauleiter or commissar under a totalitarian regime.

7KH)RUFHRI+DELWV&XVWRPVDQG&RQYHQWLRQV 21. As distinct from these and other cardinal virtues, there are habits, customs, and conventions, of the society in which the school is placed. What balance should be struck between the enforcement of the mores of the community and the moral development of the child? 22. On this question, we believe that the school should, in effect, declare to the younger generation: “These are the standards and rules of conduct of the society to which we belong. Some you will recognize as unquestionably right, binding at all times on all of us, and therefore to be followed regardless of consequence. About others there will be disagreement. Some of these you should examine carefully to see where and how they should apply, some you will have to accept tentatively as right until you are in a position to decide for yourself. But, in every case, whatever other sanction they may have, these are rules which most people have declared to be necessary for living together. They make our way of living possible. Therefore, even where there is no clear issue of absolute right and wrong, everyone is obliged to obey these rules or pay the penalty of social disapproval. It is true that some people do not follow all of them. But no one can afford to do things of which others disapprove unless and until he has gained their approval in other ways. For a young person to begin life with the handicap of social disapproval is like entering a swimming race with a heavy weight on one’s back. Those in charge of this school are bound to tell you about these standards and rules of conduct, and to insist that you learn at the beginning to live in the way that society approves and not in a way that will certainly be to your disadvantage and that, indeed, may be disastrous.” 23. To some people, the balance here may appear to be weighted heavily on the side of conformity. The point of view does, indeed, clearly recognize the advantages of group life. The safety and happiness of each is dependent on the rest of the community. Man ÁRZHUVQRWLQLVRODWLRQEXWLQDJDUGHQRIKLVIHOORZV7KHIUHHGRPZKLFKKHDVVHUWV for himself he must accord to his fellow-men. More than that, there are two corollaries to this principle of conformity which must be given equal emphasis. ,QWKHÀUVWSODFHWKHUHFDQEHQRLQVLVWHQFHWKDWWKHSXSLODFFHSWDVULJKWRUWUXHZKDW he does not truly believe. The school does not tell the pupil that t-h-r-o-u-g-h is the most desirable or only possible way of spelling “through”. It tells the pupil that this is the way it is spelled and that, whether he thinks it a good way or not, he must learn to spell it in that way. Similarly, with exceptions already noted, when the school teaches a code of

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conduct it says to the pupil that this is what people or institutions declare to be right or desirable. Meticulous regard for truth is the very core of education. We have said that in our society people have a right to think and that young people must be taught to think. About this there can be no reservation. The school may honestly see to it that young people have every opportunity to become thoroughly familiar with what we believe to be good. It may strive to sustain the “habitual vision of greatness”. But it cannot cheat, DQGLWVKRXOGQRWXVHIRUFHRUDUWLÀFHRIDQ\NLQGWRUHVWULFWWKHSXSLO·VVHDUFKIRUWUXWK The pupil may be required to conform in conduct. He must not be required to relinquish his right to freedom of thought. He must reconcile, in his own mind and in his own conscience, the worth of the individual and the claims of his group. 25. In the second place, the requirement of strict conformity with codes of conduct must be reduced as rapidly as the pupil can assume responsibility. There is no absolute or unlimited right to freedom in action. Such freedom as any of us has was gained and kept by proof of ability to use it, either by our forefathers or by ourselves. But the capacity to take responsibility can only be acquired and extended by practice. The HGXFDWRUPXVWWKHUHIRUHEHSUHSDUHGWRWDNHVRPHULVNVDQGPXVWEHLQDVXIÀFLHQWO\ strong position to share the blame for his pupils’ mistakes. The better his reputation as a teacher in other respects, the further he will dare to go. He must extend the scope of pupil responsibility gradually and judiciously. He may be able to do disappointingly little if the home does not co-operate or if the community is strongly prejudiced. But, under favourable circumstances, young people of 16 years of age should have arrived at the point where they can decide and carry out their own decisions on such matters as the time to be given to work and to recreation, and the money to be spent on clothing, minor necessities, or amusements. Many teachers will think it a counsel of perfection to say that pupils of 16 should be able, individually and collectively, to work without compulsion and to make, obey, and enforce, appropriate rules of behaviour. But every teacher knows that some pupils can do it. Education worthy of the name must aim always to enlarge the opportunities for pupils to assume responsibility. This is the practical counterbalance to the initial almost complete conformity which adults are obliged to impose on infants. 26. Here is a major part of the secret which enables a good school to combine order and decorum with a sense of latitude and ease conducive of self-determination, selfcontrol, and voluntary co-operation. There is respect for authority, there is respect for the cardinal virtues, and there is respect for the pupil. We have endeavoured to explain our stand with respect to the basic issue of freedom and authority in education. The next step is to apply these principles – and especially the concept of responsibility – to other educational problems.

The General Scope of the Curriculum :HQRZFRPHWRWKHÀUVWSDUWRIWKHGHÀQLWLRQRIWKHYHUE´WRHGXFDWHµ²´WRJLYH intellectual … training”. Before we set forth certain aims for the schools, it may be well to discuss some general problems relative to building the curriculum. Firstly, there is the FRQÁLFWEHWZHHQHPSKDVLVRQIDFWXDONQRZOHGJHDQGEDVLFVNLOOVDQGWKHGHYHORSPHQW of attitudes, interests, and general abilities. There has never been a decade without 261

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critics to lash the elementary school for failure to teach the three R’s as effectively as in the golden age to which the particular critic belonged. The charge that there has been deterioration is false, unless the school is to be blamed for accepting and retaining all children regardless of ability. It is true, however, that people have been, and still are, by QRPHDQVDVZHOOJURXQGHGLQIXQGDPHQWDOVDVSROLWLFDOVRFLDODQGHFRQRPLFHIÀFLHQF\ require. What is the cause? 28. The chief cause, in our opinion, is that the school is driven to demand too much from its pupils. Instead of discriminating between the minimum that is necessary and the copious variety that may be desirable, the adult is carelessly lavish in his demands on the young. No wonder youth gives up trying to please and becomes reconciled to its elders’ disappointments. 7KHÀUVWVWHSDZD\IURPWKLVPDODGMXVWPHQWRIHQGVDQGPHDQVVKRXOGEHWROLPLW WKHUHTXLUHPHQWVLPSRVHGRQWKHSXSLOLQWKHQDPHRIVRFLHW\7KLVPHDQVGHÀQLQJLQ minimum terms what society must require everyone to be able to do. It must require, we may assume, at least that pupils be able to use the ordinary means of communication to the extent employed in everyday affairs. The next step is to translate this minimum necessity into curriculum requirements that every ordinary young person can meet within WKHVFKRRODQGWRWHDFKIRUPDVWHU\QRWPHUHSURÀFLHQF\,IWKLVZHUHGRQHWKHVFKRRO would be invulnerable to the charge of failure to teach simple spelling and arithmetic and the ability to use and understand direct and simple English, provided the skills so taught and required are indeed ordinarily used, and are not abilities infrequently employed and forgotten through disuse before they are needed in special circumstances. Is that all the school should teach? Of course not. But it is all that should be required for every pupil. ,QDGGLWLRQWKHUHDUHYDULRXVGHVLUDEOHÀHOGVRILQWHUHVWDQGDSSUHFLDWLRQLQWKH world of ideas, in the arts, and in physical activities. In these enrichments of life, there should be wide freedom of choice if interest and appreciation are to be deep-seated and abiding. The imposition of examinations, and teaching which insists on “the one right ZD\µPD\VWLÁHWKHJURZWKRIWKHDWWLWXGHVDQGJHQHUDODELOLWLHVZHKRSHWRGHYHORS In later adolescence, however, the student may be obliged to submit himself, even in WKHVHÀHOGVWRWKHVWULFWHUGLVFLSOLQHRIVFKRODUVKLSRUWRWKHH[DFWLQJUHTXLUHPHQWVRI technical skill. 31. Between the small enclosure of necessary skills and the broad range of varied interests, is the middle ground where obligation and freedom must blend. Typical of its content, and most important, is anything connected with human relations, such as knowledge and appreciation of values in life from history and literature, or abilities acquired by practice in living, working, conferring, deciding, and acting together. In this middle ground, stipulated requirements and examinations on the one hand, and freedom on the other, must be applied or granted with equal discretion. At this point, the pupils’ concept of responsibility and the sensitivity and wisdom of their teachers DUHRIWKHXWPRVWVLJQLÀFDQFH 32. To an increasing degree pupils should be able, as they mature, to choose their reading material and, in social studies, to carry on their own investigations, conduct their own conferences, and keep their own records. In all subjects and activities they should grow 262

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in capacity to evaluate their own achievement. As powers such as these are acquired, the need for external pressure grows less and less. 33. The foregoing leads us to another question. Should we think of the school programme in terms of organized subject matter, or in terms of educative experience? If there is room for both, where and when should a place be given to each? In present practice, the experience concept has successfully invaded the kindergarten and primary grades of the elementary school, but has gained less and less recognition in successively higher grades. By grade VII, if not before, teacher and pupil have little time for thinking of life situations in school, and must address themselves for most of the day to the study of subject matter organized in separate categories. Soon the transition is all but complete. The motivation has changed from an interest in life and a desire to learn something obviously worth while, to a desire to please, or to escape trouble, by learning something which the teacher says has value. In experience, one sees a bit of life with all its varied elements, and learning takes place in terms of the whole. In teaching a subject, it is usual to concentrate repeatedly on isolated elements, although there may be some provision for learning as a whole if the approach to a topic be comprehensive, as in the unit method. 34. The teaching of subjects ensures that the child learns at least something of the accomplishments of men in the past, of current practice, and of facts or values, arranged LQ DQ DFFHSWHG SDWWHUQ7KH GHÀQLWH FKDUDFWHU RI D VXEMHFW HQDEOHV ERWK WHDFKHU DQG pupil to get satisfaction from measurable achievement. This is especially true where the content is precise, as in spelling and arithmetic, or in mathematics and science, or in subjects where the content is remote from ordinary life and entirely new, as in English grammar and foreign languages. It is progressively less true of social studies, English composition, English literature, music, and art, even if they be taught for technical purposes. Yet such is the comfort derived from marks as seemingly tangible evidence of effort and achievement, that the temptation is to accept the faith of the realist that “everything exists in some quantity and can be measured”. The pedagogical conscience gives the teacher an uneasy feeling that time is being frittered away unless the pupils have acquired something which a test will reveal. Consequently, a history teacher, for example, may give more time and emphasis to content which can easily be organized and measured by examinations than to content of a more subtle nature, no matter how VLJQLÀFDQWWKHODWWHUPD\EH 35. It would be rash indeed, in connection with this perplexing problem, to suggest any radical departure from the established trend. We do urge later, however, a less sudden shift away from the experience concept. At the time of early adolescence there should be experimentation during part of the school day with educative experience other than the study of designated subject-matter or the acquirement of physical skills. Subjects of study should receive increasing emphasis through the school years, and should occupy nearly all the time of students after approximately the age of 16. We frankly declare, at this point, our conviction that mastery of subject-matter is the best present measure of effort and the most promising source of satisfaction in achievement. We are not unduly concerned that a proportion of school tasks should be hard and unpalatable, because much of life is equally so. Yet, we are favourably disposed to a prudent extension of

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practices based on the experience concept, as a previous observation in this paragraph has shown. Perhaps if more can be taught that way in school, life itself will be made OHVVGLIÀFXOWDQGWKHPHWKRGZLOOEHEHWWHUDGDSWHGWROLIH

7KH5ROHRIWKH7HDFKHU $WSUHVHQWWKHUHLVRQHKDQGLFDSWRVLJQLÀFDQWDGYDQFH7KHSURIHVVLRQDODQGSHUVRQDO TXDOLÀFDWLRQVRIRXUWHDFKHUVGHWHUPLQHKRZIDURQHPD\JRLQUHFRPPHQGLQJDQ\ SUDFWLFHWKDWLVGLIÀFXOWDQGQHZ,WLVQRVOLJKWWRWKHWHDFKLQJSURIHVVLRQRUWRDQ\ other profession, to admit that only the more capable members are able to employ the PRUHGLIÀFXOWDQGDGYDQFHGWHFKQLTXHV%XWDOOZKRHPSOR\WHDFKHUVDQGDOOZKRDUH responsible for their professional education must ask themselves whether they could not strive harder to enlist the services of men and women of high quality, and to educate them more liberally for a responsibility which can, and should, require both a broad professional knowledge and insight and judgment far above the average. It is one thing to present clearly the organized facts of a subject and to see that they are acquired by pupils and retained by them until the time of examination; it is an altogether different thing to educate young people, to recognize subtle differences, to develop responsibilities and keen and abiding interests and desirable attitudes. To do the latter requires the XVHRIÁH[LEOHDQGFRPSUHKHQVLYHWHDFKLQJPHWKRGVZKLFKZLOOKHOSLQGLYLGXDOSXSLOV toward these objectives, and at the same time ensure adequate competence in knowledge and skill. These methods cannot be taught as a mere technique. The ability to teach in WKLVZD\LVDFTXLUHGZKHQDSHUVRQRIKLJKSHUVRQDOTXDOLÀFDWLRQVLVSUHSDUHGIRUKLV profession by a broad education which gives him the resources of educational philosophy and psychology and of much general knowledge and experience, and so enables him to understand the newer methods and to devise procedures suitable for particular purposes and circumstances. A perfect programme might be handed down from some educational Mount Sinai, yet if competent, sensitive, and wise teachers were not available to put it into operation, little would be accomplished.

The Development of the Whole Child 37. There has, in any case, been a meaningful change of emphasis in education during the past 50 years. The traditional school was concerned almost entirely with the teaching of subjects, which were, moreover, almost wholly intellectual, such as reading, spelling, writing, arithmetic, grammar, and geography, in the elementary school, and foreign languages and mathematics in the secondary school. Any thought given to the FKLOGZDVFKLHÁ\LQUHODWLRQWRKLVSURJUHVVLQWKHVHVXEMHFWV'XULQJWKHHLJKWHHQWK and nineteenth centuries, there were notable critics of this narrow purpose in education, including Rousseau, Pestalozzi, and Froebel. But there was no widespread adoption of a broader view until the Froebelian movement gained strength at the end of the nineteenth century. In Ontario, James L. Hughes, Chief Inspector of Schools for Toronto, was its chief exponent. Froebelianism stood for the “child-centred” school, and for growth through creative and expressive activity. On this continent, especially, it led to a new concept of education as a process concerned with every aspect of the pupil’s growth to maturity or, as it came to be phrased, with the development of the whole child.

264

4. OFFICIAL REPORTS

38. As a result, the school of today has very much wider and more varied interests than the school of the past. For example, it is interested in the physical health of the child: it provides instruction in health, physical education, and recreational facilities; and it may provide medical and dental inspection, and milk or other supplements to nutrition. Educationists are increasingly aware of the need for good lighting, attractive surroundings, and everything conducive to health as a positive state of well-being. Much has been spoken and written about the glories of the “little old red school-house”; but this school was, in fact, often unattractive and unhealthy. Attractive schools engender a sense of beauty. Good lighting, heating, and ventilation make for better physical and mental health of pupils. Educators are interested now in the emotional life of the child, in the development of desirable interests and attitudes and, though not with complete FRQÀGHQFH DV \HW LQ RWKHU DVSHFWV RI PHQWDO KHDOWK 7KH\ DUH FRQFHUQHG DERXW WKH activity of leisure. They seek to give the child some appreciation of music, art, and the aesthetics of life, and to develop manual and creative skills. They are beginning to give counsel and help of other kinds: guidance programmes have done much to assist the pupil in his choice of a vocation, though little, as yet, to help him in his everyday problems of life. In these and other ways, education for the development of the whole child has become in some degree a reality. 39. It must not be forgotten that these developments owe their existence and vitality to a new philosophy. Too often in education the original impetus of the spirit or idea has been lost, and the end result has been a dried husk of formality. If guidance, for example, should ever become a control over the destiny of the child, imposed with the voice of authority, it would completely defeat its present purpose. The underlying aim of every new movement contributory to the broad programme just described has been to enable pupils to act for themselves. The vitality of this aim is all-important. For the most part, development must take place as an incidental to the progress of the pupil through school. A teacher cannot interrupt a routine lesson and say, “We shall now turn our attention to your personal growth.” Even the provision of subjects and activities directly related to child development is less important than the spirit which pervades the school. For the same reason, everything that has already been said in this chapter has a bearing on what we believe should be sought in education for the growth of the child as a whole.

Aims 40. In the light of all this discussion, we may now, as promised earlier in the chapter, VHWIRUWKFHUWDLQVSHFLÀFDLPVIRURXUVFKRROV7KHVHDUHQRWVHSDUDWHDQGGLVWLQFWEXW interrelated. Our introductory discussion is a necessary prelude to them because we believe that no question relating to the aims of education admits of an answer without a reference to ultimate convictions about human nature and human destiny, and about society and the individual and the fundamental relationship between the two. We believe the aims of education should include the following: A. To develop capacity to apprehend and practise basic virtues. B. To develop the power to think clearly, independently, and courageously. C. To develop talent to understand the views of others and to express one’s own views effectively.

265

STATE SUPPORT FOR RELIGIOUS EDUCATION

D. E. F. G. H. I.

To develop competence for a suitable occupation. To develop good health. To develop aptitudes for recreation. To develop characteristics for happy family relations. To develop good citizenship. To develop the concept that education is a continuing process beyond the school.

To Develop Capacity to Apprehend and Practise Basic Virtues 41. We reiterate that the two essential allies of the school in this regard are the home and the church. By precept and by example gifted teachers can engender in their pupils certain immutable values accepted, and indeed won, by mankind as the expression of his highest ideals in terms of beauty, truth, and goodness. Mankind has found in the practice of these ideals the deepest satisfaction as he seeks to serve his fellow-men, KLV FRXQWU\ DQG KLV *RG 7KH LPSRUWDQFH RI WKH LQGLYLGXDO DQG WKH VLJQLÀFDQFH RI his obligations, which form part of our spiritual heritage, are the foundations of our democratic society. The meaning of life is made manifest in adherence and obedience to ideals that lie outside oneself and that transcend one’s personal interests. Inspiration and aspiration are never self-centred. Without proclaiming any creed or doctrine we NQRZWKDWLQRXUGHPRFUDF\WKH&KULVWLDQLGHDOVDVSHUVRQLÀHGDQGH[HPSOLÀHGE\-HVXV have an appeal to all persons of good will, and are the surest common ground for an educational programme related to the pupil as a person. The attitude of Jesus toward children, His understanding of human nature and behaviour, His charity and loving kindness toward all men, form a perfect model for a true democracy in the classroom, the community, and the nation.

7R'HYHORSWKH3RZHUWR7KLQN&OHDUO\,QGHSHQGHQWO\DQG&RXUDJHRXVO\ 42. Power to think clearly, independently, and courageously is the result of intellectual and moral development. A boy or girl may be a storehouse of facts and yet be uneducated. Power to relate, to analyze, to synthesize, and to think logically is the distinguishing mark of the human race. For earning a living and for discharging the duties of citizenship and other personal obligations in a democracy, this power is sorely needed in the individual who is confronted constantly with social, economic, and political problems, the solution of which will determine the welfare and progress of our society and indeed the very survival of our civilization.

To Develop Talent to Understand the Views of Others and to Express One’s Own Views Effectively 6FKRROVGRQRWSUHSDUHWKHLUSXSLOVDVRQHPLJKWPRXOGFOD\ÀJXUHVLQDQRWKHUZLVH empty room. Youth must be prepared for effective participation in the affairs of groups, large and small, and of society in general. Groups, and the society which they compose, are only possible if their members are capable of understanding others, and of communicating with them. They need the quality of tolerance, as well as the lucid expression, by each member, of his own opinion, arrived at by clear, independent, and courageous thought. History records that in personal and public communication,

266

4. OFFICIAL REPORTS

misunderstanding and hostility have resulted from the mere inability to communicate adequately true feeling and ideas.

To Develop Competence for a Suitable Occupation 44. The late Lord Tweedsmuir once declared with truth that one must live before one can live well. To have work for which one is ill suited is detrimental to the individual and injurious to society. Although the schools cannot provide a great deal of the practical experience necessary for expertness in any vocation, they have also the responsibility of placing before every pupil the nature of the various callings in which he or she manifests interests, and the opportunities they provide. We encourage vocational guidance; but we are of opinion that teachers should guide only. The decision with respect to one’s calling must be made by each adolescent, aided and counselled by his parents, and always with due regard to the probable opportunity for obtaining remunerative employment in any SDUWLFXODUÀHOG,WVKRXOGHYHUEHNHSWEHIRUHSXSLOVLQWKHVHFRQGDU\VFKRROWKDWWKHUH are satisfactions in any occupation beyond the amount of the “take-home” pay, however large that may be. Care should be taken to engender in pupils the need for hard work and for assiduous application to the task in hand. Any false ideas that youth may acquire from some older persons that there may be short-cuts to worthy attainment, without hard work, should be corrected. Moreover, efforts should be made to impress on pupils that all who work hard and honestly, whatever their calling may be, are partners in the good society and warrant social recognition.

To Develop Good Health 45. Directly and indirectly the school may contribute to the individual attainment of this aim. As mentioned earlier in this chapter, attractive and suitable buildings and grounds advance the health of pupils. That they should receive training and practice in healthful living, through health services and by other means in the school, is now properly expected by their parents. It should be emphasized that the concept of good health today connotes not only physical well-being but also mental poise and nervous balance, and professional aid should be available to this end. Thus the teacher, through the development in every pupil of interest and responsibility, may do much to produce a well rounded personality.

To Develop Aptitudes for Recreation 46. “All work and no play makes Jack a dull boy” is an axiom equally applicable to the juvenile, the adolescent, and the adult. Release from the daily routine and re-creation for tomorrow’s task are to be found in the proper leisure time. Recreational programmes within the school should encompass athletic activities and also opportunities to participate in literary, musical, and other aesthetic activities. Poor in outlook is the PDQRUZRPDQZKRFDQQRWÀQGRXWOHWVIRUFUHDWLYHHQWHUSULVHVRXWVLGHWKHIDFWRU\WKH ÀHOGWKHIRUHVWWKHPLQHWKHRIÀFHRUWKHKRPH5HFUHDWLRQLVDSDUWRIJRRGKHDOWK physical and mental.

267

STATE SUPPORT FOR RELIGIOUS EDUCATION

To Develop Characteristics for Happy Family Relations 48. Much that was stated in the introductory paragraphs of this chapter is germane to the consideration of this topic. In most politics of past centuries only a limited circle of people needed education for the … in the role of governor, as he or she contributes to the sovereign will of the people. It should be impressed on pupils that this status not only carries rights but also imposes obligations. That is a lesson that citizens in democracies ÀQGLWGLIÀFXOWWRUHPHPEHUH[FHSWLQSHULRGVRIQDWLRQDOHPHUJHQF\,WLVDOHVVRQZKLFK must be applied constantly in community, provincial, national, and international affairs. If it is not carefully heeded, it will be relatively easy for demagogues or dictators to take over the reins of government. Students, the citizens of tomorrow, must be warned against VDFULÀFLQJWKHLUGHPRFUDWLFELUWKULJKWWRSDUWLFLSDWHLQWKHVROXWLRQRISXEOLFSUREOHPVIRU HPSW\SURPLVHVRIJUHDWHUSHUVRQDOVHFXULW\7KHUHFDQEHQRDVVXUDQFHRISHUVRQDOEHQHÀWV WRWKHLQGLYLGXDOLIWKHSHRSOHUHOLQTXLVKWKHLUSRZHU/DUJHEHQHÀWVDUHRIOLWWOHYDOXHLI WKH\DUHFRQIHUUHGIRUVHOÀVKSXUSRVHVE\DSROLWLFDORUHFRQRPLFPDVWHU2SSRUWXQLW\WR achieve for oneself is more precious than any totalitarian concession. To be a good citizen one must be informed about the factors involved in any civic, national, or international issue. The citizen must, however, have the wit to draw on the opinion of experts for special or technical knowledge which he does not himself possess. Yet he must make his own ÀQDOGHFLVLRQDIWHUMXGJLQJWKHYDOLGLW\RIFRQÁLFWLQJFODLPV*UHDWDQGLQGHHGSDUDPRXQW is his responsibility to distinguish reason from emotion, facts from propaganda, and the true from the false. Herein is the compass of all our educational endeavours.

To Develop the Concept that Education is a Continuing Process Beyond the School 49. Sometimes pupils believe that when they leave school their education is complete. There may have been a period when certain gifted individuals had a mastery of all knowledge hitherto discovered by mankind. But that day is past. No person can be a PDVWHURUH[SHUWLQPDQ\ÀHOGV+HLVERXQGWREHLJQRUDQWRIPDQ\DUHDVRIKXPDQ endeavour and achievement. Care must constantly be taken to inculcate in pupils a sense of intellectual humility, and at the same time to develop within them a thirst for new knowledge. Every pupil should realize that, as one peak of knowledge is surmounted, farther ranges will appear on, and beckon from, the horizon. Not the least part of the intellectual and spiritual endowment that a school may bestow on its pupils is the sense of quest for, and the spirit for discovery regarding, new facts, ideas, and ideals. Schools should be centres for promoting adult education, and educators should be conscious of the necessity for laying the foundation for it during school life. 50. In order to attain these aims, it is necessary to have public support. Surely that support will be forthcoming. Much is said in Canada about our vast natural resources and property. Millions of dollars have been, and are being poured into their development. It is trite to observe that our main natural resource is our youth. Yet it remains true that the development and calibre of our youth will determine the Ontario and the Canada of tomorrow. 51. We have reason to be proud of Ontario’s educational system. But education must always be on the march in order to meet new conditions. If those who are responsible

268

4. OFFICIAL REPORTS

IRURXUHGXFDWLRQDOV\VWHPHYHUEHOLHYHWKDWLWKDVDWWDLQHGDVWDJHRIÀQDOSHUIHFWLRQ it will have become a crystallized agency for indoctrination. 52. The second half of the twentieth century demands a restatement of aims and proposals. The accomplishment of these will require a mobilization of every possible resource. In our conviction that the people of Ontario will respond to that demand, we believe that their contribution to the support of schools and the shaping of educational policies will advance the commonwealth. 53. Finally, we emphasize the need for a wider provision of educational opportunity for children, wherever they may be situated throughout the province. Payments for education are not as tribute to a foreign power, or the exaction of some privileged monopoly, or the imposition of some vested interest. They represent the voluntary investment of a free people to ensure the sway of good will, the prevalence of wisdom, the satisfaction RIWKRVHZKRWKURXJKHTXDORSSRUWXQLW\ÀQGZRUNLQVHUYLFHWRWKHLUIHOORZPHQWKHLU country, and their God – to ensure, in other words, a better generation to succeed us, DQGDÀQHU&DQDGD

CHAPTER XVIII 25,*,1$1''(9(/230(172)6(3$5$7(6&+22/6,1 217$5,2 1. For the most part, the schools of the general educational system in Ontario are “public”, supported by all ratepayers on the same basis, and open to all children without restriction as to race, religion, or economic status. From the beginning of public education in our province, the general principle has been accepted that publicly supported schools should be undenominational. Thus, although the inculcation of Christian ideals has always been stressed, the creed of a particular religious denomination has never found a place in the school programme. There is but one exception; one special form of our publicly supported elementary schools, commonly called “separate”, is denominational. Separate schools include Roman Catholic separate schools and Protestant separate schools, and did include until 1891 – unhappily, a division on the basis of race or colour – Coloured separate schools. 2. For more than one hundred years, provision has been made in the statutes for the establishment and operation of separate schools publicly supported through local tax rates on their supporters and through legislative grants. For many years, however, there have been no Coloured separate schools, although the provision for their establishment and operation remains in the statutes; and there is no evidence of even the remotest possibility that our educational system will ever again be divided on such a basis. Similarly, Protestant separate schools today have few, if any, active proponents. There were only three such schools in 1947-48, with 5 teachers and a total average daily attendance of only 122 pupils. Protestant separate schools receive little public attention.23 But the situation  )RUWKHSXUSRVHRIRIÀFLDOVWDWLVWLFV3URWHVWDQWVHSDUDWHVFKRROVDUHIUHTXHQWO\JURXSHGZLWKRUFODVVLÀHG

23

269

STATE SUPPORT FOR RELIGIOUS EDUCATION

is very different with respect to Roman Catholic separate schools, which have steadily increased in number over the years. Accordingly, our discussion in this chapter will be FRQÀQHGH[FHSWIRULQFLGHQWDOUHIHUHQFHWRWKHWZRRWKHUW\SHVRIVHSDUDWHVFKRROVWR the origin and development of Roman Catholic separate schools. 3. A Roman Catholic is not compelled by law to support a Roman Catholic separate school, but he may voluntarily elect to do so under certain conditions and, in this event, is exempt from the payment of rates imposed for the support of public schools. Not all Roman Catholic support Roman Catholic separate schools; many prefer to support public schools. Nor is a Roman Catholic parent or guardian compelled by law to send his child or ward to a Roman Catholic separate school, although, if he is a supporter of it, he is legally entitled to do so. It is a generally recognized fact that many Roman Catholic parents prefer to have their children attend public schools. This seems to be supported by statistics. The 1941 census data show that, of the total population of the province, 23.3 per cent were Roman Catholic.24 Of the total number of pupils enrolled in elementary schools in 1947-48, however, less than 20 per cent were enrolled in Roman Catholic separate schools. In a few urban centres, 90 per cent or more of the children of Roman Catholic parents attend Roman Catholic separate schools; but in most areas the percentage is normally much lower. For the province as a whole, we estimate that probably less than two-thirds of the children of Roman Catholic parents are enrolled in separate schools. 4. There has been a relatively rapid growth in the proportionate number of Roman Catholic separate schools and in their enrolment, as compared with all elementary schools. We give the relevant statistics, for ten-year intervals, in Table 1. In 1947-48, 863 (12.7 per cent) of the 6,813 elementary schools were Roman Catholic separate, enrolling 111,413 pupils (19.7 per cent) of the total enrolment of 564,529 in all elementary schools. 7KLVUHSUHVHQWVURXJKO\DÀYHIROGLQFUHDVHRYHUWKHSHUFHQWDJHVRI 7KHJHQHUDOVLWXDWLRQZLWKUHJDUGWRWKHVWDIÀQJDQGPDLQWHQDQFHRIWKHVHVFKRROVDWWKH SUHVHQWWLPHPD\EHLQIHUUHGIURPWKHIROORZLQJÀJXUHV2IWKHIXOOWLPHWHDFKHUV engaged in elementary schools during 1947-48, 3,516 (18.8 per cent) were employed in Roman Catholic separate schools. As of July, 1948, of the total of 4,037 elementary school administrative units, 66325 (16.4 per cent) were Roman Catholic separate. The cost per pupil of average daily attendance was reported to be $72.64 for Roman Catholic separate schools, as compared with $129.04 for public schools. For the calendar year 1948, statistics reported by trustee boards26 show that, for the province as a whole, the local assessment per regular classroom was $75,994 for Roman Catholic separate schools, DVFRPSDUHGZLWKIRUSXEOLFVFKRROV²DGLVSDULW\LQORFDOÀQDQFLDOUHVRXUFHV of three to one in favour of public schools. Of the total revenue of $62,054,155 from all sources for all elementary schools in 1948, $7,779,408 (12.5 per cent) was received

as, public schools. The most recent (1948) Report of the Minister of Education, for example, has omitted the usual set of Tables of data relating to their operation. 24

Including Greek Catholics.

25

Including 24 union separate school boards.

26

Report of the Minister of Education, Ontario, 1948, pp. 168 and 175.

270

4. OFFICIAL REPORTS

by Roman Catholic separate school boards. For the province as a whole, public schools received 31.7 per cent of their total revenue in provincial grants and other payments, as compared with 39.0 per cent received by Roman Catholic separate schools. 6. Since they are a special form of elementary school only, Roman Catholic separate schools have not, until fairly recently, offered secondary school courses. About 50 years ago, however, permission was given to public and separate school boards to offer the secondary school courses of grades IX and X in their respective schools, in what DUHQRZWHUPHGÀIWKFODVVHV)XUWKHUIRU\HDUVDSXEOLFRUVHSDUDWHVFKRROERDUG has been permitted, subject to the regulations and to the approval of the Minister, to operate a continuation school,27 offering secondary school courses of grades IX to XIII inclusive. At present, Roman Catholic separate schools frequently provide secondary VFKRROFRXUVHVLQÀIWKFODVVHVHYHQLQXUEDQFHQWUHVZKHUHVHFRQGDU\VFKRROVDUHUHDGLO\ accessible, and two continuation schools,28 are, in effect,29 operated by Roman Catholic separate schools boards.

7DEOH*URZWKRI5RPDQ&DWKROLF6HSDUDWH6FKRROV (As compared with that of all elementary schools) School

Year 1847 1857 1867 1877 1887 1897 1907 1917 1927 1937-38b 1947-48b

Enrolment

Total Elementary

Roman Catholic Separate

% Roman Catholic Separate

Total Elementary

Roman Catholic Separate

% Roman Catholic Separate

2,727 3,831 4,422 5,140 5,506 5,914 6,268 6,651 7,036 7,207 6,813

a 100 161 185 229 340 449 548 724 832 863

---2.6 3.6 3.6 4.2 5.7 7.2 8.2 10.3 11.5 12.7

124,829 282,601 401,643 490,860 493,212 494,876 465,012 528,484 634,592 557,014c 564,529d

a 9,964 18,924 24,952 30,373 41,620 51,502 70,048 101,072 102,505c 111,413d

---3.5 4.7 5.1 6.2 8.4 11.1 13.3 15.9 18.4 19.7

a Data not available for 1847; Ryerson reported in 1847 “It appears also that … there are only forty-one Separate Schools in Upper Canada”. b School-year. c May enrolment only. d Net enrolment only.

27

See paragraphs 39-45 inclusive, below.

 $W(JDQYLOOHDQG:HVWSRUWWKHVHDUHOLVWHGLQRIÀFLDOVWDWLVWLFVDV5RPDQ&DWKROLFFRQWLQXDWLRQVFKRROV In each case, there is another continuation school located in the same urban centre, not operated by the Roman Catholic separate school board. 28

29 Actually operated by a continuation school board in each case, but this is the separate school board constituted as a continuation school board for continuation school purposes.

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STATE SUPPORT FOR RELIGIOUS EDUCATION

7. In many respects, Roman Catholic separate schools operate under the same conditions as public schools. Both are subject to the regulations of the Minister of Education, follow the provincial programme of studies for elementary schools, are inspected by RIÀFLDOVRIWKH0LQLVWHUDQGKDYHWKHLUSURVSHFWLYHWHDFKHUVWUDLQHGLQSURYLQFLDOQRUPDO VFKRROVDQGFHUWLÀHGXQGHUWKHVDPHSUHVFULEHGFRQGLWLRQV,QWKHPDLQWKHWHDFKHUV in both enjoy similar conditions of service. But Roman Catholic separate schools, as denominational schools, provide denominational religious instruction.30 And, as has been the case for nearly 100 years, the statutory provisions for Roman Catholic separate schools are incorporated in a separate Act.31 Although in some respects the provisions are parallel with those for public schools, in others they differ markedly, as, for example, with respect to the establishment of schools, over which, in the case of separate schools, even the Minister of Education has no control. Hence, throughout most of our history the special provisions for separate schools have not been consolidated with the general provisions for common or public schools. )URPWKHSDVVLQJRIWKHÀUVW$FWUHODWLQJH[FOXVLYHO\WR5RPDQ&DWKROLFVHSDUDWH schools in 1855 up to the present day, the history and development of these schools have been determined in large measure by statutory provisions and by the changes which have been made therein from time to time. Our Constitution, as set forth in the British North America Act, protects the rights and privileges, “with respect to denominational schools which any class of persons have by law32 in the Province at the Union”. Both the proponents and opponents of separate schools have pressed their claims for legislative action; and legislation provides the key to both the origin and the development of Roman Catholic separate schools. To this we now turn, both in order that the position of these schools in our educational system today may be understood, and in order that it may be HYLGHQWWRWKRVHZKRVWXG\RXUÀQGLQJVZK\ZHKDYHIRXQGLWQHFHVVDU\WRUHFRPPHQG the continuance of the division of our elementary school system into two forms – public schools and separate schools. We deem ourselves bound by the limitations imposed by statute; we are not free to plan a new educational system unhampered by the past. 9. In our interpretation of legislation and other historical evidence we have sought to be objective. Where we quote statements or reported statements of those closely associated with the problems of separate schools and with the legislation of the past century, we accept them as authoritative expressions of the contemporary understanding and DJUHHPHQWDVWRWKHSRVLWLRQRIWKHVHVFKRROVH[FHSWZKHUHZHKDYHEHHQDEOHWRÀQGD FRQWHPSRUDU\FRQWUDGLFWLRQRUTXDOLÀFDWLRQ

Legislation Affecting Separate Schools Prior to Confederation $V VHW RXW LQ HDUOLHU FKDSWHUV WKH ÀUVW VFKRROV LQ 8SSHU &DQDGD ZHUH SULYDWH supported by voluntary subscriptions and fees. The clergy were frequently leaders in education, and it is not surprising that some schools were in effect denominational.

 $OWKRXJKQRWVSHFLÀFDOO\DXWKRUL]HGE\VWDWXWHRUUHJXODWLRQVRWRGR

30 31

The Separate Schools Act, Part II, R.S.O., 1937, Ch. 362, Sec. 16-110.

32

Italics ours

272

4. OFFICIAL REPORTS

While the Legislature voted public funds and enacted a statute as early as 1816 “to encourage the education of youth in Common Schools”,33 no distinction was made between schools on a sectarian basis. 11. In 1839 the Legislature of Upper Canada appointed a commission to inquire into the state of education in Upper Canada. It recommended, among other things, that the control of common schools be vested in a provincial board of commissioners. An Act34 dealing ZLWKWKHFRPPRQVFKRROV\VWHPZKLFKZDVSDVVHGLQGXULQJWKHÀUVWVHVVLRQRIWKH Legislature for the United Province of Canada, provided for the establishment of what are now known as separate schools. The sessional papers of 1841 disclose that before the passing of the Act a petition was submitted to the Legislature by Dr. John Strachan, at that time the Church of England Bishop of Toronto, urging the establishment of denominational schools supported at least in part by public funds. A second petition by Dr. Remegius Gaulin, the Roman Catholic Bishop of Kingston, opposed the proposed Bill for the establishment of common schools. Neither petition appears to have gained its objective. Section XI of the Act provided as follows: XI. Provided always, and be it enacted, that whenever any number of Inhabitants of any Township or Parish professing a religious faith different from that of the majority of the Inhabitants of such Township or Parish, shall dissent from the regulations, arrangements, or proceedings of the Common School Commissioners, with reference to any Common School in such Township or Parish, it shall be lawful for the Inhabitants so dissenting, collectively, to signify such dissent in writing to the Clerk of the District Council, with the name or names of one or more persons elected by them as their Trustee or Trustees, for the purposes of this Act; and the said District Clerk VKDOOIRUWKZLWKIXUQLVKDFHUWLÀHGFRS\WKHUHRIWRWKH'LVWULFW7UHDVXUHUDQGLWVKDOO be lawful for such dissenting Inhabitants, by and through such Trustee or Trustees, who for that purpose shall hold and exercise all the rights, powers and authorities, and be subject to the obligations and liabilities, hereinbefore assigned to and imposed upon the Common School Commissioners, to establish and maintain one or more Common Schools in the manner, and subject to the visitation, conditions, rules and obligations, in this Act provided with reference to other Common Schools, and to receive from the District Treasurer their due proportion, according to their number, of the monies appropriated by Law, and raised by assessment for the support of Common Schools, in the School District or Districts in which the said Inhabitants reside, in the same manner as if the Common Schools so to be established and maintained under the said Common School Commissioners, such monies to be paid by the District Treasurer, upon the warrant of the said Trustee or Trustees. 7KLVLVWKHÀUVWDSSHDUDQFHRIDQ\OHJLVODWLYHSURYLVLRQIRUWKHHVWDEOLVKPHQWDQG maintenance of “separate” common schools. They could be established only by a minority professing a religious faith different from that of the majority of the inhabitants of

33 J. G. Hodgins, Documentary History of Education in Upper Canada, Vol. I, 1790-1830, Toronto: Warwick Bros. & Rutter, 1894, p. 102. 34

4 & 5 Vict., Ch. 18, S. P. C.

273

STATE SUPPORT FOR RELIGIOUS EDUCATION

any township or parish. But before such minority acquired the right, they were required to signify in writing to the clerk of the district council their dissent from the regulations, arrangements, or proceedings of the common school commissioners. The requirement that a notice of dissent be in writing was thus recognized at the very outset. 13. The enactment of 1841 proved unsatisfactory to the people of Upper Canada. As a result, it was repealed by an Act of the Legislature of 1843,35 which provided for the establishment and maintenance of common schools in that part of the Province of Canada formerly known as Upper Canada. The establishment of a separate school under this new statute depended not on the dissent of a minority of the inhabitants of a township or parish who professed a religious faith different from that of the majority, but on the religious faith of the teacher of the common school. Further, the wording of the provision was changed from “Inhabitants of any Township or Parish” to “Freeholders or Householders of any School District, or within the limits assigned to any Town or City School”. The pertinent Sections of the Act of 1843 are as follows: LV. And be it enacted, that in all cases, wherein the Teacher of any such School [36] shall happen to be a Roman Catholic, the Protestant Inhabitants shall be entitled to have a School with a Teacher of their own religious persuasion, upon the application of ten or more resident Freeholders or Householders of any School District, or within the limits assigned to any Town or City School; and in like manner, when the Teacher of any such School shall happen to be a Protestant, the Roman Catholic Inhabitants shall have a separate School, with a Teacher of their own religious persuasion, upon a like application. LVI. And be it enacted, that such applications shall be made in writing, signed with the names of each resident Freeholder or Householder, and addressed and delivered to the Township, Town or City Superintendent; and such application shall contain the names of three Trustees, who shall be the Trustees of such separate Schools; and upon the compliance of such Trustees, and of the Township, Town or City Superintendent, with the requirements of this Act, such school shall be entitled to receive its share of the public appropriation, according to the number of Children of the religious persuasion who shall attend such separate School, which share shall be settled and adjudged by the Township, Town or City Superintendent, subject to an appeal to the County Superintendent; and all such separate Schools shall be subject to the visitations, conditions, rules and obligations, provided in this Act with reference to other Common Schools or to other Town or City Schools established under this Act. After Dr. Ryerson had been appointed Superintendent of Schools in 1844 and had studied various European and American school systems, he recommended in 1846 that the provincial system of education be universal and that property generally be taxed for the support of common schools. But, although many changes in the general school law

35

7 Vict., Ch. 29, S. P. C.

36

The reference is to the common schools of Upper Canada.

274

4. OFFICIAL REPORTS

were effected by an Act of the Legislature in 184637 which repealed the Act of 1843, the provisions as to separate schools were substantially retained. 14. An Act of 184738 constituted each city and incorporated town a corporation for all common school purposes and gave to the councils of the cities and boards of police commissioners of the towns the powers which in the districts were exercisable by the GLVWULFWPXQLFLSDOFRXQFLOV,QWKLV$FWLVIRXQGWKHÀUVWXVHRIWKHWHUP´GHQRPLQDWLRQDOµ in legislative enactments relating to education in Upper Canada. Section V, in part, read as follows: V. … it shall be the duty of the Board of Trustees for such City or Town … Thirdly, – To determine the number, sites and description of Schools which shall be established and maintained in such City and Town … and whether such school or schools shall be denominational or mixed … This provision repealed the right of 10 or more Protestant or Roman Catholic inhabitants to have a “School, with a Teacher of their own religious persuasion”, as provided in the Act of 1843. 15. The next school Act,39 passed on the 30th of May, 1849, contained no provision for separate schools and was repealed by a new Common Schools Act passed on July 24, 1850.40 This, in effect, re-enacted the combined provisions of the general school Acts of 1846 and 1847. It restored the earlier provision for the establishment of separate schools, and extended the provision to coloured people. In short, the statute now enabled 12 heads of families, being Roman Catholics, to petition for the establishment of a separate school if the teacher in the common school were a Protestant; similarly, 12 heads of families, being Protestant, could do likewise if the teacher were Roman Catholic. A separate school so established was to share in the “School Fund”,41 for WKHVROHSXUSRVHRISD\LQJWKHVDODULHVRITXDOLÀHGWHDFKHUVDFFRUGLQJWRWKHDYHUDJH attendance of pupils as compared with the average attendance of pupils in the common schools of the same municipality. An amendment in 1851,42 removing in part the restriction that only one separate school could be established in a municipality, provided that a separate school could be established in each ward, or in two or more wards united, in each city or town. 16. In 1852, as appears from the correspondence of Dr. Ryerson with Bishop Charbonnel,43 an agitation for increased grants to separate schools was directed toward the

37

Vict., Ch. 20, S. P. C.

38

10 & 11 Vict., Ch. 19.

39

12 Vict., Ch. 83

40

13 & 14 Vict., Ch. 48.

 7KH´&RPPRQ6FKRRO)XQGµZDVGHÀQHGDVIROORZVLQWKH$FW´«WKHVXPRIPRQH\DSSRUWLRQHG annually by the Chief Superintendent of Schools to each County, Township, City, Town or Village, and at least an equal sum raised annually by local assessment …” 41

42

14 & 15 Vict., Ch. 3.

43

Cited in J. G. Hodgins, The Legislation and History of Separate Schools in Upper Canada, pp. 61-63

275

STATE SUPPORT FOR RELIGIOUS EDUCATION

Government; and the trustees of the Roman Catholic separate school of Belleville brought an action in the courts against the school trustees of the Town of Belleville44 to compel the latter to apply a portion of all the school moneys they might raise, to meet the cost of the erection and repairs of separate school buildings and the salaries of separate school teachers. The trustees of the separate school were unsuccessful. 17. As a result of dissatisfaction with existing statutory provisions, the Supplementary School Act of 185345 was passed. The following is an analysis of the fourth Section of the Act as it related to Roman Catholic separate schools: (1) Those subscribing to the support of a separate school an amount equal to what they would otherwise have to pay for the support of common schools were relieved from the payment of such rates for public common schools. (2) Each separate school was to share in the legislative grant, but not in the municipal assessment. (3) Exemption from school rates was to be granted only during the period of sending children to, or subscribing toward the support of, the separate school. (4) The separate school trustees were to send to the local superintendent of schools a half-yearly return of the names of supporters of separate schools, the amounts subscribed, and the names of the children attending. (5) The local superintendent was to send the names of supporters of separate schools to the clerk of the municipality; and the clerk was to omit such names from the assessment roll, except in case a rate for a school building had been imposed before the establishment of such separate school. (6) The provisions of the 13th Section of the school Act of 1850 were to apply to trustees and teachers of separate schools (i.e., in regard to penalties for false returns). (7) Separate school trustees were to be a corporation, with power to impose, levy, and collect school rates or subscriptions. 18. In a “Pastoral Address on the Upper Canada Supplementary School Act of 1853”, dated July 9, 1853, Bishop Charbonnel apparently expressed satisfaction with these provisions in the following words: Owing to the equity of our Legislature, dearly beloved brethren, the Catholic minority of Upper Canada are to enjoy, for the education of their children, the same advantages enjoyed by the Protestant minority of Lower Canada.46 Later, in a special report to the Legislative Assembly in 1858 Ryerson made it clear that, in his opinion, the provision for separate schools in the Act of 1853 was “the largest and last concession that could be obtained from Upper Canada”: ,QWKH:LQWHURIDQG,PDGHDQ2IÀFLDO7RXURI8SSHU&DQDGD« I consulted the most intelligent and experienced men in School matters in the

44

10 U. C. Q. B. Reports 469.

45

16 & 17 Vict., Ch. 185, S. P. C.

46

Quoted in J. G. Hodgins, The Legislation and History of Separate Schools in Upper Canada, p. 71.

276

4. OFFICIAL REPORTS

several Counties … I think I am warranted in saying that those intelligent men of all parties, whom I consulted without reserve, unanimously agreed to those Sections of the Separate School Section of the Draft Bill, but, were also strongly of the opinion, with myself, that no further concession in that direction should be made, without endangering the whole National School System, and violating individual and Municipal rights. After having completed my Tour, I proceeded to Quebec in March, 1853, to submit to the favourable consideration of the Government of the Draft Bill, as revised and improved by extensive consultations with practical men in all parts of Upper Canada, – stating it, as a result of much consultation, – that the Fourth Section of it was the largest and last concession that could be obtained from Upper Canada on the subject of Separate Schools … The Bill was introduced and passed without a division, and became the Supplementary School Act of 1853. After the passing of that Act the Roman Catholic Ecclesiastics and the Newspaper Press under their control, expressed their satisfaction with, and eulogized the Separate School section of it …47 19. Despite apparent satisfaction with the amendments effected by the Supplementary School Act of 1853, an intensive campaign for new legislation was shortly begun, directed by the Roman Catholic Bishops of Kingston, Toronto, and Bytown. 20. Hodgins quotes48 extensively from correspondence and documents exchanged at this period between the Roman Catholic Bishops and various public men of the day, including Ryerson. Although the quotations are too extensive to be given here, they deserve study by legislators and educationists. Among the documents is a draft of a Bill prepared by the three Bishops,49 with a signed declaration that “nothing short of the above [the terms of the draft Bill] will satisfy the conscientious convictions of the Catholics of this Province”. There was severe criticism of the proposed Bill by Ryerson and others. Ryerson pointed out that it “contemplates the complete destruction of our Public School system…”50 Although the draft Bill was twice submitted, the Government did not proceed with it. 21. In the meantime another Bill had been introduced in the Legislative Council by Sir Etienne Taché in May, 1855. Subject to some amendments, this Bill was passed by the House and was given royal assent on May 30, 1855, and has since then been known as “The Taché Act”.51 Under this Act, the trustees duly elected by Roman Catholics for a separate school were accorded the same powers in respect to separate schools as were exercised by trustees of common schools in respect to common schools under the provisions of The Upper Canada School Act of 1850 and the supplemental Act of 1853. These included the power to impose, levy, and collect school rates or subscriptions upon

47

J. G. Hodgins, Historical and Other Papers and Documents, Vol. II, 1792-1853, Toronto: King’s Printer, 1911, p. 124.

48

J. G. Hodgins, The Legislation and History of Separate Schools in Upper Canada, pp. 70-92.

49

Ibid., pp. 85-87.

50

Ibid., p. 91.

51

An Act to amend the laws relating to Separate Schools in Upper Canada, 18 Vict., Ch. 131, S. P. C.

277

STATE SUPPORT FOR RELIGIOUS EDUCATION

and from persons sending children to, or subscribing toward the support of, such separate schools. Other noteworthy provisions of the Taché Act were as follows: supporters of separate schools were exempted from the payment of rates for common schools and common school libraries; every separate school established under the Act was entitled to “a share in the fund annually granted by the Legislature … for the support of Common Schools, according to the average number of pupils attending such school … as compared with the whole average number of pupils attending school in the same City, Town, or Village or Township but was not entitled to any part or portion of school moneys arising or accruing from local assessment for common school purposes; the Chief Superintendent was required to determine the proportion the trustees were entitled to receive out of the legislative grant and to pay the amount to the trustees; no separate school having less than an average attendance of 10 was to share in the legislative grant; the election of any trustee or trustee became void unless a separate school was established within two months of the date of the election of such trustee or trustees. 22. No review of the successive enactments of this period can give an adequate picture of the agitations, controversies, and struggles which ensued – on the one hand, to obtain greater rights or concessions for separate schools, and, on the other, to safeguard and DFKLHYHDVWURQJDQGHIÀFLHQWQRQVHFWDULDQSXEOLFVFKRROV\VWHP7KHZULWLQJVDQG statements of contemporaries are of inestimable value in assessing the reasons for, and the nature of, the agreement which culminated in the legislation which ultimately took shape. No man had a more intimate knowledge of the whole problem than had Egerton Ryerson. His statements are therefore of the greatest importance, especially when read in conjunction with those of the advocates of more extreme, and therefore PRUHVKDUSO\FRQÁLFWLQJYLHZV7KDW5\HUVRQZDVFRQVLGHUHGWREHIDLUDQGPRGHUDWH in his approach to the separate school question is best demonstrated by the words of the sponsor of the Roman Catholic Separate Schools Act of 1863, Mr. R. W. Scott. In the Senate, on April 4, 1894, the latter, in making a statement in regard to the passing of the Act of 1863 and in speaking of Ryerson, said “… it is due to his memory to say, that I always found him ready to meet the wishes of the minority; – that he exhibited no prejudice or bigotry …”.52 23. It is, indeed abundantly clear from the records that Ryerson at all times recognized and respected the deeply rooted and sincere religious convictions of the Roman Catholic exponents of separate schools. He earnestly tried, by granting some special privileges to Roman Catholics, to achieve that measure of agreement which would end the insistent controversy on the subject. In this endeavour he had the active co-operation and sympathy of the Hon. John A. Macdonald, but he encountered the vigorous opposition of the Hon. George Brown, who considered Ryerson to be allied with the Roman Catholic hierarchy as a foe of the common school system. 7KHLQWHQVLW\RIWKHFRQWURYHUV\ZDVW\SLÀHGDQGQRGRXEWPDJQLÀHGE\WKHSRVLWLRQ taken by Bishop Charbonnel of Toronto, as expressed in his 1856 Lenten Pastoral:

52

J. G. Hodgins, The Legislation and History of Separate Schools in Upper Canada, p. 167.

278

4. OFFICIAL REPORTS

Catholic Electors in this Country, who do not use their electoral power in behalf of Separate Schools are guilty of mortal sin. Likewise Parents who do not make the VDFULÀFHVQHFHVVDU\WRVHFXUHVXFK6FKRROVRUVHQGWKHLUFKLOGUHQWR0L[HG6FKRROV Moreover, the Confessor who would give absolution to such Parents, Electors, or Legislators, as support Mixed Schools to the prejudice of Separate Schools, would be guilty of a mortal sin.53 25. In 1858 a report which Ryerson had been asked specially to prepare was tabled in the Legislature. In it, referring to the Taché Act, he said: %XW WKH SURYLVLRQV RI WKLV$FW DV PRGLÀHG XQGHU WKH DXVSLFHV RI WKH$WWRUQH\ General for Upper Canada, and in accordance with the wishes of the Upper Canada Members of the Legislature, having been restricted to the Roman Catholics, under the sanction of certain of whose Ecclesiastical Dignitaries it was prepared, are, in my RSLQLRQTXLWHDVFRQVLVWHQWZLWKWKHLQWHJULW\DQGHIÀFLHQF\RIRXU*HQHUDO6FKRRO System as the Separate School provisions of the preceding School Acts, and not so convenient for the supporters of Separate Schools as the Fourth Section of the Supplementary School Act of 1853.54 26. In the same report, Dr. Ryerson made the following comments, which are of VLJQLÀFDQFHLQDQ\VWXG\RIWKLVSUREOHPLQWKHOLJKWWKH\WKURZRQWKHDFFHSWHGIDFWV and the general situation of that day: 7KHÀUVWLVWKDWXQWLOWKHOHDGLQJ0HQDQG1HZVSDSHU3UHVVRIDOOSDUWLHV acquiesced in the Separate School provisions of the Law. I do not recollect that there was even a discussion on the subject, either in, or out, of Parliament, or any objection to it from any quarter. A second remark is, that, until 1852, Separate Schools were never advocated as a theory, much less as a doctrine, and less still as an article of faith. No parent was ever considered guilty of sin, much less of ‘mortal sin’, for sending a child to a Public, or Mixed, School … Separate Schools were designed for, and almost if not HQWLUHO\FRQÀQHGWRSODFHVZKHUHWKHWKHQVWURQJPRUHVRWKDQQRZ DQGRIWHQ exasperated, feelings between the Irish Protestants and Roman Catholics did not permit them to unite in the school education of their children … But what was before had recourse to, under certain circumstances, was afterwards demanded without reference to circumstances; and what was before desired as a protection against insult and oppression, was afterwards announced as a doctrine of conscience, and advocated as an instrument of Religious progagandism. This leads me to a third remark, namely, that certain dignitaries of the Roman Catholic Church in Upper Canada, for whose Members the Separate School provisions of the School Law were specially designed, have assumed since 1852, a threefold

53

J. G. Hodgins, Documentary History of Education in Upper Canada, Vol. XIII, 1856-1858, Toronto: King’s Printer, 1906, p. 270.

54

J. G. Hodgins, Historical and Other Papers and Documents, Vol. II, 1792-1853, (1911), pp. 124-125.

279

STATE SUPPORT FOR RELIGIOUS EDUCATION

position, essentially different from what they had ever before professed. (1) They have advocated Separate Schools, (not as a protection against wrong in particular cases, but) as an Institution and Agency of their Church, and as a Dogma of Faith and a Rule of Duty, binding upon all their adherents, and in all places. (2) They have advocated the support of these School by Municipal Taxation, as well as by Legislative Grant, and that according to the number of their Church population, and not according to the number of children they might teach, or even according to the number of those who might desire Separate Schools for their children, – thus leaving their own Church adherents without any right of individual choice, and the Municipalities, or Common School Trustees, without any power to levy a School Rate, to erect a School House or furnish a School, or support a Teacher, or for any School purpose whatever unless a corresponding sum, according to population, was given in support of the Roman Catholic Church Schools. (3) They have, in order to build up their own Schools at the expense of the Public Schools, and to promote the other objects of their Church organization, attacked the character of the Common Schools generally as nurseries of vice, rather than of virtue; as sinks of iniquity, instead of fountains of knowledge; and avowed their great and ultimate object to be the destruction of the National School System of Upper Canada, and have invoked aid from Lower Canada to accomplish it.55 27. The special report concluded with an expression of Ryerson’s views as follows: My belief is, that in view of the past, present, and future, the Separate School Sections of the School Law ought not to be interfered with, either by making an iota of concession to the unreasonable demands of ultra-religious propagandists, or by taking away an iota of the rights granted to, and possessed by, Roman Catholics during nearly twenty years … I believe that the greatest calamity that could happen to the National School System of Upper Canada would be to identify it with any political party, to degrade it into an engine, a battle ground, or football, of political SDUW\FRQÁLFW«7KHLQWHUHVWVRIQDWLRQDOHGXFDWLRQDUHFHUWDLQO\DERYHWKRVHRI political party, and what has been agreed by all parties to introduce into the Statute Book, and to continue there for so many years, may still be allowed to remain there without inconsistency, or compromise, of any party, especially as aggression from Lower Canada Legislators is no longer to be apprehended, and as Upper Canada cannot be otherwise than true to herself. Separate Schools, of which there are 108 out of 3,742 Common Schools, exist in only sixty-four out of 400 Municipalities in Upper Canada, and exist mostly in City, Town, and Village Municipalities, where they certainly do no harm to anybody, except to those who establish them. I think the reasons for allowing the Separate School provisions of the Law to remain on the Statute Book are stronger now than in past years, and I, therefore, respectfully submit the propriety and wisdom of this course to the consideration of all parties and of the Country at large.56

55

Ibid., p. 125.

56

Ibid., p. 128.

280

4. OFFICIAL REPORTS

28. The public general statutes, whether passed by the Legislature of Upper Canada before the Act of Union of 1841 or by the Parliament of the Province of Canada to apply exclusively to Upper Canada, were revised and consolidated in 1859 into the Consolidation Statutes of Upper Canada. In the consolidation, the Taché Act of 1855 appears, with only very minor changes, as a part of Chapter LXV, entitled An Act Respecting Separate Schools. 29. The next important attempt at separate school legislation was taken in 1860 with the introduction of a Bill by Richard William Scott, then member for Ottawa, one of WKHOHDGLQJ5RPDQ&DWKROLFVLQWKH/HJLVODWXUH+LVÀUVWDWWHPSWIDLOHGDVGLGDWWHPSWV made in the years 1861 and 1862; but in 1863 he was successful, and an Act57 entitled An Act to restore the Roman Catholics in Upper Canada certain Rights in respect to Separate Schools was passed. 30. The importance of the Act of 1863 derives from the fact that it is the statutory basis of the rights and privileges preserved in respect to Roman Catholic separate schools by the British North America Act, which was passed by the Imperial Parliament in 1867. As it cannot be summarized adequately and copies are not generally available, LWKDVEHHQUHSURGXFHGWRJHWKHUZLWK5\HUVRQ·VFRPPHQWDULHVRQVSHFLÀFVHFWLRQVDV an appendix to this chapter. Since (as was claimed in Brief 113, submitted to us by the Inter-Church Committee on Protestant – Roman Catholic Relations) the Act of 1863 ZDVDSSDUHQWO\LQWHQGHGWRFRQVWLWXWHDÀQDOVHWWOHPHQWRIWKH5RPDQ&DWKROLFVHSDUDWH VFKRROSUREOHPLQ8SSHU&DQDGDZHDUHMXVWLÀHGLQH[DPLQLQJDWFRQVLGHUDEOHOHQJWK the events which led up to it. 31. Dr. Ryerson later (in 1865) prepared a statement in which he gave an account of happenings preceding the introduction of Scott’s Bill to the Legislature in 1863. The statement is, in part, as follows:58 In a day or two, Mr. Scott called upon me again, stating that, having consulted his friends, he acceded to my objections, and would propose to amend the bill accordingly. I replied that I still objected to any other party than the Government conducting a Measure of that kind through the Legislature; but as he removed from the Bill what I considered objectionable, I would waive my objections to his proceeding with the Bill, and would aid him to get it passed, on two conditions; – First, that it should be assented to on the part of the Government, and therefore, passed on their responsibility; and secondly, that it should be accepted by the $XWKRULWLHVRIKLVFKXUFKDVDÀQDOVHWWOHPHQWRIWKHTXHVWLRQ2QWKLVODWWHUSRLQW I addressed Mr. Scott as nearly as I can recollect to the following effect: “You are only a private Member of Parliament; you are not a Representative of the Roman Catholic Church; you may assure the House, as well as myself, that this Bill is DFFHSWHGDVDÀQDOVHWWOHPHQWRIWKH6HSDUDWH6FKRROTXHVWLRQVRGLG6LU(WLHQQH 7DFKpZKHQKHLQWURGXFHGWKH6HSDUDWH6FKRRO%LOORIDQGHYHQRQLWVÀQDO

57

26 Vict., Ch. 5, S.P.C.

58

J. G. Hodgins, Documentary History of Education in Upper Canada, Vol. XVIII, 1863-65, Toronto: King’s Printer, 1907, pp. 309-310.

281

STATE SUPPORT FOR RELIGIOUS EDUCATION

passage its advocates assured the Legislature that it would put at rest the agitation of the Separate School question. Now it is said that they had no authority from the Heads of your Church to make such statements; and so it may be said in regard to DQ\DVVXUDQFH\RXPD\JLYHDVWRWKLVPHDVXUHEHLQJDFFHSWHGDVDÀQDOVHWWOHPHQW RIWKHTXHVWLRQE\WKH$XWKRULWLHVRI\RXU&KXUFKDQGXQOHVV,DPVDWLVÀHGRIWKDW ,ZLOOGRZKDW,FDQWRSUHYHQWWKHSDVVDJHRI\RXU%LOOKRZHYHUPRGLÀHGDQGZLOO urge the standing upon the settlement of the question as agreed in 1855.’ Mr. Scott called upon me again, I think, the following day, and told me that he had seen the Archbishop of Quebec, the Head of the Roman Catholic Church in Canada, and that the Archbishop agreed to accept the Bill as I proposed; and that as the Archbishop was not able to go out himself, he proposed that his Secretary, the Very Reverend Vicar-General Cazeau, and the Very Reverend Vicar-General Macdonnell, who had been sent by the Bishops from Upper Canada to watch the legislation on educational matters, should meet me on the subject. I agreed to the meeting proposed, to be held the following day, in the Parliamentary Library. At that Meeting, Mr. Scott pointed out the erasures, and read over the clauses amended, to each of which in succession, the ecclesiastical representatives of the Roman Catholic Hierarchy in Canada, nodded assent as explicitly as did any couple ever nod assent to the vows contained in the Marriage Service. Then Mr. Scott had two copies of the Bill, as thus agreed upon, made out and compared, – the one for himself and the other for me, and proposed that we should all wait upon the Premier, and state to him the result. We proceeded to the Speaker’s Room, where, (not I, but,) Mr. Scott informed him of the result of our conference, and the two Venerable Ecclesiastics earnestly requested the Attorney-General to give the support of the Government to 0U6FRWW·V%LOODVDVDWLVIDFWRU\DQGÀQDOVHWWOHPHQWRIWKH6HSDUDWH6FKRROTXHVWLRQ ,WKLQN,PD\ZLWKRXWRIIHQFHDSSHDOWRWKH+RQRXUDEOH-6DQGÀHOG0DFGRQDOG for the correctness of what I have stated, in the interview referred to with him. … ,DIÀUPWKHUHIRUHWKDWWKHSDVVDJHRIWKH6HSDUDWH6FKRRO$FWRIZDVDQ KRQRXUDEOH FRPSDFW EHWZHHQ DOO SDUWLHV FRQFHUQHG IRU WKH ÀQDO VHWWOHPHQW RI that question; and the renewed agitation of it, in less than two years, is not only a violation of that compact, but a warning to the people of Upper Canada, that if they are compelled again to legislate on the subject, their peace, and the safety of their institutions will require them to sweep the last vestiges of Separate School law from their Statute Books, and place all Religious Persuasions in the same relation of equality to their Schools as exists in the New England States, and in the neighbouring State of New York… 32. The Hon. George Brown, in his speech on the Resolutions relating to the Confederation of the Provinces, on February 8, 1865, in reference to the Act of 1863, said: Now it is known to every honourable Member of this House that an Act was passed LQDVDÀQDOVHWWOHPHQWRIWKLVVHFWDULDQFRQWURYHUV\,ZDVQRWLQ4XHEHFDW the time, but, if I had been here, I would have voted against that Bill, because it

282

4. OFFICIAL REPORTS

extended the facilities for establishing Separate Schools. It had, however, this good feature, that it was accepted by the Roman Catholic Authorities, and carried through 3DUOLDPHQWDVDÀQDOFRPSURPLVHRIWKHTXHVWLRQLQ8SSHU&DQDGD:KHQWKHUHIRUH it was proposed that a provision should be inserted in the Confederation scheme to ELQGWKDWFRPSDFWRIDQGGHFODUHLWDÀQDOVHWWOHPHQWVRWKDWZHVKRXOGQRWEH compelled, as we have been since 1849, to stand constantly to our arms, awaiting fresh attacks upon our Common School System, the proposition seemed to me to be one that was not rashly to be rejected … But assuredly I, for one, have not the slightest hesitation in accepting it as a necessary condition of the scheme of union, and doubly acceptable must it be in the eyes of honourable Gentlemen opposite, who were the authors of the Separate School Bill of 1863 …59 33. The Hon. D’Arcy McGee, a Roman Catholic member, stated on February 9, 1865: I will merely add in relation to an observation of my friend, (Honourable Mr. Brown), on the subject of the Roman Catholic Separate Schools of Upper Canada, that I DFFHSWHGIRUP\RZQSDUWDVDÀQDOLW\WKHDPHQGHG$FWRI,GLGVREHFDXVH LWJUDQWHGDOOWKH3HWLWLRQHUVDVNHGDQG,WKLQNWKH\RXJKWWREHVDWLVÀHG,ZLOOEH no party to the reopening of the question; but I say this, that if there are to be any special guarantees or grants extended to the Protestant minority of Lower Canada, I think the Catholic minority in Upper Canada ought to be placed in precisely the same position—neither better nor worse …60 34. After the publication of Dr. Ryerson’s statement, the Very Reverend Vicar-General Cazeau and the Very Reverend Vicar-General Macdonnell wrote the following letter to the Globe on March 11, 1865: As the names of the undersigned have been very improperly made use of in a pamphlet written, it appears, by Dr. Ryerson, Chief Superintendent of Education for Upper Canada, in connection with a Memorial from the Catholics of Upper Canada, requesting that some amendments should be made to the present Separate School Bill, we deem it proper, in order to elucidate the truth, to make the following declarations:-First. – It is not true that one of us had been deputed by the Archbishop, and that the other represented the Catholic Bishops of Upper Canada, with a view to come to an understanding with Dr. Ryerson in reference to the amendments to be made to the Separate School Bill … Second. – It is quite true that both of us, seeing that the Bill, as it was introduced by Mr. Scott, Member for Ottawa City, had no chance of being accepted by a majority of the House, owing to Dr. Ryerson’s violent opposition to some of its measures, consented, reluctantly, to have it introduced with Dr. Ryerson’s amendment to it,

59

J.G. Hodgins, Historical and Other Papers and Documents, Vol. IV, 1858-1870, (1911), p.24.

60

Ibid., p. 24.

283

STATE SUPPORT FOR RELIGIOUS EDUCATION

but upon their own responsibility, and without consulting either Bishop, or any other person; and because we considered it as some improvement on the former Separate School Law. Third. – It is also true that we both consented to call upon Hon. John S. Macdonald, then Prime Minister, in company with Mr. Scott and Dr. Ryerson, and requested him to get the Government to support the Bill in its amended state; but it is not true, WKDWWKH\KDYHHYHUFRQVLGHUHGWKH%LOODVDÀQDOVHWWOHPHQWRIWKH6HSDUDWH6FKRRO question, or that we ever even thought of anything of the kind. We merely accepted it as an instalment of what they believed the Catholics of Upper Canada were justly entitled to, and, had we thought that a day would arrive when our conduct would receive a different construction, we would not have failed to protest against it.61 35. On March 18, 1865, Dr. Ryerson wrote a rejoinder to the letter in the Globe, part of which was as follows: ,ZLOOÀUVWQRWHZKDWKDVQRWEHHQGLVSXWHG«7KDWKH>0U6FRWW@WRRNVWHSV to remove the two-fold objection to his proceeding with his Bill, by getting the assurance of the Authorities of his Church that the Bill would be accepted as an end of the Separate School agitation, and the assent of the Government to the passing of the Bill. These facts are not disputed. The question then arises what object could have been proposed by Mr. Scott’s asking me to meet Vicar General Cazeau and MacDonnell in the Parliament Library? It could not have been for me to meet them as individuals, IRULWZDVQRWDÀJ·VLPSRUWDQFHRULQWHUHVWWRPHZKHWKHUWKH\DVLQGLYLGXDOV accepted the Bill, or not. Nor could I have consented for a moment to meet any Lower Canada Priest, (however respectable, or whatever his position,) as a private individual on the subject; for I privately and openly denied the right of any individuals of Lower Canada to interfere with such a question in Upper Canada. Besides, I knew nothing of Mr. Cazeau, or his relations to the Archbishop of Quebec. I had never seen him; I only met him in the capacity in which he was named to be by Mr. Scott, as the Archbishop of Quebec’s Secretary and Representative, as Vicar General Macdonnell was mentioned as the Representative of the Roman Catholic Bishops of Upper Canada. The very proposal for me to meet them in any other capacity ZRXOGKDYHEHHQDEVXUG:KHWKHU0U6FRWWGHÀQHGWKHLUSRVLWLRQDQGUHODWLRQV accurately or not, in his request to me to meet them, I have no means of knowing. %XW,KDYHQRGRXEWRILWDQGLQQRRWKHUWKDQLQWKHLURIÀFLDOFDSDFLW\FRXOG,KDYH met them on such a subject. The next question is, what object could there have been in the interview at all except to satisfy me, and, through me, others, that the Bill would be accepted by WKH$XWKRULWLHVRIWKH5RPDQ&DWKROLF&KXUFKDVDÀQDOVHWWOHPHQWRIWKH6HSDUDWH School agitation? My objection to legislating at all on the subject was that it would only be the starting point and pretext of another Separate School agitation as there

61

J. G. Hodgins, The Legislation and History of Separate Schools in Upper Canada, pp. 179-180.

284

4. OFFICIAL REPORTS

was no more assurance of the Bill being accepted by the Authorities of the Roman &DWKROLF&KXUFKDVDÀQDOVHWWOHPHQWRIWKHTXHVWLRQWKDQRIWKH7DFKp$FWRI It was to furnish that very assurance that Mr. Scott desired me to meet Messrs. Cazeau and Macdonnell. That was the sole object and reason for the interview, as it was not to discuss any clauses of the Bill; nor was there any discussion of them. And whatever terms were employed, and whatever understanding was come to, must have been employed and understood in harmony with the sole object and reason of the interview. … Egerton Ryerson62

Toronto, 18th of March, 1865

To this there is no record of any reply – either public or private – by the two clergymen, or by anyone on their behalf or on behalf of the Hierarchy.63 36. The next legislation which had a bearing upon the separate school question is to be found in the Act of Confederation of 1867. Among the resolutions adopted by the House of Assembly of the Province of Canada on March 13, 1865, was the following: 43. Resolved, That the Local Legislature of each Province shall have power to make Laws respecting … 6. Education; saving the rights and privileges which the Protestant, or Catholic, minority in both Canadas may possess, as to their Denominational Schools, at the time when the Union goes into effect.64 On the basis of this resolution, the following provisions of the British North America Act65 passed by the Imperial Parliament in 1867 were founded: (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: (2) All the Powers, Privileges, and Duties at the Union, by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen’s Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen’s Protestant and Roman Catholic subjects in Quebec: (3) Where in any Province a System of Separate or Dissentient Schools exist by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of

62

J. G. Hodgins, Documentary History of Education in Upper Canada, Vol. XIX, 1865-1867, Toronto: King’s Printer, 1907, p. 8.

63

See J. G. Hodgins, The Legislation and History of Separate Schools in Upper Canada, p. 182.

64

Ibid., p. 184

65

30 & 31 Vict., Ch. 3, S. U. K., Sec. 93.

285

STATE SUPPORT FOR RELIGIOUS EDUCATION

any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen’s Subjects in relation to Education: (4) In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section. Thus the Legislature of Ontario may exclusively make laws in relation to education, subject to the foregoing provisions. Since no law so made may prejudicially affect any right or privilege with respect to denominational schools which any class of persons had by law in the province at Confederation, any safeguard enjoyed by Roman Catholic separate schools exists by virtue of their being denominational schools.

&KDQJHV6LQFH&RQIHGHUDWLRQLQ/HJLVODWLRQ$IIHFWLQJ5RPDQ Catholic Separate Schools 37. In the years since Confederation, changes in provincial legislation affecting Roman Catholic separate schools in Ontario have been made which, it has been argued, have resulted in an enlargement of the rights and privileges existing at the time of Confederation. Be this as it may, it is evident that the provisions of Section 93 of the British North America Act of 1867 with respect to denominational schools refer only to rights and privileges held at the time of Confederation, and do not extend to any statutory rights or privileges which may have been granted since that time. Thus, there is no constitutional impediment to the power of the Legislature of Ontario to alter or to repeal any rights or privileges granted in respect to Roman Catholic separate schools through post-Confederation enactments. 38. To make clear in our review the effect of legislation relating to Roman Catholic separate schools enacted in our province since 1867, we have organized the material WRSLFDOO\6RPHHQDFWPHQWVRIOLWWOHRUQRVLJQLÀFDQFHKDYHEHHQRPLWWHGRWKHUHQDFWments have been included, although they may appear to have been related only to minor administrative or procedural matters, because they had, in fact, wide implications.

Roman Catholic Separate Schools and Secondary School Education 39. Under Section 73 of the present Separate Schools Act, a Roman Catholic separate school board of a municipality or in a school section or union school section has the same rights, powers, and privileges with respect to the establishment and maintenance of continuation schools as the public school board of the municipality, school section, or union school section.

286

4. OFFICIAL REPORTS

&RQWLQXDWLRQFODVVHVZHUHÀUVWLQWURGXFHGLQWKH\HDU,QThe Public Schools Act66 of that year it was enacted that the school corporation of any municipality or section in which there was no high school should have power to establish a continuation class for pupils who had completed the course of study prescribed for public schools and had passed the public school leaving examination, and to provide suitable accommodation for such class. The course of study for continuation classes was to be that prescribed for the primary examination of the Education Department. According to a circular issued at the time by the Minister, the object of the Legislature was to enable pupils who had passed the entrance examination to a high school or had completed a public school course to continue their studies at least as far as the end of the second form of the high schools. 41. The Act of 1896 was amended in 189967 to extend the power to conduct a continuation class to the school corporation of a separate school. Under this amending legislation, boards of trustees, whether of public or separate schools, might agree to conduct continuation classes in one of their schools. 42. The Public Schools Act of 190168 made no provision for continuation classes in separate schools, but it was amended in 190269 so as to make such provision; and in 190670 it was enacted that the trustees of public and separate schools might unite to form continuation classes. 43. In 1908 an Act71 was passed whereby trustees were given power, where there was no high school, to establish and maintain courses of study in addition to the courses DOUHDG\SURYLGHGIRUWKHÀIWKIRUPRISXEOLFVFKRROV7KHFODVVHVVRDXWKRUL]HGZHUH to be known as “continuation schools”. Fifth classes were also mentioned, and it was HQDFWHGWKDWSXSLOVVKRXOGEHDGPLWWHGLQWRFRQWLQXDWLRQVFKRROVDQGÀIWKFODVVHVLQ accordance with the regulations governing the admission of pupils into high schools. The Minister in his report for the year stated, “By the legislation of 1908 the former Continuation Classes were divided into Continuation Schools and Fifth Classes.” In the same year, the powers of separate school trustees with reference to the establishPHQWRIFRQWLQXDWLRQVFKRROVDQGÀIWKFODVVHVZHUHPDGHWKHVDPHDVWKRVHRISXEOLF school trustees, and regulations were published covering the courses of study and the apportionment of the legislative grant.72 44. A separate Act73 regarding continuation schools was passed in 1909. By the regulations of the same year, the courses of study in continuation schools were to be those

66

59 Vict., Ch. 70, S. O.

67

62 Vict. (2), Ch. 36, S. O.

68

1 Edw. VII, Ch. 39, S. O.

69

2 Edw. VII, Ch. 41, S. O.

70

6 Edw. VII, CH. 53, S. O.

71

8 Edw. VII, Ch. 67, S. O.

72

8 Edw. VII, Ch. 68, S. O.

73

9 Edw. VII, Chl 90, S. O.

287

STATE SUPPORT FOR RELIGIOUS EDUCATION

prescribed for high schools, except that the special consent of the inspector was required before certain courses could be included. This Act has been amended many times and now appears in the Revised Statutes of Ontario, 1937, as Chapter 359. 45. The Separate Schools Act of 1863, and therefore the British North America Act of 1867, did not give the right to Roman Catholics to establish continuation schools, FRQWLQXDWLRQFODVVHVRUÀIWKFODVVHV$VVWDWHGDERYHVXFKULJKWVZHUHFRQIHUUHGLQ 1899 and in 1908.

Administration of Roman Catholic Separate Schools 46. For the most part, legislation relating to the administration of Roman Catholic separate schools has remained virtually unchanged since Confederation. But a number RIDPHQGPHQWVDUHVLJQLÀFDQW 47. Section 9 of the Separate Schools Act of 1863 stated that “The Trustees of Separate Schools … shall perform the same duties and be subject to the same penalties as Trustees of Common Schools … “ This Section was included in subsequent separate schools Act until 1886, when it was omitted from the Act of that year. 48. The present Separate Schools Act provides, by Section 45 (m), that it shall be the duty of every board to exercise all such powers and perform all such duties of public school boards as are applicable in the case of separate schools, except in matters regarding which other provision is made by that Act. Section 45 (m), however, refers only to the “powers” and “duties” of separate school trustees, and does not subject such trustees, as did the Act of 1863, to the same penalties as public school trustees. Certain penalties and prohibitions are contained in Sections 94 to 110 inclusive, of the present Separate Schools Act; but these are not as extensive as those contained in Sections 133 to 154 inclusive, of the present Public Schools Act. A departure has been made from the general imposition of the penalties of the Act of 1863. 49. Pursuant to Section 9 of the Act of 1863, Roman Catholic separate school teachers were made liable to the same obligations and penalties as common school teachers. There is now no such sweeping law in force, except that teachers in both public and separate schools are subject to the general regulations of the Department of Education. Section 48 of the present Separate Schools ActGHÀQHVWKHGXWLHVREOLJDWLRQV RIWKH teachers in those schools. Public school teachers are required, in Section 103 of The Public Schools Act, inter alia, to use the English language in instruction and in all communications with pupils in regard to discipline and in the management of the school, except where it is impracticable to do so by reason of the pupil not understanding English; “to inculcate by precept and example respect for religion and the principles of Christian morality and the highest regard for truth, justice, loyalty, love of country, humanity, benevolence, sobriety, industry, frugality, purity, temperance and all other virtues”; and “to give assiduous attention to the health and comfort of the pupils …” None of these duties of teachers in public schools is included in The Separate Schools Act. Granted, some of them may seem obvious and perhaps should be the subject of regulation rather than statutory enactments. The fact remains, however, that the law of 1863 with respect to the obligations of separate school teachers has been changed.

288

4. OFFICIAL REPORTS

50. Certain other requirements of the Act of 1863 have, during the passage of the years, been omitted from subsequent Acts dealing with Roman Catholic separate schools. One RIWKHVHLV6HFWLRQZKLFKFRQWDLQHGWKHVSHFLÀFREOLJDWLRQRIVHSDUDWHVFKRROWUXVWHHV to establish a school within three months of the election of the board of trustees; otherwise the election would become void. The present Separate Schools Act, in Section 45(d), states that it is the duty of every board to “provide adequate accommodation and legally TXDOLÀHGWHDFKHUVDFFRUGLQJWRWKHSURYLVLRQVRIWKLV$FWDQGWKHUHJXODWLRQV«µEXWWKLV has not the force of the law in effect at Confederation. In any event, notwithstanding this present duty, and possibly owing to the removal of the consequence contained in Section 24 of the Act of 1863, a few Roman Catholic separate school corporations have been formed, have failed to establish a school, but have continued in existence and received legislative grants. Under the statutes in effect at Confederation, if such a corporation had not established a separate school under its management within three months of the election of the trustees it would, ipso facto, have ceased to exist. 51. A private Act of the Legislature was passed in the year 1941,74 entitled An Act Respecting the Board of Trustees of the Roman Catholic Separate Schools for the City of Toronto, under which certain municipalities and parts of municipalities, as set out in Schedule A to the Act, were for separate school purposes united and administered by one district board. They thus formed, in effect, a metropolitan school area. The formation of a metropolitan area is a right acquired by these particular Roman Catholics subsequent to Confederation. 52. The Act of 1863 provided for the formation of a separate school union section FRPSRVHGRIVHSDUDWHVFKRROVHFWLRQVDOWKRXJKWKH$FWFRQWDLQHGQRGHÀQLWLRQRIZKDW constituted a separate school section. Each separate school union section thus formed was to be deemed one school section for all Roman Catholic separate school purposes. The present Separate School Act (Section 32) does not use the expression “separate school section”, but provides that the majority of the supporters of each of the separate schools situate in two or more public school sections may form a union school, and every union separate school thus formed shall be deemed one school for all Roman Catholic separate school purposes. The present provision permitting the establishment of a union separate school is at variance with the provision of the Act of 1863. In addition, the establishment and operation of central schools or larger units of administration are controlled by the basic law in force at Confederation that no Roman Catholic may be a supporter of a separate school unless he resides within three miles in a direct line of the site of the school-house. 53. Perhaps one of the most important changes in administration since 1863 is the acquisition by Roman Catholics of the right to establish separate schools in those parts of Ontario without municipal organization. This right is based on Section 21 of The Separate Schools Act RIÀUVWHQDFWHGLQWKH\HDU75 sub-section (1) of which is as follows:

74

5 Geo. VI, Ch. 82, S. O.

75

62 Vict. (2), Ch. 37, Sec. 1, S. O.

289

STATE SUPPORT FOR RELIGIOUS EDUCATION

In unorganized townships and in any part of Ontario not surveyed into townships any number of heads of families, not less than ten, who are Roman Catholics, may, at a public meeting called for that purpose, elect three of their number as school trustees, and the trustees so elected shall have all the powers of public school boards in unorganized townships, and shall in all other respects be subject to the provisions of the Act. Sub-section (2) of this Section provides that, on receipt of notice by the Department of Education that such a school has been established, the Minister may pay to the board out of the appropriation made by the Legislature for public and separate schools such sum for maintenance as may be approved by the Lieutenant-Governor in Council. 54. The Act of 1863 made no such provisions. In order to establish a separate school XQGHU6HFWLRQRIWKDW$FWQRWOHVVWKDQÀYHSHUVRQVEHLQJKHDGVRIIDPLOLHVDQG freeholders or householders, resident within a school section of any township, incorporated village, or town, or within any ward of any city or town, and being Roman Catholics, could establish a Roman Catholic separate school. It should be noted that, in 1863, such persons were required to be resident within a school section. There is QRGHÀQLWLRQRI´VFKRROVHFWLRQµLQWKH$FWRIRULQDQ\RWKHU6HSDUDWH6FKRROV Act; but the Common Schools Act of 185976 provided that each township council was to form portions of the township where no schools had been established into school VHFWLRQV$GHÀQLWLRQRI´VFKRROVHFWLRQµÀUVWDSSHDUVLQThe Public Schools Act of 1891,77 as follows: “‘School Section’ shall mean the municipality or any portion thereof, or any portion of two or more municipalities under one public school corporation.” 7KLVGHÀQLWLRQKDVEHHQFKDQJHGLQVXEVHTXHQW3XEOLF6FKRROV$FWVEXWVXFKFKDQJHV need not be considered here.

Assessments, Borrowing Powers, and Grants 78 55. According to the Taché Act, a person paying rates who gave notice to the clerk of the municipality in which a separate school was situated that he was a Roman Catholic and a supporter of such school was exempted from the payment of all rates imposed for the support of common schools during the year next following and during subsequent years, except for rates imposed before the establishment of the separate school. The notice had to be given each year; otherwise the ratepayer would not be exempted from the payment of rates for common schools. 56. According to Section 14 of the Act of 1863, a written notice had to be given but did not need to be renewed annually by the supporter personally. It was the duty of the trustees of every separate school to transmit to the clerk of the municipality each year a correct list of the names and residences of all persons supporting the separate schools under their management; and every ratepayer whose name did not appear on

76

C.S.U.C., Ch. 64, Sec. 39.

77

54 Vict., CH. 55, Sec. 2 (5), S. O.

78

See also Chapter XXVII.

290

4. OFFICIAL REPORTS

such a list was to be rated for the support of common schools. Thus, the trustees were to give the yearly notice which previously had to be given by the ratepayer. The Act also provided that by giving a written notice a Roman Catholic could withdraw his support from a separate school, except for the payment of rates imposed before the date of his withdrawal. Section 19 stated that no person should be deemed a supporter of a separate school unless he resided within three miles in a direct line of the site of the school-house. This, then, was the situation at Confederation. But many changes have been made since 1867. 57. That part of Section 14 requiring the trustees to submit a correct list of the supporters of their separate schools was repealed in 1886. It would appear that the repeal was a consequence of the introduction in 1879 of the following clause in An Act Respecting Public, Separate and High Schools79 of that year: 3. In any case where the trustee of any Roman Catholic Separate School avail themselves of the provisions contained in the seventy-eighth section of the Public Schools Act, for the purpose (amongst others) of ascertaining through the assessor of the Municipality the persons who are the supporters of Separate Schools in such Municipality, the assessor shall accept the statement of, or made on behalf of, any UDWHSD\HUWKDWKHLVD5RPDQ&DWKROLFDVVXIÀFLHQWprima facie evidence for placing such person in the proper column of the Assessment Roll for Separate School supporters, or if the assessor knows personally any ratepayer to be a Roman Catholic WKLVVKDOODOVREHVXIÀFLHQWIRUSODFLQJKLPLQVXFKODVWPHQWLRQHGFROXPQ 58. This Section was subsequently repealed, and no equivalent Section appears in any of the school Acts. But, by Section 62 of the present Separate Schools Act, the clerk of the municipality is required to keep an index book, in which is entered the name of each person who has given to him a notice in writing that he “is a Roman Catholic and a supporter of a separate school in or contiguous to the municipality”. The present Assessment Act provides that, where such an index book is prepared, the assessor shall be guided by it in ascertaining who have given the requisite notices. Where the index book does not show a ratepayer to be a supporter of separate schools: The assessor … shall accept the statement of the ratepayer, or a statement made on his behalf and by his authority, and not otherwise, that he is a Roman Catholic, DVVXIÀFLHQWprima facie evidence for placing such person in the proper column of assessment roll for separate school supporters, or if the assessor knows personally DQ\UDWHSD\HUWREHD5RPDQ&DWKROLFWKLVVKDOODOVREHVXIÀFLHQWIRUSODFLQJKLP in such last mentioned column.80 59. A Roman Catholic who wishes to be assessed as a separate school supporter is not now required by law to give the written notice prescribed by the Act of 1863 or by Section 55 of the present Separate Schools Act. This was decided by the Appellate

79

42 Vict., Ch. 34, Sec. 26, S. O.

80

R. S. O. 1937, Ch. 272, Sec. 30.

291

STATE SUPPORT FOR RELIGIOUS EDUCATION

Division of the Supreme Court of Ontario in the case of McCarty vs. Hird.81 At present, if the assessor has evidence that a ratepayer is a Roman Catholic, he may justly assess him as a separate school supporter. Hence a ratepayer so assessed who has not given the written notice required by statute and who does not wish to be a separate school supporter is now compelled, in order to regain his status as a public school supporter, WRWDNHDFWLRQE\DSSHDOWRD&RXUWRI5HYLVLRQ6XFKDFWLRQPD\EHPRUHGLIÀFXOWLQ many ways, than “electing” to become a supporter of a separate school. 60. It has been noted that, under Section 19 of the Act of 1863, no person was to be deemed a supporter of a separate school unless he resided within three miles in a direct line of the school-house. This provision is expressed in Section 56 of the present Separate Schools ActEXWLWKDVEHHQPRGLÀHGVRWKDWXQGHUFHUWDLQFLUFXPVWDQFHVLWQRORQJHU applies. Under Section 60 of the present Separate Schools Act, any non-resident who RZQVXQRFFXSLHGODQGLQWKHPXQLFLSDOLW\DQGZKRLVRWKHUZLVHTXDOLÀHGPD\RQJLYLQJ the notice provided for by The Assessment Act, require all such land in the municipality in which the separate school is situated or within three miles in a direct line of the separate school to be assessed for the purposes of the separate school. 61. Another change is that which occurred in regard to lands held by a corporation. In Section 33 of the Consolidated Common School Act of Upper Canada of 1859,82 provision was made for assessment of the lands or property of a “Company” for the support of common schools. At that time, the assessment of lands or property owned or held by bodies corporate, such as corporate administrators of estates, joint-stock companies, public utilities, crown corporations, and co-operatives, may have been of OLWWOHVLJQLÀFDQFH,QDQ\HYHQWQRSURYLVLRQZDVPDGHLQWKH6HSDUDWH6FKRROV$FW of 1863 for allotting all or any part of the taxes derived from such assessment to the support of separate schools. In 1886 an amendment was made to The Separate Schools Act whereby a corporation by giving notice to the clerk of any municipality in which there was a separate school might “require the whole or any part of the lands of which such corporation is either the owner and occupant, or not being the owner is the tenant, occupant or actual possessor, and the whole or any proportion of the business assessment or other assessments of such corporation … to be entered, rated and assessed for the purposes of such separate school”.83 This is limited, in sub-section 3 of the present Act, by the provision that “Unless all the stock or shares are held by Roman Catholics the share or portion of such land and business or other assessments to be so rated and assessed shall not bear a greater proportion to the whole of such assessments than the amount of the stock or shares so held bears to the whole amount of the stock or shares.” It was held by the Privy Council, in the case of Board of Education for City of Windsor vs. Ford Motor Company of Canada Limited and Others,84 that the onus is on the corporation to establish the facts of the situation as set forth in sub-section 3.

81

1947 Ontario Reports, p. 615.

82

22 Vict., Ch. 64, C. S. U. C.

83

Section 66 of the present Separate Schools Act.

84

Reported in 1941, 110 Law Journal, Privy Council, p. 30.

292

4. OFFICIAL REPORTS

62. Section 66 of the present Separate Schools Act can hardly be considered an outgrowth of Section 14 of the Act of 1863, which provided that “Every person paying rates … who … has given to the Clerk of the Municipality notice in writing that he is a Roman Catholic, and a supporter of a Separate School … shall be exempted from the payment of all rates imposed for the support of Common Schools …” The word “person” then, as now, included any body corporate; but this section requires the “person” to be a Roman Catholic, and a body corporate – which is required to give the notice under Section 66 RIWKHSUHVHQW$FW²FDQQRWEHD5RPDQ&DWKROLF:KDWHYHUEHQHÀWVRUULJKWV5RPDQ Catholic separate school supporters have obtained under Section 66 of the present Separate Schools Act have been acquired by them since Confederation. 63. At the time of Confederation trustees of separate schools had the same right to borrow money as the trustees of common schools. The municipal council could borrow at the request of the trustees or could grant the trustees authority to borrow any sums of money required for school purposes, and then cause to be levied each year upon the WD[DEOHSURSHUW\DVXPVXIÀFLHQWWRSD\WKHLQWHUHVWDQGDOVRDVXPVXIÀFLHQWWRSD\RII the principal within ten years. This method of borrowing continued for both public and separate school trustees until the year 1879, when an Act of the Legislature85 made it necessary for a high school board or public school corporation to apply to the municipal council in order to raise or borrow the required money. On the other hand, the trustees of any separate school were given full power, as a body corporate, to borrow money for school purposes and to make valid mortgages and other instruments for the security and payment of such borrowed money upon the school-house property and premises or upon any other real or personal property vested in them, or upon the separate school rates. In 1887 it was provided86 that such mortgages and other instruments could be made in the form of debentures, to be a charge on the same property and rates. 64. The above are, to all intents and purposes, the respective powers possessed by public87 and separate school boards to borrow money today. The method, but not the right to borrow, has changed since 1863. 65. For at least 150 years it has been the policy in Ontario for the Legislature to contribute to the support of schools out of public funds.88 In 1789 and 1797 grants of land in Upper Canada were made for what were afterwards known as “grammar” schools, and in 180789 provision was made for granting £800 annually for public (grammar) schools. Successive governments granted different amounts, and, when separate schools were recognized by statute in 1841,90 it was provided in the Act that the trustees of such schools should receive from the district treasurer a due proportion, according to the

85

42 Vict., Ch. 34, S.O.

86

50 Vict., Ch. 34, S.O.

87

See, however, powers of public school trustees in organized townships and un-surveyed districts to raise funds, as set forth in Section 42 and 48 of The Public Schools Act. 88

See also Chapter XXVII.

89

47 Geo. III, Ch. 6, S. U. C.

90

4 & 5 Vict., Ch. 18 S. P. C.

293

STATE SUPPORT FOR RELIGIOUS EDUCATION

number of such schools, of the moneys appropriated by law and raised by assessment for the support of common schools. 66. The right of Roman Catholic separate schools to share in legislative grants was crystallized in Section 20 of the Act of 1863: 20. Every Separate School shall be entitled to a share in the fund annually granted by the Legislature of this Province for the support of Common Schools, and shall be entitled also to a share in all other public grants, investments and allotments for Common School purposes[91] now made or hereafter to be made by the Province or Municipal authorities, according to the average number of pupils attending such school during the twelve next preceding months, or during the number of months which may have elapsed from the establishment of a new Separate School, as compared with the whole average number of pupils attending School in the same City, Town, Village or Township. 67. Roman Catholic separate schools, therefore, had (and still have) a right “to a share in the fund annually granted by the Legislature” for the support of common schools. In June 1865, a circular letter issued by Ryerson described “the basis of Apportionment” as follows: … to the several Counties, Cities, Towns, Villages, and Townships for this year, [the basis] is the population, as reported in the Census of 1861, which was also adopted last year, and I have no more generally accurate statistics of a later date. Where Separate Schools exist, the sum apportioned to the Municipality has been divided among the Common and Roman Catholic Separate Schools therein, according to the average attendance of Pupils at both classes of Schools during last year, as reported by the Trustees.92 Since that date, many changes have been made in the bases of “apportionment of the amount voted by the Legislature for the support of elementary schools.93 68. In the year 1926, the Roman Catholic separate school trustees of the Township of Tiny in Simcoe County contended, among other things, that separate school trustees had a right to share in the legislative grants for “common school purposes”, pursuant to the Act of 1863, before any sums were paid to public schools for special purposes. The TXHVWLRQZDVÀQDOO\VHWWOHGE\WKH3ULY\&RXQFLOZKRVHDGYLFHWR+LV0DMHVW\PD\EH found in the case of Tiny Separate School Trustees vs. The King, reported in 1928.94 In order to understand the judgment, it is necessary to refer to Section 106 of An Act Respecting Common Schools in Upper Canada of 185095 (which was in force in the

91 According to Ryerson’s comments on this Section, the latter sources of revenue were restricted to the Clergy Reserve Fund. 92

J.G. Hodgins, Documentary History of Education in Upper Canada, Vol. XVIII, 1863-1865, p. 261.

93

See Chapter XXVII.

94

97 Law Journal, Privy Council, p. 69.

95

C. S. U. C., Ch. 64, 1859.

294

4. OFFICIAL REPORTS

year 1863), under which it was the duty of the Chief Superintendent of Education to ´DSSRUWLRQDQQXDOO\RQRUEHIRUHWKHÀUVWGD\RI0D\DOOPRQH\VJUDQWHGRUSURYLGHG by the Legislature for the support of Common Schools in Upper Canada, and not otherwise appropriated by law to the several Counties, Townships, Cities, Towns and Incorporated Villages according to the ratio of population in each, as compared with the whole population of Upper Canada …” 69. The judgment of the Privy Council was that the Legislature could, out of the moneys granted for all school purposes, appropriate certain sums for special purposes, and that the balance of the grant, after making such appropriations, was then divisible among the public and separate schools. Such appropriations would diminish what otherwise would go to the trustees of public and Roman Catholic separate schools. Viscount Haldane, who delivered the judgment, stated: Whether the case is looked at from the point of view of regulation, or whether it is regarded from that of discretion in power of appropriation, the result is the same. It is indeed true that power to regulate merely does not imply a power to abolish … It may be that the new laws will hamper the freedom of the Roman Catholics in their denominational schools … but they are still left with separate schools … 70. At Confederation it was possible to ascertain what portion of the fund annually granted by the Legislature for the support of common schools in Upper Canada should go to a given municipality. A separate school in a municipality had a right to a share of the amount so granted to the municipality, based on the average number of pupils in attendance. However, average daily attendance has long since ceased to be the sole basis for the distribution of legislative grants, although it was one of those included in the grant scheme announced by the Minister of Education in 1950. 71. In the year 1945 an Act96 was passed providing that, subject to the approval of the Lieutenant-Governor in Council, the Minister might make regulations “providing for the apportionment and distribution of all money appropriated or raised by this Legislature for educational purposes …” and “prescribing the conditions governing the payment of legislative grants”. The issue of “Circular Grants General No. 12” of that year contained regulations respecting the distribution of general legislative grants. It directed that distribution should be based in the case of urban public and separate schools on population and “approved cost”, and in the case of rural public and separate schools on assessment per classroom and “approved cost”. These bases prevailed until 1950.

96

The School Law Amendment Act, 9 Geo. VI, Ch. 8, S. O. 1945 (2nd Session).

295

STATE SUPPORT FOR RELIGIOUS EDUCATION

Appendix To Chapter XVIII97

ACT of 1863 26 Vic. Cap. 5. Received Royal Assent, 5th May, 1863 An Act to restore to Roman Catholics in Upper Canada certain rights in respect to Separate Schools. [Editor’s Note: For Act of 1863 see infra Document #1]

97 This appendix is a copy of part of Ryerson’s report comparing the Acts of 1855 and 1863. The comments on particular sections are his.

296

#25 Report of the Commission on Private Schools in Ontario (the 6KDSLUR5HSRUW 4XHHQ·V3ULQWHU2FWREHU&KDSWHUV,9 DQG$SSHQGLFHV'()DQG*RQO\  The Commission on Private Schools in Ontario (the Shapiro Commission) was established by the Government of Ontario on 26 July 1984 and was chaired by Dr. Bernard Shapiro. At the time, Dr. Shapiro was Director of the Ontario Institute for Studies in Education. The Shapiro Report was submitted to the Ontario Minister of Education, Mr. Sean Conway, on 31 October 1985. The mandate of the Commission was to: “inquire into and, a) document and comment upon the contribution of private schools in elementary education in Ontario; b) identify and comment upon possible alternative forms of governance of private schools that provide elementary or secondary education, or both, and make recommendations for changes in governance of such private schools in Ontario as the Commissioner considers appropriate; c) comment upon whether, with reasonable attendant obligations, public funding of private schools that provide elementary or secondary education, or both, would be desirable and compatible with the independent nature of such schools; d) identify and comment upon existing and possible relationships between private schools and publicly supported school boards.” The report included numerous appendices, four of which are included here (ApSHQGLFHV'() * 7KHVHDSSHQGLFHVZHUHZULWWHQE\DXWKRULWLHVLQWKHÀHOG of education and dealt with a variety of issues such as philosophy and history of private education, legal aspects of public funding of private education, and ÀQDQFLQJPHWKRGVRISULYDWHHGXFDWLRQ'U6KDSLURGUHZXSRQWKHLUÀQGLQJVLQ the report and its conclusions. The Shapiro Report suggested some form of funding for non-public schools in Ontario. While the Report acknowledged the issue of religious discrimination in education funding in Ontario, it did not suggest treating non-Catholic children in religious schools in the same or equal manner as Catholic children. The government of the day, and all succeeding governments, have not acted upon any of the major recommendations of the Shapiro Commission regarding the funding of non-public schools.

*

© Queen’s Printer for Ontario, 1985. Reproduced with permission.

297

STATE SUPPORT FOR RELIGIOUS EDUCATION

7+(5(32572) 7+(&200,66,212135,9$7(6&+22/6,1217$5,2 Bernard J. Shapiro, Commissioner October 1985

The Commission on Private Schools in Ontario

(416) 965-7044

Suite 4-299 252 Bloor Street West Toronto, Ontario M5S 1V5

October 31, 1985 The Honourable Sean Conway Minister Ministry of Education 22nd Floor, Mowat Block Queen’s Park Toronto, Ontario M7A 1L2 Dear Mr Conway: It is a pleasure to submit to you the report of the Commission on Private Schools in Ontario, established by Order in Council 2049/84 dated July 26, 1984. In preparing this Report, I have attempted to make available to you not a fully documented research report but – at least in terms of the main text – a brief public policy paper. As a consequence, there has been limited opportunity within the Report to deal with each issue in the fullest detail. Therefore, I do hope that you and your colleagues will feel free to call upon me for further comment and explication if you believe that I can be of assistance. My work as Commissioner has been both stimulating and satisfying to me both personally and professionally. My hope is that the publication of the Report will provide a framework for a productive discussion on the appropriate public policy for private/independent schools in Ontario. Cordially, Bernard J. Shapiro Commissioner

298

4. OFFICIAL REPORTS

7$%/(2)&217(176 Acknowledgement CHAPTER I THE COMMISSION ON PRIVATE SCHOOLS IN ONTARIO Establishment of the Commission The Commission’s Plan of Work CHAPTER II

PRIVATE SCHOOLS IN ONTARIO: THE PAST AND THE PRESENT

The Past The Present Legislative References A Statistical Overview Operating Costs Current Programmes of Aid Private School Visits CHAPTER III

PUBLIC FUNDING OF PRIVATE SCHOOLS: SOME COMPARATIVE PERSPECTIVES

Canada The Territories Newfoundland The Maritimes Manitoba Saskatchewan British Columbia Alberta Quebec Some Other Countries New Zealand The Netherlands France Denmark Australia England CHAPTER IV

PUBLIC FUNDING OF PRIVATE SCHOOLS: THE VIEW OF ONTARIANS Public Opinion Polls Informal Consultations Written Briefs Public School Boards Separate School Boards Jewish Schools Protestant Denominational Schools (Supporting)

299

STATE SUPPORT FOR RELIGIOUS EDUCATION

Protestant Denominational Schools (Opposing) Conference of Independent Schools Schools for Special Education CHAPTER V

  



PUBLIC FUNDING OF PRIVATE SCHOOLS: THE RECOMMENDATIONS OF THE COMMISSION Some Matters of Principle The Recommendations  $6WDQGDUGIRU$OO6FKRROV6DWLVIDFWRU\,QVWUXFWLRQDQG4XDOLÀHG7HDFKHUV Satisfactory instruction   4XDOLÀHGWHDFKHUV  3ULYDWH6FKRROV6WDWXV5HVSRQVLELOLWLHVDQG7HDFKHU4XDOLÀFDWLRQV Status Responsibilities   7HDFKHUTXDOLÀFDWLRQV The Public Funding of Independent Schools Programmes of limited support Associated schools Board (Public and Separate) Schools: New Opportunities Special Cases Pre-school programmes Home schooling Religious education Special education Some Matters of Process Ministry of Education Provincial Government The Costs The Consequences and the Challenge

APPENDICES Appendix A –

Statement to the Legislature by William G. Davis, Premier – June 12, 1984

Appendix B –

Order in Council Establishing The Commission on Private Schools in Ontario

Appendix C –

Commission on Private Schools: Advisory Committee

Appendix D –

“Legal and Constitutional Aspects of Public Funding for Private Schools in Ontario” – Neil Finkelstein

300

4. OFFICIAL REPORTS

Appendix E –

“The Funding of Private Schools in Ontario: Philosophy, Values and Implications for Funding” – Mark Holmes

Appendix F –

“Alternative Methods of Financing Private Schools in Ontario” – Stephen Lawton

Appendix G –

“A History of Private Schools in Ontario” – Robert Stamp

Appendix H –

Commission on Private Schools: Ontario Private Schools Visited

Appendix I –

Commission on Private Schools: Call for Briefs

Appendix J –

Commission on Private Schools: Informal Consultations

Appendix K –

Commission on Private Schools: Briefs Submitted Arranged by brief number Arranged alphabetically by author

$SSHQGL[/²

&RPPLVVLRQRQ3ULYDWH6FKRROV0HHWLQJVWR'LVFXVV6SHFLÀF Briefs

Appendix M –

Sample Alternative School Policies Board of Education for the City of Toronto Ottawa Board of Education Board Education for the Borough of York

Appendix N –

Ministry of Education – Ontario Goals for Education

301

STATE SUPPORT FOR RELIGIOUS EDUCATION

CHAPTER I 7+(&200,66,212135,9$7(6&+22/6,1217$5,2 Schools can make a difference in the lives of children not by keeping them off the street through adolescence, not by giving them marketable job skills, not by training them in the habits of docility, but by instilling in them the qualities of mind and character that will enable them to operate as self-governing citizens in a self-governing society. Diane Ravitch, 1985 The extent to which public monies should be used to support the education of persons enrolled in private elementary and/or secondary schools (i.e., elementary and/or secondary schools not themselves owned or operated by government bodies) has been a question debated by every nation providing public support to schools. There is, however, no absolute answer to this question. The current arrangements in any jurisdiction are the result of the interplay of many factors, including the religious, ethnic and cultural composition of the population, historical developments, governmental structures, and both the strength and character of the economy. In Ontario and in Canada, both FKDUDFWHUL]HGE\DKHWHURJHQRXVSRSXODWLRQDQGDQRIÀFLDOLGHRORJ\WKDWLVPXOWLHWKQLF in nature, no arrangement is likely to be a permanent one. Such a society will posses – to some extent – pluralistic social structures with differentiated institutions, and the degree to which different groups will interact in common settings will vary over time. Any existing arrangement can be expected to alter as change also occurs in the variable factors affecting the current policy compromise.

The Establishment of the Commission In Ontario, the general issue of the public support of elementary and secondary private schools has been discussed for many years, and the actual practice of the Province has varied over time. At present, however, direct provincial funding of schools not operated by the Ministry of Education or publicly elected trustees is severely limited.1 The question of the appropriateness of this current arrangement was raised directly by the Provincial Government itself in a statement to the legislature on June 12, 1984 by the then Premier of Ontario, the Honourable William G. Davis. In this statement (see Appendix A), which was devoted primarily to the extension of public funding to a complete Roman Catholic secondary school system, Mr. Davis added, on behalf of the Government, that the new policy with regard to the Roman Catholic schools: legitimately raises questions about the place of independent schools in our province … (and that) it is timely and useful to review the role of these schools in educating our children.

1

Lawton, S., Alternative Methods of Financing Private Schools in Ontario, paper prepared especially for the Commission on Private Schools in Ontario, Toronto, January 1985.

302

4. OFFICIAL REPORTS

Pursuant to this announcement, an Order in Council (see Appendix B) dated July 26, 1984 appointed Bernard J. Shapiro, Director of the Ontario Institute for Studies in Education, as the sole Commissioner for the Commission on Private Schools in Ontario. The Order required that the Commission inquire into and, a) document and comment upon the contribution of private schools in elementary education in Ontario;2 b) identify and comment upon possible alternative forms of governance of private schools that provide elementary or secondary education, or both, and make recommendations for changes in governance of such private schools in Ontario as the Commissioner considers appropriate; c) comment upon whether, with reasonable attendant obligations, public funding of private schools that provide elementary or secondary education, or both, would be desirable and compatible with the independent nature of such schools; d) identify and comment upon existing and possible relationships between private schools and publicly supported school boards. $ÀIWHHQSHUVRQDGYLVRU\FRPPLWWHHWKHPHPEHUVRIZKLFKDUHOLVWHGLQ$SSHQGL[& was appointed by the government. In addition, a small secretariat was established to assist with the Commission’s work.

The Commission’s Plan of Work In order to respond to its terms of reference and develop its recommendations for the Provincial Government, the Commission engaged in a range of activities. The major strands of this programme of inquiry were: a) periodic consultation with the Advisory Committee with which formal meetings were held on: September 7 and November 2, 1984, and January 18, March 29, May 23, and September 27, 1985; b) a review of the research and policy literature with regard to the governance and funding of private schools; c) the commissioning of the following special papers: – Legal and Constitutional Aspects of Public Funding for Private Schools in Ontario by Neil Finkelstein (Appendix D), – The Funding of Private Schools in Ontario: Philosophy, Values and Implications for Funding by Mark Holmes (Appendix E), – A Study of Private Schools in Australia, France, England, Denmark and The Netherlands by Bruce Lawrie, – Alternative Methods of Financing Private Schools in Ontario by Stephen Lawton (Appendix F), – Summary of Legislation, Regulations, Policies for the Funding of Private Schools in Each of the Provinces of Canada Other than Ontario by Lucien Perras,

2

There are 210 registered and bonded private vocational schools in operation in Ontario. These were not, however, part of the mandate of the Commission on Private Schools in Ontario.

303

STATE SUPPORT FOR RELIGIOUS EDUCATION

– A History of Private Schools in Ontario by Robert Stamp (Appendix G); d) visits by the Commission to forty Ontario private schools (see Appendix H) selected to represent various school-types and locations within the Province; e) a call for (see Appendix I) and receipt of written briefs by any individual Ontarian and/or group of Ontario citizens concerned with the issues under study;3 f) a series of meetings with the Chairman of the Commission for Planning and Implementing Changes in Governance and Administration of Secondary Education in Ontario and the Commission on the Financing of Elementary and Secondary Schools in Ontario in order to effect appropriate liaison (September 24, 1984, January 14, February 18, April 1, and June 12, 1985); g) informal consultations4 with representatives of groups both inside and outside the educational community in Hamilton, Kingston, Kitchener, London, North Bay, Ottawa, St. Catharines, Sudbury, Thunder Bay, Toronto, and Windsor. In addition to the above, the Commissioner made himself as available as possible to the public during all but the last stages of the Commission’s work. Time was set aside to meet with various groups of individuals so that diverse points of view could be presented DQGFODULÀHGJURXSVUHTXHVWLQJWRSUHVHQWWKHLUEHOLHIVLQSHUVRQZHUHDFFRPPRGDWHG DQGÀQDOO\WKH&RPPLVVLRQHUDFFHSWHGDZLGHUDQJHRILQYLWDWLRQVWRVSHDNLQSXEOLF outlining the policy issues and concerns with which he was dealing and describing the work of the Commission itself. In the view of the Commission, the combined effect of this plan of work has been WRHQDEOHWKH&RPPLVVLRQHUWRUHDFKDOHYHORIXQGHUVWDQGLQJVXIÀFLHQWWRSURYLGHDQ informed response to the terms of reference of the Order in Council establishing the Commission itself. This response is contained in the following chapters which are cast in the form of a public policy consideration rather than that of a research report. These chapters deal with, respectively: – Chapter II: PRIVATE SCHOOLS IN ONTARIO: THE PAST AND THE PRESENT – Chapter III: PUBLIC FUNDING OF PRIVATE SCHOOLS: SOME COMPARATIVE PERSPECTIVES – Chapter IV: PUBLIC FUNDING OF PRIVATE SCHOOLS: THE VIEWS OF ONTARIANS – Chapter V: PUBLIC FUNDING OF PRIVATE SCHOOLS: THE RECOMMENDATIONS OF THE COMMISSION

3

The large number of written briefs received and the relatively extreme polarization of views presented to the Commissioner precipitated an adjustment to the original time-frame for the Commission’s Report. 7KHRULJLQDO2UGHULQ&RXQFLOVSHFLÀHG0D\7KH&RPPLVVLRQKRZHYHUUHTXHVWHGDQGUHFHLYHG from the Provincial Government an extension of its term to 31 October, 1985.

4

See Appendix J for a complete list of informal consultations.

304

4. OFFICIAL REPORTS

CHAPTER II 35,9$7(6&+22/6,1217$5,27+(3$67$1'7+( 35(6(17 The Past 3ULYDWH 6FKRROV GHÀQHG IRU WKH SXUSRVH RI WKLV &RPPLVVLRQ DV HOHPHQWDU\ DQGRU VHFRQGDU\VFKRROVQRWRZQHGRURSHUDWHGE\JRYHUQPHQWERGLHVKDYHEHHQDVLJQLÀFDQW part of Ontario’s pattern of culture and education from pre-Confederation times to the present. Stamp, in his paper prepared for the Commission and entitled “A History of Private Schools in Ontario” (see Appendix G), provides a detailed and particular account of the development of private schooling in this province. This development affected, and was affected by, the development of publicly funded schools and is characterized by Stamp as falling into four major historical periods: Schools of Necessity – 17801850; Schools of Privilege – 1850-1900; Schools of Innovation – 1900-1960; Schools of Protest – 1960-1984. In historical terms, Stamp makes it clear that in the late eighteenth and early nineteenth centuries, elementary and secondary schooling in Ontario was not an established mandate of the state. Schooling was, in fact, provided in private schools sponsored primarily by parents, churches and philanthropists, but also by business entrepreneurs. Over time, within this period, the value of schooling became increasingly apparent to a JUHDWHUDQGJUHDWHUQXPEHURISDUHQWVDQGWKH2QWDULRSULYDWHVFKRROVÁRXULVKHG When the Ontario government did begin to provide assistance to schools, such assistDQFHZDVRULJLQDOO\FRQÀQHGODUJHO\WRWKHSULYDWHJUDPPDUVFKRROVWKDWSUHSDUHGWKH future governing class for university. As the nineteenth century progressed, however, the Province gradually accepted a wider and wider role with respect to both the funding and provision of elementary (and, later, secondary) schools for all children. This development was not, however, uncontroversial. In fact, schooling has frequently been a divisive factor in Canadian history. Over matters such as school programme, governance, administration and funding, the Canadian population has often been split on ethnic, religious, and economic lines. When, for example, in Ontario, Ryerson introduced (in 1846) the School Act which required that all citizens be taxed for the support of public schools, one parent remarked: We do not wish to be compelled to educate all the brats in the neighbourhood.5 Much more recently, but in the same vein, the last two decades in Canada have witnessed DÁXUU\RIFKDQJHDQGELWWHUGLVSXWHVRYHUODQJXDJHDQGFXOWXUHGLVSXWHVZKLFKKDYH not infrequently focussed on the language of instruction in schools. Nevertheless, throughout the nineteenth century the public school system grew both steadily and dramatically. The denominational, academic, and single-sex focus for which

5 As reported in Martin, Samuel A., An Essential Grace. McClelland and Stewart Ltd., Toronto. 1985, p. 64.

305

STATE SUPPORT FOR RELIGIOUS EDUCATION

the private schools were often established was, in many cases, replaced by a function that was somewhat more social-elitist in nature. Those private schools that remained, KRZHYHUÁRXULVKHGGHVSLWHWKHVXEVWDQWLDOWXLWLRQIHHVWKDWZHUHUHTXLUHGDQGDJHQHUDO social conscience that called for a free and common education for all. The advent of the twentieth century in Ontario brought with it an impetus for innovation that became, among other things, the focus both for the renewal of certain established private schools and for the development of many new ones. Innovation was stimulated by educators and/or entrepreneurs who questioned, on one ground or another, the pedagogy and philosophy that was steering public education in the Province. Although these private schools contributed actively to a number of major educational innovations,6 the combined effects of the great depression of the 1930s, the Second World War, increased tuition costs, and new programmes in the public secondary schools were such that the future of Ontario private schools appeared, in some respects, less promising at the midpoint of the present century. It is now apparent that this mid-century decline was a passing phase. Strong movements for religious and philosophic diversity have created, in the past three decades, a resurgence in the number of operating private schools in Ontario. If nothing else, WKLVQHZGHYHORSPHQWKDVUHÁHFWHGDSURWHVWDJDLQVWWKHSHUFHLYHGEXUHDXFUDWL]DWLRQ of the public school systems and the nature and tone of both the environment and the curriculum in the publicly funded schools, and it was against this background that the work of the Commission was begun.

The Present (1) Legislative References 7 In Ontario’s Education Act, the word “school” is, rather oddly, reserved for public/ VHSDUDWHVFKRROV3ULYDWHVFKRROVDUHGHÀQHGLQSDUDJUDSKRIVXEVHFWLRQ DV follows: “Private school” means an institution at which instruction is provided at any time EHWZHHQWKHKRXUVRIDPDQGSPRQDQ\VFKRROGD\IRUÀYHRUPRUHSXSLOV who are of or over compulsory school age in any of the subjects of the elementary RUVHFRQGDU\VFKRROFRXUVHVRIVWXG\DQGWKDWLVQRWDVFKRRODVGHÀQHGLQWKLV section. Section 15 of the Education Act addresses the matter of private schools in somewhat JUHDWHUGHWDLO3ULYDWHVFKRROVPD\EHHVWDEOLVKHG²DVVSHFLÀHGLQWKLVVHFWLRQ²WKURXJK WKHVLPSOHSURFHVVRIWKHDQQXDOÀOLQJRID´1RWLFHRI,QWHQWLRQWR2SHUDWHD3ULYDWH School” with the Ministry of Education. Other than the general obligation to provide “satisfactory instruction”, the statute places no substantive standards on private schools H[FHSWWRDVNWKDWWKH\PHHWWKHUHOHYDQWÀUHKHDOWKDQG]RQLQJUHJXODWLRQV7KXVWKHUH

6

For examples of such innovations, see brief #81, Conference of Independent Schools, p. 13.

7

Although private schools have the legal right to exist, the Provincial Government also has the right in law to reasonably regulate such schools. (See Appendix D. pp. 88-90.)

306

4. OFFICIAL REPORTS

is no general requirement for programmes inspection of private schools and no provision for the closing of a private school for academic reasons. The Minister of Education can require statistical information from private schools, and such reports are, in fact, submitted on an annual basis by each Ontario private school. Moreover, the Minister of Education has the right to conduct inspections of private school programmes and records. In practice, such inspections are rarely undertaken at the elementary school level H[FHSWLQUHVSRQVHWRDVSHFLÀFFRPSODLQWORGJHGZLWKWKH0LQLVWHU$WWKHVHFRQGDU\ level, however, the Minister does, on request, provide inspectoral services at a nominal fee to authorize the principal of that private school to grant credits toward the Ontario Secondary School Diploma. Almost all of the Province’s private secondary schools participate in this inspection programme. Finally, there is also an oblique reference to private schools in clause 20(1)(a) of the Education Act which states that a child is excused from school (i.e., a public or a separate school) if he is receiving satisfactory instruction at home or elsewhere. Attendance at a SULYDWHVFKRROLVFRQVLGHUHGWRIDOOZLWKLQWKHGHÀQLWLRQRI´HOVHZKHUHµVRWKDWSULYDWH school students do meet the Province’s compulsory attendance requirements. (2) A Statistical Overview 8 In September 1984, there were 535 private elementary and secondary schools in operation across Ontario serving 87,126 students. Of the 535 schools, approximately 48% and 24% were elementary and secondary schools respectively while the balance offered programmes at both of these levels. Of the 87,126 students, approximately 43% were in the elementary grades (i.e., junior kindergarten through grade eight) while 57% were enrolled in secondary programmes (i.e., grade nine through grade thirteen). In terms of size as measured by number of pupils, the average Ontario private school enrolment in September 1984 was 162 pupils, but there was a marked variation between elementary and secondary private schools. At the elementary level, the average enrolment was just RYHUVWXGHQWVZKLOHWKHFRUUHVSRQGLQJÀJXUHIRUWKHSULYDWHVHFRQGDU\VFKRROVZDV 300. Moreover, there was very wide variation between individual schools with the largest private schools having enrolments in excess of 1000 while, at the other extreme, there were 55 schools with enrolments of ten or fewer students. Analyzed from another perspective, 70% (i.e., 373) of the private schools enrolling 80% (i.e., 69,886) of the private school students were private schools which were UHOLJLRXVO\GHÀQHG7KHODUJHVWJURXSRIWKHVHZDVWKH5RPDQ&DWKROLFSULYDWHVFKRROV – almost all of them secondary schools – which accounted for a quarter of the private religious schools and a half of the private religious school enrolment. Also in terms of student enrolment, other large religious subgroupings included the Alliance of Christian Schools (9,826 pupils), the Jewish schools (7,837 pupils), and the Anglican schools (5,089 pupils). Trends in enrolment data provide evidence of considerable growth in the Ontario private school sector in recent years. Thus, in the period 1973-83 inclusive, elementary and secondary private school enrolment increased by 60% and 90% respectively,

8

Education Statistics Ontario, 1983; Education Statistics Ontario, 1984 (preliminary).

307

STATE SUPPORT FOR RELIGIOUS EDUCATION

and although growth has moderated during the most recent period, it is still moving upward both in absolute terms and relative to the enrolment of public schools. In 1973, the 47,500 students enrolled in Ontario private schools represented 2.3% of the total number of elementary and secondary students in the province. In 1984, the comparable percentage was 4.7. The immediate political context for the establishment of the Commission on Private Schools was not, however, so much the growth in private school enrolment as it was the Province of Ontario’s decision to extend the public funding of the Roman Catholic secondary school system. Therefore, the Commission excluded from its direct concern the Roman Catholic private secondary schools on the grounds that it seemed likely that the great majority of these schools would soon become a part of the Province’s Roman Catholic separate school system. This left, within Ontario, 447 private elementary and secondary schools enrolling 53,417 students, 69% in elementary and 31% in secondary programmes. Of these 447 private schools, approximately two-thirds (i.e., 285) ZHUHUHOLJLRXVO\GHÀQHGSULYDWHVFKRROVZKLOHWKHEDODQFHLH ZDVHIIHFWLYHO\ non-sectarian. These 162 non-sectarian private secondary schools have also experienced recent enrolment growth (13% in the 1980-1983 period) and these same non-sectarian private schools include, for the purposes of this Commission, the two dozen private schools that are members of the Conference of Independent Schools. These 24 private schools, enrolling 11,000 students among them, are, in general, the long-established “traditional” private schools such as Ashbury College (Ottawa), Alma College (St. Thomas) and Upper Canada College (Toronto), representing the special image that is most commonly evoked in the public mind when the term “private school” is used. In addition to these particular private schools, there are approximately 100 private schools of various sizes that have either a particular philosophical or pedagogical orientation (e.g., a Waldorf School, a Montessori school, a military academy, etc.) or which provide special education services for exceptional children, most commonly those with learning disabilities. Finally, there are the 17 private schools that provide Ontario secondary education for about 2,200 visa students and a small number of private schools in which instruction takes place on individual “campuses” where a parent is actually teaching his/her child(ren) at home. (3) Operating Costs It is never a simple matter to develop a clear and meaningful index of the operating costs of complex organizations such as schools and school systems. This general problem is PDGHHYHQPRUHGLIÀFXOWZLWKUHVSHFWWRSULYDWHVFKRROVE\WKUHHVSHFLDOFRQVLGHUDWLRQV First, the variation in per-pupil operating costs among individual private schools is very large – much wider than in the public and/or separate schools. Second, the available data with regard to private school costs are limited. Third, contributed services outside of the cash economy are central to many private school communities, but, in general, no account is taken of this feature in describing the costs of a particular private school or group of private schools.

308

4. OFFICIAL REPORTS

Nevertheless, if one keeps these limitations in mind, it is useful to refer to the RSHUDWLQJFRVWDQDO\VLVLQ/DZWRQ·VSDSHURQÀQDQFHUHIHUWR$SSHQGL[)SDJHV 172). Lawton’s data are based on a sample of 55 Ontario private schools, and these data suggest that the average Ontario private school spends $2,310 per pupil annually, RILWRQVWDIIVDODULHVDQGEHQHÀWV7KHFRPSDUDEOHSHUSXSLOÀJXUHZHLJKWHGIRU average daily attendance) for the Ontario public/separate schools is $3,631. That is, the average per-pupil operating cost in the private schools would appear to be about 36% less than that in the public systems. There are undoubtedly a number of factors which contribute to this wide cost differential among which would be, quite naturally, the wider range of programmes generally made available in the public schools. The major contributing factor is, however, professional staff salaries. In terms of Lawton’s sample, the average private school principal receives an annual salary of $34,601, comparable to the salary of an average classroom teacher in the public schools. In terms of median salary, the private school teacher receives $21,244 annually as compared to $31,601 and $36,229 for elementary and secondary public school teachers respectively. (4) Current Programmes of Aid Although Ontario private schools do not have access to either local education taxes or direct provincial grants for operating or capital expenses, it would not be correct to conclude that these private schools receive no public assistance. As outlined in the paper prepared for the Commission by Lawton there are, in fact, several sources of such aid. Most such forms of aid are quite minor. Included in this category would be the programmes which provide for private schools: – access to single copies of free textbooks under the Ministry of Education’s book purchase plan; – free copies of Ministry of Education curriculum guidelines and materials; – inspection for the purpose of being authorized to grant Ontario Secondary School Diploma credits and the use of the computerized guidance system – both at nominal cost; – access to Ontario’s teacher exchange programme without the subsidy available to assist the teacher with travel costs; – all pertinent Ministry policy and safety memoranda; – subsidies to private school pupils engaged in Ontario’s international student exchange programme; – seminars for principals at times of major policy changes (e.g., Ontario Schools Intermediate and Senior Intermediate and Senior Divisions, Program and Diploma Requirements – OSIS). Valuable as any of the above may be, they are clearly not designed to substantially underwrite the basic education of any private school student. Of somewhat greater importance is the federal grant programme for French language instruction which is available to both private and public schools. Although they are the largest form of

309

STATE SUPPORT FOR RELIGIOUS EDUCATION

direct aid to private schools, these grants in Ontario do not appear at present to total more than $1,000,000 annually. Of greater importance is the indirect aid to private schools in the form of: (a) H[HPSWLRQIURPSURSHUW\WD[HVRQQRQSURÀWSULYDWHVFKRROVE LQFRPHWD[GHGXFWLRQV for tuition attributable to religious instruction; (c) income tax deductions for charitable purposes. The annual cost to the public treasury of these indirect programmes – at the local, the provincial, and the federal levels is not, at present, known. In addition, WKLVFRVWLVYHU\GLIÀFXOWWRHVWLPDWHIRUVXFKDQHVWLPDWHZRXOGGHSHQGRQFXUUHQWO\ untested assumptions such as: (a) the market value of private school properties; (b) the marginal tax rates of parents receiving tuition tax receipts and parents or other contributors receiving tax receipts for charitable donations; (c) the proportion of tuition that is attributed to religious instruction.9 Moreover, in each of these areas, there would be wide differences among individual private schools although the aid programmes clearly favour those schools with a religious orientation. In his paper Lawton suggests that, excluding private Roman Catholic secondary schools, the level of public aid “amounts to about one-sixth of the average total in cost per pupil enrolled in a private school”.10 In the view of the Commission, this is a conservative estimate, and that there are some individual private schools where the aid level is at least twice Lawton’s average estimate. (5) Private School Visits ,QRUGHUWRJDWKHUVRPHÀUVWKDQGH[SHULHQFHDQGLQIRUPDWLRQWKH&RPPLVVLRQHUYLVLWHG forty private schools within Ontario. The schools visited are listed in Appendix H and were selected to represent a wide range in terms of both type of school and geographic location. The visits included on-site tours of the facilities, and discussions with the school principal and, where possible, with other members (e.g., parents, teachers, board representatives) of the school community. These discussions dealt with the role and governance of the school, tuition policy, the nature of the curriculum, teacher TXDOLÀFDWLRQVDQGÀQDOO\DWWLWXGHVWRZDUGVSXEOLFIXQGLQJ:LWKVSHFLÀFUHJDUGWRWKH public funding of private schools, there was, in each case, some focus on: (a) reasons why such funds should (or should not) be made available; (b) conditions regarded as appropriate (or inappropriate) to such funding; (c) advantages and disadvantages of the particular form in which such funding might be made available. There was also some exploration in each case of the perceived reasons which motivated parents to select a private schools for their child(ren). Although no attempt was made by the Commissioner to systematically assess any or all of the private schools visited, the major impression produced by the forty visits was one of variability. There were large private schools and there were small private 9

It should be noted that a recent decision in the case of McBurney vs the Queen (T-4121-81) provided that all tuition paid to religious schools is tax deductible providing that the school in question admits students irrespective of their ability and/or willingness to pay. This decision was, however, set aside on September 27, 1985, by a ruling of the Federal Court of Appeal (A-1065-84) in which the interpretation of Revenue Canada providing limited tax deductibility, was upheld.

10

Lawton, S., Alternative Methods of Financing Private Schools in Ontario. Appendix F, p. 177.

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4. OFFICIAL REPORTS

schools and, within each of these, some had large classes and some had small classes, at least relative to public school standards. There were private schools that were tightly organized, and there were private schools that were run on the most informal of bases. 7KHUHZHUHSULYDWHVFKRROVZKRVHWHDFKHUVKDGVXSHUETXDOLÀFDWLRQVDQGSULYDWHVFKRROV ZKHUHWKHJHQHUDOOHYHORITXDOLÀFDWLRQVHHPHGXQVDWLVIDFWRU\IRUWKHUHVSRQVLELOLW\ associated with the position. There were private schools with very imaginative and effective programmes and private schools whose offerings seemed pedestrian, based on limited learning resources, and of extreme narrowness ideologically. There were private schools whose standards of achievement and/or discipline were very high, and then there were private schools within which achievement and/or discipline in the ordinary sense of those terms was clearly not a relevant consideration. There were private schools whose students represented very heterogenous family backgrounds ²ZKHWKHULQWHUPVRIHGXFDWLRQVRFLRHFRQRPLFVWDWXVUDFLDORUUHOLJLRXVDIÀOLDWLRQ – and there were private schools where the students seemed homogeneous almost to the point of preciousness. Finally, there were private schools whose physical facilities were the envy of all, and, at the other extreme, there were those which can have only MXVWPDQDJHGWRSDVVLQVSHFWLRQE\WKHPXQLFLSDOKHDOWKDQGÀUHDXWKRULWLHV,QVXP all that one can infer merely from the label “private school”is that it is an educational enterprise not operated by a public agency. In addition to their “private” status, there was one other variable which all of the schools visited shared in common, and that was that they all charged tuition. The level of this charge – sometimes it was labelled tuition; sometimes it was called a gift; and sometimes called a combination of the two – varied between $600 and $18,000 per year, and in this context, there was a reasonably sharp distinction between the religiously GHÀQHGVFKRROVDQGWKHQRQVHFWDULDQRQHV,QWKHIRUPHUWXLWLRQOHYHOVZHUHLQUHODWLYH terms, lower (i.e., $1,500-$3,500 per year on the average) and often designed in such a way as to take parental means into account. On the other hand, the non-sectarian schools, ODFNLQJLQPRVWFDVHVDFFHVVWRFRPPXQLW\ÀQDQFLDOUHVRXUFHVVRPHWLPHVDYDLODEOHWR their religious counterparts, generally assessed high tuition fees ($3,500 and up) and were able to accommodate – despite considerable effort in some cases – only a limited number of students whose families could not manage to pay these fees. (DFKRIWKHSULYDWHVFKRROVYLVLWHGLGHQWLÀHGRQHRUPRUHVSHFLÀFUROHVIRULWVHOI in terms of certain educational objectives which the public schools were perceived as QRWIXOÀOOLQJ&ROOHFWLYHO\WKHVHUROHVIHOOLQWRIRXUFDWHJRULHVVRWKDWSULYDWHVFKRROV saw themselves as providing: – a religious and/or other values environment more consistent with that of the home; and/or – an academically – and sometimes socially – enriched environment; and/or  ² DVSHFLÀFSHGDJRJLFDORUSKLORVRSKLFDODSSURDFKRUVSHFLDOL]DWLRQDQGRU – special education programmes and facilities. In discussions with private school parents it was clear that the majority of private school parents chose a private school for reasons at least consistent with those announced publicly by the school and often embraced by these same parents at considerable SHUVRQDODQGÀQDQFLDOVDFULÀFH:KDWWKHVHSDUHQWVVDZWKHPVHOYHVVHOHFWLQJLQDOPRVW

311

STATE SUPPORT FOR RELIGIOUS EDUCATION

DOOFDVHVZHUHWZRWKLQJVÀUVWDQHGXFDWLRQDOHQYLURQPHQWPRUHSUHFLVHO\VKDSHGWR their own preferences than would be the case in many public schools; and second, D VFKRRO LQ ZKLFK WKH\ EHOLHYHG WKH\ FRXOG PRUH UHDGLO\ LQÁXHQFH WKH HGXFDWLRQDO programmes of their children if only because there is, in general, “only one step to the WRSµLQWKHSULYDWHVFKRRODQGLQPDQ\SULYDWHVFKRROVWKHÀQDQFLDOGHSHQGHQFHRI the school on individual parent satisfaction is so much more direct. Nevertheless, it was also clear that many parents chose a particular private school for reasons unrelated to the stated educational vision of the private school’s administration or governance board. Considerations such as location, after-school care, social class background of the student body, and racial mix (or lack of it) were not ever suggested to the Commissioner as related to the stated objectives of a private schools, but each was a reason not infrequently advanced by parents for their choice of such a school. In many other ways, however, the private schools visited resembled nothing so much as the local public schools. Most private schools, for example, matched the Ontario VFKRRO\HDUZLWKRQO\RFFDVLRQDOPRGLÀFDWLRQVWKDWGHFUHDVHGRUH[WHQGHGWKHVFKRRO year and/or the school day. In many cases the programmes offered were also similar to those comprising the Ontario curriculum (e.g., private schools offering secondary school credits must meet Ontario curriculum guideline requirements). Further, over one KDOIRIWKHWHDFKHUVLQWKHIRUW\SULYDWHVFKRROVYLVLWHGKDG2QWDULRWHDFKHUFHUWLÀFDWLRQ In this particular policy area, most of the representatives of private schools were in IDYRXURIHPSOR\LQJTXDOLÀHGWHDFKHUVEXWWKH\GLVDJUHHGDVWRZKHWKHUTXDOLÀFDWLRQ QHFHVVDULO\HQWDLOHGDQ2QWDULR7HDFKHU·V&HUWLÀFDWH27& 0DQ\VXJJHVWHGWKDWRWKHU WHDFKHUFHUWLÀFDWLRQVDQGRUGHPRQVWUDWLRQRIDFDGHPLFH[FHOOHQFHWKURXJKGHJUHHV were suitable alternatives. In addition, some private schools provide their own teacher training programme, and, in a number of denominational schools, it was reported that religious commitment rather than professional training was, and ought to be, the SULPDU\VWDIÀQJFRQVLGHUDWLRQ In the great majority of private schools visited, public funding of private schools was recommended by the individuals representing these schools. The reasons most frequently advanced to support this position were that: – private schools provide an important public service by schooling the students enrolled; – private schools deliver high quality education often at relatively low cost per student; – parents have a prior right to choose the type of education they believe to be suitable for their children, and the state should make that choice “real” by funding it; – since private school parents pay both education taxes and tuition fees, they H[SHULHQFHGRXEOHWD[DWLRQZKLFKLVXQIDLU´E\GHÀQLWLRQµ – it is unjust to fund the Roman Catholic separate school system and not the schools of other groups, particularly other religious groups. Representatives from a few of the visited private schools did not want public funding on the grounds that this would, sooner or later, undermine the independence of their schools. Furthermore, several schools urged only partial funding so that the special

312

4. OFFICIAL REPORTS

commitment of the supporting private school community would not be eroded through WKHVXGGHQGLVDSSHDUDQFHRIWKHSULYDWHVFKRRO·VXVXDOÀQDQFLDOGLIÀFXOWLHV Although the Commissioner was frequently urged that private schools be given access to the ancillary services and facilities of local school boards, it was per-pupil grants to schools based on some proportion (usually high) of the provincial per-pupil FRVWRISXEOLFHGXFDWLRQWKDWZDVWKHPRVWIUHTXHQWO\VXJJHVWHGPRGHIRUÀQDQFLDO aid to the private schools. There was, however, a substantial minority of the private VFKRROVYLVLWHGZKHUHÀQDQFLDODLGUHFRPPHQGDWLRQVWRRNWKHIRUPRIWD[H[SHQGLWXUHV (either tuition tax credits or tuition tax deductions) on behalf of private school parents. It was argued that this form of indirect support of private schools was less likely to (a) come encumbered with unwelcome conditions, and (b) jeopardize the few public aid programmes already in place. Finally, if public funds were to be made available to private schools, the followLQJ FRQGLWLRQV ZHUH PRVW IUHTXHQWO\ LGHQWLÀHG E\ SULYDWH VFKRRO UHSUHVHQWDWLYHV DV acceptable:  ² ÀVFDODFFRXQWDELOLW\  ² WHDFKHUTXDOLÀFDWLRQQRWQHFHVVDULO\FHUWLÀFDWLRQ  – pupil testing for maintenance of academic standards. The unacceptable conditions included any loss of control over: – school philosophy and programme; – selection of staff; – admission and expulsion of students. … A brief outline of the history and some aspects of the present context of private elementary and secondary schooling in Ontario (both as described above) provided part of the framework for the work of the Commission. Private schools are not, however, a phenomenon unique to Ontario. Thus, another facet of the Commission’s consideration was the public policy with regard to private schools in other jurisdictions – both Canadian and non-Canadian. What follows, therefore, is a description of these public policies in both other provinces and a selected number of other countries.

CHAPTER III 38%/,&)81',1*2)35,9$7(6&+22/6620( &203$5$7,9(3(563(&7,9(6 The legal status and funding arrangements for private schools vary a great deal from jurisdiction to jurisdiction outside of Ontario and outside of Canada. A detailed and comprehensive exploration of these differences is beyond the scope of this Report. The purpose of the present chapter is much more restricted. What follows is intended to provide only the beginnings of a comparative perspective by describing certain aspects

313

STATE SUPPORT FOR RELIGIOUS EDUCATION

of the public funding and control arrangements for private schools in both Canada (other than Ontario) and a few other countries.

Canada11 In Canada, education comes under provincial jurisdiction at least partly because the designers of the Canadian Federation believed that education was a problem area best kept out of the national arena. Differences in culture, religion, and language required decentralized responses if consensus was to be achieved. The end result, as suggested by Mallea,12 is that Canada possess an array of educational institutions and arrangements that vary along regional, class, religious, racial, ethnic, and linguistic lines. It is not, therefore, surprising that there is also considerable variation among the provinces in their arrangements for the public funding of private schools. (1) The Territories $OWKRXJKSULYDWHVFKRROVDUHGHÀQHGLQWKHOHJLVODWLRQJRYHUQLQJWKH1RUWKZHVW7HUritories, there are presently no private schools in either the Northwest Territories or the Yukon Territory, and there are no provisions for the public funding of such schools should they come into existence. (2) Newfoundland Newfoundland, unlike the other Canadian provinces, is characterized by public school districts which are established on a denominational basis, and the provincial government pays approximately 95% of the operational costs of these schools. The Province does not provide funds for the operation of private schools. However, where a private school is the only school in a community, it is required to operate within the same regulations DSSOLFDEOHWRDSXEOLFVFKRRODQGLVUHTXLUHGWRSHUPLWFOHUJ\PHQRURIÀFHUVRIDQ\ religious denomination operating in public school districts elsewhere in the province to give a reasonable amount of religious instruction in that school. In order to operate a private school in Newfoundland, the private school sponsor must satisfy the Minister of Education that the facilities are adequate, that the courses of instruction are as prescribed or approved by the Province, and that the teachers are FHUWLÀHG0RUHRYHUDSULYDWHVFKRROFDQQRWRSHUDWHZLWKRXWWKHSULRUZULWWHQDSSURYDO of the Minister, is subject to inspection by the Department of Education, and must furnish the Minister with such reports as the Minister may specify.

11 The data concerning Canada refer to 1984-1985 and were drawn primarily from the following sources: Public Funding of Private Schools in Canada. Canadian Education Press Association, Toronto, November 1984; Perras, L., Summary of Legislation, Regulations, Policies for the Funding of Private Schools in Each of the Provinces of Canada Other than Ontario. Paper prepared especially for the Commission On Private Schools in Ontario, Toronto, February 1985. 12 Mallea, J.R., “Cultural Diversity in Canadian Education: A Review of Contemporary Developments” in R. Samvoa et al., Eds. Multiculturalism in Canada. Allyn and Bacon, Toronto, 1984.

314

4. OFFICIAL REPORTS

(3) The Maritimes While private schools exist in all provinces of Canada, not all provinces have statutory SURYLVLRQVGHÀQLQJWKHP7KHVWDWXWRU\SURYLVLRQVIRUPRQLWRULQJSULYDWHVFKRROVGR as might be expected, vary from province although such control is generally carried out through either the conditions governing the establishment and operation of the schools or the requirements for compulsory school attendance. New Brunswick requires that the parent or guardian of a child receiving instruction other than in a government school must apply annually to the Minister of Education to be exempted from the public system. Similarly, in Prince Edward Island, although there are no regulations governing the establishment and operation of private schools other than the right of provincial inspection, the Minister of Education’s approval is required for a child to attend a private school. Nova Scotia, New Brunswick, and Prince Edward Island do not have statutory provisions for the general funding of private schools. Nevertheless, Prince Edward ,VODQGSURYLGHVÀQDQFLDODVVLVWDQFHWRSULYDWHVFKRROVIRUWKHSXUFKDVHRIDXWKRUL]HG textbooks, if the private school is following the provincially approved curriculum. Private schools in Nova Scotia can obtain authorized textbooks and learning materials through the Nova Scotia School Book Bureau. (4) Manitoba In Manitoba, public education is non-sectarian. Private schools (home schools are not included) are required to provide a curriculum and a standard of education equivalent to that provided by the public schools. In addition, in order to receive public funding, private schools must both satisfy the Minister of Education as to this standard and, ZKHQWHDFKLQJWKHDSSURYHGFRXUVHVHPSOR\RQO\WHDFKHUVKROGLQJFHUWLÀFDWHVLVVXHG under the Manitoba Education Administration Act. Public funding takes the form of annually revised per-pupil grants for instructional and textbook purposes. In 1984-85, these grants amounted to $622 and $40 respectively, representing approximately 20% of the Manitoba per-pupil operational grants to the public schools. When endorsed by the Minister of Education, shared services agreements can be signed by private schools and public school divisions for the provision of services such as transportation, industrial arts, home economics, and clinical assessments. The Department of Education provides school divisions full time equivalent funding for the private school students participating in such agreements. (5) Saskatchewan Saskatchewan has publicly funded public and separate school districts, but in addition, public funds may be provided to private schools for pupils in grades 9, 10, 11 and 12. To be eligible for public funding, the private school must have been operating for not OHVVWKDQÀYH\HDUVDQGKDYHPDLQWDLQHGDQHQUROPHQWRIQRWOHVVWKDQSXSLOVGXULQJ each of the preceding two years. It must also meet the requirements of the Minister of (GXFDWLRQLQUHVSHFWWRFRXUVHVRIVWXG\WHDFKHUTXDOLÀFDWLRQVRSHUDWLQJVFKHGXOHVDQG supervision by the Department of Education. In addition, private schools must furnish

315

STATE SUPPORT FOR RELIGIOUS EDUCATION

WKH 0LQLVWHU RI (GXFDWLRQ ZLWK DQ\ LQIRUPDWLRQ UHTXLUHG UHVSHFWLQJ WKHLU ÀQDQFHV structure, and administration. The general form of the public funding for eligible Saskatchewan private schools is annual per-pupil grants, the level of which in 1985 was $1,704, that is, approximately 59% of the total provincial per-pupil grant to the public schools. A capital costs grant equal to 10% of the recognized costs of private school facilities, including architect’s fees, is also available. In Saskatchewan, the term “alternative school” is used to designate QRQSXEOLF VFKRROV ZKLFK GR QRW VDWLVI\ WKH OHJDO GHÀQLWLRQ RI D SULYDWH VFKRRO ,Q 1984-85, there were, in Saskatchewan, 33 alternative schools and 10 private schools. Of the latter, nine received public funding. (6) British Columbia In British Columbia, the term “private school” means a school outside the jurisdiction of the Ministry of Education. In this province of non-sectarian public schools, a school that is non-public but operates within the jurisdiction of the Ministry of Education is UHIHUUHGWRDVDQLQGHSHQGHQWVFKRRO6XFKDVFKRROLVE\GHÀQLWLRQRSHUDWHGE\DQ authority (a society incorporated under the Society Act, a corporation under the Private Act, or a person designated in the regulations) and functions as an elementary school, secondary school or both. The extent to which the independent schools in British Columbia receive public funds is dependent upon the degree to which such schools meet the conditions and requirements set by the Ministry of Education. Where an independent school is found by the inspector appointed under the School Support (Independent) Act of 1981: (a) to have no existing or proposed programmes of a nature that would promote or foster doctrines of racial or ethnic superiority, religious intolerance or persecution, or social change through violent action; (b) to have adequate facilities; (c) to have operated for WKUHH\HDUVSULRUWRDSSOLFDWLRQLWPD\EHJUDQWHG*URXSFODVVLÀFDWLRQIRUDVFKRRO year. This independent school then receives 9% of the student operating cost incurred the previous year by the public school district in which the independent school is located, and it may use the grant to pay any operating costs of the school except teacher salaries. ,QGHSHQGHQWVFKRROVFODVVLÀHGDV*URXSUHFHLYHDJUDQWZKLFKPD\EHXVHG WRZDUGDQ\RSHUDWLQJH[SHQVHVRIWKHVFKRRO,QRUGHUWRTXDOLI\IRUWKLVFODVVLÀFDWLRQ WKHLQGHSHQGHQWVFKRROPXVWPHHWUHTXLUHPHQWVLQDGGLWLRQWRWKRVHIRU*URXS6SHFLÀcally, the school must establish a curriculum that complies with Ministry of Education UHTXLUHPHQWVDQGVXEPLWDOLVWRIWHDFKHUVZLWKWKHLUFHUWLÀFDWLRQVWDWXVHGXFDWLRQDO TXDOLÀFDWLRQVDQGDGHVFULSWLRQRIWKHLUWHDFKLQJDQGRWKHUUHVSRQVLELOLWLHVDQGLQWKH FDVHRIXQFHUWLÀHGWHDFKHUVDSURJUDPPHRIDFWLRQWRHQVXUHWKDWVXFKWHDFKHUVZLOOEH FHUWLÀHGZLWKLQÀYH\HDUVRIWKHDSSOLFDWLRQIRU*URXSFODVVLÀFDWLRQ$GGLWLRQDOO\ such schools must agree to participate in an acceptable pupil testing programme,13 as well as in an evaluation of the school’s programmes, operations, and administration E\DQ([WHUQDO(YDOXDWLRQ&RPPLWWHH$7HDFKHU&HUWLÀFDWLRQ&RPPLWWHHDZDUGLQJ

13

These programmes include student assessment tests and provincial examinations.

316

4. OFFICIAL REPORTS

FHUWLÀFDWLRQH[FOXVLYHO\WRWHDFKHUVLQLQGHSHQGHQWVFKRROVPD\EHFRQVWLWXWHGIRUWKDW SXUSRVHE\WKH0LQLVWHURI(GXFDWLRQDQGDFHUWLÀHGWHDFKHULQDQLQGHSHQGHQWVFKRRO is not required to be a member of the British Columbia Teachers’ Federation. As of July 1984, 152 of British Columbia’s 247 independent schools were classiÀHGDVEHORQJLQJWR*URXSVFKRROV RU*URXSVFKRROV ,QWKHVL[\HDUV following the Independent School Act14 of 1977, there has been a 44% increase in the number of pupils enrolled in the supported independent schools. Enrolment in these schools, which include 65 schools (13,978 students) that in Ontario would be the Roman Catholic separate schools, now represents approximately 5% of the elementary and secondary school population of British Columbia. (7) Alberta Alberta has a publicly funded education system comprising both the public schools and separate schools which are either Roman Catholic or Protestant in denomination. A private school may be established or operated by any person, persons or organization, religious or otherwise, approved by the Minister of Education. :KHUHDSULYDWHVFKRROIROORZVDQDSSURYHGFRXUVHRIVWXG\HPSOR\VRQO\FHUWLÀHG teachers, and complies with Department of Education standards, a grant may be received under a Category 1 designation. This grant is 75% of the per-pupil grant for public and separate schools in Alberta.15&DWHJRU\SULYDWHVFKRROVDUHWKRVHSURYLGLQJVSHFLÀFDOO\ for the education of children with mental, emotional or social handicaps and must be operated by a society or association for the handicapped. In addition, they must contain a standard of education and training acceptable to the Minister of Education. Where children have been placed in such a private school through parental initiative alone, the grant received by the school is 75% of the per-pupil instructional grant to public and separate schools. Where the child is placed in the school in agreement with the local SXEOLFVFKRROVÀQDQFLDOVXSSRUWKDVEHHQDPDWWHURIQHJRWLDWLRQEHWZHHQWKHSULYDWH school and the public board. Category 3 private schools, established for the purpose of giving instruction in a language other than English, are not eligible for grants from Alberta Education but they may receive grants from Alberta Culture. Schools offering courses approved RUSUHVFULEHGE\WKH0LQLVWHURI(GXFDWLRQEXWQRWHPSOR\LQJRQO\$OEHUWDFHUWLÀHG teachers are designated Category 4 and receive no funding from the Province. Schools not offering courses approved or prescribed by the Minister of Education are not legal in Alberta. Of the 138 private schools listed by the Alberta Department of Education for 1984-85, 96 are in Category 1 and 7 in Category 2. The enrolment in these two categories of private schools represents approximately 3% of the elementary and secondary school population of the province.

14

The Independent School Act, 1977 was revised as the School Support (Independent) School Act in 1981.

15 When, however, the special purpose grants for which private schools are not eligible (i.e., for special education, transportation, and vocational education) are taken into account, this proportion drops to somewhat less than 50%.

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STATE SUPPORT FOR RELIGIOUS EDUCATION

  4XHEHF Quebec utilizes a single set of evaluative criteria to assess the quality of programmes and personnel in all private schools. Those schools which meet the highest level of the prescribed standards are declared “of public interest”, others are “recognized for grant purposes”, and a third category, “schools under permit”, are ineligible for funding, usually as a consequence of following a programme which, though approved by the 0LQLVWHULVQRWWKHRIÀFLDORQH All Quebec private schools must hold a permit from the Minister of Education describing the particular type of instruction provided in order to operate. Exemption from the requirement to hold a permit may be given for a limited number of institutions ZKLFKDUHRIDQRQSURÀWPDNLQJFXOWXUDOQDWXUH$OOLQVWLWXWLRQVPXVWKDYHFRUSRUDWH VWDWXVRUKROGDFHUWLÀFDWHRIUHJLVWUDWLRQLQWKHFDVHRIWKH´SHUPLWµFDWHJRU\DQGDOO publicity for the institution is subject to approval by the Minister of Education. Those Quebec private schools granted the category of “institutions declared of public interest” receive public funding in the form of a per-pupil grant calculated as a proportion of the average per-pupil grant allocated to public schools, the proportion varying according to educational level and type of institution. In 1984-85, this grant ranged from $1,057 at the pre-school level to $2,222 at the secondary level, and approximates 85% of those given to public schools. Private schools offering special education services for handicapped students may, and frequently do, receive grants in excess of these amounts. The private school declared “of public interest” receiving these grants may not charge IHHVWRVWXGHQWVLQH[FHVVRIÀIW\SHUFHQWRIWKHSHUFDSLWDJUDQW 7KRVHSULYDWHVFKRROVQRWUHFRJQL]HGDV´RISXEOLFLQWHUHVWµPD\EHFODVVLÀHGDV “institutions recognized for grant purposes”. These grants are smaller than those for the “public interest” schools, and, in 1984-85, ranged from $774 per pre-school student to $1,628 per secondary school student with tuition fees not in excess of the level of the per capita grant. As with the “public interest” category, additional grants of $150-200 per pupil may be made for the purchase of pedagogical equipment. 7KHÀQDOFDWHJRU\RISULYDWHVFKRROVLQ4XHEHFFRQVLVWVRIWKRVHVFKRROVKROGLQJ a permit to operate and not falling into either of the two categories above. Instructions in this “permit” category receive no public grants. Quebec is an exception among Canadian provinces in limiting not only tuition fee levels at private schools receiving public funding but also the power vested in the 0LQLVWHU RI (GXFDWLRQ ,Q RWKHU SURYLQFHV H[LVWLQJ VWDWXWRU\ GHÀQLWLRQV RI ´SULYDWH school” vest a great deal of discretionary decision-making power in the Minister of (GXFDWLRQDQGKLVKHURIÀFHUV,Q4XHEHFWKLVSRZHULVVRPHZKDWTXDOLÀHGE\WKH legislative requirement that the Minister work in consultation with a Private Education $GYLVRU\&RPPLVVLRQZKRVHQLQHWZR\HDUWHUPPHPEHUVDUHQHLWKHUHOHFWHGRIÀFLDOV nor civil servants. This Commission submits an annual report directly to the Quebec legislature.

Some Other Countries The treatment of private schools in countries outside of Canada is, quite naturally, more variable than is suggested by the differences within Canada itself. There are

318

4. OFFICIAL REPORTS

countries (e.g., the USSR, Roumania) where the state enjoys a formal monopoly in education, and private schools are not permitted. There are countries (e.g., the United States, Greece, Sri Lanka) where private schools are permitted, perhaps even encouraged, but not substantially supported by public funds. More common in the Western world, however, are those countries in which private schools receive substantial public funding although, within these countries, there is a wide range in the degree and nature of such support. A comprehensive treatment of the private school policies within these “funding” jurisdictions – along with the relevant historical and cultural circumstances, both of which are crucial for understanding – is, as was the case for the Canadian provinces, beyond the scope of this Report. What follows, therefore, is a brief description of approaches actually in use in a few of the countries currently providing public support to private schools. No argument is made that the particular group of countries presented is a uniquely appropriate set. All that is intended is that an outline of the present private school funding and control policies in New Zealand, France, The Netherlands, Denmark, Australia, and England will provide an enlarged framework within which to consider the public policy options for Ontario. (1) New Zealand 16 In New Zealand, private schools (which enrol a little less than 5% of the total elementary DQGVHFRQGDU\VFKRROSRSXODWLRQ DUHUHTXLUHGWRFRPSO\ZLWKGHÀQHGVWDQGDUGVRI programme and accommodation. It is not clear, however, that this requirement is either rigidly or actively enforced. Those private schools which are integrated with the public system receive full operational funding although they may still charge attendance dues. Since the passage of legislation in 1975 allowing private schools the option of becoming a part of the state schools system on a basis whereby the special character of such SULYDWHVFKRROVZRXOGEHVDIHJXDUGHGDOOEXWDIHZKHDYLO\HQGRZHGFKXUFKDIÀOLDWHG grammar schools have opted for integration. Thus, all Catholic schools, comprising 90% of the private schools, were integrated with the state school system by mid-1983. Private schools not integrated with the public system receive partial operational funding in the form of grants based on 50% of the “adjusted” school costs. A maximum enrolment is set for each integrated school, but integrated private schools may restrict admission for the majority of their students to those with a particular philosophical or religious connection. Each integrated private school must, however, PDNHDYDLODEOHRQDQRQSUHIHUHQWLDOEDVLVDVSHFLÀHGSURSRUWLRQXVXDOO\ RILWV student spaces. As a further safeguard for their special character, integrated private schools are permitted to label a proportion (up to 60%) of their teaching positions as “special” and reserve these positions for teachers whose suitability for employment will be assessed on the basis of their sympathy to the special nature of the school. The EDODQFHRIWKHWHDFKLQJSRVLWLRQVPXVWEHRSHQWRDOOTXDOLÀHGFDQGLGDWHV

16

The data concerning New Zealand were drawn primarily from: The Private Schools Conditional Integration Act. Department of Education, Wellington, 1975; and Bell, T.H., The Education System of New Zealand. U.S. Department of Education, Washington, D.C., 1981.

319

STATE SUPPORT FOR RELIGIOUS EDUCATION

(2) The Netherlands 17 Like New Zealand, The Netherlands provides a high degree of funding for private schools. In fact, the Dutch have tied private and public school funding so closely together that from the budgetary point of view, there is really only a single system.18 In The Netherlands, in order to open a private school whose establishment is allowed on grounds of accepted philosophical, religious or pedagogical theories, parents must meet the minimum enrolment levels (higher in urban than in rural areas) and put up a bond for 10% of the cost of the school building before receiving any government funds. The bond is returnable after twenty years of operation. Staff salaries for private schools are negotiated and paid directly by the central government while municipalities cover the other operating costs for which they are reimbursed by the central government. Operating cost levels for the private schools are funded on the basis of expenditure incurred by corresponding state schools. The private schools in The Netherlands have no control over the number of teachers HPSOR\HGWKHVDODU\SDLGQRUWKHPL[RITXDOLÀHGDQGRWKHUSURIHVVLRQDOVDOORZHG to operate in the school. The general framework of the curriculum is determined by a FHQWUDOJRYHUQPHQWRIÀFHDQGDFHQWUDOO\DGPLQLVWHUHGH[DPLQDWLRQV\VWHPSUHYDLOV In addition, there are constraints on the amount of funds that a private school may raise beyond that provided by the state, and a private school may not charge excessive fees above the government subsidy. 0RVWSULYDWHVFKRROVLQ7KH1HWKHUODQGVDUHUHOLJLRXVO\DIÀOLDWHGDQGWKH'XWFK private schools, which enrol in excess of two-thirds of the total student population, may not either prohibit the admission of, or expel, students whose parents fail to pay the modest additional fees charged. (3) France 19 While France also provides high levels of public funding to private schools, it does so only to those private schools having a contract with the government. Requirements for such “contracted” schools include offering general rather than special-focus education, PHHWLQJVSHFLÀHGVFKRROKRXUVDQGSK\VLFDOSODQWVWDQGDUGVSURYLGLQJGHWDLOHGÀQDQFLDO and enrolment statements, and responding to a recognized educational need. At the primary level, a contract ensures state remuneration of teachers conditional RQPHHWLQJTXDOLÀFDWLRQFULWHULD$WWKHVHFRQGDU\OHYHOWKHFRQWUDFWHGVFKRRO·VRSHUDWing expenses, as well as teacher salaries, are covered by the state. Teachers, however, must belong to the public sector or be contracted to the state. The school must agree to

17

The data concerning The Netherlands were drawn primarily from: Doyle, D.P., Family Choice in Education: The Case of Denmark, Holland, and Australia. National Institute of Education, Contract #EPA 30032, Washington, D.C., March 1984; and Lawrie, B.R., A Study of Private Schools in Australia, France, England, Denmark, and The Netherlands. Paper prepared for the Commission of Private Schools in Ontario, February 1985. 18 Aside from the Dutch private schools, there are, in The Netherlands, a small number of “free” schools as yet not recognized (for public funding) by the Ministry of Education. 19

The data concerning France were drawn primarily from: Lawrie, B.R., ibid.

320

4. OFFICIAL REPORTS

state inspection and must also provide education which conforms with that of the state schools. Acceptance of a contract means that the school must admit students regardless of race, religion, or political persuasion. In 1981, 16.7% of the French elementary and secondary student population was enrolled in private schools and, although 95% of these schools are Roman Catholic (all on contract), a 1982 survey showed that only 10% of private school parents chose these schools for religious reasons. (4) Denmark 20 The Danish government explicitly recognizes the right of parents to choose alternative forms of education for their children, whether their reasons for doing so be ideological, political, educational, or religious. In order to found a private school, the founder(s) must appoint a principal, obtain government approval for buildings and curriculum, register a minimum of seven students, and show that the founder(s) can contribute adequately to expenses. The private school is then eligible for a subsidy of up to 85% of its instructional expenditures, based on comparable costs in the public school system. In 1981, private schools enrolled approximately 8% if the Danish school population. Each Danish private school has a supervisor either elected by the parents (who constitute the majority on the private school board) and approved by the Ministry of Education or appointed by the municipality. The supervisor is responsible for ensuring that the standard of instruction is at least comparable to that of public schools. (5) Australia 21 In Australia, independent, that is, private, schools obtain about 65% of their operating funds from the federal government, 20% from the state governments, and 15% from fees. These schools, approximately 75% of which are Roman Catholic, enrol approximately 20% of the Australian school-age students. Recently, central government funds have been allocated to private schools on a ´QHHGVµ EDVLV 0RUH VSHFLÀFDOO\ SXEOLF IXQGLQJ OHYHOV GHSHQGHG RQ ERWK WKH OHYHO of expenditure in the government schools and the private resources available to the particular private school. Private schools were divided into three categories based on the resulting “needs” index, and the levels of central government grant varied accordingly. In order to register as a recognized private school, an act which until recently led without question to eligibility for federal government funding, schools were required to have suitable buildings and other facilities and to adhere to government approved SURJUDPPHV5HJXODWLRQVJRYHUQLQJWHDFKHUFHUWLÀFDWLRQYDULHGIURPVWDWHWRVWDWHDV did the extent to which the Department of Education requirement for inspection was actually carried out.

20

The data concerning Denmark were drawn primarily from: Education in Denmark: The Education System. Danish Ministry of Education, Copenhagen, 1983: Doyle, D.P., ibid.: and Lawrie, B.R., ibid.

21 The data concerning Australia were drawn primarily from: Report for 1985: Response to Government Guidelines, Commenwealth Schools Commission, Canberra, September 1984: Doyle, D.P. ibid.: and Lawrie, B.R. ibid.

321

STATE SUPPORT FOR RELIGIOUS EDUCATION

Even more recently, the Australian government has made a number of changes to the funding programmes for non-governmental schools. These include expansion in the number of funding categories, acceptance of a new needs assessment formula, and development of enhanced accountability requirements. The new accountability requirements are designed to ensure that grants from the government are applied by private schools to “national priorities and objectives”. Details are to be required from private schools concerning ownership, objectives, system of governance, income and H[SHQGLWXUHIURPDOOVRXUFHVHQUROPHQWQXPEHUVVWDIÀQJOHYHOVDGPLVVLRQDQGH[FOXsion policies, and fee levels. In addition, the schools are to provide parents with regular and accurate information pertaining to public funding. Further, the government has indicated that high income private schools should not widen the resource gap between WKHPVHOYHVDQGRWKHUVFKRROVE\DSSO\LQJVLJQLÀFDQWSURSRUWLRQVRIDYDLODEOHIXQGV to capital expenditure, thus making themselves eligible for higher grants for operating costs. All private schools, however, including those with lowest incomes from private sources, are expected to contribute in some way to their annual (recurrent) operating costs. New private schools in Australia will continue to be able to apply for government grants. Establishment grants will, however, be made available only to those new private schools serving developing areas. (6) England 22 While there is some public funding provided to private schools in England, the circumstance under which this occurs is quite different as compared to the countries considered above. English private schools are entirely independent fee-paying schools, RSHUDWHG E\ ERDUGV RI JRYHUQRUV 7KH PDMRULW\ RI WKHVH VFKRROV DUH FODVVLÀHG DV charitable foundations qualifying for a 50% reduction in local tax rates and exemption from income or corporate taxes. The English private schools are self-supporting through a combination of tuition fees (for which parents are not exempt from public school system taxes), endowments and/or fund-raising activities. In 1981, private schools enrolled 6% of the total English population. These schools receive government funding only if they are involved in the Assisted Places Scheme (APS) for needy pupils. At the moment, the APS covers 14,000 students in the 220 participating private schools. To be eligible for membership in the APS the private school must satisfy certain criteria. These include the breadth and balance of the curriculum, a good record in public H[DPLQDWLRQVVXLWDEO\TXDOLÀHGVWDIIDSSURSULDWHIDFLOLWLHVDQGDZHOOHVWDEOLVKHG6L[WK Form (grade 12/13) offering a range of university entrance subjects. Assistance is then made available to needy students for tuition fees on a sliding scale based on parental income. Each private school has, however, its own criteria for accepting an applicant, and each has a qualifying interview for which the candidate must sit. …

22

The data concerning England were drawn primarily from: Jones, C., ibid.: and Lawrie, B.R., ibid.

322

4. OFFICIAL REPORTS

Within the above group of six countries, the general, but not universal, trend is for increased government control to be associated with increased levels of public funding for private schools. Thus, for example, relatively high levels of public funding for private schools in both France and The Netherlands are accompanied by relatively high levels of government control over these schools, while in England there are very few controls but relatively low funding levels. Denmark and Australia occupy points somewhere between these extremes. New Zealand, however, would appear to present a counter-example in that the public funding levels for private schools are high, but government control over these schools is relatively weak. In virtually all cases, however, both inside and outside Canada, public funding is accompanied by government regulation with regard WRSULYDWHVFKRROVSURJUDPPHVIDFLOLWLHVDQGVWDIÀQJDQGLQDIHZFDVHVZLWKUHJDUG to private school tuition fees and student admission policies. As suggested, however, by the brief outlines in this chapter for either the Canadian provinces or countries other than Canada, there are many different approaches that can be taken to the public funding of private schools once a government has determined to embark on such a policy. Nevertheless, these particular approaches are only a small sample of those currently being practised, and there are, in addition, other possibilities (e.g., educational vouchers) which are widely discussed in both the professional and popular literature but which are not presently in any widespread use. Moreover, any description of the particulars of a funding and control mechanism – no matter how comprehensive – does not in itself deal with the consequences of using that approach in a particular social context with that context’s rather special background of history, politics, and culture. Nevertheless, together with the history of private schools within Ontario (see Chapter II), the comparative perspective introduced above does provide some background for consideration of the current views of Ontarians with regard to the public funding of private schools.

CHAPTER IV 38%/,&)81',1*2)35,9$7(6&+22/67+(9,(:62) 217$5,$16 The development of public policy is a complex matter and should not be limited VLPSO\WRDUHÁHFWLRQRIFXUUHQWSXEOLFRSLQLRQ6XFKRSLQLRQLVKRZHYHUDQLPSRUWDQW consideration. Therefore, throughout the term of the Commission, the views of Ontarians about the public funding of private schools was a major concern of the Commission. The Commission itself solicited written briefs from all interested groups and individuals. In addition, the Commission arranged for a series of informal consultations throughout the province with a wide variety of citizens and citizen groups. Finally, note was taken of a number of public opinion polls, the results of which were published during the early months of the Commission’s work.

323

STATE SUPPORT FOR RELIGIOUS EDUCATION

Public Opinion Polls Although the Commission did not, on its own initiative, engage in public polling, three public opinion polls were published during the early months of the Commission’s work, each of which dealt in part with attitudes toward the public funding of private schools. These polls were sponsored, respectively, by the Ontario Teacher’s Federation, the Ontario Institute for Studies in Education, and the Ontario Secondary School Teachers’ Federation. The poll sponsored by the Ontario Teachers’ Federation was a part of a late September 1984 ABM Research Ltd. poll on political issues in Ontario. In this poll, a sample of 755 representative Ontarians was surveyed by telephone regarding, among other things, the issue of providing public funds to private schools. Thirty percent of those asked responded positively to the idea of such public funding, and, if only those households with children in private schools were considered, the proportion in favour of such funding rose to one-half. The Ontario Institute for Studies in Education, in its most recent survey of educational issues, polled a representative Ontario sample of 1,046 adults, 18 years of age and over, as well as a sample of 127 corporate executives. One of the questions asked was: “What schools do you think should be given government funding, provided that they meet province-wide standards?” Seventeen percent of those responding supported the public funding of all independent (private) schools with an additional 9% supporting public funding only of those independent (private) schools which were religiously GHÀQHG In early January 1985, Decima Research Ltd. undertook a province-wide telephone survey for the Ontario Secondary School Teachers’ Federation to examine public concerns related to the issue of full funding of the Roman Catholic separate schools. As part of this study, a representative sample of 760 respondents was asked whether funding should also be extended to private schools in Ontario. In this case, 55% of the respondents opposed the extension of public funding to Ontario’s private schools. The limitations of public opinion polls are well understood, and in particular two of these polls (those of the Ontario Teachers’ Federation and the Ontario Secondary School Teachers’ Foundation) were sponsored by groups with a particular position on this public policy issue. Nevertheless, these three particular polls do provide between them a quite consistent picture of current public opinion with regard to the funding of private schools. That is, a majority of Ontarians appear opposed to the public funding of private schools but such funding is supported by a substantial minority group.

Informal Consultations Although the Commission held no formal public hearings, a systematic attempt was made through a series of informal consultations – primarily, but not exclusively, within Ontario – to broaden the sources of input to the Commission and to explore with a wide range of individuals and groups the matter of public funding for private schools. Within Ontario, such consultations were held by the Commission in Hamilton, Kingston, Kitchener, London, North Bay, Ottawa, St. Catharines, Sudbury, Thunder Bay, Toronto and Windsor. In one or more of these centres, meetings were held with both

324

4. OFFICIAL REPORTS

individuals and representatives of the media, government, teachers’ groups, government agencies, school boards, clergy, school administrators, chambers of commerce/boards of trade, senior citizens, university and college faculty, home and school associations, parents, social service organizations, students, labour organizations, and a variety of business groups. In addition to those invited at the initiative of the Commission, the Commissioner also responded positively to each Ontario group or individual asking to be included in the consultation process. A complete listing of the individuals and groups who participated in these consultations is provided in Appendix J. Although the participants were quite diverse in terms of both their general background and their particular interest in and/or attitude toward the public funding of private schools, two common themes emerged from within the process itself. First, it was clear that most of the individuals and many of the groups had only a very limited knowledge about Ontario private schools. Most of those consulted dramatically overestimated the size of the private school community and, by contrast, underestimated its variability. There are apparently a great many Ontarians who believe, quite incorrectly, that all Ontario private schools are both designed for, and limited to, the children of the rich and the “established”. Second, almost all of those consulted, whether from inside or outside the world of professional education and whether from inside or outside the private school sector, expressed strong support for the maintenance of a high quality public school system that would be free to all,23 open to all, and with a range of programmes VXIÀFLHQWO\EURDGVRDVWREHDSSURSULDWHIRUDOO There, however, the consensus ended. There was, among those groups and among these individuals, a broad diversity of views with regard to the possibility that public funds might be made available in support of private schools. Moreover, this diversity frequently existed within as well as among particular groups. Thus, for example, there were business representatives who argued forcefully against the public funding of private schools, but there were also business representatives who argued for at least partial support. Similar and related differences emerged from within the clergy, within certain teacher groups and within both parent and post-secondary constituencies. Nevertheless, in the midst of this welter of diversity over both broad policy and the nuances of policy detail, some general summary or characterization can be put forward. Somewhat over one-half of those participating in the consultation process were opposed to any public funding for private schools. These people expressed the belief that private school funding would increase costs to the taxpayer, would undermine support for the public schools particularly in terms of their role with regard to less advantaged students, and would fragment the public system with particularly devastating impact within smaller communities. They also reasoned that the social unity and active tolerance and understanding needed in a multicultural society could only be developed if young people from varying backgrounds could – at least potentially – participate in the shared acculturation experience of common schools. This group often did acknowledge that

23 It should be noted that in a formal sense, services are never “free”. The only question is the extent to which access to such services by a particular user shall be made contingent upon payment of all or part of their cost by that user.

325

STATE SUPPORT FOR RELIGIOUS EDUCATION

there were problems in the public elementary and secondary schools of the Province. They suggested, however, that these problems should be addressed not through any abandonment of the public system but through a review and a revival of it. Frequently suggested, in fact, was a revival that would encourage the development of more alternative programmes within the public schools or – as a further option – the funding of current private schools by bringing them in some way under the auspices of either one of the locally elected boards of trustees or a more broadly conceived XQLÀHGVFKRROERDUG By contrast, a substantial minority of those consulted supported the funding of private schools on grounds such as: (a) the general value of increased diversity, choice, and competition; (b) the inappropriateness of limiting public support to the schools of a particular religious group (i.e., the Roman Catholic community); (c) the perceived inequity of parents having to pay both private school tuition fees and the local education taxes for the publicly supported schools; (d) the importance of enabling parents WRFKRRVHZLWKRXWUHJDUGWRÀQDQFLDOFRQVWUDLQWV DVFKRROWKDWUHÁHFWVWKHLUSDUWLFXODU value system; (e) the real or imagined shortcomings of particular public school systems and programmes. It should, however, be noted that within this group supporting the public funding of private schools, there was a wide range of opinion as to the degree to which such funding should be made available. Some argued for supporting private and SXEOLFVFKRROVRQH[DFWO\WKHVDPHÀQDQFLDOEDVLV0DQ\PRUHKRZHYHUVXJJHVWHGWKDW SDUWLDOIXQGLQJZRXOGEHD DQDSSURSULDWHÀUVWVWHSDQGRUE DYDOLGJHQHUDOSROLF\LQ that the private schools do not serve the same range of public purposes as do the public schools, and/or (c) an approach which would minimize any negative consequences for the public school systems, and/or (d) less likely to be accompanied by funding conditions that would undermine the present independence of private schools, and/or (e) a less dramatic threat to the support systems within the private school community, VXSSRUWV\VWHPVWKDWZHUHVHHQWREHJHQHUDWHGDWOHDVWLQSDUWE\WKHÀQDQFLDOMHRSDUG\ of the private schools themselves. Virtually all of those consulted agreed that irrespective of the disposition of the overall funding issue, the Province had a right to specify and enforce minimum standards in all schools – whether public or private – and a large number of groups and individuals expressed concern that, at present, the Ministry of Education does not, except in special circumstances, inspect elementary private schools. If substantial public funding were to be provided to private schools, the majority of those consulted felt that such funding should be conditional upon: (a) open student access to such schools; (b) some mandatory FRUHFXUULFXOXPF WKHKLULQJRIFHUWLÀHGWHDFKHUV2WKHUVKRZHYHUVXJJHVWHGWKDW WKH RQO\ DSSURSULDWH FRQGLWLRQV ZHUH D  ÀQDQFLDO DFFRXQWDELOLW\ E  WKH KLULQJ RI TXDOLÀHGQRWQHFHVVDULO\FHUWLÀHG WHDFKHUVF WKHPDLQWHQDQFHRIDSSURSULDWHOHYHOV of academic achievement. If, on whatever grounds, the Province of Ontario should decide to provide public funds for private schools, those consulted were, in general quite unclear as to the appropriate form such funding should take. Some (from both the public school and the SULYDWHVFKRROVHFWRUV VXJJHVWHGWKDWDXVHIXOÀUVWVWHSZRXOGEHWRPDNHDYDLODEOH to the private schools the ancillary services of publicly funded school boards. When pressed to choose between direct per-pupil grants to private schools as opposed to tax 326

4. OFFICIAL REPORTS

expenditures on behalf of parents, no general pattern of preference emerged. Those supporting direct per-pupil grants to schools generally referred to it as the normal practice in many other Canadian jurisdictions and stressed its relative administrative simplicity. Those who supported tax expenditure approaches (e.g., tuition tax deductions: tuition tax credits) did so frequently on the grounds that such approaches would better maintain the arm’s length relationship between the Province and its private schools. Many of these individuals also particularly favoured the tax credit approach especially if it were GHVLJQHGWREHUHODWHGWRSDUHQWDOLQFRPHDQGWKXVQRWIDYRXUWKHDOUHDG\DIÁXHQW

Written Briefs 24 In September 1984, the Commission solicited written briefs from interested individuals and groups. Public advertisements were placed in Ontario newspapers (see Appendix I), and, in addition, individual letters requesting the submission of a brief were sent to over 900 organizations including all Ontario public and separate school boards, all Ontario private schools, teachers’ federations, school trustee organizations, home and school associations, and some business groups, labour groups, post-secondary institutions, etc. In response to this solicitation, the Commission received 514 written briefs.25 Of these, 215 (41%) were from individual citizens. One hundred and twenty eight (i.e., 25%) were from private schools and 68 (13%) were from boards of education (57 briefs) or separate school boards (11 briefs). Finally, 64 briefs (13%) were from educational associations representing private schools (33 briefs), public school boards (29 briefs), and separate school boards (4 briefs). Thirty-one briefs (6.5%) were from non-educational associations (e.g., labour and business groups) and 8 briefs (1.5%) were from home and public school groups. As indicated in the public notices, all of the submitted briefs are public UHFRUGPDWHULDODQGDUHPDLQWDLQHGRQÀOHZLWKWKH&RPPLVVLRQ,QDGGLWLRQSHUWLQHQW data relative to each brief have been entered into the Ontario Education Resources Information System (ONTERIS) and a listing of the briefs and a short description of each one can be obtained by accessing ONTERIS directly. Although, as mentioned above, the Commission held no formal public hearings, a number of individuals and groups and requested an opportunity to present a brief in person to the Commissioner. All such requests were honoured, and a list of those who presented their briefs in person to the Commission is given in Appendix L. In reviewing the briefs, it became clear that many writers addressed issues only implicitly, and, within the same brief, it was not uncommon for statements concerning a given issue to be either vague or self-contradictory. This frequently necessitated a direct contact between the Commission and the particular writer in order to clarify the intended meaning. Nevertheless, the briefs taken collectively were a rich source of ideas and considerations for the Commission. The diversity of views and suggested policy recommendations contained in the briefs were extreme, ranging from full government funding of all public and private schools to no government funding of any schools

24 The data concerning written briefs were drawn from a reading of the briefs and a preliminary analysis of these briefs prepared by Dr. Brian Davis under contract to the Commission. 25

Groups and individuals submitting briefs are listed in Appendix K.

327

STATE SUPPORT FOR RELIGIOUS EDUCATION

– public or private. Thus, no general summary can do full justice to the many points of view expressed and the often sophisticated nuances introduced into arguments that appeared on the surface to be similar to each other but which proved, upon more careful examination, to suggest either different policy directions or different grounds DVMXVWLÀFDWLRQIRUWKHVDPHSROLF\SUHIHUHQFH Nevertheless, some summary is necessary, and what follows is a summary, in broad form, of the positions taken by major groups – and the individuals associating themselves either explicitly or implicitly through policy agreement with these major groups – on the various issues related to the provision of public funding for private schools. The major groupings with their related organizations and individuals are: 1) public school boards, which generally oppose the provision of public funds for private schools;    VHSDUDWHVFKRROERDUGVZKLFKJHQHUDOO\VXSSRUWSXEOLFIXQGLQJWKURXJKDIÀOLation;    -HZLVKVFKRROVZKLFKJHQHUDOO\VXSSRUWSXEOLFIXQGLQJIRUWKHLUVHFXODUDIÀOLation; 4) Protestant denominational schools which generally support full public funding for their operational budgets; 5) Protestant denominational schools which oppose public funding; 6) schools represented by the Conference of Independent Schools which oppose direct public funding; 7) schools for special education which present a particular case for public funding. (1) Public School Boards The general trend in briefs from public boards, and organizations and individuals associated with the public school system, is for almost unanimous opposition to the provision of public funds in any form for private schools. The Board has requested that we inform you it is opposed to public funds being used for this purpose.26, 27 The private schools should remain just that … private.28 Concerns are expressed for an exacerbation of the presently perceived segmentation within the educational system.29 It is, moreover, felt that the provision of funds for private schools would have a divisive or fragmenting effect upon our society.30

26 Briefs are numbered in the order they were received by the Commission and may be accessed through ONTERIS either by brief number of by author’s name. 27

Brief #306, Elgin County Board of Education, p. 1.

28

Brief #301, Hastings County Board of Education, p. 3.

29

Brief #226, Wellington County Board of Education, p. 1.

30

See, for example, briefs #195, 202, 209, 225, 226, 385 and 421.

328

4. OFFICIAL REPORTS

The resultant fragmentation can only lead to the destruction of the pluralistic nature of our society.31 Furthermore, it is argued that any support for private schools will mean the siphoning off of special interest groups thereby denying the public school system its needed pluralistic population. The public schools may then become, it is suggested, a repository for the less motivated children, the very children who most need the company of the more motivated children who have so much to offer in shared friendship, in ideas, in leadership, and who, in turn, have so much to gain in tolerance, humility and understanding.32 It is felt that only the public school system can integrate individuals with diverse beliefs, philosophies and attitudes33 within a system that allows for a VKDULQJRILGHDVDQGDSSURDFKHVWKDWLVERWKKHDOWK\DQGEHQHÀFLDOWRDOOVWXGHQWV34 In addition, it is suggested that in a single publicly funded system, the equality of educational opportunity is more likely to be achieved. As summarized by the Oxford County Board of Education: Those involved with public education believe that their system stands for equal rights and opportunities for all, that the public education system can fully serve the needs of Ontario in a free, democratic society, that public education provides a gateway of opportunity for students of all abilities, regardless of sex, race, religion or colour. They believe that the public education system fosters the tolerance essential to the maintenance of a democratic society.35 The overwhelming majority of all non-public schools are religious schools. While neither the value of the study of religion nor the quality of service provided by private schools is generally denigrated by public school constituencies, serious concerns are expressed at the possibility of public funds being provided for these private institutions. The view is taken that it would be just as inappropriate to provide public funds for the inculcation of a particular faith stance in a private school as it would be to use those funds for the same purpose in a public school (the Roman Catholic separate school system being deemed legally excerpted for this argument).36 While it remains, at least in many cases, an open question as to whether or not the religious education offered in private schools constitutes indoctrination, other practices by these institutions are clearly held by public school supporters to be discriminatory and hence to provide little basis for entitlement to public funds.37 Further, it is maintained that public funds should not be provided for educational institutions engaging in

31

Brief #209, Ontario Secondary School Teachers’ Federation, p. 13.  %ULHI2QWDULR$VVRFLDWLRQRI(GXFDWLRQ$GPLQLVWUDWLYH2IÀFLDOVS

32 33

Brief #225, Brant County Board of Education, p. 1.

34

Brief #226, Wellington County Board of Education, p. 1.

35

Brief #246, Oxford County Board of Education, p. 2.

36

Brief #74, Chairmen and the Directors of Education of the Seven Public School Boards in Metropolitan Toronto, pp. 24-27. 37

See, for example, briefs #74, 157, 161, 172, 195, 202, 284 and 301.

329

STATE SUPPORT FOR RELIGIOUS EDUCATION

discriminatory employment practices or enjoying selective enrolment advantages.38 On even wider grounds: The (Association) is opposed to the provision of public funds or tax rebates to private schools because of their lack of public accountability, restrictive admission policies, and their disparity in requirements for teachers.39 A number of writers acknowledge a parental right of freedom of choice for a child’s education.40 Nevertheless, the position generally is that parents may choose private institutions, but the system of governance41 and the very principle of independence42 upon which the institutions are founded preclude their receipt of public funds. They are clearly intended to cater to an exclusive group’s particular emphasis, methodology, or creed. While a fundamental freedom demands that such private interests must have a right of expression, simple justice insists that they NOT be paid for by the public.43 :KLOHLWLVXQGHUVWRRGWKDWWKLVDSSURDFKPD\SODFHDÀQDQFLDOEXUGHQRQWKHSDUHQWV of private school students, considerable concern is also expressed by the public school groups that the provision of funds even to alleviate this burden would have D VHULRXVO\ GHWULPHQWDOHIIHFW XSRQ WKH DOUHDG\LQDGHTXDWHÀVFDO EDVH RI WKH SXEOLF school system.44 &RQVLGHULQJWKHGHFUHDVLQJOHYHOVRIÀQDQFLDOVXSSRUWIRUHGXFDWLRQLQJHQHUDOLQ the province at present, it seems incomprehensible that one might consider dividing up what little funds there are to an even greater extent by contemplating public funding support for private schools.45 Such funding is seen as likely to lead to increased public school closings,46 the erosion of the ability of public schools to provide equal education for all,47 the reduction of the range of programmes and services any one public system might offer at an acceptable standard,48 and the inability of the public system to provide the necessary learning environment.49

38

Brief #301, Hastings County Board of Education, p. 3.

39

Brief #203, Ontario Teachers’ Federation, p. 7.

40

See, for example, briefs #74, p. 27; #138, p. 1; #209, p. 22; and #226, p. 1.

41

See, for example, briefs #74, p. 19 and #209, p. 19.

42

See, for example, briefs #190, 203, and 224.

43

Brief #284, Ontario Secondary School Teachers’ Federation, District 23, p. 4.

44

See, for example, briefs #105, 157, 202, 203, 225, 226, 227, 246, 285, 301, 387 and 413.

45

Brief #246, Oxford County Board of Education, p. 1.

46

Brief #226, Wellington County Board of Education, p. 1.

47

Brief #285, Ontario Secondary School Teachers’ Federation, District 1, p. 6.

48

Brief #105, Renfrew County Board of Education, p. 2; brief #301, Hastings County Board of Education, p. 2. 49

Brief #227, Perth County Board of Education, p. 1.

330

4. OFFICIAL REPORTS

That the public educational system does serve the needs of Ontario is suggested by a number of writers.50)XUWKHUWKHYDOXHVUHÁHFWHGE\WKHERDUGVRIHGXFDWLRQDUHVHHQDV the shared values of almost all Canadians, irrespective of their religious background.51 That is, the relatively secular, humanistic nature of the public schools is seen by some WRWUXO\UHÁHFWWKHFXUUHQWVRFLHWDOFRQGLWLRQVLQ2QWDULRDQG&DQDGD52 It is suggested by comparison that there is no guarantee that independent schools will in fact inculcate basic values and provide programmes that will ensure a student a productive future and schooling for responsible citizenship.53 Public school boards provide a full and sophisticated range of programs to many different kinds of students, from children to adults. They do not limit access to their schools; indeed, they seek to extend that access as widely as possible. They are not permitted to charge fees for extended or enriched services of any kind, even where the public and/or consumer would willingly approve such an arrangement. They are not able to avoid particularly expensive programs by limiting their offerings. As a result, students of all kinds, taking very different programs, meet and study together in a common environment; they learn to appreciate each other’s differences, developing a commitment to renewal of a democratic society. While differences in ODQJXDJHUHOLJLRQRUVRFLDOFODVVDUHUHVSHFWHGWKH\DUHQRWLQWHQVLÀHG54 Not all writers in this group support the contention that the public system is actually realizing its full potential. We recognize that the public education system has not yet reached the ideal of equal opportunity. It still strives toward it.55 It is suggested, however, that rather than fund private schools for the diversity that they might offer, it would be better for the government to provide appropriate forms of diversity within the public system.56 The duplication of programmes in different systems is seen as a drain on the provincial purse and costly to the local taxpayer.57 It is suggested, rather, that ways may be found to encompass within the public system opportunities for meeting a variety of needs. For example: Given that an understanding of religion is essential in a well-rounded education, those responsible for education must give serious attention to how this should be accomplished by the public school system within a pluralistic society in which a

50

See, for example, briefs #27 and 246.  %ULHI2QWDULR$VVRFLDWLRQRI(GXFDWLRQ$GPLQLVWUDWLYH2IÀFLDOVS

51 52

Brief #157, Federation of Women Teachers’ Associations of Ontario, p. 1.

53

Brief #195, Timiskaming Board of Education, p. 2.

54

Brief #172, Peel Board of Education, p. 2.

55

Brief #157, Federation of Women Teachers’ Associations of Ontario, p. 6.

56

Brief #225, Brant County Board of Education, p. 2.

57

See, for example, briefs #190, p. 3; #226, p. 2; and #389, p. 2.

331

STATE SUPPORT FOR RELIGIOUS EDUCATION

vast range of religious beliefs as well as non-belief in a deity, are represented in the adult population.58 Authors of those few public school briefs in which funding for private schools is not categorically opposed are cautious in their approach to possible support: The independent schools provide a service and play a role in best serving the desires and aspirations of our diverse society. Therefore, (we) favour an extension of public funding, under carefully controlled circumstances, to the Province’s Private Schools.59 Suggested conditions for the possible receipt of public funding include: the private school offering vocational and business educational opportunities;60YHULÀFDWLRQRIWKH raison d’être of the institution as an addition or complement to the public system;61 SXEOLFDFFRXQWDELOLW\DQGWKHDIÀOLDWLRQRIWKHVFKRROZLWKDSXEOLFERDUG62 universal DFFHVVLELOLW\VWDIÀQJZLWK2QWDULRFHUWLÀFDWHGWHDFKHUVZKRDUHPHPEHUVRIWKH7HDFKers’ Federations;63DQGPHPEHUVKLSLQDXQLÀHGVFKRROERDUG64 One representative body whose brief is endorsed by a number of public boards developed this last condition into a proposal that is directed at producing less “division” within Ontario education: With appropriate legislation, one umbrella educational governing body could encompass Roman Catholic education, public school education, French Language education, native education and approved alternative education.65 The concept of private schools participating in an umbrella school board in order to be HOLJLEOHIRUSXEOLFIXQGLQJÀQGVVXSSRUWZLWKDQXPEHURIZULWHUV66 but it is not entirely acceptable to others who prefer an even more consolidated approach: 7KHDQVZHULVQRWIXUWKHUIUDJPHQWDWLRQEXWDXQLÀFDWLRQRIHGXFDWLRQVHUYLFHVLQ JHRJUDSKLFDUHDVXQGHUDXQLÀHGERDUGRIHGXFDWLRQZKLFKZRXOGRIIHUDOOHGXFDWLRQ services to the community – French, English, public, separate, and special education. 7KLVLVWKHRQO\VHQVLEOHGLUHFWLRQWRPRYHLQWRHQVXUHWKHPRVWHIÀFLHQWXVHRIWKH

58 Brief #74, Chairmen and the Directors of Education of the Seven Public School Boards in Metropolitan Toronto, p. 23. 59

Brief #160, North Shore Board of Education, p. 1.

60

Brief #468, Manitoulin Board of Education, p. 1.

61

Brief #160, North Shore Board of Education, p. 2.

62

Brief #156, Cochrane Iroquois Falls Board of Education, p. 2; brief #451, Ottawa Board of Education, pp. 1-2. 63

Brief #419, Leeds and Grenville County Board of Education, p. 2.

64

Brief #243, Directors of Public Board of Education in the Province of Ontario, p. 2; #246, Oxford County Board of Education, p. 2. 65

Brief #243, Directors of Public Board of Education in the Province of Ontario, p. 4.

66

See, for example, briefs #156, 161, 209, 226, and 246.

332

4. OFFICIAL REPORTS

OLPLWHGÀQDQFLDOUHVRXUFHVDYDLODEOHIRUHGXFDWLRQDVVXPLQJWKDWWKHSROLWLFLDQV resist the vested interests involved for the common good.67 (2) Separate School Boards The submissions from the Roman Catholic separate school system, Roman Catholic LQGHSHQGHQW VFKRROV DQG DIÀOLDWHG RUJDQL]DWLRQV JURXSV DQG LQGLYLGXDOV JHQHUDOO\ support the provision of public funds for private schools (in any case at least private religious schools), although generally a point is made for such funding only where the institution is operated by Ontario residents for the education of the children of Ontario residents.68 Although a number of these writers suggest that the procedures for public funding should include the involvement of one of the two publicly funded school systems,69IHZRIWKHPVXJJHVWDVSHFLÀFIXQGLQJSURFHGXUHWKHPRVWIUHTXHQW recommendation being a grant to the private school that is a percentage of the per-pupil operational grant made to the public schools.70 Numerous submissions stress the prior right of parents to select the means of providing the child with an education. 6LQFHSDUHQWVKDYHWKHÀUVWDQGLQRXURSLQLRQWKHSULRUGXW\DQGULJKWWRHGXFDWH their children, they must, therefore, enjoy true freedom in their choice of schools. The state, which exists to oversee and defend the rights and liberties of its citizens, ought to ensure that distributive justice is evident in the way in which public resources are allocated so that, when selecting schools for their children, parents are genuinely free to follow their consciences.71 Thus, the argument for funding in these briefs often depends upon the alleviation of WKHÀQDQFLDOEXUGHQLPSRVHGXSRQSDUHQWVZKRH[HUFLVHWKHLURSWLRQVLQWKHSURYLVLRQ of education for their children72 rather than upon grounds of religious equality. It is argued that schools of parental choice: (a) “should be allowed to vary substantially IURPHDFKRWKHULQYDOXHVFXUULFXODSHGDJRJ\DQGSKLORVRSK\µE DUH´MXVWLÀHGE\ 2QWDULR·VGHPRFUDWLFDQGSOXUDOLVWLFVRFLHW\µF VKRXOGEHVXEMHFWWR´VSHFLÀFEXW limited government controls”.73 It is sometimes suggested in these briefs that a prerequisite for eligibility for public funding would be the successful operation of the private school for at least three years74 and that public funding should be phased in over a three year period following

67

Brief #209, Ontario Secondary School Teachers’s Federation, p. 20.

68

Brief #140, Lincoln County Roman Catholic Separate School Board, p. 4.

69

Brief #149, Waterloo County Separate School Board, p. 1.

70

See, for example, briefs #201, 211, 223, 245 and 305.

71

Brief #211, Hamilton-Wentworth Roman Catholic Separate School Board, p. 9.

72

Brief #140, Lincoln County Roman Catholic Separate School Board, p. 2.

73

Brief #223, London and Middlesex County Roman Catholic Separate School Board, p. 2.

74

Brief #305, Metropolitan Separate School Board, p. 4.

333

STATE SUPPORT FOR RELIGIOUS EDUCATION

the meeting of this prerequisite.75 Other funding conditions frequently recommended include the meeting of minimum curriculum standards76 or being subject both to all the terms and conditions of the Education Act, and to the regulations and requirements of the Ministry of Education.77 :KLOHUHJXODULQVSHFWLRQRISULYDWHVFKRROVE\0LQLVWU\RI(GXFDWLRQRIÀFLDOVLV generally supported, there is not complete agreement among the submissions in this JURXSZLWKUHJDUGWRWKHLVVXHRIVWDIÀQJ7KHUHLVVRPHVXSSRUWIRUWKHUHTXLUHPHQW RI2QWDULRWHDFKHUFHUWLÀFDWLRQRULWVHTXLYDOHQW78 but elsewhere it is suggested that subject only to the Ontario Human Rights Code, the private school, even if receiving public funds, should be allowed to maintain employment practices which ensure the retention of the special character of that school.79 Few briefs from the Roman Catholic separate school community address the issue of student admission. When this issue is considered, it is usually recommended either that completely open registration be a prerequisite for receipt of public funds,80 or that “admission practices and the value orientations in the school be consistent with the laws of the Province of Ontario relating to racial and religious attitudes, employment and admission practices”.81 Several separate school submissions address possible relationships between private schools and public school systems.82 It is suggested that private schools interested in sharing in public funds could consider a form of dual governance that would allow the VFKRROWRUHWDLQLWVRZQJRYHUQLQJFRXQFLOZKLOHVHHNLQJDIÀOLDWLRQZLWKDQHLJKERXUing publicly supported system, whether a separate board or public board.83$IÀOLDWLRQ with boards would be an option which if not exercised would leave the school with its “private” status84 and without eligibility for public funding.85 It is further suggested WKDWWKHJRYHUQLQJERG\RIWKHDIÀOLDWHGVFKRROEH´DGHTXDWHO\UHSUHVHQWDWLYHRIWKH parents whose children attend the school”, that this body “shall supervise the operation RIWKHVFKRROµDQGWKDWWKHVFKRRORSHUDWHRQDQRQSURÀWEDVLVLQRUGHUWREHHOLJLEOH for public funding.86

75 Brief #201, Dufferin Peel Roman Catholic Separate School Board, p. 12; brief #503, Ontario Separate School Trustees Association, p. 8. 76

Brief #245, Wellington County Separate School Board, p. 2.

77

Brief #420, Welland County Roman Catholic Separate School Board, p. 5.

78

See, for example, briefs #201, 211, 305 and 503.

79

Brief #211, Hamilton-Wentworth Roman Catholic Separate School Board, p. 17.

80

Brief #210, Ottawa Roman Catholic Separate School Board, p. 8.

81

Brief #211, Hamilton-Wentworth Roman Catholic Separate School Board, p. 18.

82

See, for example, briefs #140, 210, 211, 245 and 420.

83

See, for example, briefs #140, 210, 211, and 420.

84

Brief #140, Lincoln County Roman Catholic Separate School Board, p. 3.

85

Brief #420, Welland County Roman Catholic Separate School Board, p. 5.

86

Brief #211, Hamiton-Wentworth Roman Catholic Separate School Board, p. 13; brief #245, Wellington County Separate School Board, pp. 1, 2.

334

4. OFFICIAL REPORTS

7KRVH SULYDWH VFKRROV DIÀOLDWHG ZLWK D ERDUG RI HGXFDWLRQ RU D VHSDUDWH VFKRRO board could share in the services of that board on a net cost basis.87 That is, the board DFFHSWLQJDIÀOLDWLRQ²DQGLWLVXQFOHDUDVWRWKHRSWLRQDOQDWXUHRIVXFKDJUHHPHQWRQ the part of that public or separate board – could charge the private school for the costs of the public school’s services. (3) Jewish Schools The majority of submissions from Jewish private schools, related organizations and individuals condemn “double taxation” as an inequitable situation which penalizes SDUHQWVÀQDQFLDOO\IRUDGKHULQJWRWKHLUUHOLJLRXVDQGPRUDOEHOLHIV At present parents of children attending private schools are paying their full share of provincial and school taxes and paying in addition for their children’s education. This amounts to double taxation and is inequitable and unfair. Moreover, … it is not necessary for public funding to be limited to the “public schools” in order WRIXOÀOOWKHVWDWH·VREOLJDWLRQWRHQVXUHXQLYHUVDODFFHVVWRHGXFDWLRQRIFHUWDLQ standards.88 It is pointed out that for religious Jewish parents, educating their children at “Jewish schools” both at the elementary and high school level is a fundamental aspect of their religion.89 It is suggested that the public sector is unable to provide Jewish children with either this necessary religious education or an understanding of their own cultural tradition as part of the pluralistic society on which Canada is founded. Therefore, the Jewish schools ought to be viewed as a legitimate and positive factor in the Canadian mosaic and, therefore, worthy of public support.90 The right of parental choice of school coupled with requests for equality of treatment when compared to Roman Catholic denominational schools form the additional bases of the argument from many individuals. In the absence of public funding the danger RISULYDWHVFKRRODOWHUQDWLYHVEHFRPLQJRQO\DYDLODEOHWRWKHÀQDQFLDOHOLWHLVDOVRD strongly expressed concern.91 The public funding formula most commonly recommended by this group is that of per capita operational grants to schools. Since these briefs suggest that such funds would apply to the General Studies (i.e., secular) and not to the Jewish Studies (i.e., religious) programmes of the Jewish schools,92 the implicit recommendations would appear to be for partial rather than full public funding. Adherence to Ministry of Education guidelines relating to the curriculum in the General Studies programme is generally accepted by these schools as is the require-

87

Brief #211, Hamiton-Wentworth Roman Catholic Separate School Board, p. 12.

88

Brief #196, Ottawa Talmud Torah Board, p. 6.

89

Brief #241, Ner Israel Yeshiva College of Toronto, p. 2.

90

Brief #235, Yeshivat Bnei Akiva or Chaim School, p. 11.

91

Brief #196, Ottawa Talmud Torah Board, p. 5; brief #199, Ontario Jewish Association for Equity in Education, p. 11. 92

Brief #199, Ontario Jewish Association for Equity in Education, p. 6, 16.

335

STATE SUPPORT FOR RELIGIOUS EDUCATION

PHQWWKDWRQO\FHUWLÀHGWHDFKHUVVKRXOGEHKLUHGIRUWKLVVHFXODUSDUWRIWKHVFKRRO programme.93 Teachers hired for the secular programme would not be required to adhere to the Jewish religion but would be expected to respect the religious and educational philosophy of the school while presenting the students with a balanced view on topics touching on philosophical or ethical matters.94 On the issue of open admission of students, the Jewish schools generally wish to retain control over the selection and retention of students. These schools, it is pointed out, are designed to serve the particular needs of the Jewish community,95 and it is stated that: Because the very nature of a school is dependent upon the commitment of its staff and the composition of its student body, guidelines directed to total openness in hiring practices and admissions policies would likely have the result of destroying the independence and uniqueness of the school and should be avoided.96 The exact implications of this general position are not uniform among the various beliefs from the Jewish schools. At least one of these submissions recommends that the Jewish schools, if publicly funded, would be open to all students whose parents agree to have their children participate in the full range of programmes offered by the school,97 but the more common position is that these schools would be open to Jewish children only. (4) Protestant Denominational Schools (Supporting) The majority of briefs from these private schools (most commonly fundamentalist/evangelical in orientation) and associated individuals, organizations and groups support the provision of public funds for schools in the private sector. It is argued that to do so would serve the purposes of fairness98 and justice99 especially when the schools in question may be seen to be providing a high standard of education for the children they serve.100 Moreover, parental choice of school is seen as a prior right.101 Every child in Ontario shall be guaranteed, through a system of equitable public funding, an elementary and secondary education in a school that is chosen by his or her parents and that meets acceptable social and educational criteria.102

93

Brief #204, Associated Hebrew Schools of Toronto, p. 10.

94

Brief #241, Ner Israel Yeshiva College of Toronto, p. 37.

95

Brief #248, Bialik Hebrew Day School, p. 5, brief #457, Principals Association of Jewish Day Schools, p. 12. 96

Brief #322, Leo Baeck Day School, p. 10.

97

Brief #204, Associated Hebrew Schools of Toronto, p. 5.

98

See, for example, briefs #148, 163 and 331.

99

See, for example, briefs #60, 88, 176, 228, 252, 309 and 328.

100

See, for example, briefs #168, 214, 228, 259 and 417.

101

Brief #414, Ontario Association of Alternative and Independent Schools, Appendix B.

102

See, for example, briefs #88, 120, 153, 309 and 328.

336

4. OFFICIAL REPORTS

It is further suggested that, without some form of assistance, this right to choose a school environment appropriate to the parental value system may be denied as a result of the ÀQDQFLDOGLVFULPLQDWLRQ103 arising from the “double taxation” system whereby parents supporting these schools are unable to direct their tax monies to the chosen school.104 In addition, the presence of Protestant denominational schools in Ontario is seen DV FRQWULEXWLQJ WR WKH SOXUDOLVP WKDW UHÁHFWV WKH GHPRFUDWLF SULQFLSOHV XSRQ ZKLFK Canadian society is grounded.105 Pluralism is threatened when government actively promotes one view and way of life and strongly discourages the others. Forcing all people to think the same ZD\E\RIÀFLDOO\VDQFWLRQLQJFHUWDLQYDOXHVWRWKHH[FOXVLRQRIRWKHUVYLRODWHV their God-given humanity and creativity. To make pluralism a living reality in our VRFLHW\JRYHUQPHQWPXVWSURYLGHHTXLWDEOHVWUXFWXUDORSSRUWXQLWLHVDQGÀQDQFLDO incentives for groups to express their beliefs collectively and institutionally. It should do so within the framework of legislation that protects all and discriminates against none.106 In briefs from supporters of Christian schools the reason most cited for sending children to these schools is the Christian ethic espoused by the institutions. Education and religion (in this case, Christianity) are seen as indivisible. Education is inherently and inescapably religious in the sense that we believe all education grows out of a conviction as to how the world ought to be.107 The schools see each school subject not only in its own right but also as a means of teaching a life view. One association representing some of these schools expresses their educational mandate as one of directing and guiding the child to commit his heart to Christ the Truth, to attain understanding, wisdom and righteousness, and to perform his competent and responsible service to church, state and society.108 This organization states in its Principles Concerning Government Relations that: Our schools exist by the grace of God, for the purpose of glorifying His name, and to guide children and youth to dedicate themselves to performing competent and responsible service to the Lord in church, state and society. We trust that He will continue to support and prosper them. Therefore, public funding is not essential for survival of the Christian school movement in Canada.109

103

See, for example, briefs #88, 165, 252, 259, 318, 328 and 428.

104

See, for example, briefs #58, 75, 100, 108, 115, 135, 155, 162, 165, 197, 237, 249, 255, 256, 264, 298, 312, 415 and 416.

105

See, for example, briefs #132, 155, 214, 237, 257, 259, 264, 298, 313 and 417.

106

Brief #298, Citizens for Public Justice, pp. 7-8.

107

Brief #439, Alliston Community Christian School, p. 1.

108

Brief #416, Ontario Alliance of Christian School Societies, p. 74.

109

Ibid, p. 83.

337

STATE SUPPORT FOR RELIGIOUS EDUCATION

7KHÀQDOVHQWHQFHQRWZLWKVWDQGLQJPRVWRIWKHVHEULHIVGRDVVWDWHGSUHYLRXVO\VXSSRUW the provision of substantial (in many cases, full) operational funding for Christian schools. At the same time, concerns are expressed regarding the conditions that may attach to such funding.110 Private schools are fearful of losing their independent nature. It is recognized that public support must carry some form of accountability, but it would be unfortunate if private schools were to lose their freedom to operate in the best interest of their stated purposes and objectives and of their students.111 A number of writers indicate that there should be no new constraints or conditions attached to public funding and that schools should have the right to exist free from all government intervention if they choose to operate without funding.112 Some submissions GRDFNQRZOHGJHWKHQHHGIRUÀQDQFLDODFFRXQWDELOLW\113 while others acknowledge the government’s right to be involved in certain aspects of the schools’ operation. One Christian school representative organization states that: In areas where the government has the authority to enforce basic standards of operation and competence for the public good, we agree that discussions with the Minister of Education on complex professional matters (such as curriculum design, WHDFKHUTXDOLÀFDWLRQVVWXGHQWHYDOXDWLRQSURJUDPGHYHORSPHQW EHFRQGXFWHGE\ the Ontario Alliance of Christian Schools in consultation with the Ontario Christian School Teachers Association and the Ontario Christian School Administrators Association.114 7KLVRUJDQL]DWLRQÀQGVLWVHOILQDJUHHPHQWZLWKDQXPEHURIRWKHUUHSUHVHQWDWLYHERGLHV in arguing for the protection of the autonomy of each Christian private school in the areas of hiring practices, admission policies, and the determining of a curriculum WKDW UHÁHFWV WKH SDUWLFXODU SKLORVRSK\ RI WKH VFKRRO115 However, at least one other representative group suggests that, to be eligible for public funding, a private school should meet the requirements of all general government guidelines for education in UHVSHFWRIFXUULFXOXPDQGVWDIÀQJ116 By and large, however, there is, in this group, a strong desire to retain control over both the appointment of teachers and the admission of students, although a few briefs LQGLFDWHWKDWWHDFKHUFHUWLÀFDWLRQVKRXOGPHHWSURYLQFLDOVWDQGDUGVRUWKHLUHTXLYDOHQW117

110

See, for example, briefs #34, 197, 217, 228, 249, 252, 256, 257, 416 and 470.

111

Brief #249, Grenville Christian College, p. 2.

112

See, for example, briefs #88, 135, 153, 154, 162, 163, 217 and 328.

113

See, for example, briefs #148, 166, 256 and 417.

114

Brief #416, Ontario Alliance of Christian School Societies, p. 84.

115

Brief #176, pp. 17-18; brief #414, Appendix B; brief #416, pp. 83-84.

116

Brief #237, Canadian Reformed School Society of Brampton-Toronto, p. 7.

117

See, for example, briefs #99, 214, 252, 255, 309, 323, 324 and 416.

338

4. OFFICIAL REPORTS

sometimes with the proviso that potential teachers must subscribe to the philosophy of the school.118 :HZRXOGZHOFRPHDWHDFKHUFHUWLÀFDWLRQSURJUDPDVORQJDVLWPDGHSURYLVLRQ IRUWHDFKHUVSUHVHQWO\LQ&KULVWLDQVFKRROVWRDWWDLQFHUWLÀFDWLRQE\YLUWXHRIWKHLU experience. … As the selection of teachers is the single most important of our decisions, we would consider it essential to retain freedom in this area. We do not seek the freedom to hire anyone, as our last point makes clear, but the freedom to refuse employment to anyone who is not committed to the religious convictions expressed in our constitution.119 The greater number of briefs within that grouping states, in effect, that control of hiring and admission policies must remain within the control of the school. For example: We already follow ministry guidelines in the development of our curriculum, but we would want the right to hire teachers who have a commitment to our Christian philosophy and the right to enroll families that would genuinely support our total school program.120 Our Christian schools desire to perpetuate the current right to set out our own admission requirements in keeping with each school’s distinctive qualities. It is understood that students and parents must accept the principles, philosophy, and regulations of our Christian schools which usually includes the requirement of full compatibility of belief and lifestyle. … Our Christian schools want to retain the existing right to expel students when the terms of admission have not been honoured by the students and/or parents. … Our Christian schools must retain the right which we presently enjoy to select, employ, direct or dismiss teachers in accordance with our Christian philosophy of education.121 It is essential that we continue to be free to choose our own teachers: any school teaching values not held by the majority of citizens would immediately lose its identity if it was not permitted to screen its teachers. Finally, we must continue to be free to limit our membership to those who subscribe to our respective constitution.122 (5) Protestant Denominational Schools (Opposing) A few Protestant denominational private schools stress the importance of the separation of church and state in education. A church school is not a “private school” in our thinking. … We do recognize the right and responsibility of parents to individually and collectively (church)

118

See, for example, briefs #214, 255 and 324.

119

Brief #36, Muskoka Association for Christian Education, p. 1.

120

Brief #259, Emmanuel Christian Academy p. 3.

121

Brief #475, Confederation of Canadian Christian Schools, pp. 2-3.

122

Brief #264, Ottawa Christian School/Redeemer Christian High School, p. 2.

339

STATE SUPPORT FOR RELIGIOUS EDUCATION

provide for our academic, social and moral development of their children without government permission or control.123 For these groups, any form of government control tends to be rejected. Any government intervention would deny us this responsibility, would keep us as DSHRSOHDQGFROOHFWLYHO\DVDFKXUFKIURPIXOÀOOLQJRXU*RGJLYHQPDQGDWH124 Even where it is suggested that tax credits for education should be allowed to follow the child to the school of choice, considerable concern is expressed about the possible ORVVRIVSHFLÀFLGHQWLW\IRUWKHVFKRRO125 Several writers support the contention that: Since the public system no longer holds to such a (Christian-Judaeo) tradition but attempts to embrace every religious belief and in reality emphasizes a humanistic approach to education we believe in the necessity of schools like our(s).126 The freedom to be able to select the school providing the child’s education is seen to EHVXIÀFLHQWZLWKRXWUHTXLULQJIXQGLQJ127 Independence is valued more highly than government funding, the acceptance of which: would soon direct ministry or government involvement in the classroom, and/or regulations regarding curriculum or teaching methods and procedures.128   &RQIHUHQFHRI,QGHSHQGHQW6FKRROV The approach by this group of schools to the question of public funding is one of great caution.129 In our view, direct public funding is unlikely to be compatible with the nature of our independence. … Any proposal for indirect funding of independent schools (should) be examined with care to ensure that such funding would not compromise the freedoms essential to their independence.130 Considerable concern is expressed for loss of autonomy even where writers suggest some form of indirect funding such as government provision of print and non-print

123

Brief #28, Bible Baptist Temple, p. 1.

124

Brief #299, Fundamental Baptist Preachers Fellowship, p. 2.

125

Brief #89, Central Baptist Academy, p. 2.

126

Ibid, p. 1.

127

Brief #315, Pineview Mennonite School, p. 1.

128

Brief #316, Cornerstone Christian School, p. 2.

129

Brief #261, Trinity College School, p. 4; brief #462, Upper Canada College, p. 5.

130

Brief #459, Conference of Independent Schools, pp. 3-4.

340

4. OFFICIAL REPORTS

materials,131 redirection of taxes132 or tax rebates to parents.133 If the presumption is … that the institution of public funding will bring greater government oversight (“He who pays the piper calls the tune …”), then Ridley College would not be likely to accept such funding.134 Concern is also expressed over the perceived growth of government restraints imposed upon independent schools even in the absence of any public funding programme.135 We share with many schools, both public and independent, a growing anxiety concerning the increasingly prescriptive nature of Ministry guidelines. Too often, central directives discourage teachers and schools from being innovative, or make LWGLIÀFXOWRULPSRVVLEOHIRUDSDUWLFXODUVFKRROWRPHHWWKHVSHFLDOQHHGVRILWV students.136 Autonomy in a number of areas of governance is important to these schools. In the student admission and teacher hiring policies the general preferences is for the school to retain absolute control. Typical is the following: Public educational policy (should) recognize the freedom of independent schools to select their own staff members in order that each can foster and serve its own educational philosophy and distinctive characteristics so as to meet the various and particular needs of its students. Recognizing the great contribution that has been made to education in the independent schools by many individuals of diverse backgrounds and talents whose gifts would be lost by the application of the narrower UHTXLUHPHQWVIRUWHDFKLQJTXDOLÀFDWLRQVLQWKHSXEOLFV\VWHP«WKHVHOHFWLRQRI WHDFKHUVVKRXOG QRWEHUHVWULFWHGRQO\WRWKRVHZKRKROGSURYLQFLDOFHUWLÀFDWLRQ … Public educational policy (should) recognize the freedom of each independent school, in order to best serve its students’ needs, to choose students who it thinks ZLOOVXFFHVVIXOO\FRSHZLWKDQGEHQHÀWIURPWKHDFDGHPLFVWDQGDUGVHGXFDWLRQDO philosophy, and special programmes of that particular institution.137 Various submissions cite the contribution that such schools have made and are making to the diversity and quality138 of education within Ontario while at the same time providing parents with a freedom of choice in the education of their children. Moreover, it is the very existence of independent and alternate schools which can help ensure that public education remains vital and responsible.139

131

Brief #231, Elmwood School, p. 1.

132

Brief #219, Toronto French School, p. 3.

133

Brief #261, Trinity College School, p. 5; brief #435, Ashbury College, p. 15.

134

Brief #325, Ridley College, p. 1.

135

See, for example, briefs #261, 325, 435, 459 and 462.

136

Brief #462, Upper Canada College, p. 5.

137

Brief #459, Conference of Independent Schools, pp. 2-3.

138

See, for example, briefs #81, 176, 219, 231, 325 and 459.

139

Brief #462, Upper Canada College, p. 2.

341

STATE SUPPORT FOR RELIGIOUS EDUCATION

(7) Schools for Special Education It is argued in a number of briefs from organizations and individuals that the special education services provided by certain specialized private schools cannot be equalled in the public sector.140 Many of the writers present a particular case history in support of this contention. For example: Not only have his grades improved substantially; he passed all subjects last year, including math; his attitude which was one of extreme frustration brought on by his inability to cope in school has improved remarkably.141 6PDOOHU FODVV VL]HV UHVLGHQWLDO VHWWLQJV WKH VSHFLDO TXDOLÀFDWLRQV RI VWDII DQG WKH collegial, family atmosphere are among the factors cited as conducive, within the private school sector, to meeting the special needs of learning disabled and exceptional children. Such schools, it is suggested, provide programmes that are not available in the public system.142 In other cases, however, these schools are perceived to function in a remedial capacity for certain social problem children or even in a caretaking function where boarding privileges are incorporated.143 It is further suggested by some that the public systems have failed in their mandate. The Ministry of Education generally, and school boards in particular, have failed, and are still failing, to provide adequate education for the learning disabled student. The greater injustice lies, not in the inability to provide programs, but in the refusal to admit that appropriate programs are not available, thus effectively cutting off all possibility of the student obtaining alternative help.144 It is argued that, despite the enactment of relevant legislation, the majority of public boards neither will be able nor can be expected to provide for the needs of all children.1457KLVEULHIIURPWKHSULYDWHVHFWRUÀQGVVRPHVXSSRUWIURPDSXEOLFVHFWRU submission: Despite the fact that funding to local boards has been reduced, the provincial government has enacted Bill 82 which requires appropriate education for all students according to their needs. … At this time, local boards and teacher groups are concerned that provincial funding will not keep with these extra demands on the education system and students without special needs should not be made to bear the burden.146

140

See, for example, briefs #19, 40, 45, 80, 109, 112, 218, 262, 292, 311, 267, 369, 381, 383, 443 and 460.

141

Brief #112, J.F. Nelson, p. 1.

142

See, for example, briefs #218, 262, 292 and 311.

143

Brief #385, Ontario Secondary School Teachers’ Federation, District 11, p. 2.

144

Brief #80, Sheila Morrison Schools, p. 3.

145

Brief #483, Remedial Teaching Centre, p. 1.

146

Brief #285, Ontario Secondary School Teachers’ Federation, District 1, pp. 5-6.

342

4. OFFICIAL REPORTS

Alternatively, it is argued by others147 that public boards have met and are meeting the needs of all children, including those requiring special education. Recommendation is made in a number of briefs in this area for public boards to be empowered to purchase such special education services from the private sector.148 This is apparently suggested as an alternative to providing funding (as is suggested by some) through public grants to private schools offering special education services. 6SHFLÀFDOO\DVFKRROERDUGVKRXOGKDYHWKHULJKWE\ODZ WRSXUFKDVHDQHGXFDWLRQDO programme for a “hard to serve” student from an independent school which is recognized and approved by the Ministry of Education.149 This option is not, however, agreeable to all. There are some150 for whom operation within the public system is a sine qua non for any public funding. … ,Q UHÁHFWLQJ RQ WKH YLHZV RI 2QWDULDQV DV UHYHDOHG LQ WKH SXEOLF RSLQLRQ SROOV WKH informal consultations, and the written briefs, several broad generalizations can be made, albeit on the understanding that such generalizations hide important differences in detail. First, there remains in the minds of most Ontarians strong support for the maintenance and adequate funding of a strong non-denominational public school system. Second, the majority of Ontarians appear not to favour the public funding of private schools, but a very substantial minority group believes that such funding is required QRWRQO\RQOHJDODQGRUPRUDOJURXQGVEXWDOVRLQWHUPVRIIXWXUHEHQHÀWVWRERWKWKH public school system and the province and the province as a whole. Third, a review of the written briefs and informal consultations suggests three common arguments that are put forward in favour of the public funding of private schools. These three arguments are: (a) the prior right of parents – in the name of either natural law or the importance of maintaining sub-cultural identities in a multicultural society ²WRVHOHFWIUHHIURPÀQDQFLDOFRQVLGHUDWLRQVWKHNLQGRIHGXFDWLRQWKH\EHOLHYHWR be appropriate for their child(ren); (b) the perceived discrimination in the Province providing to the Roman Catholic community an educational option not offered to other communities – at least other religious communities; (c) the alleged inequity arising from the “double taxation” of parents who must pay both private school tuition fees and their share of the education taxes raised in support of the publicly funded schools. Fourth, the briefs and informal consultations also suggest three common arguments put forward against any public funding for private schools. These arguments are: (a) whatever one’s views about the funding of private schools in principle, the present constraint on resources in the public schools in relationship to the breadth of their mandate make any programme designed to extend public funding to other schools

147

See, for example, briefs #74, 147 and 284.

148

See, for example, briefs #30, 218, 292, 293 and 443.

149

Brief #30, Bleiweiss Centre for Learning, p. 12.

150

Brief #74, Chairmen and the Directors of Education of the Seven Public School Boards in Metropolitan Toronto, p. 16.

343

STATE SUPPORT FOR RELIGIOUS EDUCATION

inappropriate at this time; (b) that in a heterogeneous society such as Ontario, the role of the public schools in providing a common acculturation experience for young citizens and thereby building the social cohesion, tolerance and understanding necessary to our common future should be reinforced rather than set aside; (c) that only in a context in which almost all young people attend the common public schools can these schools even potentially act so as to provide equality of educational opportunity for those of the young who do not bring to schooling particular advantages of background and experience. Fifth, no clear consensus emerged as to appropriate conditions that might be attached to the public funding of private schools if such a policy be developed and implemented.151 There was agreement that the areas of interest in this respect were FXUULFXOXPFRQWHQWVWXGHQWDGPLVVLRQDQGH[SXOVLRQ SROLFLHVDQGTXDOLÀFDWLRQVRI staff. Essentially the differences were between those concerned with the autonomy of the private school – suggesting relative freedom for such schools in the areas of FXUULFXOXPWHDFKHUTXDOLÀFDWLRQDQGVWXGHQWDGPLVVLRQV²DQGWKRVHPRUHFRQFHUQHG (especially if public funding were to be provided) that private schools live up to the SXEOLFVWDQGDUGVLQWKHVHDUHDVWKDWLVOLPLWKLULQJWRFHUWLÀHGWHDFKHUVPDLQWDLQRSHQ access by students to the school; and conform to at least the minimum requirements of the Ministry of Education’s curriculum guidelines. Finally, there was also no clear consensus as to the appropriate form which public funding should take, if such funding were to be made available. The most frequently suggested forms were per capita grants to qualifying private schools (the method used in many other Canadian provinces) and the freedom for parents to direct their education taxes to the school(s) of their choice. Also suggested by many were tuition tax reduction and tuition tax credit approaches. Somewhat surprisingly in the light of the many public discussions of the strategy, very few of those who were consulted or those who chose to write briefs were prepared to recommend – as a strategy for funding – a scheme that focussed on educational vouchers. … The history of private schools in Ontario (see Chapter II), the public policy options supported by the approaches of other jurisdictions (see Chapter III), and the views of Ontarians (as described above) provided a context for the Commission’s own considerations. The recommendations of the Commission are outlined in the following chapter.

151

It is worth noting in this context that a large number of private (independent) schools did develop some years ago a consensus about appropriate conditions for funding. The consensus was outlined in “Public Rights and Public Responsibilities”, a statement adopted by the Ontario Association of Alternative Independent 6FKRROV-DQXDU\7KLVFRQVHQVXVZDVQRWKRZHYHUIXOO\UHÁHFWHGLQWKHVXEPLVVLRQWRWKH&RPmission from either the public or private school constituencies.

344

4. OFFICIAL REPORTS

CHAPTER V 7+(38%/,&)81',1*2)35,9$7(6&+22/67+( 5(&200(1'$7,2162)7+(&200,66,21 Private schools have long been a major source of perpetuated division and the demarcation of privilege, status, esteem, power, opportunity and expectation. Neil Kinnock, 1981 A primary function of private schools is to make visible an otherwise invisible collectivity, to draw together a public that shares similar preferences. The private school is both a symbolic and an actual representation of valued moral and intellectual goods. George Grant, 1981 It was suggested at the outset of this Report, and it bears repeating at this juncture, that there is no absolute answer to the question of the extent to which public monies should be used to support the education of persons attending elementary and secondary schools not themselves owned or operated by government bodies. In a democratic and heterogeneous society, any existing policy in this area is the result of the interaction of many factors and the current arrangements can and should be expected to alter over time. Further, in considering what – if any – change(s) would be appropriate for Ontario at the present time, one cannot look to other jurisdictions and/or the available research results for easy guidance. With regard to other jurisdictions, their experience, although often informative, is always conditioned by their special social and cultural history. Therefore, extrapolation to Ontario – even from other Canadian provinces – can never be either simple or straightforward. With regard to the available research, there are two problems. First, although the pace of inquiry has quickened in the last several years, research in the area of private schooling has not, in fact, been extensive.152 Thus, the results of this research tend to EHIUDJPHQWDU\DQGVXJJHVWLYHUDWKHUWKDQFXPXODWLYHDQGGHÀQLWLYH7KLVSRLQWLVZHOO illustrated in the largest and most comprehensive of the recent studies, that undertaken by Coleman and his colleagues in the United States.153 In this study of 58,728 students in 1,016 high schools, it was shown – among other things – that private high schools did produce higher levels of academic achievement than did public high schools with similar students – at least to the extent to which one could accept the validity of the statistical procedures used to adjust for the self-selection of students and their families to the private school sample. It was also observed, however, that private high schools were more likely than their public counterparts to stress academic activities, school 152

In this regard, the Commission is particularly grateful to the Department of Education in Alberta and the Ministry of Education in British Columbia both of which were extremely generous in sharing with the Commission their extensive and recent work in this area.

153

Coleman, James and others, Public and Private Schools. National Center For Educational Statistics, Washington, D.C., 1981.

345

STATE SUPPORT FOR RELIGIOUS EDUCATION

attendance, homework assignments, and classroom discipline. Thus, it is not clear that the observed differences in achievement can be accounted for by the public or private status of the school. An alternative explanation lies in the apparent strength of the UHODWLRQVKLSEHWZHHQVSHFLÀFVFKRROSROLFLHVDQGUHVXOWLQJVWXGHQWDFKLHYHPHQW7KDW is, it could be argued that private high schools produce higher academic achievement than public high schools with similar students not because these schools are private but EHFDXVHDVDPDWWHURIVSHFLÀFSROLF\WKH\FUHDWHUDWHVRIHQFRXUDJHPHQWLQDFDGHPLF activities, enforce stronger classroom discipline, assign more homework, etc. From this perspective, the importance of the Coleman data is that they indicate that schools can make a difference in the lives of children and are not necessarily “sociological cookie cutters” relegated to distributing credentials in accordance with predetermined social FODVVFDWHJRULHV,IWUXHWKLVÀQGLQJLVFUXFLDOIRUVFKRROUHIRUPZRXOGEHLUUHOHYDQWLI schools had no effect. Reform would then only obscure the true sources of inequality, namely the advantages conferred on children by their place in the genetic and/or social structure. Second, and even more important, the “facts” yielded by research studies can not in themselves respond to the public policy question of whether to provide more public funds to private schools. The response to such a question is not such a matter of facts as it is a matter of values. Social viability is always based on a shared system of values, for it is only on the basis of common values that a truly shared existence (as opposed to mere coexistence) is possible. Thus, in multicultural societies such as Ontario, among the common or shared values must be a conception of tolerance which demands respect for others and alternative points of view. This, in turn, is based on a commitment to other values such as: (a) the minimal order required for dialogue; (b) a respect for truth; (c) the need to sometimes act for the sake of others; etc. Of course, LQDQ\VRFLHW\WKHUHDUHDOVRFRQÁLFWVRIYDOXHDQGWKHUHIRUHDOWHUQDWLYHYLVLRQVRIMXVW ZKDWFRQVWLWXWHVMXVWLFHDQGDSSURSULDWHVRFLDOSROLF\,WLVLQIDFWMXVWVXFKFRQÁLFWV that have historically shaped Ontario’s policies in education. Thus, a commitment to common schools and/or private schools starts with beliefs about what sort of society Ontario should become. That is, it starts with a vision of a preferred future expressed as a particular kind of schooling for the young. Policy-making in education is, therefore, primarily a political process. As such, it must be seen – within a democracy – as a TXHVWLRQ WR EH VHWWOHG LQ WKH ÀQDO DQDO\VLV QRW E\ VRFLDO VFLHQWLVWV EXW E\ HOHFWHG RIÀFLDOVDQGSHUKDSVXOWLPDWHO\E\WKHFRXUWV

Some Matters of Principle The importance of values and the implications that different values and value systems have for public policy with regard to schooling are treated in some detail in the paper prepared for the Commission by Holmes.154 Readers of the Commission’s Report are referred to this paper as both interesting for its own sake and, more particularly, as useful in understanding and clarifying their own views with regard to the public funding

154

Holmes, M., The Funding of Private Schools in Ontario: Philosophy, Values and Implications for Funding. Appendix E, p. 114.

346

4. OFFICIAL REPORTS

of private schools. Given the importance of the question of values and principles, it follows that the recommendations of the Commission itself can only be appropriately understood in the context of the general principles which have guided the Commission in its work. No claim is made that these principles represent a complete and comprehensive world view even with regard only to matters of education. Moreover, the Report of the Commission is not the appropriate vehicle for any extended explication of these matters. What follows, therefore, is a simple listing of the eight propositions which have formed the general framework and “argument” for the Commission’s sixty-one VSHFLÀFUHFRPPHQGDWLRQV Education is one of society’s dominant concerns and, although schooling is only a part of society’s much wider arrangements for education, the more complex and dynamic the society, the greater is the need for clarifying the function of its schools and the role that they should play in the ongoing attempt to realize a better society. In this context, the Commission believes: I. That elementary and secondary schools are important institutions whose goal is to develop, nurture and enhance the intellectual and moral autonomy of the young. This goal and attendant responsibilities are shared with parents and other societal agencies. The emphasis above on autonomy (both intellectual and moral) is regarded by the Commission as crucial relative to the individual responsibility of citizenship in a democratic society. Further, the Commission believes: II. That in a democratic society, this goal (i.e., of intellectual and moral autonomy) LVDVSHFLDODQGLQGLYLGXDOJRRGRIVXIÀFLHQWLPSRUWDQFHWRMXVWLI\WKHFRPpulsory schooling of all children; and III. That such schooling should be made available in such a way as to: a) maximize the equality of educational opportunity, that is, the likelihood that each person will be prepared to realize his or her potential and to make informed and independent choices as to his or her own future; b) provide for the shared responsibility of government and family; the family exercising its natural interest in and responsibility for the welfare of the child and the government acting on behalf of the interests of the wider society and as a protector of the rights of individual children; c) ensure that, in a pluralistic and multicultural society, schools can contribute to the strengthening of the social fabric by providing a common acculturation experience for children. 7KHHTXDOLW\RIHGXFDWLRQDORSSRUWXQLW\LVWDNHQE\WKH&RPPLVVLRQDVJRRGE\GHÀQLtion and, in the light of the goal of autonomy, there is quite naturally an emphasis above on the development of individual independence. Great importance is also attached by the Commission to the shared role of the school, particularly vis-à-vis parents in the education of young people. Education does not begin and end with the school. The home, the place of worship, and the cultural traditions of the family all play a major

347

STATE SUPPORT FOR RELIGIOUS EDUCATION

role in shaping the child’s attitudes and learning. Further, the more institutions such as the home lapse in their roles of nurturing the young and the more the schools take on these roles by default, the less effective schools are likely to be in performing their HGXFDWLRQDOIXQFWLRQ)LQDOO\LWZRXOGDOVREHGLIÀFXOWWRXQGHUHVWLPDWHWKHLPSRUWDQFH of a common, non-commercial acculturation experience in the socialization of the young. Indeed, the more fragmented the society and diverse the groups striving for their “place”, the greater the need for schools to seek a common unifying core. ,WLVFOHDUO\QRWKRZHYHUORJLFDOO\QHFHVVDU\IRUJRYHUQPHQWVWRERWKÀQDQFHand provide educational services, but the Commission does believe that the requirements of accessibility and accountability make such a double role entirely appropriate. Further, such a double role provides, in a way that no other policy can, a context in which publicly funded schools are tied not only to the private purposes of self-interest and individual mobility – principles heavily weighted in favour of those already advantaged – but also to the public purposes of providing a public service committed to improving collective and democratic traditions. Further, a discussion and action about public and common schools presents at least a potential opportunity for citizens to become concerned not simply about what is good for themselves or their children but also about what is necessary to bring about a more just and effective society for others. Finally, to the extent that the public and common schools are the schools of choice for the great majority of families, these schools may be able to respect group differences while at the same time helping their students to perceive the common concerns that transcend such differences. Schools are better able to teach common understanding and shared values if they are less homogeneous and can, at least potentially, bring children of different backgrounds together. That is, the Commission believes:  ,97KDWLWLVDSSURSULDWHIRUWKHJRYHUQPHQWWRÀQDQFHDQGSURYLGHDQHIIHFWLYH system of common public elementary and secondary schools that: a) meet society’s educational requirements for schooling; b) are accessible and open to all; c) are tuition-free; d) provide substantial opportunity for parental and community participation; e) represent the priority, but not necessarily the exclusive, public investment in education; f) are the schools of choice for the great majority of young people and their families; and V. That, relevant constitutional issues aside, no further obligation for the public funding of elementary and secondary schools exist. Relevant constitutional issues cannot, of course, be set aside, and they will be considered LQWKHVSHFLÀFUHFRPPHQGDWLRQVRIWKH&RPPXQLFDWLRQZKLFKIROORZEHORZ1RQHRIWKH above denies, however, the value of private schools. Thus, for example, in a heterogeneous society, the arguments for a common acculturation experience can be overstated so that all dissent and variation is suppressed in favour of some single, necessarily imperfect, vision, and it is an unfortunate truth that the public school community has

348

4. OFFICIAL REPORTS

not always avoided this pitfall. Past failures should not, however, rule out the present potential of the public schools in which it should, in principle, be possible to both widen and deepen the existing social consensus by capitalizing on our differences without unnecessarily institutionalizing them. The Commission, however, believes: VI. That there should be no legal public monopoly in education, and private schools WKDWPHHWWKHPLQLPXPVWDQGDUGVVSHFLÀHGE\WKHJRYHUQPHQWLQWHUPVRILWV obligation to both society and individual children should have a clear status in recognition both of the rights of citizens to make alternative choices and of the general value of diversity; and VII. That, moreover, diversity within the public school system should also be encouraged.155 Finally, although – again, constitutional issues aside – no obligation for the public funding of private schools may exist, some public assistance to private schools might, nevertheless, be a feature of a creative public policy. The Commission does believe: VIII. That, as a matter of public policy, and so long as the public policy objectives outlined above are not substantially eroded, new initiatives both in the public support of private schools and in the relationship of these schools to the public schools should be actively developed and tested. The status quo in Ontario leaves, as will be outlined below, something to be desired with respect to the status and treatment of the Province’s private schools. The fact that any changes in these arrangements will entail some uncertainty and, therefore, some ULVNIRUDOO2QWDULRVFKRROV²ERWKSXEOLFDQGSULYDWH²VLPSO\GHÀQHVWKHQDWXUHRIWKH challenge. There is a need for some change. The hope of the Commission is that the consideration and discussion of its recommendations will assist the people of Ontario in choosing those changes that will lead to a better future for all of their schools.

7KH5HFRPPHQGDWLRQV In a paper prepared for the Commission and entitled Legal and Constitutional Aspects of Public Funding for Private Schools in Ontario, Finkelstein establishes, to the satisfaction of the Commission, that in the Canadian federation the responsibility of a provincial government includes within its geographical jurisdiction the regulation of all elementary and secondary schools, public and private.156 The Commission is, therefore, of the view that – subject to the relevant constitutional considerations – the Province of Ontario has the power to adopt any and all of the recommendations put forward in this Report.

155

For the balance of this Report, the term “public school(s)” will – for Ontario and except where otherwise VSHFLÀHG²LQFOXGHERWKSXEOLFDQGVHSDUDWHVFKRROV

156 Finkelstein, N., Legal and Constitutional Aspects of Public Funding for Private Schools in Ontario. Appendix D, pp. 86-90.

349

STATE SUPPORT FOR RELIGIOUS EDUCATION

  $6WDQGDUGIRU$OO6FKRROV6DWLVIDFWRU\,QVWUXFWLRQDQG4XDOLÀHG7HDFKHUV Satisfactory instruction Schooling in Ontario is compulsory for all children between the ages of six and sixteen whether they attend the public schools, private schools, or are educated at home or elsewhere (subsection 20(1) of the Education Act). In light of the general principles listed in the previous section, one of which suggests that education is an individual DQGVRFLDOJRRGRIVXIÀFLHQWLPSRUWDQFHWRMXVWLI\WKHFRPSXOVRU\VFKRROLQJRIDOO young people, the Ontario provision seems perfectly appropriate. In the opinion of WKH&RPPLVVLRQKRZHYHULWLVQRWVXIÀFLHQWWRWKH3URYLQFH·VDFWXDOUHVSRQVLELOLW\ If compulsory schooling is to have real meaning, more than an attendance regulation LV UHTXLUHG :KDW LV QHHGHG LQ DGGLWLRQ LV VRPH VSHFLÀFDWLRQ RI WKH FRPPRQ DQG substantive, if minimal, standard that will be required of all schools – public, private or other; publicly funded or not. Schools not meeting this standard should be illegal in the sense that attendance at such schools could not be considered as satisfying the compulsory schooling legislation. In the international arena, the United Nations’ International Covenant on Economic, Social and Cultural RightsVSHFLÀFDOO\VWDWHVWKDWWKHVWDWH²LQWKH&DQDGLDQFDVH the province – has the right to specify minimal educational standards for all schools. It is doubtful that this Covenant, to which, in Canada, only the federal government is a signatory, is legally binding on the provinces with respect to their educational jurisdiction. However, this particular provincial right and responsibility for minimal standards can also be supported on the basis of Canadian law and jurisprudence.157 In 2QWDULRWKHUHDUHVSHFLÀHGJRDOVIRUWKHSXEOLFO\IXQGHGVFKRROVVHH$SSHQGL[1 EXW these clearly worthwhile aspirations are not intended as a response to the question of minimal standards, and they are, in any case, not necessarily shared by all of the private schools. The relevant legislation does, however, require “satisfactory instruction” as the minimal standard if a child is excused from attendance at a publicly funded school and is being schooled elsewhere (clause 20(2)(a) of the Education Act). In order, therefore, to introduce a common minimal standard for all elementary and secondary schools in Ontario, the Commission recommends:  7KDWVDWLVIDFWRU\LQVWUXFWLRQEHUHTXLUHGIRUHDFKVWXGHQWRIFRPSXOVRU\ school age in Ontario. 7KHWHUPVDWLVIDFWRU\LQVWUXFWLRQLVQRWSUHVHQWO\GHÀQHGHLWKHULQWKHOHJLVODWLRQRULQ the accompanying regulations. This vagueness has had the advantage of providing great ÁH[LELOLW\IRUWKH0LQLVWU\RI(GXFDWLRQ·VVXSHUYLVRU\RIÀFHUVDQGLQVRPHFDVHVIRU the private schools, but it has had the disadvantage of making the standard itself empty of content and, therefore, unenforceable in just those instances in which a standard is PRVWXUJHQWO\QHHGHG7KXVVRPHDGGLWLRQDOVSHFLÀFDWLRQZRXOGVHHPDSSURSULDWH Further, since no school or society can pretend to be value-neutral (i.e., equally accepting of all points of view simply because they are sincerely held), the Province’s minimum

157

Finkelstein, N., Op. cit. p. 90.

350

4. OFFICIAL REPORTS

standard for all schools should – without descending to the details of programme, teaching style, and achievement level – be clear about its value orientation. That is, it VKRXOGUHÁHFWVRPHWKLQJRIWKHPRGHORIERWKVRFLHW\DQGVFKRROLQJWRZKLFK2QWDULR wishes to commit itself. The Commission recommends:  7KDWUHODWLYHWRWKHUHTXLUHPHQWVIRUFRPSXOVRU\VFKRROLQJWKHWHUP VDWLVIDFWRU\LQVWUXFWLRQVKRXOGEHGHÀQHGLQODZDVSURJUDPPHVZKLFK  L  XVH(QJOLVKRU)UHQFKDVWKHÀUVWODQJXDJHRILQVWUXFWLRQ158 (ii) include learning experiences in the arts, Canadian and world studies, language, mathematics, physical education and science; (iii) do not promote or foster racial or ethnic superiority, religious intolerance or other values inconsistent with a democratic society;  LY  FRQWDLQVSHFLÀFSODQVWRSURYLGHVWXGHQWVZLWKWKHRSSRUWXQLW\WRGHYHORS critical thinking skills in both the intellectual and moral spheres; (v) provide students with ready access to alternative points of view about their areas of study. 7KLVGHÀQLWLRQLQDGGLWLRQWRVWUHVVLQJWKHLPSRUWDQFHRID ODQJXDJHLQWKHQDWLRQDO life and (b) tolerance in a pluralistic society is, as well, entirely consistent with the general principles stated in the previous section of this chapter insofar as these principles relate to the needs of a democratic society. In such a society, dependent as it is upon the active and informed participation of individual citizens, schools must focus not only on a range of subject matter but also on the critical faculties of individual students. Clearly, if intellectual and moral autonomy is to be the objective of education, schooling cannot be reduced to indoctrination.159 The criteria for satisfactory instruction listed above limit, of course, what could be conceived of as legitimate elementary and/or secondary schools. Indeed, that is the Commission’s intent. Nevertheless, the Commission believes that there remains very wide latitude for what should be encouraged, that is an increasing diversity in the VSHFLÀFDSSURDFKHVWRFXUULFXOXPDQGSHGDJRJ\ 4XDOLÀHGWHDFKHUV The Commission believes that good teaching is central to all that occurs within schools DQGFODVVURRPV,QWKHPDWWHURITXDOLÀHGWHDFKHUVTXDOLÀFDWLRQLVSUHVHQWO\GHÀQHGLQ 2QWDULRIRUWKHSXEOLFO\IXQGHGVFKRROVDVWKHKROGLQJRIDQ2QWDULR7HDFKHU·V&HUWLÀFDWH (OTC) and, in general, only persons holding the OTC may teach in the public schools of the province. There are, however, no provincial standards for teachers in private VFKRROVDQGLQWKHDFWXDOFDVHWKHUHLVDZLGHYDULDWLRQLQWKHTXDOLÀFDWLRQVRIWKHVH WHDFKHUV0DQ\RIWKHPGRKROGHLWKHUDQ27&RUDVLPLODUTXDOLÀFDWLRQIURPDQRWKHU jurisdiction. Others are apparently considered suitable by the private schools by which

158

Although too far beyond the Commission’s terms of reference to elaborate fully, the Commission also believes that it would be appropriate in the near future to enlarge on this criterion of satisfactory instruction VRDVWRSURYLGHWKDWWKHRWKHURIÀFLDOODQJXDJHZRXOGEHWDXJKWWRDOHYHORIFRQYHUVDWLRQDOFRPSHWHQFH

159

With special regard to moral issues, dilemmas persist since no one theory of morals is compellingly valid to all. The young must be led, therefore, to a familiarity with moral reasoning.

351

STATE SUPPORT FOR RELIGIOUS EDUCATION

they are employed because of their academic background and/or their special experience and training and/or the extent to which their value commitments are consistent with those of the particular private school. This variation is not unexpected given the divergent philosophies of certain private schools. Moreover, the Commission does not believe that it would be appropriate to insist on the same and relatively high OTC VWDQGDUGIRUDOOVFKRROVVLQFHWKHUHLVQRFOHDUHYLGHQFHWKDWWHDFKHUFHUWLÀFDWLRQLV always necessary to the student acquisition of the understandings and skills necessary WRJRRGFLWL]HQVKLS)XUWKHUWKH&RPPLVVLRQLVDZDUHWKDWQRDPRXQWRITXDOLÀFDWLRQ can absolutely ensure a high level of teacher performance. Nevertheless, the citizens of Ontario, through their Ministry of Education, should expect that anyone teaching FKLOGUHQLQWKHSURYLQFHLVDWOHDVWPLQLPDOO\TXDOLÀHGWRÀOOWKLVUROH7KHUHIRUHWKH Commission recommends: 3. That all elementary and secondary school programmes in Ontario be RIIHUHG E\ TXDOLÀHG WHDFKHUV DQG WKDW WKH WHUP TXDOLÀHG WHDFKHUV EH GHÀQHGLQODZIRU (i) public school as:  ² DQLQGLYLGXDOKROGLQJDQ2QWDULR7HDFKHU·V&HUWLÀFDWH27&  (ii) private schools as: – an individual holding an OTC; or  ² DQLQGLYLGXDOGHHPHGE\WKH0LQLVWU\RI(GXFDWLRQWREHTXDOLÀHG to teach at the private school at which he/she is a staff member (see 5HFRPPHQGDWLRQVDQG  (iii) elsewhere as: – a parent or guardian conducting home schooling; or – an individual holding an OTC; or – negotiated between the local school board and the individual in charge of the educational programme based on the individual’s DFDGHPLF TXDOLILFDWLRQV WHDFKLQJ H[SHULHQFH DQG SURIHVVLRQDO training.   3ULYDWH6FKRROV6WDWXV5HVSRQVLELOLWLHVDQG7HDFKHU4XDOLÀFDWLRQV Status The important role of private schools in the development of education and schooling in Ontario was outlined in a number of the briefs submitted to the Commission as well as by Stamp in his paper A History of Private Schools in Ontario (see Appendix G). Further, the visits by the Commission to private schools, the Commission’s informal consultations, and the Commission’s own analysis of the arguments in both the written briefs and the policy/research literature have combined to convince the Commission that, in at least a substantial number of cases, Ontario private schools have made a positive contribution to education in the province and, moreover, that they will likely continue to do so. Further, the Commission believes that in a democratic society individual parents and groups of parents and/or interested citizens have the right, within limits, to set up private schools that they believe to be particularly appropriate

352

4. OFFICIAL REPORTS

for their child(ren). It is, therefore, appropriate that private schools be recognized in the Province’s legislative arrangements. It is true that many of the purposes served by Ontario’s private schools are restricted to the private purposes of those groups and individuals supporting these same private VFKRROV1HYHUWKHOHVVPDQ\VXFKVFKRROVDOVRFRQWULEXWHWRWKHIXOÀOPHQWRISXEOLF purposes in ways substantial enough to make the label “private” somewhat misleading. Therefore, the Commission recommends: 4. 7KDWWKHWHUP´LQGHSHQGHQWVFKRROµUHSODFHWKHWHUP´SULYDWHVFKRROµ in the relevant government statutes, regulations and other materials. In addition, since the category “independent school” is of importance in its own right, the Commission also recommends: 5. That the Education ActFODXVH D EHDPHQGHGVRDVWRLQFOXGHVSHFLÀF reference to independent schools, the amended section to read: a child is excused from attendance at school if he/she is receiving satisfactory instruction at home, at an independent school, or elsewhere. Consistent with this recommended policy of providing status recognition to independent (private) schools, it seems inappropriate for the generic term “school” to continue to be XVHGLQRIÀFLDOGRFXPHQWVWRUHIHURQO\WRVFKRROVRSHUDWHGE\SXEOLFO\HOHFWHGWUXVWHHV The Commission therefore recommends:  7KDWWKHWHUP´ERDUGVFKRROµUHSODFHWKHWHUP´VFKRROµLQWKHUHOHYDQW government statutes, regulations and other materials. At the present time, the minimum number of school age children required for the HVWDEOLVKPHQWRIDQLQGHSHQGHQWSULYDWH VFKRROLVÀYH:KHQVXFKVFKRROVDUHDWRU near the minimal size – especially when the pupils are spread over a range of grades – the Commission questions the viability of both the schooling and the more general socialization experience. It is recognized that there is no clear answer to the question of appropriate minimal size and that there may be merit in the continuance of minimum sized independent (private) schools currently in operation. The Commission believes, however, that the standard for all new independent (private) schools should at least match that in the publicly funded systems. Therefore, the Commission recommends:  7KDWWKHPLQLPXPQXPEHURIVFKRRODJHFKLOGUHQUHTXLUHGWRHVWDEOLVK an independent (private) school be the same as for the maintenance of DVFKRROLQD'LVWULFW6FKRRO$UHD%RDUGLHEHLQFUHDVHGIURPÀYHWR eight. Most publicly funded Ontario school boards offer junior kindergarten and/or kindergarten programmes as part of the education continuum provided for the children in their jurisdictions. At present many independent (private) schools also offer kindergarten and junior kindergarten programmes, although the Education ActGRHVQRWVSHFLÀFDOO\ authorize such schools to do so. The Commission believes, that with due caution with regard to day care standards (see Recommendation 42), it would be appropriate to formally enable independent (private) schools to provide kindergarten and junior

353

STATE SUPPORT FOR RELIGIOUS EDUCATION

kindergartens as part of their educational programme. Therefore, the Commission recommends: 8. That section 33 of the Education Act be revised to permit independent (private) schools to operate kindergarten and junior kindergarten programmes. Children in these programmes could be included in the minimal number required to establish the independent (private) school. Responsibilities In keeping with the Commission’s view that the Ministry of Education has a responsibility relative to minimal standards in all schools, anyone wishing to operate an independent (private) school should be required to seek approval of its plans from the Ministry, it being expected by the Commission that such plans would emphasize the special character of the independent (private) school as well as the common standards to be maintained by all schools. Therefore, the Commission recommends: 9. That any group or individual wishing to establish an independent (private) school submit to the Minister of Education at least ninety days before the planned opening of such a school a Notice of Intent to Operate an Independent School, such notice to include at least the following:  L  HYLGHQFHRIDSSURYDOE\KHDOWKVDIHW\ÀUHDQG]RQLQJDXWKRULWLHV (ii) DQRXWOLQHRIWKHHGXFDWLRQDOREMHFWLYHVSURJUDPPHDQGVWDIÀQJSODQV LQVXIÀFLHQWGHWDLOWRSURYLGHHYLGHQFHWKDWWKHFULWHULDRIVDWLVIDFWRU\ LQVWUXFWLRQ5HFRPPHQGDWLRQ DQGTXDOLÀHGWHDFKHUV5HFRPPHQGDtion 3) well be met. There should, in addition, be an approval designation for all independent (private) schools that meet the stated requirements while those that do not meet them should be considered illegal. Therefore, the Commission recommends:  7KDW ZKHQ DOO WKH UHTXLUHPHQWV RI$ 1RWLFH RI ,QWHQW WR 2SHUDWH DQ ,QGHSHQGHQW6FKRROVHH5HFRPPHQGDWLRQ KDYHEHHQPHWWRWKHVDWisfaction of the Minister of Education, the independent school named on that Notice be approved as a registered independent (private) school.160 Currently operating private schools would be expected to complete an initial Notice of Intent to Operate but the present practice of an annual submission of such a notice would be discontinued. At present, the Minister of Education has the right to inspect all private schools. In fact, however, such inspections are only routinely carried on for those secondary private schools that wish to offer credits toward the Ontario Secondary School Diploma. Opinions as to the effectiveness of this inspection process at the secondary level vary. It is clearly the case that most inspected secondary private schools maintain the ap-

160

For the balance of this Report the term “independent school” will be used to refer to a “registered independent school”.

354

4. OFFICIAL REPORTS

propriate standards but any action relating to those (however few) which do not meet these standards seems peculiarly rare. Inspection of the private elementary schools is virtually non-existent. This does not seem appropriate relative to the Minister’s province-wide responsibilities for some aspects of all schools. Therefore, in order to maintain its standing as an independent school, the Commission recommends: 11. That once, registered, an independent school must:  L  ÀOHDQDQQXDOVWDWLVWLFDOUHSRUWDVVSHFLÀHGE\WKH0LQLVWHURI(GXFDtion; (ii) either participate in any province-wide testing programme initiated by the Ministry of Education for public schools or conduct an alternative assessment programme acceptable to the Minister of Education; (iii) if not being inspected for secondary school diploma purposes, participate – on a seven year cycle – with the Ministry of Education in a cooperative evaluation of the school’s programme to: – assess the extent to which satisfactory instruction is being provided; – provide opportunities for consultation with a view to the development of the independent school’s programme;161 (iv) inform the Ministry of Education of any change in status relative to the PDWWHUVÀOHGLQWKH1RWLFHRI,QWHQWWR2SHUDWHDQ,QGHSHQGHQW6FKRRO but not covered in the annual report; (v) notify the Director of Education of the Ontario school board where DVWXGHQWZRXOGRWKHUZLVHEHTXDOLÀHGWREHDUHVLGHQWSXSLOLIWKDW independent school student is expelled or is habitually truant;  YL  VXEPLW D 1RWLFH RI ,QWHQW WR &ORVH WR WKH ORFDO UHJLRQDO RIÀFH RI WKH Ministry of Education at least three months prior to any planned cessation of operation. The Commission’s Recommendations 9 and 11 impose considerable obligation and responsibility on independent schools including some (e.g., periodic cooperative evaluations) which, although appropriate to all schools, are not currently the standard practice in the publicly funded sector. Nevertheless, the Commission believes that these constraints are appropriate relative to the Province’s responsibilities even though these responsibilities have, unfortunately, not always been exercised by the Ministry of Education. It remains vitally important, however, that independent schools retain their special emphasis and character. Therefore, the Commission recommends: 12. That, within the constraints of the appropriate curriculum guidelines at the secondary level (at least for those independent schools seeking to offer credits toward the Ontario Secondary School Diploma), the inspection

161

Independent (private) schools being inspected for Ontario Secondary School Diploma purposes may also choose to participate in the cooperative evaluation process.

355

STATE SUPPORT FOR RELIGIOUS EDUCATION

DQGRUHYDOXDWLRQRILQGHSHQGHQWVFKRROVVKRXOGHQFRXUDJHERWKÁH[LELOLW\ and innovation in the development of programme. Thus, new ideas and alternative programmes should be encouraged and reinforced especially in those instances (the Montessori schools, the Waldorf schools, the International Baccalaureate programme, and many of the Province’s long-established private schools come to mind) where the issue of minimal standards for satisfactory instruction are clearly not in question. 7HDFKHUTXDOLÀFDWLRQV The Commission’s Recommendation 3 indicates that all teachers in the province must EHTXDOLÀHG)RUWHDFKHUVDWLQGHSHQGHQWVFKRROVWKLVZLOOUHTXLUHHLWKHUKROGLQJDQ 2QWDULR7HDFKHU·V&HUWLÀFDWHRUEHLQJGHHPHGE\WKH0LQLVWHUWREHTXDOLÀHGRQRWKHU grounds. The Commission recommends: 13. That, for all independent school teachers not holding an Ontario Teacher’s &HUWLÀFDWHWKHEDVLVIRUTXDOLÀFDWLRQEHDFRQVLGHUDWLRQRIDQLQGLYLGXDO·V academic background and/or professional training and/or relevant experience. Procedures will, of course, be necessary to establish the criteria to be used to establish WKHTXDOLÀFDWLRQRILQGHSHQGHQWVFKRROWHDFKHUV7KLVWDVNZLOOUHTXLUHGLDORJXHDPRQJ the interested parties. Therefore, the Commission recommends: 14. That, after consultation with representatives of independent schools and in OLJKWRI5HFRPPHQGDWLRQVWKH0LQLVWU\RI(GXFDWLRQGHYHORSVSHFLÀF FULWHULDDQGSURFHGXUHVIRUGHWHUPLQLQJWKHTXDOLÀFDWLRQRILQGHSHQGHQW VFKRROWHDFKHUVZKRGRQRWKROGDQ2QWDULR7HDFKHU·V&HUWLÀFDWH ,WPD\EHWKDWRQFHWKHTXDOLÀFDWLRQVWDQGDUGVDUHLQSODFHDQXPEHURIWKHFXUUHQW WHDFKLQJ VWDII DW SULYDWH VFKRROV ZLOO QRW EH GHHPHG TXDOLÀHG ,Q RUGHU WKDW WKHVH SUDFWLVLQJWHDFKHUVPD\EHFRPHTXDOLÀHGZLWKRXWGLVUXSWLRQRIFRQWLQXLW\RIVHUYLFH the Commission recommends: 15. That all teachers currently on the staff of a private school who are neither FHUWLÀHGQRUTXDOLÀHGVHH5HFRPPHQGDWLRQDQG EHJLYHQDSHULRG RIÀYH\HDUVWRPHHWWKHVWDQGDUGVLQRQHRURWKHURIWKHVHFDWHJRULHV It is, of course, assumed that all new teachers hired by independent schools will be either FHUWLÀHGRUGHHPHGTXDOLÀHGE\WKH0LQLVWHURI(GXFDWLRQSULRUWRDFWXDOHPSOR\PHQW 6LQFHKRZHYHUFHUWLÀFDWLRQLVWKHSUHIHUUHGVWDWXV162 steps should be taken to ensure WKDWSURJUDPPHRSWLRQVDUHDYDLODEOHWRHQDEOHTXDOLÀHGEXWQRQFHUWLÀHGWHDFKHUVLQ LQGHSHQGHQWVFKRROVWRREWDLQDQ2QWDULR7HDFKHU·V&HUWLÀFDWH7KHUHIRUHWKH&RPmission recommends:

162  7KLV LV D FODLP QRW QHFHVVDULO\ LQ VXSSRUW RI WKH SUHVHQW FODULÀFDWLRQ VWDQGDUGV EXW UDWKHU IRU VRPH FRQWLQXDWLRQRIDSROLF\IRUDVWDQGDUGRIFHUWLÀFDWLRQZHOODERYHDQ\QRWLRQRIPLQLPDOTXDOLÀFDWLRQ

356

4. OFFICIAL REPORTS



7KDWWKH2QWDULR)DFXOWLHVRI(GXFDWLRQLQFRQVXOWDWLRQZLWKWKH0LQLVWU\ of Education, Ministry of Colleges and Universities, and representatives of WKHLQGHSHQGHQWVFKRROVGHYHORSSURJUDPPHVWKURXJKZKLFKQRQFHUWLÀHG teachers in independent schools have the opportunity to earn an Ontario 7HDFKHU·V&HUWLÀFDWH

 7KH3XEOLF)XQGLQJRI,QGHSHQGHQW6FKRROV The central question facing the Commission from its inception was whether or not public funds should be used to support the Province’s private schools and, if so, to what extent and in what way. As was outlined in Chapter II, public funds are already used to support – in some cases very substantially support – Ontario’s private schools but these funds are generally in the form of federal tax expenditures rather than largescale disbursements from the provincial treasury in support of these schools’ operating budgets. With regard to the appropriateness of providing substantial provincial support, ample evidence is presented in Chapter IV of this Report of the very divergent views KHOGE\FLWL]HQVRI2QWDULRDGLYHUJHQFHDOVRUHÁHFWHGDPRQJWKHPHPEHUVRIWKH Advisory Committee to the Commission. There were many arguments put forward to the Commission on both sides of this matter. With particular regard to whether (as opposed to how) such funding should be provided, the three most common arguments put forward in support of the provincial funding of private schools were, as previously outlined, the following:  D  7KDWQRWRQO\VKRXOGSDUHQWVEHDEOHWRFKRRVHVFKRROHQYLURQPHQWVWKDWDIÀUP and extend their own values but they also have a prior right to select the kind of education they believe to be appropriate for their children. The function of the state is – within recognized limits of costs and standards – to enable parents to PDNHWKLVFKRLFHIUHHIURPÀQDQFLDOFRQVWUDLQWVFRQVWUDLQWVZKLFKQRZWKUHDWHQ through the economics of schooling, the right of many parents to choose a private school; (b) That it is discriminatory and, therefore, inappropriate for Ontario to continue to offer to its Roman Catholic community an educational option not offered to all other Ontario communities – at least to all other Ontario communities that DUHUHOLJLRXVO\GHÀQHG (c) That parents who choose to send their child(ren) to private schools should not have to bear the “double taxation” of having to pay both private school tuition fees and their share of the education taxes in support of the publicly funded schools. These arguments were urged on the Commission not only on the grounds of justice but also repeated reference to the view that there is room for many different ways of realizing public goals. It must, therefore, be recognized, it was argued, that diverse communities have, within them, different preferences for educational goods and services, thereby creating a need for different models of school organization. Thus, while education VKRXOGEHSXEOLFLQLWVÀQDQFHDQGRSSRUWXQLW\VWUXFWXUHLWQHHGQRWEHSXEOLF²RUDW least exclusively public – in its organization. Finally, it was suggested that the current near monopoly of the state in elementary and secondary schooling reduces competition, 357

STATE SUPPORT FOR RELIGIOUS EDUCATION

UDLVHVFRVWVORZHUVHIÀFLHQF\DQGGHJUDGHVWKHTXDOLW\RIWKHSURGXFWEHLQJGHOLYHUHG while, at the same time, it imposes majoritarian ideologies and life styles and makes dissent less legitimate. By contrast, the Commission was assured that the provincial funding of private schools would: (a) ensure the diversity appropriate to a pluralistic society (compulsory education was never intended to mean that all children should be schooled in the same way; (b) reconcile individual freedom with majority rule – the YHU\GLIÀFXOW\WKDWKDVVREHGHYLOOHGWKHDWWHPSWRIWKHERDUGVRIHGXFDWLRQWRDFWDVD socially cohesive force; (c) stimulate competition and, therefore, quality; (d) rid parents of double taxation; (e) allow the free exercise of conscience and religion within all income levels. Moreover, the existing public school system would not be threatened by this policy change since it was not imagined that there would be large scale enrolment shifts from public to private schools as a result of any decision to provide new and provincial funding support to the latter. Forceful arguments were also presented on the other side of this central issue. Again, as previously outlined in Chapter IV, the three most common arguments put forward to the Commission against the public funding of private schools were the following:  D  7KDWZKDWHYHURQH·VYLHZLQSULQFLSOHWKHFXUUHQWÀQDQFLDOFRQVWUDLQWRQWKH Ontario treasury and, consequently, on the funding of public schools makes any extension of public funding to private schools inappropriate – at least at this time; (b) That allowing the use of public funds to support and create private schools, many of which by their own admission would be segregated along lines of, for example, religion or class, would be unwise since it would sanction the isolation of students in homogeneous groups and thereby not only abandon the advantages of a common acculturation experience but also foster a tendency among the students to think of other people as outsiders – an invitation to prejudice and intolerance;  F  7KDWVXSSRUWRISULYDWHVFKRROVZLOOHURGHWKHÀQDQFLDODQGLGHRORJLFDOVXSSRUW for public schooling which in turn will deny equality of educational opportunity to large groups of students by fostering a two-tier system of schooling inimical to the democratic traditions that public schools are intended to serve. ,QVXSSRUWRIWKHVHDUJXPHQWVUHIHUHQFHZDVPDGHQRWRQO\WRWKHYDULRXVÀQDQFLDO restraint programmes of the provincial government but, more importantly, to the experience of other jurisdictions – most frequently that of Australia and Great Britain – where private schools are seen as having played a major role in keeping alive and legitimizing the ideology of class and, therefore, in exacerbating the divisions in society. Overriding all these concerns, however, was a commitment to the public schools as a source of common (not in the sense of “low” but in the sense of “shared”) experiences and common opportunities and, therefore, at least potentially, of a socially integrating sense of purpose. In many of the arguments made to the Commission, this led to a stress of the great extent to which private schools were seen as catering to individual needs rather than the social ends of public policy. No claim was made that the rights of individual students and their parents was irrelevant. What was, however, emphasized was the likelihood that only in the public schools and through the public schools could

358

4. OFFICIAL REPORTS

social decisions be funded and reinforced. Those arguing against the public funding RISULYDWHVFKRROVDOVRVXJJHVWHG²VLQFHWKHFXVWRPWDLORUHGFDQEHH[SHFWHGWRÀW better than the ready-made – that such public funding would result in substantial shifts in enrolment away from the public schools, probably removing from the public constituency the most articulate parents, those who represent the most likely impetus for change, development and improvement in the public schools themselves. Moreover, it was pointed out that this would, unfortunately, occur at a time of a projected decline in enrolment in the public school sector, that is, during a time in which the public schools would have little ability to reduce their marginal costs. Finally, it was generally admitted that increased diversity between schools was an end much to be desired. The argument, however, was for diversity within the public school systems rather than between the public schools on the one hand and the private schools on the other. … The propositions which provided the general conceptual framework for the Commission’s work (see pp. 38-40) do foreshadow, at least to some extent, the Commission’s response to the question of the public funding of private schools. Thus, directly suggested in these principles is that, constitutional issues aside, Ontario has no obligation to fund schools and school systems other than those currently being supported, but that, nevertheless, new initiatives in this area might be wise public policy. Constitutional issues cannot, however, be set aside and, in any case, some response by the CommisVLRQWRWKHPRUHVSHFLÀFDUJXPHQWVSXWEHIRUHLWZRXOGVHHPQRWRQO\DSSURSULDWHEXW LQGHHGQHFHVVDU\LIWKHFRQWH[WIRUWKH&RPPLVVLRQ·VVSHFLÀFUHFRPPHQGDWLRQVLQWKLV area are to be properly understood. In terms of the three most common arguments advanced by the proponents of public funding for the private schools, i.e., parents’ rights, discrimination vis-à-vis the Province’s Roman Catholic community, and double taxation, the Commission ÀQGVWKDWWKHGRXEOHWD[DWLRQDUJXPHQWDOWKRXJKSV\FKRORJLFDOO\VWURQJDSULYDWH school parent is, in fact, paying both a tuition bill and education taxes in support of the publically funded schools), is, nevertheless, without real merit. First, the argument arises at least partly as an unintended consequence of a tax system which happens to separate out certain education levels but not other objects of public tax expenditure. Second, the argument confuses an education tax with a tuition bill, which is not the case. What the education tax represents is a general levy in support of what society KDVLGHQWLÀHGDVDFRPPRQJRRGLHDSXEOLFVFKRROV\VWHP7KHUDLVLQJRIWKLVRU any other tax does not entitle a citizen to an opting-out process. Decisions concerning the raising and allocation of tax revenues are political decisions and legal redress is available to individual citizens only through the periodic election process and/or the courts. Finally, the double taxation argument would seem to imply that: (a) citizens without children (and, perhaps, citizens without children currently of school age) would not be expected to pay education taxes; (b) citizens with more than one residence are – or at least might be – not only double-taxed, but triple-taxed, quadruple-tax, etc.; (c) citizens’ education taxes should be in proportion to the number of their children. Each of these options is, of course, a potential public policy but not a single one of

359

STATE SUPPORT FOR RELIGIOUS EDUCATION

them is suggested by any individual or group proposing the double taxation argument to the Commission. The argument arising from parents’ rights is, it seems to the Commission, somewhat VWURQJHU 3DUHQWV DUH WKH ÀUVW HGXFDWRUV RI WKHLU FKLOGUHQ DQG WKHLU FRQWLQXHG DFWLYH involvement in the schooling of their children can contribute mightily to the success of that schooling. Further, it is reasonable to suppose that providing parents with a greater range of choice and, therefore, increasing the chances that they will identify closely with the option actually selected, will, in turn, increase the likelihood of their active engagement with their children’ schooling. Finally, in a democratic society, choice for individuals is of considerable value for its own sake. On the other hand, although the LGHDRIFKRLFHLVLPSRUWDQWLWGRHVQRWLQLWVHOIGHÀQHVHOIJRYHUQPHQWRUGHPRFUDF\DV there are, for example, some things (e.g., slavery) which a democratic society cannot reasonably choose. Thus, the Commission would favour the enhancement of parental choice, but it does not regard such choice as a priori right. Rather, parental choice is seen as a desirable objective but one whose claims must be measured against the competing claims of other social policies and goals. In contrast to its rejection of the double taxation argument and its only partial support for the argument from prior parental rights, the Commission believes that the argument against the status quo on the grounds that it is discriminatory against non-Roman Catholics is a very strong one. On moral grounds, limiting public support to Roman Catholic schools seems indefensible, for the constitutional provisions that are usually advanced to justify the special status of such schools serve only to describe its history. They do nothing to inform us about what we ought to do. In terms of this moral choice, it does not seem inappropriate to the Commission for Ontario to continue to offer to its Roman Catholic community an educational option not offered to other communities as well. It is true that a strict application of equity in this matter might limit any extension of this option to other religious communities but the Commission does not believe that the public good will be served by involving the provincial government in decisions as WRZKHWKHURUQRWSDUWLFXODUFRPPXQLWLHVDUHWREHFRQVLGHUHGDVUHOLJLRXVO\GHÀQHG Therefore, in the further recommendations with regard to private schools, no distinction LVPDGHEHWZHHQUHOLJLRXVVFKRROVDQGVFKRROVGHÀQHGRQRWKHUJURXQGV On legal/constitutional as well as on moral grounds, the Commission believes that the special status of the Roman Catholic schools is discriminatory. The Commission recognizes that the legal/constitutional grounds are complex and judicially unresolved and, further, that the Commission itself has no special legal expertise. Nevertheless, it LVVDWLVÀHGZLWKWKHDUJXPHQWVSXWIRUZDUGE\)LQNHOVWHLQLQKLVSDSHUSUHSDUHGIRUWKH Commission.1637KDWLVLWLVVDWLVÀHGWKDWWKHUHODWLYHO\SHUPLVVLYHQDWXUHRIVHFWLRQ 93 of The British North America Act²LWVSHFLÀHGRQO\ZKLFKVFKRROVPXVWEHIXQGHG and not which others could or could not be funded – when read together with the antidiscrimination provisions of The Canadian Charter of Rights and Freedoms provide a strong argument for the extension of public funding to private schools. The strength of this argument is increased, it seems to the Commission, by any extension of public

163

Finkelstein, N., Op, cit.

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4. OFFICIAL REPORTS

funding to the secondary Roman Catholic schools since this appears to be more clearly DQDFWRISROLWLFDOZLOOWKDQDIXOÀOPHQWRIDFRQVWLWXWLRQDOREOLJDWLRQ7KHJRYHUQPHQW is, of course, clearly entitled to exercise this political will but not on a discriminatory basis. On the other hand, the arguments for maintaining the unique status of the Roman Catholic separate schools do not seem convincing. Thus, for example, the argument from the large size of the Roman Catholic community, while of some political and, perhaps, economic interest, is not, in the eyes of the Commission, convincing on either moral or legal grounds. Similarly, the argument from historical and constitutional status is, as suggested above, unconvincing morally. Further, its legal basis would seem only WRÀQGÀUPJURXQGLQJLIRQHVXJJHVWVWKDWWKHGHYHORSPHQWRIDSXEOLFO\VXSSRUWHG denominational school system was an unfortunate historical mistake, one which may have to be supported or tolerated but which certainly should not be repeated. This point of view was, in fact, frequently put forward to the Commission. Given, however, the recent Canadian constitutional exercise during which the historical policy with regard to GHQRPLQDWLRQDOVFKRROVZDVUHDIÀUPHGWKH&RPPLVVLRQÀQGVWKH´KLVWRULFDOPLVWDNHµ argument unconvincing with regard to the development of public policy. Since Ontario and Canada appear much more than casually determined to maintain and publicly fund WKH5RPDQ&DWKROLFVFKRROVRQO\YHU\VWURQJDUJXPHQWVDERXWRWKHUSXEOLFEHQHÀWV could justify a continued policy of discrimination against independent schools from other than Roman Catholic communities. As summarized both in Chapter IV and earlier in the present chapter, strong arguments for the maintenance of the status quo in school funding were brought to the attention of the Commission. In terms of the three most common arguments advanced by those advising against the public funding of the private schools, that is, social cohesion and tolerance, equality of educational opportunity, and spending priority, the &RPPLVVLRQÀQGVWKDWWKHVSHQGLQJSULRULW\DUJXPHQWLVRIOLWWOHPHULW,QWHUHVWLQJO\WKH Commission does accept the two most common premises of this argument that (a) the public schools (including the separate schools) should be the priority public investment in education and (b) that, at present, the public schools are underfunded. Nevertheless, it does not draw the conclusion that there should, therefore, be no extension of public funding to private schools. The Commission’s reasons are twofold. First, the cost of fully funding the private schools, estimated at no more than $200 million annually, is QRWVXIÀFLHQWO\ODUJH²ZKHQFRPSDUHGWRWKHELOOLRQSHUDQQXPDOUHDG\EHLQJ expended on the public elementary and secondary schools in the province – to be determinative of public policy. Second, since the educators are in the best sense fully engaged in maximizing the funds to be made available to their work and then fully H[SHQGLQJWKHVHIXQGVLQWKHLQWHUHVWRIWKHLUVWXGHQWVWKH&RPPLVVLRQÀQGVLWVHOIXQDEOH to imagine a funding context in which the public school community – or any other VFKRROFRPPXQLW\²ZRXOGVHHLWVHOIDVKDYLQJVXIÀFLHQWÀQDQFLDOVXSSRUWWRHQDEOHWKH IXQGLQJRIRWKHUV\VWHPVWRDVVXPHDÀUVWSULRULW\7KHUHIRUHWKH&RPPLVVLRQUHMHFWV the spending priority argument. The social cohesion argument is, the Commission believes, on stronger ground. The argument has two facets. First, it posits the need, in a heterogeneous society, for more rather than fewer common cultural touchstones and then argues that the public schools (rather especially the board of education schools) represent the only institutional vehicle 361

STATE SUPPORT FOR RELIGIOUS EDUCATION

that is available for providing a common but non-commercial experience for young Ontarians of, at least potentially, widely different personal and family backgrounds. The Commission has some sympathy with this view, although it recognizes that in many actual settings (e.g., the neighbourhood school, the separate school) the student body of a particular school may be quite homogeneous. The Commission is, nevertheless, of the opinion that society should strive to realize some common socialization experience for its young that is not limited to the television set and/or the shopping mall and that the publicly funded schools represent the most likely setting for this effort. It is not easy to imagine that largely segmented schools will lead to a cohesive social environment even though one cannot totally dismiss the alternative argument by minority groups that common settings can be very destructive to their distinctive needs. The second aspect of the social cohesion argument relates to the question of tolerance. It was argued in almost all of the submissions to the Commission that, in a multicultural society, tolerance was among the supreme civic virtues. It was, however, the unfortunate experience of the Commission that with few exceptions, schools – whether public or private – did not actually take this matter seriously in the development of their own programmes. It was the Commission’s experience that the public schools too easily assumed that the mere physical presence of various groups within their student bodies somehow, of its own accord, bred tolerance and understanding and there are, therefore, (at least in the opinion of the Commission) very few public schools that can make any claim to have “multiculturalized” their core programmes. On the RWKHUKDQGSULYDWHVFKRROVPRVWRIZKLFKZHUHUHOLJLRXVO\GHÀQHGUDWKHUWRRHDVLO\ assumed the equivalence of piety and good citizenship without taking into account that, for at least a number of religious groups, the claim to universality has often meant the spiritual repression of other religions and cultures. It must be admitted that no one knows just which schooling experiences are most likely to produce understanding and tolerant adult citizens and, from the point of view of minority groups, large-scale common settings are often repressive settings. One cannot help but recall, for example, Egerton Ryerson’s own opposition to cultural diversity when he wrote in 1846 about the arrival of the Irish Catholic victims of famine: It is therefore of … importance that every possible effort should be employed to bring the facilities of education within the reach of the families of these unfortunate people that they may grow up in … industry and intelligence … and not in the idleness and pauperism, not to say the mendicity and vices of their forefathers.164 Nevertheless, in the absence of sure knowledge, it does seem intuitively plausible to the Commission that tolerance and understanding are more likely to arise from settings in which various groups interact than in settings which are segmented and segregated – whether voluntarily or otherwise. Indeed, if the opposite is true, that is, if familiarity breeds contempt, then the very concept of a multicultural and pluralistic society becomes a contradiction in terms. There would never be enough values in common to provide the

164

Ryerson, Egerton. Journal of Education for Upper Canada, Vol. 1. J. H. Lawrence, Toronto, 1948, p. 300.

362

4. OFFICIAL REPORTS

kind of social cement without which no society can long survive. Thus, the Commission would argue that, with due regard to the interesting arguments as to the appropriate age and developmental level at which common experience becomes crucial, the context of the public school represents, whatever its past failures, the most promising potential for realizing a future characterized by a more fully tolerant society. It is, however, with regard to the equality of educational opportunity that the ComPLVVLRQÀQGVLWVHOILQVWURQJHVWDJUHHPHQWZLWKWKRVHDGYLVLQJDJDLQVWWKHIXQGLQJRI private schools. One of the historic missions of the public school has been to act as a kind of social mobility ladder for young people who do not bring to schooling special advantages of background, experience and/or wealth. It cannot be claimed that this mission has always been achieved and that the public schools have always risen to Thomas Jefferson’s historic call for an “education to enable every man to judge for himself what will secure or endanger his freedom”. Indeed, it has often been observed that the public schools help reinforce and maintain the high status of the exchange rather than the use value of credentials. This inevitably results in a hidden curriculum that favours the middle class and is simultaneously destructive of working class children and values. Further, on occasion, the public schools are said to actively prevent citizenship DQGDFWLYHO\SURPRWHWKHVWLÁLQJRIVHOIJRYHUQPHQW1HYHUWKHOHVVWKHUHKDYHDOVREHHQ many successes and, more to the point, the alternatives seem even more unattractive. The great advantage of the independent school is that it can focus its priorities and its SURJUDPPHVWRÀWUDWKHUSUHFLVHO\WKHSDUWLFXODUVWXGHQWVDQGWKHLUIDPLOLHV ZKLFK such schools may wish to admit. It is hardly surprising, therefore, that those for whom WKHVFKRROLVGHVLJQHGÀQGWKDWLWVXLWVWKHLUQHHGVPRUHDGPLUDEO\WKDQWKHSXEOLFVFKRRO which must, perforce, provide a programme of much broader and less focussed dimensions. Thus, readily recognized individual advantage is provided by the independent school – at least for those for whom the school is designed and who can afford its cost. The funding of these schools might make such advantages available without regard to parental income and it is, therefore, not unlikely that this would result in an increased interest in attending such schools although the actual extent of this new demand is very GLIÀFXOWWRIRUHFDVW7KHUHVXOWLQJEHQHÀWVZRXOGEHLQGLYLGXDOEHQHÀWVEXWWKHLUFRVW would be a social cost, one encountered in the growing realization that the seemingly legitimate desire of parents to procure advantages for their children is something that can be fully accomplished only at the expense of others. In any case, if such funding VKRXOGUHVXOWLQDQ\ODUJHWUDQVIHURIHLWKHUWKHKLJKHUDFKLHYLQJRUWKHPRUHDIÁXHQW students from the public to the independent schools, the ability of the public schools (as the schools of “second choice”) to offer equal educational opportunity will have been destroyed. It is, of course, by no means certain that this outcome would occur. It is, however, a large risk to take and the Commission will, in its recommendations relative to the public funding of independent schools, attempt to safeguard against it. In reviewing the various arguments and the Commission’s own response as outlined DERYH WKH HPHUJLQJ GLIÀFXOW\ IRU WKH &RPPLVVLRQ ZDV KRZ WR RIIHU DGYLFH WR WKH government and citizens of Ontario that would on the one hand increase parental choice and address the problems of discrimination while at the same time not only maintain but enhance – in the name of both social cohesion and the equality of educational opportunity – the integrity of the Province’s public schools. The Commission does not 363

STATE SUPPORT FOR RELIGIOUS EDUCATION

presume either to guarantee the future or to argue that its particular recommendations are in some logical sense the uniquely correct way to proceed. The Commission does, however, believe that, if carefully implemented, the recommendations which follow will result in considerable progress toward the achievement of the objectives which have been outlined. Programmes of limited support The Commission believes, as has already been suggested, that the independent schools have a right to exist in Ontario and that their status should be more explicitly recognized in provincial legislation (see Recommendations 4 and 5). The Commission does not, however, believe that such schools have a right to public funding in any way commensurate with that provided to the Province’s public schools. The breadth of public purposes served, the access to and the accountability of the schools responsible to publicly elected boards of trustees are such as to (a) place them in quite a distinctive position and (b) HQWLUHO\IXOÀOOWKH3URYLQFH·VEDVLFREOLJDWLRQWRSURYLGHHOHPHQWDU\DQGVHFRQGDU\ schooling for its young. Nevertheless, the Commission has also acknowledged that the Province’s independent schools both contribute to the richness and diversity of Ontario education and serve some important public purpose by providing schooling for a small but not insubstantial proportion of the Province’s elementary and secondary school children. The programmes of limited support outlined in the recommendations which follow immediately below are designed to acknowledge this contribution. ,QPDQ\FRPPXQLWLHVLQ2QWDULRVXUSOXVVFKRROEXLOGLQJVDUHEHLQJLGHQWLÀHGHDFK year. Unfortunately, the present Capital Grant Plan excludes independent schools from the priority list of institutions to which surplus schools must be offered prior to public sale. Inasmuch as the Province already has an investment in these facilities – designed VSHFLÀFDOO\DVVFKRROV²WKH&RPPLVVLRQUHFRPPHQGV 17. That the Capital Grant Plan be amended to place independent schools just below the priority basis for the other school boards for the lease and/or purchase of surplus school board facilities and in such cases the use of WKHVHIDFLOLWLHVEHGHÀQHGDVIXOÀOOLQJHGXFDWLRQDOSXUSRVHV It has been said that as many as two-thirds of the school buses in operation in Ontario duplicate routes by other school boards and private schools. Moreover, many school buses operate with surplus space or are forced into double runs keeping children on buses or at school for extended times each school day. The Commission believes that greater economies and greater equity could be provided in the transportation operations of all those involved with the education of children in Ontario. Therefore, the Commission recommends: 18. That current legislation be amended to provide school boards with authority to: (i) develop consolidated transportation plans within municipalities, regions and districts; (ii) transport children who attend independent schools but only on the same basis as children attending the Board’s (or Boards’) own schools.

364

4. OFFICIAL REPORTS

This recommendation, if implemented, may not only introduce some additional elements of economy and equity into the transportation arrangements for elementary and secondary schools but also provide a marginal but, nevertheless, valuable context for the interaction of young people from different school communities. Since, however, the independent school students would be entirely new obligations for school boards, the Commission also recommends:  7KDWWKH*HQHUDO/HJLVODWLYH*UDQWV5HJXODWLRQEHDPHQGHGWRSURYLGH funds to school boards for the transportation, within board boundaries, of children who attend independent schools located in the jurisdiction(s) served by the school boards. )LQDOO\RQHRIWKHGLIÀFXOWLHVIDFLQJPDQ\LQGHSHQGHQWVFKRROVYLVLWHGE\WKH&RPPLVsion was the often prohibitive cost of the learning materials considered to be essential for the school’s programme. In order to provide some assistance to these schools and, as suggested above, in recognition of the important, if limited, public purposes that these schools serve, the Commission recommends:  7KDWWKH*HQHUDO/HJLVODWLYH*UDQWV5HJXODWLRQEHDPHQGHGWRSURYLGH funds to independent schools for the purchase of learning materials, funding to be based on the per-pupil expenditures for learning materials during the previous year by the local board schools. 7KHSUHFLVHFRVWRILPSOHPHQWLQJ5HFRPPHQGDWLRQVDQGLVGLIÀFXOWWRVSHFLI\ for it will depend, among other things, upon the developing budget and transportation policies of local school boards and the degree to which independent schools will wish to participate in the transportation and/or learning materials option. The Commission’s best estimate of the annual cost of these two programs of very limited support is that provided by Lawton (see Appendix F, p. 183) and that estimate is $10,375,000. It should be noted that in Recommendations 19 and 20, as well as in the further recommendations which follow, the Commission has chosen the method of direct grants to schools (often through the channel of a relevant public or separate school board) as the appropriate technique for the public funding of independent schools. As Lawton (see Appendix F) and many others have made clear, this is only one of several options, the most frequently discussed alternatives to which are either educational vouchers, or the indirect grants to independent school parents represented by tax expenditures – either tuition tax credits, tuition tax deductions, or relief from local education taxes. Educational vouchers are discussed below in the section of the chapter dealing with new opportunities for board schools. In terms of the tax expenditure alternatives, the Commission rejected any approach using the local education taxes both because of the conceptual arguments outlined previously (see p. 48) and because the whole matter RIWKHÀQDQFLQJRI2QWDULRVFKRROVLVFXUUHQWO\XQGHUVWXG\E\WKHCommission on the Funding of the Elementary and Secondary Schools in Ontario. Tuition tax credits are believed by the Commission to be a more appropriate form of support than tuition tax GHGXFWLRQVVLQFHWKH\GRQRWIDYRXUWKHDOUHDG\DIÁXHQW%RWKDSSURDFKHVZHUHKRZHYHU rejected because by reinforcing the separation of the independent and publicly funded school communities they were inconsistent with one of the Commission’s objectives, 365

STATE SUPPORT FOR RELIGIOUS EDUCATION

i.e., maintaining and enhancing – in the name of social cohesion and equal educational opportunity – the integrity of the Province’s public schools. Associated schools The continued health and viability of the Province’s public schools are not, however, the Commission’s only objective. This health and viability might in some circumstances be achieved without having to deal with the Commission’s intention to both increase parental choice and deal with the discrimination that characterizes a policy which provides public funding to the schools of only one particular religious community. Interestingly, the beginnings of a possible response to the multiple objectives of the Commission can be found in current practice. Across Ontario, at the moment, a variety of cooperative (and, generally informal) arrangements have been established between board schools and private schools. There are, for example, some students from private schools who ride on the same buses as public school students; there are some students from private schools who take credit courses at neighbouring public schools; some teaching staff from private schools share with their colleagues from publicly funded schools in programmes of professional development; and, in some cases, students from local public schools use the facilities and resources of a private school. Each of these DUUDQJHPHQWVLVURRWHGLQDVSHFLÀFVLWXDWLRQ,WGRHVVHHPWRWKH&RPPLVVLRQKRZHYHU that the key ingredient to the success of the continuing associations between publicly funded and private schools has been the ability of the arrangement that meets the needs of the parents and children of both school communities. The Commission believes that this model of negotiation should be encouraged not so much for the potential economies involved as for the positive effect of the continuing interaction between the school communities. The Commission also believes that in as many situations as possible the association between a board school and an independent school should be both substantial and formal. Therefore, the Commission recommends:  7KDWDQDVVRFLDWHGVFKRROEHGHÀQHGLQODZDVDQLQGHSHQGHQWVFKRROWKDW has come to an agreement with a local school board to operate in association with that board and in addition to offering satisfactory instruction VHH5HFRPPHQGDWLRQ   L  HPSOR\VRQO\2QWDULRFHUWLÀHGWHDFKHUVH[FHSWZKHUHOHWWHUVRISHUPLVsion are appropriate); (ii) charges no tuition; (iii) is, within enrolment and academic constraints, open without distinction as to race, ethnic background or religion to all persons of compulsory school age who, subject to the appropriate constitutional protections, agree to participate fully in the programme of the associated school;  LY  LVDQRQSURÀWRUJDQL]DWLRQ (v) is not designed primarily to offer special education programmes and services; (vi) reports annually to the school board with which it is associated on its ÀQDQFLDODQGLQVWUXFWLRQDORSHUDWLRQ

366

4. OFFICIAL REPORTS

(vii) is operated by a board of governors, at least half the membership of which shall be composed of parents attending the school. The above recommendation would create a new category of school: the associated LQGHSHQGHQW VFKRRO *LYHQ WKH VWDQGDUGV RI DFFHVV DQG DFFRXQWDELOLW\ VSHFLÀHG LQ Recommendation 21, it is likely that there will be many independent schools who would regard this particular status as inappropriate to their own objectives. The Commission believes, however, that there would be some school boards and some independent VFKRROVWKDWZRXOGÀQGWKXVQHZDUUDQJHPHQWDWWUDFWLYH7KH&RPPLVVLRQUHFRJQL]HV that given the various needs of both independent and board schools (and the communities that they serve) either could be interested in initiating an “association” and therefore, the Commission recommends: 22. That the Ministry of Education introduce legalisation to provide authority for either the board of governors of an independent school within the area of jurisdiction of a local school board or the local school board itself to enter into negotiations in order to reach an agreement enabling an LQGHSHQGHQWVFKRROPHHWLQJWKHFRQGLWLRQVVSHFLÀHGLQ5HFRPPHQGDWLRQ 21 to become an associated school with that school board. Publicly elected boards are expected to negotiate at the request of an independent school. Negotiations, however, particularly in the initial stages, may be delicate and lengthy, and in some instances arbitration may be required in order to effect an equitable agreement. Therefore, the Commission recommends: 23. That, if, after a calendar year of negotiation or an attempt to negotiate, an agreement to establish an associated school cannot be reached, the board of an independent school may appeal to the Minister of Education for arbitration in completing such an agreement; and 24. That, in the event of such an appeal, both the local school board and the board of the independent school shall submit in writing to the Minister GHWDLOV RI WKH QHJRWLDWLRQV DQG VSHFLÀF UHDVRQV IRU WKH LPSDVVHV 7KH 0LQLVWHU·VGHFLVLRQVKDOOEHÀQDODQGZLOOWDNHLQWRDFFRXQWEXWQRWEH limited to, the effect that a new school unit may have on the local boards’ schools. ,QVXSSRUWRIDQDJUHHGXSRQDVVRFLDWLRQXQGHUWKHFRQGLWLRQVVSHFLÀHGLQ5HFRPPHQGDtion 21, the Commission believes that public funds should be made available for the operation of the associated school. Therefore, the Commission recommends: 25. That, in support of the association between an independent school and a local school board, the Province of Ontario provide an annual grant HTXDOWRWKHDYHUDJHSHUSXSLORSHUDWLQJFRVWVIRUWKHHOHPHQWDU\DQGRU

367

STATE SUPPORT FOR RELIGIOUS EDUCATION

secondary schools experienced by the local school boards in the previous year multiplied by the enrolment of the associated schools in the same year.165 The Commission’s view is that the grant provided by the Province should be shared between the associated independent school and its “host” school board. The way in ZKLFKWKLVJUDQWZRXOGEHVKDUHGZRXOGYDU\GHSHQGLQJRQWKHVSHFLÀFDUUDQJHPHQWV worked out between the two school communities. The expectation of the Commission is that an associated school would utilize the economies of the local board’s administrative and consultative services, that the recommended arrangements for transportation and learning materials (see Recommendations 19 and 20) would be included in the services to be provided through the local board, and that the associated school agreements would encourage the maximum feasible interaction and joint experience of all students and staff. Therefore, the Commission recommends: 26. That the annual associated school grant be shared between the local VFKRROERDUGDQGLWVDVVRFLDWHGVFKRROLQDPRXQWVEDVHGRQWKHVSHFLÀF arrangements negotiated between the two parties, such arrangements to UHÁHFWERWKWKHSURJUDPPHUDQJHDQGRSHUDWLQJFRVWVRIWKHDVVRFLDWHG school and the programmes and services of the local school board to which the associated school is to have access. It is to be understood that normally the associated school and local board will receive not less than 75% and 15% of the grant respectively. The Commission hopes and expects that the advantages of very broad programming and certain economies of scale that accrue to publicly funded school boards may be the focal points for the services and programmes to be utilized by the associated school and for which the local school board will be accountable. Therefore, the Commission recommends: 27. That the responsibilities of a school board associated with an independent school include such administrative (e.g., transportation), consultative and programme services as are negotiated with the independent school and that the local high school board provide to the Minister of Education and to the board of governors of the associated school an annual statement of its services provided to the associated school. The Commission is also convinced that in a multicultural society in the name of tolerance and understanding every effort should be made to increase the probability that young people of differing backgrounds will have some opportunity for shared experience. Therefore, the Commission recommends: 28. That an associated school and its local school board be encouraged to share programmes, especially curricular programmes that would broaden student academic choice as well as co-curricular programmes such as sports, club activities and community outreach; the costs of such 165  ,IWKHDVVRFLDWHGLQGHSHQGHQWVFKRROLVLQLWVÀUVW\HDURIRSHUDWLRQLWV6HSWHPEHUHQUROPHQWZLOOEH used as the basis for the calculation of the operating grant.

368

4. OFFICIAL REPORTS

arrangements to be a part of the negotiated agreement between the board of the associated school and the local school board. Since only operational funding is to be provided to associated independent schools by the public treasury and since no tuition charge is to be levied, the board of an associated independent school will require continued community commitment and participation in order to provide both for capital requirements and, where appropriate, the unique character of the school itself. Therefore, the Commission recommends: 29. That the board of an associated school be empowered to: (i) raise funds and issue tax receipts for capital and special programme UHTXLUHPHQWVEXWQRWIRUWXLWLRQ (ii) within the constraints of satisfactory instruction, design and implement curriculum; (iii) purchase, rent, own and lease property; (iv) hire and supervise staff; (v) establish compensation policy; (vi) establish enrolment levels; (vii) provide a religious base for school programmes. Any effort to move into an innovative mode such as the associated schools concept should not be inhibited by the peculiarities of the moment. Included in these could be WKHTXDOLÀFDWLRQVRIWKHWHDFKHUVLQWKHDVVRFLDWHGLQGHSHQGHQWVFKRROV,QDVPXFKDV 5HFRPPHQGDWLRQUHTXLUHV2QWDULRFHUWLÀFDWLRQH[FHSWZKHUHOHWWHUVRISHUPLVVLRQ are appropriate), some transitional period of grace should be provided. Therefore, the Commission recommends:  7KDWXQFHUWLÀHGWHDFKHUVRQWKHVWDIIRIDQDVVRFLDWHGVFKRRODWWKHWLPH of the signing of an association agreement with a local board be given VHYHQ\HDUVIURPWKDWWLPHWRREWDLQDQ2QWDULR7HDFKHU·V&HUWLÀFDWH The public funding of independent schools through the associated school concept has a number of important advantages. Crucial among these is that it represents, in the view of the Commission, a reasonable remedy for the currently discriminatory practice of the Province in limiting its special funding to the Roman Catholic separate schools. The basis of the proposed remedy is not equality. The Commission does not believe that it would be reasonable to suggest that either (a) the history and special constitutional status of the Roman Catholic separate schools are of no account or (b) the Province should consider the establishment and full funding of elaborate and publicly-elected trustee systems for groups of whatever size that wish to establish an independent, but publicly funded, school. The basis of the proposed remedy is, therefore, not equality but equity, and it seems to the Commission that equity is served by the associated schools concept in which somewhat lower levels of public funding (i.e., only operational support is provided) are associated with somewhat lower levels of public responsibility in terms of both range and independence of programme. At the same time, substantial public funding of independent schools is limited to those independent schools which: (a) are willing to associate themselves with a local school board; (b) will be open to students

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STATE SUPPORT FOR RELIGIOUS EDUCATION

irrespective of their race, religion or ethnic background;166 (c) do not levy tuition charges; (d) provide elementary and/or secondary schooling at an operating cost not substantially greater than that at which the Province is willing to support its public schools. The Commission recognizes that the standards and conditions described immediately above and in some earlier sections of the Report may be unwelcome and perceived as inappropriate, perhaps even as punitive, by some independent schools. The Commission disagrees with this point of view and can only reiterate that from its perspective the proposed policy appropriately matches public funding to public responsibility and public purpose. It leaves to the individual independent school the choice between values of DVVRFLDWLRQDQGWKHYDOXHVRIJUHDWHULQGHSHQGHQFH²ERWKÀVFDODQGRWKHUZLVH167 At the same time, the Commission was anxious not to unduly jeopardize the special character of an independent school which chooses to negotiate an association with a local school board. Thus, an associated independent school can elect to have a religious basis to its programme and students selecting the school must, subject to any constitutional constraints, participate in the full programme offered by that school. It is admitted that the open enrolment standard (see Recommendation 21) may introduce VRPHGLIÀFXOW\LQWKLVDUHDEXWWKH&RPPLVVLRQVXJJHVWVWKDWLWLVSUHIHUDEOHWRGHDO with this problem when and if it develops rather than to put forward any proposal for a publicly funded school that restricts its admission on what the Commission regards as inappropriate grounds. A further advantage of the associated schools approach is that it is likely to increase the diversity of educational offerings available to Ontario students and Ontario families at little or no direct cost to the student or family at the point of service. Moreover, and in some ways more importantly, public funding will become available to educational variations of direct interest to families and lay persons as well as those developed by the education professionals. Finally, the associated schools proposal takes into account the Province’s public schools. It is only through a substantive association with a local school board that an independent school can substantially access the public funding programme, and to the local boards, therefore, will fall the challenges and opportunities of leadership within the entire spectrum of the Province’s schooling arrangements. The Commission hopes that careful experimentation with the associated school programme will provide the government and the citizens of Ontario with real rather than hypothetical (and, therefore, rhetorical) experience with how we are to live together independently. The ability to do so, that is, to live together independently, is essential to what is apparently Ontarians’ shared vision of a democratic but pluralistic and multicultural society. This is a real challenge in the sense that any realization of the vision will not be simple. What may

166

The Commission recognizes that the Roman Catholic separate schools are not always open to non-Catholic students. It believes, however, that this policy is mistaken and that all publicly funded schools should be open on no less than the same basis as described herein for associated schools.

167

Greater independence may also attract some school groups to the associated schools notion but, unfortunately, away from the alternative schools option in the public sector (see Recommendation 36).

370

4. OFFICIAL REPORTS

be simple and, moreover, frequently tempting is an opting for a more segmented and more segregated alternative. ,QVRPHVHQVHWKLVLVDOVRWKHGLIÀFXOW\ZLWKWKHDVVRFLDWHGVFKRROVSURSRVDO1RW only does it potentially deliver both the public schools and the independent schools each into the hands of its enemy (i.e., the other) but, by a further sub-division of the publicly funded school sector, it might be seen as contributing to social divisiveness as opposed to social cohesion. In principle, if we in Ontario were forging an entirely new school system, the Commission would have some considerable sympathy with the social divisiveness argument. Ontario is not, however, designing a new school system ab initio)XUWKHULQDOOEXWRIÀFLDOUKHWRULF2QWDULRKDVDOUHDG\SDUWHGIURP the common school idea in many ways (e.g., the establishment of the separate school, the legitimization of independent schools based on the ability to pay, the frequently homogeneous grouping of children by neighbourhoods, the profound programmatic differentiation both at the secondary level and for young people with special needs, and the self-selection of students into French immersion programmes), each of which can be regarded as socially divisive. Thus, it hardly seems reasonable to draw the line at independent schools, for this would have the effect of suggesting that only educational variations supported by the educational establishment should be subsidized. If there is one impression made strongly by Ontario parents in the experience of the &RPPLVVLRQLWLVWKDWSDUHQWVZLVKWRKDYHDPRUHGLUHFWLQÁXHQFHDQGPRUHGLUHFW input into the education of their children. The associated schools proposal provides one such opportunity. It is not without risk, but in the opinion of the Commission, it is a reasonable risk to take. :KDWLVXQUHDVRQDEOHLVWRH[SHFWWKDWDVVRFLDWHGLQGHSHQGHQWVFKRROVZLOOÀQG their status of association subject to the vagaries related to the shifting and fascinating politics of local school board elections. Therefore, the Commission recommends: 31. That the conditions of agreement between the board of governors of an independent school and a local school board to establish an associated school be in writing and subject to the approval of the Minister of (GXFDWLRQWKDWWKHDJUHHPHQWVDWLVÀHVWKHUHTXLUHPHQWVRIWKHUHOHYDQW provincial policy; and 32. That termination of a written agreement between the board of governors of an independent school and a local school board be by mutual agreement RIWKHERDUGVLQYROYHGRUE\DZULWWHQUHTXHVWWRFDQFHOWKHDJUHHPHQW E\RQHERDUGDQGWKHDSSURYDORIWKLVUHTXHVWE\WKH0LQLVWHURI(GXFDtion. Finally, there is the matter of the cost to the provincial treasury of the associated school SURJUDPPH7KHVHFRVWVDUHGLIÀFXOWWRHVWLPDWHVLQFHWKH\DUHVRGHSHQGHQWXSRQWKH number and size of independent schools reaching an associated school agreement with DORFDOVFKRROERDUG7KH&RPPLVVLRQ·VHVWLPDWHLVWKDWDIWHUÀYH\HDUVDSSUR[LPDWHO\ 18,000 (12,000 elementary and 6,000 secondary) of the Ontario students now in independent schools may be enrolled in associated independent schools. Given the 1984

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STATE SUPPORT FOR RELIGIOUS EDUCATION

per-pupil operating cost of $2,297.00 elementary and $3,140.00 secondary, exclusive of transportation, this would result in an annual cost of approximately $51,000,000.00 (including transportation) for the funding of associated schools. (4) Board (Public and Separate) Schools: New Opportunities It is not surprising that, from the outset of the Commission’s inquiry into the role and funding of private schools, issues relating more particularly to board schools arose. It was, in fact, immediately apparent that new policy recommendations could not appropriately be limited to expanded opportunities – and in some cases obligations – for private schools. In order to meet the changing needs of Ontario society, new initiatives were called for within the existing board schools as well. In the nineteenth century and, in fact, well into the twentieth, the utopian tendencies in the Canadian mind were to some large degree invested in the notion of perfectability through learning. Schools were conceived of as the prime instruments of individual VHOIUHDOL]DWLRQVRFLDOSURJUHVVDQGHFRQRPLFSURVSHULW\DQGSXEOLFVFKRROLQJÁRXULVKHG both in response to this vision and, in many ways, in the interests of the middle-class and mainline Protestantism. More recently, however, increased social diversity has led to a collapse of the social consensus about the moral purpose of schools and the schools – again rather especially the public schools – have been shaken by a crisis of FRQÀGHQFHDZLWKGUDZDORIÀQDQFLDOVXSSRUWDQGFRQVLGHUDEOHVNHSWLFLVPDERXWWKH EHQHÀWVDQGRUIDLUQHVVRIVFKRROLQJ1HYHUWKHOHVVYLUWXDOO\DOORIWKHLQGLYLGXDOVDQG groups who communicated with the Commission argued for the importance of and support for a strong and well-funded public school system. Expressed criticism of the board schools tended to focus on the perceived bureaucratization of these schools and the extent to which they are perceived to have become primarily instruments of the state and the professional experts rather than partnerships between the government and the professionals on the one hand and both parents and local communities on the other. Indeed, parents and local community representatives often are seen as the real casualties of both school district consolidation and the Province’s emphasis on control through professionalization, specialization and standardization. 7KXVQRWXQH[SHFWHGO\WKHPRVWFRPPRQVSHFLÀFUHFRPPHQGDWLRQIRUFKDQJHZLWKLQ board schools was for a reduction in the scale of both schools and classrooms – especially at the secondary level. The economies and opportunities of scale are apparently no longer regarded by many Ontarians as worth the cost in terms of the loss of social community. It was often suggested to the Commission that schools and classes must contain few enough pupils to be meaningful social units if young people are to emerge from them not only as skilled adults but also as responsible and caring individuals. The Commission believes that, in fact, the Province’s publicly funded schools have served and continue to serve the people of Ontario extremely well – often in circumstances of unreasonable public expectation and limited public support. Nevertheless, the Commission would agree with the general criticism outlined above at least to the extent of suggesting that, if the traditional reforms of more money, larger schools, increased professionalization, and more centralization have, in fact, been associated with a perceived decline in the publicly funded school systems, other options ought to receive

372

4. OFFICIAL REPORTS

serious consideration along with the more standard approaches. Given the effective near-monopoly of the publicly funded schools, it is not surprising that as institutions – despite the very best intentions and training of those involved – they exhibit some of the behavioural characteristics of monopolists. Therefore, the recommendations of the &RPPLVVLRQZLWKVSHFLÀFUHJDUGWRQHZRSSRUWXQLWLHVIRUERDUGVFKRROVDUHGHVLJQHG to introduce into these schools some aspects of a more competitive environment in the KRSHWKDWWKLVZLOOUHVXOWLQERWKJUHDWHUSURJUDPPHGLYHUVLW\DQGDPRUHÀQHO\WXQHG responsiveness to local communities. It is not easy to know where to begin, but it is clear that the needs of Ontarians with respect to both adult education and retraining on the one hand and early childhood education and child care programmes on the other have changed dramatically since 1969, the year in which the present consolidated school districts were established. Thus, many Ontarians have suggested to the Commission that school boards should expand their horizons beyond local politic and/or the needs of young people during the compulsory years of schooling and begin to work more actively with other community groups and agencies. Therefore, the Commission recommends:  7KDWWKURXJKOHJLVODWLRQDPDQGDWRU\SURYLVLRQEHHVWDEOLVKHGWRUHTXLUH each school board to establish an advisory committee to: (i) identify the needs of pre-school and adult citizens in its community; (ii) develop recommendations for programmes – perhaps to be offered in cooperation with other public and/or private agencies – that will meet the needs of pre-school and/or adult clients. Another recurring theme throughout the Commission’s activities was, as has been previously mentioned, that the bureaucracy and administration of publicly funded schools tended to be distant and cool except to the most aggressive of parents whereas a close relationship between parents and staff was constantly cited as a reason for the attractiveness of an independent school. The development and maintenance of the special character of each private school was seen, in fact, to be largely due to commitment of the community that supported that particular school, a commitment which could not, DFFRUGLQJWRVRPHEHUHSOLFDWHGLQWKHSXEOLFO\IXQGHGV\VWHPVZLWKRXWVLJQLÀFDQWQHZ initiatives. The Commission does believe that school board trustees have a responsibility not only for the development and administration of general schools policy but also for both a sensitivity to the needs of local communities and the development of programmes WKDWUHÁHFWWKHVHQHHGV7KHUHIRUHWKH&RPPLVVLRQUHFRPPHQGV  7KDWZKHUHQRFXUUHQWDUUDQJHPHQWH[LVWVHDFKERDUGVFKRROEHUHTXLUHG to establish a School Committee including the principal and elected parents and teachers in a minimum ratio of two to one. The task of this Committee would be to communicate, through the principal, with the school board so that the board is informed as to the community’s priority concerns with regard to the school’s policies and programmes and the community is similarly informed with regard to the board. The development of this two-way channel of communication is, the Commission EHOLHYHVDÀUVWVWHSLQWKHUHVNLOOLQJRIERDUGVFKRROVWRGHDOZLWKORFDOFRPPXQLWLHVDQG

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STATE SUPPORT FOR RELIGIOUS EDUCATION

the generation of consensus. At the same time, it is not intended that these committees be simply a device for increasing the responsibilities of the school. It should be understood that religious communities and, more particularly, the family must retain responsibility for their own role(s) in the socialization of the child rather than, as is becoming more and more frequently the case, withdrawing from that responsibility, expecting the school – as a kind of residual legatee – to somehow cope with a clearly unmanageable range of involvement and in certain cases community control. In some jurisdictions such control has resulted in an over politicization of the schools. In others, local groups have often been able to use the public schools to perpetuate racial, class and religious discrimination. Thus, the Commission does not intend to suggest a breaking into smaller units of the present school districts. The intention is to encourage better schools through community development by more often bringing together professional knowledge and skill with the involvement of community members in decision-making. &DQDGDKDVWZRRIÀFLDOODQJXDJHVEXWLQWKHFRPSOH[FXOWXUDOPRVDLFRI2QWDULRD third language is often regarded as a community priority. Accepting both an appropriate FDXWLRQIRULWVLPSDFWRQWKHYHU\\RXQJDQGWKHVSHFLDOVWDWXVRI&DQDGD·VWZRRIÀFLDO languages, the Commission, nevertheless, believes that it is important to avoid the marginalization of minority cultures. In this respect, there are advantages to enabling students to be instructed in a language in addition to English or French for part of the school day. Therefore, the Commission recommends: 35. That the Education Act be amended to permit schools boards to authorize WKHXVHLQDVFKRRORIRQHODQJXDJHRWKHUWKDQ(QJOLVKRU)UHQFKDVD language of instruction for not more than the number of regular school KRXUVGHYRWHGWRWKHVHFRQGRIÀFLDOODQJXDJH Publicly funded schools are often criticized for being altogether too uniform. In some ways this is surprising given the enormous range of programmes in the public schools and the many subdivisions of the public school population (e.g., by neighbourhood school, by language, by religion, by curriculum track). Perhaps what is being suggested WRWKH&RPPLVVLRQLVWKDWZKDWHYHUWKHSUHVHQWGLYHUVLW\LWLVQRWVXIÀFLHQWWRWKHHYHQ wider interests and values of the potential public school constituencies. Whatever the FDVHRQHRIWKHJUHDW²DQGDV\HWXQIXOÀOOHG²RSSRUWXQLWLHVIRUGLYHUVLW\ZLWKLQWKH publicly funded schools is in the development of alternative schools. The results of the recent Provincial Review of Alternative Schools in the Public System support the view that most Ontario school boards are not active in the development of schools with a decidedly individual character. There are 168 school boards in Ontario but only 29 alternative schools (enrolling only 2,640 of the 1,764,497 elementary and secondary school students in the Province). Twenty-one of these schools are operated by a single board, the Board of Education for the City of Toronto. Even allowing for the fact that there are, in addition to these schools, 36 alternative programmes and that there PD\EHPDQ\LQWHUHVWLQJSURJUDPPHVYDULDWLRQVQRWVRVSHFLÀFDOO\ODEHOHGLWZRXOG be hard to make a case that school boards have vigorously taken up the challenge to expand the diversity possible within the public system. This could be due partially to a lack of recognition of alternative schools and programmes in the Education Act and regulations, partially to a lack of Ministry of Education initiatives in promoting the 374

4. OFFICIAL REPORTS

alternative school/programmes concept, and partially to inertia on the part of school boards in either promoting the concept internally or in informing the interested public RIWKHRSWLRQVWKDWPLJKWEHDYDLODEOH7KH&RPPLVVLRQEHOLHYHVWKDWUHOLJLRXVO\GHÀQHG alternative schools are not appropriate but that otherwise the alternative school option should be encouraged. Therefore, the Commission recommends: 36. That the Ministry of Education recognize alternative schools within school boards as legitimate educational enterprises by:  L  SURYLGLQJVSHFLÀFUHIHUHQFHWRDOWHUQDWLYHVFKRROVRSHUDWHGE\VFKRRO boards in the Education Act and appropriate regulations;  LL  UHTXLULQJHDFKVFKRROERDUGWRGHYHORSDSROLF\ZLWKUHJDUGWRDOWHUQDWLYHVFKRROVDQGWRÀOHDFRS\RIWKHSROLF\ZLWKWKH0LQLVWU\RI(GXFDWLRQ (see Appendix M for three examples of current policies); (iii) encouraging school boards to publish, annually, a list of the alternative schools operated by the board;  LY  DGMXVWLQJ WKH *HQHUDO /HJLVODWLYH *UDQWV 5HJXODWLRQ WR SURYLGH D weighting factor for students attending an alternative school during LWVÀUVWWKUHH\HDUVRIRSHUDWLRQ Many board schools and school boards profess an interest in fostering educational diversity but perceive themselves as being blocked in these efforts by the bureaucracy and myriad rules and regulations of either the board itself and/or the Ministry of (GXFDWLRQ,WLVGLIÀFXOWIRUWKH&RPPLVVLRQWRNQRZWRZKDWH[WHQWWKLVSHUFHSWLRQLV correct, for it could also represent a socially acceptable rationalization of disinterest and inactivity. Nevertheless, the Commission believes that increased educational diversity (and, therefore, choice) would be facilitated by some decentralization of authority to the levels of both the school board and the individual school. Therefore, the Commission recommends: 37. That the Ministry of Education identify and initiate strategies and programmes to provide school boards and board schools with greater DXWRQRP\ LQ RUGHU WKDW WKH\ FDQ EHWWHU UHVSRQG WR WKH VSHFLÀF QHHGV whether of a particular board and/or the community of an individual school or family of schools. For example, in the relationship between the Ministry of Education and school boards it might be appropriate to: (a) limit the amount of required paper work such as the unscheduled Ministry information requests that could be a part of the regular statistical reporting mechanisms;  E  HQFRXUDJHPRUHÁH[LEOHDJUHHPHQWVEHWZHHQDPRQJQHLJKERXULQJVFKRROERDUGV in areas such as shared programmes, transportation, specialized facilities and resource personnel;  F  GHYHORSSROLFLHVWKDWZRXOGSURYLGHÁH[LELOLW\LQWKHXVHRIUHVHUYHIXQGVWR encourage school board entrepreneurship in providing programmes and learning experiences;

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STATE SUPPORT FOR RELIGIOUS EDUCATION

(d) change the focus of educational costing from one tied to a student’s time in school to one based on student growth and development and/or on programme offerings; (e) refrain from the development of complex guidelines and concentrate on materials that will encourage programme variations in schools and communities across the province. Similarly, in the relationship between school boards and their individual schools one might: (a) develop mechanisms that would encourage direct input from individual schools on proposed policy changes (see Recommendation 33); (b) institute school based budget procedures; (c) develop procedures that would permit more decisions regarding staff composition (teaching and non-teaching) to be made at the school level, possibly with the involvement of the School Committee (see Recommendation 34); (d) establish as a board priority the development of community outreach programmes at the school level (see, for example, Recommendation 33); (e) encourage the development of programme variations by individual schools that are designed as school or community related packages as outlined, for example, in the Ontario Schools, Intermediate and Senior Divisions, Programme and Diploma Requirements (OSIS). The Commission emphasizes that the examples listed above, some of which are currently implemented by some school boards, are intended only as illustrative. The actual choice of which strategy would best serve to realize a general policy objective would need to emerge from detailed discussions between the parties directly involved. In regard to improving the range of choice available to individual students within the publicly funded systems, the Commission believes that attendance areas within school boards should be open. Therefore, the Commission recommends: 38. That the Education Act be amended to give a person the right, without regard to race, religion or place of residence within the school section and without payment of a fee, to (within constraints of space and the board’s transportation policy) attend any board school in a school section, separate school zone, or secondary school district, as the case may be, in which VKHKHLVTXDOLÀHGWREHDUHVLGHQWSXSLO The Commission expects that, over time and in conjunction with a policy that stresses greater autonomy at the level of the individual school (see Recommendation 37), this recommendation will result in a closer match between student (and parent) choice and WKHDFWXDOO\DYDLODEOHSURJUDPPHVUDWKHUWKDQLQWKHSUHVHQWWHPSWDWLRQWRDUWLÀFLDOO\ retain enrolments by adjusting boundaries to suit the present school. 7KHH[SHULHQFHRIGHFOLQLQJHQUROPHQWDQGWKHSRWHQWLDOHURVLRQRILWVÀQDQFLDOEDVH KDVOHGVRPHVFKRROERDUGVWRKHVLWDWHWRSD\WKHIHHVRISHUVRQVTXDOLÀHGWREHUHVLGHQW pupils but who wish to take programmes in another school jurisdiction – in some cases when the programme is not available within the local school board. Nevertheless, the Commission does not believe that arbitrary school board boundaries should be used to

376

4. OFFICIAL REPORTS

limit student choice between school districts any more than it should be used to limit student choice within a school district. Therefore, the Commission recommends: 39. That the Education Act EH DPHQGHG WR UHTXLUH D VFKRRO ERDUG WR SD\ WKH IHHV RI D SHUVRQ TXDOLÀHG WR EH D UHVLGHQW VHFRQGDU\ VFKRRO SXSLO who attends a secondary school in an adjacent school board, where the DSSURSULDWHVXSHUYLVRU\RIÀFHUFHUWLÀHVWKDWDFFRPPRGDWLRQLVDYDLODEOH and if: (i) the secondary school in the adjacent school board is closer to the person’s residence than the secondary school that she/he is currently attending; and/or (ii) the resident secondary student selects a programme not available in his/her school board; and (iii) the resident secondary student provides his/her own transportation. The Commission understands that the above recommendation does not, in fact, provide fully open enrolment across school district boundaries. Thus, for example, the recommendation is limited in its application to secondary schools. Even so, the Commission recognizes that full implementation of the recommendation cannot be immediate as current practices must be carefully revised and adjusted. It will, however, be important to the success of the proposed venture to know the number of students who request such cross-board registration as well as the number of those requests that could be accommodated. Therefore, the Commission recommends:  7KDWVFKRROERDUGVEHUHTXLUHGWRUHSRUWLQWKH0LQLVWU\RI(GXFDWLRQ 6HSWHPEHU6WDWLVWLFDO5HSRUWERWKWKHQXPEHURIQRQUHVLGHQWSXSLOVWKDW sought registration and the number of non-resident pupils registered in the board’s secondary school during the preceding school year. The Commission is aware that the implementation of Recommendations 38, 39 and DPRXQWWRWKHLQWURGXFWLRQ²LQDYHU\OLPLWHGDQGPRGLÀHGZD\²RIHGXFDWLRQDO YRXFKHUVLHRIÀFLDOVFULSRULWVHTXLYDOHQWZKLFKFDQEHH[FKDQJHGIRUHGXFDWLRQDO services at the school of one’s choice) within the public and separate school systems. 7KHÀUVWSHUVRQWRKDYHVXJJHVWHGWKLVDSSURDFKWRWKHSURYLVLRQRIVFKRROLQJVHHPV to have been the eighteenth century English political economist, Adam Smith, who proposed that the government give parents money to hire teachers for the schooling of their children. More recently, this notion has been taken up by a variety of thoughtful FRPPHQWDWRUVZKRDUJXHDPRQJRWKHUWKLQJVWKDWD WKHWUDGLWLRQDOMXVWLÀFDWLRQV for monopoly (e.g., economies of scale) are not proven for schooling; (b) therefore, VFKRROLQJ ZRXOG EHQHÀW IURP WKH DGYDQWDJHV HJ HIÀFLHQF\ WKH SULRULW\ DWWDFKHG WRLQGLYLGXDOFKRLFH RIIUHHPDUNHWDSSURDFKHVF DWSUHVHQWRQO\DIÁXHQWSDUHQWV have effective control over the education of their children whereas voucher systems, by fostering active parent interest and variety, will not only enfranchise all parents but will improve all participating schools – both public and private. It is admitted that the assumption of the free market (i.e., that individuals have all relevant information, act as

377

STATE SUPPORT FOR RELIGIOUS EDUCATION

individuals and have a well ordered set of preferences; that each supplier is too small to have an impact on the market; and that there is a production function without economies of scale) may not be entirely appropriate with regard to schooling. Nevertheless, they are, it is said, a more reasonable approximation to reality than the corresponding assumptions underlying the current near-monopoly position of the public schools. Those opposing educational vouchers argue, again among other things, that (a) vouchers are only a viable option when society is willing to distribute educational goods and services in accordance with the way the market distributes income and (b) unless accompanied by massive market regulation vouchers will inevitably reduce choices for parents whose children are deemed less desirable by most educators, thus turning the public schools (which by present understandings must accept all students) LQWRDUHSRVLWRU\IRUWKHGLIÀFXOWWRVHUYH0RUHRYHUWKH\VXJJHVWWKDWZKDWHYHUWKH LQHIÀFLHQFLHVRIWKHSXEOLFV\VWHPWKHPRUHHJDOLWDULDQGLVWULEXWLRQRIVFKRROLQJKHOSV to create the social solidarity so necessary to any continuing community, for it focuses on schooling not simply as a consumer good but also as a public good. There are, it LVDUJXHGVLJQLÀFDQWDQGSRVLWLYHH[WHUQDOLWLHVLHLQGLUHFWEHQHÀWV DVVRFLDWHGZLWK both compulsory and public schooling – a point of view not always accepted by those with a more free market orientation. In the view of the Commission, there are many strong attractions to the free market arguments for educational vouchers. In addition, however, to the opposing arguments referred to above, there was a further consideration which led the Commission to reject educational vouchers as a general method for the funding of both public and independent schools. This additional consideration was pragmatic rather than theoretical in nature. There is, in Ontario, a public school system in place – one which has provided, and FRQWLQXHVWRSURYLGHPDQ\EHQHÀWVWRWKHFLWL]HQVRIWKH3URYLQFH7KHVHEHQHÀWVRXJKW not to be carelessly risked. Any broad scale and immediate shift to a voucher model would represent such a risk whatever the strength of the arguments in favour of such a model, since these are arguments for what would be the case when the “equilibrium point” is reached. The dynamics of getting from the present point to the equilibrium point are unknown and neither the time needed for the process nor the stability of the process is well understood. Therefore, the Commission chose not to recommend vouchers – or some variant of the voucher idea – across all school categories but rather to limit its application to certain “choice points” in the public schools, thus providing Ontario with a cautious and limited opportunity to gain experience with a voucher-like system. The frequent objection to such a limitation (i.e., that it allows publicly funded school boards to be the sole determinants of what educational innovation is to receive public support) is dealt with – at least to some extent – by the set of recommendations with regard to the programme for associated independent schools. (5) Special Cases During the various phases of the Commission’s work, a number of public policy concerns were raised that, in some cases, were only tangentially related to the Commission’s terms of reference. After some consideration, the Commission came to the view that it was in the interests of the people of Ontario for the Commission to respond to the

378

4. OFFICIAL REPORTS

following four of these concerns: (a) pre-school programmes; (b) home schooling; (c) religious education; (d) the availability of special education services. Pre-school programmes The Commission believes that in the interests of expanding the educational diversity available to Ontario children, it should be possible for school boards and private schools to initiate experimental programmes that extend our current concept of schooling. Moreover, such programmes should be supported and encouraged by the Ministry of (GXFDWLRQ7KHUHIRUHDQGDVDÀUVWVWHSWKH&RPPLVVLRQUHFRPPHQGV 41. That the Education Act be amended to provide the Minister of Education with the authority to grant to school boards and independent schools permission to lower the age at which children may legally attend school for experimental programmes which are based on (e.g., as in Montessori DQGVRPHHDUO\LQWHUYHQWLRQPRGHOV DVSHFLÀFHGXFDWLRQDOSKLORVRSK\ In addition, despite current legislation168 which appears to limit the student body of private schools to children of or over compulsory school age (i.e., 6 or over) some private schools operate with the minimum number (i.e., 5) of school children of compulsory school age and complete their student body with a majority of children under compulsory school age. At the same time, subclause 1(d)(iii) of the Day Nurseries Act excludes part of a public school, separate school, private school or a school for trainable retarded children under the Education ActIURPWKHGHÀQLWLRQRI´GD\QXUVHU\µ7KLVKDVFUHDWHG a dilemma in which the extent of ministerial responsibility for these young children (i.e., pre-school children at private schools) is unclear. It is clearly the case that in most private schools the pre-school programmes provided are educational in nature. The Commission has, however, some concern in those few cases where the programme is primarily one of child care and it appears as if the operators are utilizing anomalies in the legislation of the Ministry of Education (responsible for the Education Act) and the Ministry of Community and Social Services (responsible for the Day Nurseries Act) to avoid Ontario’s child care regulations. Therefore, the Commission recommends: 42. That, in order to ensure provincial day care standards are maintained when the children in attendance at an independent school are primarily under compulsory school age but are not there for either a junior kindergarten, senior kindergarten or special experimental programme (see 5HFRPPHQGDWLRQVDQG DFRPPLWWHHPDGHXSRIUHSUHVHQWDWLYHV of the Ministry of Community and Social Services and the Ministry of Education be established to clarify the special responsibilities of these schools.

168

Education Act, paragraph 40 of subsection 1(1). Ministry of Education, Ontario, 1985.

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STATE SUPPORT FOR RELIGIOUS EDUCATION

Home schooling Another form of schooling operating outside of the public and separate schools is home schooling. It gradually became apparent from the activities of the Commission that, in a number of instances, groups of home schooling parents who between them had at least the minimum number of children (5) required for the establishment of a private school were setting up a private school not as a substantive educational enterprise but as a means of avoiding the Province’s home schooling regulations. In the Commission’s experience, the children enrolled in these schools were physically dispersed and taught in individual homes by their parents. The Commission neither disputes the right of parents to conduct home schools nor wishes to comment on the appropriateness of the current provincial regulations for home schooling. It does, however, believe that home schooling should operate as intended by the current legislation and regulations. Therefore, the Commission recommends:  7KDWWKHHLJKWVFKRRODJHFKLOGUHQUHTXLUHGWRHVWDEOLVKDQLQGHSHQGHQW VFKRROVHH5HFRPPHQGDWLRQ EHUHTXLUHGDWHDFKJHRJUDSKLFDOVLWHDW which the independent school operates. )XUWKHUXQGHUFXUUHQWOHJLVODWLRQWKHFKLHIHGXFDWLRQRIÀFHUIRUWKHVFKRROERDUGLQ ZKLFKDFKLOGLVOHJDOO\TXDOLÀHGWREHDUHVLGHQWSXSLOLVUHVSRQVLEOHIRUWKHTXDOLW\ of education provided for that child whether educated at home or in the local school system. Parents and legal guardians must accept, therefore, the requirements for providing satisfactory instruction (see Recommendation 2) when educating a child at KRPHDOWKRXJKWKHSODQRIKRPHLQVWUXFWLRQPLJKWZHOOGLIIHUVLJQLÀFDQWO\IURPWKDW used in a board school. It becomes important, therefore, for continuity of programme that every parent or guardian planning to educate a child at home inform the director of the local school board well in advance of the withdrawal of the child(ren). Therefore, the Commission recommends: 44. That any parent or guardian intending to initiate the home schooling RI KLVKHU FKLOGUHQ  EH UHTXLUHG WR VR LQIRUP LQ ZULWLQJ WKH 'LUHFWRU of Education of the school board in which the child(ren) is/are resident pupil(s) ninety days prior to the beginning of the home instruction. Religious education The Commission believes that the provision of religious education in our schools has the potential to provide a basis not only for the understanding of one of the most VLJQLÀFDQWDVSHFWVRIKXPDQH[SHULHQFHEXWDOVRIRUWKHGHYHORSPHQWRIWROHUDQFHDQG understanding among the members of Ontario’s multicultural society. Therefore, the current Ministry of Education policy which permits only students attending the Roman Catholic separate schools to earn credits in religious studies in addition to those available from the World Religions guideline seems inappropriate. The present plans for the H[WHQVLRQRIIXOOIXQGLQJWRWKH5RPDQ&DWKROLFVHFRQGDU\VFKRROVVLPSO\DPSOLÀHV the credit requirement discrepancy between students attending these schools and all other secondary school students. Therefore, the Commission recommends:

380

4. OFFICIAL REPORTS

45. That all secondary school students be permitted to earn, in addition WR WKRVH DYDLODEOH IURP WKH:RUOG 5HOLJLRXV JXLGHOLQH D PD[LPXP RI two credits in religious studies toward the Ontario Secondary School Diploma. At present, the religious studies credit courses169 offered by Roman Catholic separate schools are developed by the local separate schools, are not based on provincial guidelines, and do not require Ministry of Education approval as do all other nonguideline courses. Since Recommendation 45 provides the option for all students to earn religious studies credits, there is some urgency in developing a new guideline to establish the appropriate parameters for such courses. Such a guideline should stress the importance of a comparative religious perspective especially for citizens of a pluralistic society. Further, the Commission does not believe that confessional approaches to such FRXUVHVLHDSSURDFKHVGHVLJQHGWRLQFXOFDWHDVSHFLÀFV\VWHPRIEHOLHI VKRXOGEH part of credit work toward a public and provincial diploma. Therefore, the Commission recommends: 46. That each secondary school religious studies credit course be non-confessional in nature and include a comparative perspective as well as some emphasis on both a theological point of view and general issues in ethics and be developed, as is the case for all other credit courses, from a new Ministry of Education guideline. It is, of course, to be understood that Recommendation 46 above does not relate to noncredit activities which may form a part, perhaps even a central part, in the programmes RIHLWKHUWKHVHSDUDWHVFKRROVRURWKHUVFKRROVZKLFKDUHUHOLJLRXVO\GHÀQHG Regulation 262,170 subsection 28(4), provides that in board of education elementary schools two one-half hour periods per week are set aside for religious observance. The Ministry of Education materials for this programme are outdated and, in practice, it is apparently seldom that the religious observance requirements are met. Nevertheless, and despite the countless historical examples of religious intolerance both in Ontario and elsewhere, the Commission believes that the present requirement is potentially EHQHÀFLDOWRDPXOWLFXOWXUDOVRFLHW\DVZHLQ2QWDULRVWULYHWRXQGHUVWDQGWKHPDQ\ parts that make up the social whole. In this context, a programme using new materials, a new guideline and presented from a comparative perspective might be a small but meaningful step in the development of tolerance and understanding within the province. Therefore, the Commission recommends: 47. That the Ministry of Education develop new materials for the religious SURJUDPPHVUHTXLUHGLQWKHERDUGRIHGXFDWLRQHOHPHQWDU\VFKRROVDQG that such programmes be (a) non-confessional in nature and (b) developed

169

Ontario Schools Intermediate and Senior Divisions, Programs and Diploma Requirements. Ministry of Education, Ontario, 1984, p. 33.

170 Elementary and Secondary Schools for Trainable Retarded Pupils – General. Ministry of Education, Ontario, 1983.

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STATE SUPPORT FOR RELIGIOUS EDUCATION

from a comparative perspective with some emphasis on both a theological point of view and general issues in ethics. The Commission’s stress in each of the preceding three recommendations on the non-confessional nature of religious education in the public realm is deliberate. The &RPPLVVLRQEHOLHYHVWKDWOHDUQLQJDERXWUHOLJLRQFDQEHDQDSSURSULDWHDQGEHQHÀFLDO function of publicly funded schools but that confessional objectives – although important in their own right – are the appropriate obligation not of the schools but of the family and religious communities. The Commission admits that this distinction is somewhat DUWLÀFLDOLQWKHRU\DQGLQDQ\FDVHGLIÀFXOWWRZRUNRXWLQSUDFWLFH,WUHPDLQVQHYHUWKHless, at least in the view of the Commission, an important distinction to maintain. Special education The activities of the Commission brought it into direct contact with special education private schools, parents and children in special education private schools, special education associations, and school board and Ministry of Education personnel with special education responsibilities. Although all of these individuals and groups seemed thoughtful and reasonable in their approach, all also seemed wary of the integrity of the others involved in special education, and all seemed apprehensive about the September 1, 1985 date for the full implementation of Bill 82. This apprehension or wariness seemed to arise from the quite different perspective from which each group views the expectations created by Bill 82. Parents and their representatives understand the expectation of “appropriate programmes and services” as the very best available regardless of the costs. School board personnel, on the other hand, view the appropriate programmes and services as those that can be reasonably delivered. Some common understanding of the term “appropriate programmes and services” is essential if the exceptional efforts of all of those involved in special education are to be focussed on the needs of the child. Therefore, the Commission recommends: 48. That subsection 8(2) of the Education Act be amended to specify that appropriate special education programmes and services are those that, within the limits of a board’s resources and other responsibilities, provide each child with the opportunity to reach his or her potential. The Commission understands that the suggested change seems an unfortunate retreat from the apparently fuller and more ringing commitment of the present legislation. The Commission suggests, however, that the entire community – including, of course, those children with special needs – will be better served by a more realistic understanding of our resources and our capabilities. 'XULQJWKHSDVWÀYH\HDUVJUHDWVWULGHVKDYHEHHQPDGHE\VFKRROERDUGVDFURVVWKH province in implementing the special education programmes and services required by Bill 82. Despite these strides, a number of special education parents and many educators suggested that the fullness of programme and service imagined in Bill 82 would not be entirely in place by September 1985 and, moreover, might not be entirely in place at any future date. What is in question is neither the intentions nor the efforts of those involved but the very possibility of imagining a future in which there can be a full

382

4. OFFICIAL REPORTS

response to the needs of literally every child. In addition, given the intense affect and SHUVRQDOLQYROYHPHQWWKDWFKDUDFWHUL]HVVSHFLDOHGXFDWLRQLGHQWLÀFDWLRQSODFHPHQWDQG review, there are certain to be times when the process in a particular school or school board breaks down for reasons unrelated to the competence and effort of the child, parents, teachers, administrators, and resource personnel involved. Some “escape valve” is required. Therefore, the Commission recommends: 49. That special education legislation, Bill 82 (The Education Amendment Act, 1980), be amended so that, in those circumstances when a school board is unable to itself provide or purchase from an adjacent school board D SURJUDPPH LGHQWLÀHG E\ WKH ,GHQWLÀFDWLRQ 3ODFHPHQW DQG 5HYLHZ &RPPLWWHH ,35&  DV DSSURSULDWH IRU D VWXGHQW WKH VFKRRO ERDUG EH permitted to purchase the programme from an independent school that is also approved for special education. The purpose of using independent school resources is neither to relieve school boards RIWKHLUUHVSRQVLELOLWLHVIRUDOOSHUVRQVTXDOLÀHGWREHUHVLGHQWSXSLOVQRUWRE\SDVV the provincial facilities (e.g., Trillium) but rather to provide an additional avenue of approach for the solution of a few especially hard to serve cases. Indeed, unless Recommendation 49, or something similar to it, is implemented, schools will be virtually forced by the legislation to tailor student needs to the available programmes rather than the programmes to the needs of the student. Further, such exceptional cases are likely to require programmes with higher than usual costs. Therefore, the Commission also recommends: 50. That the costs of any special education programme placement in an apSURYHGLQGHSHQGHQWVFKRROEHVKDUHGHTXDOO\EHWZHHQWKHVFKRROERDUG and the Ministry of Education. The current special education literature frequently stresses the importance of bringing special education learners into meaningful contact with the school and community. Thus, wherever possible, placement should be in the local community with familial residence and support maintained. Therefore, the Commission recommends: 51. That, excepting in those jurisdictions with very limited facilities, programmes in independent schools approved for special education which do not retain the student in a family setting or within a board’s jurisdiction be considered only in exceptional circumstances. The Commission recognizes that, in some cases, residential settings may be an essential part of a prescribed programme. Such cases should, however, be considered unusual and, in any case, such placements should certainly not be used simply as a way of relieving parents of their own appropriate responsibilities. As mentioned in Chapter III, the private schools visited by the Commission were, as had been expected, extremely variable, some being deplorable and others exemplary. The same experience held for the subset of special education schools – some were commendable while others seemed questionable. With regard, therefore, to the implementation of Recommendation 49, a mechanism will be required for the approval of

383

STATE SUPPORT FOR RELIGIOUS EDUCATION

the independent schools participating in this special education programme. Therefore, the Commission recommends:  7KDWLQRUGHUWRLPSOHPHQW5HFRPPHQGDWLRQWKH0LQLVWU\RI(GXFDtion develop, in cooperation with the publicly funded school boards, appropriate independent schools and the relevant associations, a process IRUDSSURYLQJLQWHUPVRIIDFLOLWLHVVWDIÀQJDQGSURJUDPPHLQGHSHQGHQW schools operating in the area of special education and wishing to be eligible for purchase of service by school boards. Since, under the provisions of Recommendation 49, only school boards can access public funds for the purchase of special education services of independent schools, there will be a need for an appeal procedure – not unlike that currently in place under Bill 82 – available for parents and guardians. Therefore, the Commission recommends: 53. That the procedures currently used in the placement of exceptional FKLOGUHQDSSO\DOVRWRVWXGHQWVLGHQWLÀHGSXUVXDQWWRWKHSURFHVVRXWOLQHG LQ5HFRPPHQGDWLRQ Bill 82 was designed to provide for the needs of all Ontario children. Therefore, in the view of the Commission, all Ontario children should have the right to an appropriate ,GHQWLÀFDWLRQ3ODFHPHQWDQG5HYLHZ&RPPLWWHH,35& SURFHVVUHJDUGOHVVRIZKHUH the particular child attends school. Current interpretation of Bill 82, however, limits the IPRC process to children enrolled in schools operated by publicly funded school boards. Therefore, the Commission recommends: 54. That each child attending an independent school be eligible for an ,GHQWLÀFDWLRQ3ODFHPHQWDQG5HYLHZ&RPPLWWHH,35& SURFHVVWREH provided by the school board in the jurisdiction in which that child would RWKHUZLVHEHTXDOLÀHGWREHDUHVLGHQWSXSLO The costs of implementing Recommendations 49 and 54 will be substantial. The cost for the purchase of a special education services at independent schools will, of course, depend on the number of students placed. Assuming, however, that this number will be approximately one-third of the three hundred students in special settings and funded by the Ministry of Community and Social Services during the 1984-85 school year, the annual cost of the programme would be approximately $2,000,000.00 to be shared equally by the Province and the local school boards. The cost of entitling independent school students to the IPRC process will be similar. Assuming a need to provide this service for 6,600 of the 55,000 students enrolled in independent schools and a cost of $500.00 per student, the total cost to the provincial treasury would be $2,300,000.00 per year. (6) Some Matters of Process The procedures associated with the review of public policy and the subsequent development of any recommendations for new public policy are a part of a continuing process – a process that requires particular care to ensure the successful placement of any new policy in the hands of a knowledgeable citizenry. With regard to the consideration and

384

4. OFFICIAL REPORTS

potential implementation of the policy recommendations in this Report, the Commission has, therefore, developed several procedural recommendations for both the Ministry of Education and the Provincial Government. Ministry of Education ,IDVLJQLÀFDQWQXPEHURIWKLV5HSRUW·VUHFRPPHQGDWLRQVDUHLQGXHFRXUVHDGRSWHG by the Government of Ontario, appropriate implementation will require a focal point within the Ministry of Education to both monitor the programme and provide leadership to board and independent schools across the province. Therefore, the Commission recommends: 55. That section 8 of the Education Act be amended to provide authority for the Minister of Education to establish an Independent School Branch of the Ministry of Education with responsibility for the: (i) approval and registration of independent schools; (ii) inspection of independent schools for Ontario Secondary School Diploma purposes; (iii) coordination of the cooperative evaluation programme for independent schools; (iv) coordination of any provincial testing programmes involving independent schools. It was evident to the Commission from both the visits to private schools and the informal consultations that a pool of expertise exists to support the Independent School Branch QRWRQO\LQWKH0LQLVWU\·VUHJLRQDORIÀFHVZKHUHVRPHH[FHSWLRQDOUHODWLRQVKLSVZLWK SULYDWHVFKRROVKDYHEHHQGHYHORSHGEXWDOVRLQSULYDWHFRQVXOWLQJÀUPVDQGWKHUDQNV of other educational personnel – both active and retired. Therefore, the Commission recommends:  7KDW WKH ,QGHSHQGHQW 6FKRRO %UDQFK VHH 5HFRPPHQGDWLRQ   EH operated with a minimum of its own special staff and, where possible, contracts be established with appropriate personnel and/or agencies for the tasks assigned to the branch. Provincial Government The Commission believes that its recommendations represent a reasonable compromise in a public policy area where there is little public consensus. Maintaining this balance will require a continuing dialogue in both the immediate future and the longer term. With regard to the immediate future, the Commission recommends:  7KDWIROORZLQJWKHSXEOLFDWLRQRIWKLV5HSRUWWKH*RYHUQPHQWSURYLGH some appropriate opportunity for public response and discussion prior WRLQLWLDWLQJVSHFLÀFOHJLVODWLYHDQGRUUHJXODWRU\DFWLRQ In recent years, the many changes in Ontario’s publicly funded schools brought about by, for example, declining enrolment, Bill 82, the extension of separate school funding, the introduction of heritage language programs, the changing programme parameters

385

STATE SUPPORT FOR RELIGIOUS EDUCATION

in secondary schools, and the pressure to reduce provincial and municipal funding REOLJDWLRQVKDYHDOOFRPELQHGWRSODFHWKHVFKRROVLQDGLIÀFXOWSRVLWLRQ7KHUHVRXUFHV being made available to the schools do not always seem to match the expectations held out for the schools. Further demands without either additional resource support or diminished expectations for performance in other areas could distort the entire fabric of schooling in Ontario to the detriment of all, especially the young. Therefore, unless current school responsibilities are reduced, the Commission recommends: 58. That the Government not proceed to implement those recommendations RIWKH5HSRUWWKDWZLOOUHTXLUHEXGJHWVXSSRUWXQOHVVLWLVZLOOLQJWRIXQG the new programmes in addition to the present budget base. :LWKVSHFLÀFUHJDUGWRSRVVLEOHLPSOHPHQWDWLRQWKH&RPPLVVLRQDOVRUHFRPPHQGV consistent with the present provision of the Education Act:  7KDWWKHEHQHÀWVRIDQ\RIWKHUHFRPPHQGDWLRQVRIWKLV5HSRUWEHSURYLGHG RQO\IRUDQ\SHUVRQLQ2QWDULRTXDOLÀHGWREHDUHVLGHQWHOHPHQWDU\RU secondary school pupil. Although the recommendations of this Report are listed individually, their meaning and their consequence, if implemented, will clearly depend on which one or more of the recommendations are adopted as public policy. Therefore, the Commission recommends: 60. That, to assist in the development of a coherent public policy, the relationship between the various recommendations of the Commission should be carefully considered prior to a decision to implement one or more of them. At the beginning of this Report and again at the beginning of this chapter, it was VXJJHVWHGWKDWWKHUHLVQRÀQDODQVZHUWRWKHTXHVWLRQRIWKH´H[WHQWWRZKLFKSXEOLF monies should be used to support the education of persons enrolled in private elementary and/or secondary schools” and that any existing arrangement with regard to this matter can be expected to change over time. The passage of time can bring with it not only the fruits of additional lived experience but also new insights, new understandings, DQG QHZ LGHDV:KDW LV LPSRUWDQW IRU 2QWDULR DV D VRFLHW\ LV WR DFWLYHO\ UHÁHFW RQ its developing experience and to adjust its policies in light of both that experience and the meaning assigned to it by its underlying value commitments. Therefore, the Commission recommends:  7KDWWKHLPSOHPHQWDWLRQRIDQ\RIWKHUHFRPPHQGDWLRQVRIWKLV5HSRUW EHUHYLHZHGDIWHUÀYH\HDUVLQRUGHUWRDVVHVVWKHLPSDFWRIWKHQHZSROLF\ on both the publicly funded school boards and the independent school communities in particular and, more generally, on the public weal.

386

4. OFFICIAL REPORTS

The Costs 171 7KHFRVWVRIIXQGLQJWKHQHZSURJUDPPHVUHFRPPHQGHGE\WKH&RPPLVVLRQDUHGLIÀFXOW to estimate since so much depends on which recommendations – if any – are eventually DGRSWHGDVSXEOLFSROLF\WKHVSHFLÀFGHWDLOVRIWKDWQHZSROLF\ZKHQDGRSWHGDQGWKH “participation rate” in those policies of both private and public schools. Thus, the ComPLVVLRQ·VFRVWHVWLPDWHVFDQEHQRPRUHWKDQÀUVWRUGHUDSSUR[LPDWHV1HYHUWKHOHVV the Commission believes that such estimates should be provided as at least preliminary information to those concerned with development of the relevant policy. In presenting the individual recommendations of the Commission, the annual costs of the proposals were estimated for the associated schools programme, the transportation and learning materials grants, the placement of special needs children in independent schools, and the entitlement of all Ontario children to special programme assessments as approximately $51,000,000.00, $10,500,000.00, $2,000,000.00 and $2,300,000.00 respectively. There are, however, two other Commission proposals to which are RUPLJKWEH DWWDFKHGVXEVWDQWLDOUHFXUULQJFRVWV7KHÀUVWLVWKHLQFHQWLYHIXQGLQJ programme for alternative schools within the public and separate school sector (see Recommendation 36). Assuming that a 10% weighting factor were the particular incentive chosen and that in each year new alternative schools enrolled 2,000 elementary and/or secondary school students, the annual costs of this programme would be approximately $2,250,000.00. The second is the proposed experimental programme for children who are below compulsory school age (see Recommendation 41). If, in addition to permitting these programmes, the Ministry of Education wished to fund them, the approximate initial cost (assuming a half-day programme and an enrolment of 3% of the Province’s three-year old children) would be – again approximately – $6,750,000.00 annually. 7KXVWKHWRWDODQQXDOFRVWWRWKHSURYLQFLDOWUHDVXU\RIDOOVL[SURJUDPPHVVSHFLÀHG above would be $74,800,000.00 per annum. In addition to these major cost programmes and those (e.g. Recommendation 33 concerning adult education) where any cost estimates must await further policy deliberations, there are the less substantial but, nevertheless, recurring costs to be associated with the establishment of an Independent School Branch of the Ministry of Education. The cost of the basic establishment of this Branch, assuming a staff complement of three (of which two would be professionals), is estimated to be in the neighbourhood of $275,000.00 per year, and there would be a need to provide additional funds for the Branch’s new activities and contract work (see Recommendations 55 and 56), the most substantial aspect of which would be the $325,000.00 estimated to be required annually for the cooperative evaluation programme. Finally, there are a series of one-time-only costs that would be incurred in implementing such recommendations of the Commission as the development of an approval process for special education independent schools (see Recommendation  WKHGHYHORSPHQWRIWKHVWDQGDUGVRITXDOLÀFDWLRQIRULQGHSHQGHQWVFKRROWHDFKHUV VHH5HFRPPHQGDWLRQ WKHFODULÀFDWLRQRIMXULVGLFWLRQDOTXHVWLRQVZLWKUHJDUGWR

171

All costs presented in this Report are in 1984-85 dollars.

387

STATE SUPPORT FOR RELIGIOUS EDUCATION

pre-school children (see Recommendation 42), and the registration of the presently operating private schools (see Recommendation 10). Since, however, with the possible exception of the initial registration process which is estimated to cost $60,000.00, all of WKHVHFRVWVDUHQRWRQHWLPHFRVWVEXWDUHDOVRUHODWLYHO\VPDOOQRVSHFLÀFFRVWHVWLPDWHV are provided. These estimates would not, in any case, be relevant to the consideration of the policy questions raised.

7KH&RQVHTXHQFHVDQGWKH&KDOOHQJH In the rapidly changing world of the late twentieth century, it has become notoriously GLIÀFXOW WR SUHGLFW WKH IXWXUH HYHQ RYHU YHU\ VKRUW SHULRGV RI WLPH ´7KH IXWXUHµ someone is reported to have said, “is not what it used to be.” Nevertheless, the Commission believes that it is appropriate – although, perhaps, also foolhardy – for it to VNHWFKRXWDWOHDVWEULHÁ\WKHVDOLHQWFRQVHTXHQFHVWRWKH3URYLQFHDQGLWVVFKRROV of the adoption of a substantial number of the Commission’s recommendations. The Commission recognizes that its forecasts must, perforce, be somewhat speculative, but it believes that they can also be of some value in the public policy discussions concerning independent schools. The initial policy conundrum for the Commission, as outlined earlier in this chapter, was how to develop a set of recommendations whose implementation would increase educational diversity and parental choice and respond to certain problems of discrimination with regard to the special treatment of the Roman Catholic community while, at the same time, enhancing the integrity and vitality of Ontario’s public schools. The Commission believes that the adoption of its recommendations – if treated as a comprehensive and often interrelated set – will result in some progress toward each of these goals. For example, with reference to only two of the more substantial of the proposed initiatives, the associated schools programme should increase parental choice, provide for a more equitable treatment of the Province’s various school communities and yet bring an entirely new range of Ontario schools into a substantive relationship with the Province’s public schools. At the same time, the alternative schools programme has the potential to greatly increase the diversity of the educational options available within the public and Roman Catholic separate schools. From a slightly different perspective, the implementation of the associated schools programme on any substantial scale is also likely to lead to some increase in the proportion of Ontario’s elementary and secondary school children attending independent schools – if only because of the elimination of tuition fees. The Commission does not expect that this increase will be either precipitate or large since (a) the associated schools programme will probably mature slowly; (b) the establishment and maintenance of a school community requires resources and ideas and commitment that are not easy to either develop or sustain. The Commission’s estimate is that over a decade – and as a result only of the Commission’s own recommendations – the enrolment of students in the Province’s independent schools other than the Roman Catholic secondary schools will rise from 3% to no more than 6% of the Ontario elementary and secondary school population.

388

4. OFFICIAL REPORTS

The implementation of the Commission’s recommendations would also have an effect on the actual and perceived autonomy of the Province’s independent schools. ,QDGGLWLRQWRWKHQHZFRQVWUDLQWVRIDPRUHVWULFWO\GHÀQHGFULWHULRQRI´VDWLVIDFWRU\ instruction”, the independence of these schools will also be reduced, for example, by WKH&RPPLVVLRQ·VUHTXLUHPHQWVWKDWD RQO\IRUPDOO\TXDOLÀHGWHDFKHUVEHHPSOR\HG and (b) independent schools not a part of the secondary school inspection programme engage with the Ministry of Education in a cooperative evaluation exercise. Further, for those independent schools opting for associated schools status, there are the additional FRQVWUDLQWVRIRSHQDFFHVVWKHHOLPLQDWLRQRIWXLWLRQIHHVDQGWKHFHUWLÀFDWLRQRIDOO teachers. In the opinion of the Commission, however, this loss of independence is not untoward. First, for many independent schools, the loss is entirely formal, for they have long operated either on the basis of the proposed arrangements or on a standard that is – except for access and tuition charges – even higher. Second, associated schools status is entirely optional on the part of an independent school and those independent schools not wishing to participate in this programme need not do so. Third, and most important, these constraints on independence are a small price to pay in order that the Province can assure its citizens that there is an appropriate minimal standard for all schools – public or independent. In addition, the losses consequent to the Commission’s recommendations (i.e., of some autonomy for the independent schools and of almost exclusive access to the public treasury for the board schools) seem to the Commission to be appropriately offset by the gains to which the Province and its schools may fall heir. Some of these (e.g., increased diversity of both type of school and model of school governance; the establishment of standards applicable to all schools; the more equitable treatment of all school communities) have already been mentioned but there are, in addition, others whose value is also considerable. Among these advantages, the Commission argues, DUHWKHSDUWLFXODUVWDQGDUGVUHFRPPHQGHGIRUWKHGHÀQLWLRQRIVDWLVIDFWRU\LQVWUXFWLRQ standards which while allowing for the fact that there has always been more than one way to become a Canadian also stress that the general objective of all of our schools must be to save children for ideas and not from them. On another level, the Commission recognizes that human history demonstrates that ZRPHQDQGPHQKDYHFDSDFLWLHVIRUERWKFRQÁLFWDQGFRRSHUDWLRQ7KH&RPPLVVLRQ EHOLHYHVKRZHYHUWKDWLQWKHÀQDOGHFDGHVRIWKHWZHQWLHWKFHQWXU\LWLVWKHKXPDQ capacity for cooperation that must be most strongly enforced. Thus, an advantage of the Commission’s recommendations is that, as a set, they do not opt either for the already RXWOLQHGGLIÀFXOWLHVRIWKHVWDWXVTXRRUDIXQGLQJDSSURDFKWRLQGHSHQGHQWVFKRROV that operates either entirely at the expense of the public schools or in a way formally unrelated to them. Rather, these recommendations represent an approach which can strengthen the relationships between schools and school-types. This is, however, an approach that can only succeed if all of those involved are prepared to summon up their resources for cooperative, perhaps even conscionable, behaviour. Interestingly, Green172

172 Green, Thomas. The formation of conscience in an age of technology. John Dewey Society, San Antonio, 1984.

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STATE SUPPORT FOR RELIGIOUS EDUCATION

has described a variety of aspects of conscience among which are the conscience of membership (i.e., the recognition that we must sometimes act for the sake of others) and WKHFRQVFLHQFHRIVDFULÀFHLHWKHZLOOLQJQHVVWRRYHUULGHWKHSXUVXLWRIVHOILQWHUHVW and act beyond the limits of mere duty). The success of the Commission’s proposed programmes if, in fact, they are adopted, will depend to no small degree on the extent to which these aspects of conscience are exhibited by the government through its Ministry of Education, by the board of education schools, by the independent schools, by the separate schools, and by the many communities and constituencies to which each of these relates and responds. Since such behaviour cannot be assumed, the outcome is uncertain but, in the view of the Commission, the challenge is worth a response, and the risk is worth taking. One need not envision either a collective perfection or a EOLWKHLJQRUDQFHRIWKHOLNHOLKRRGWKDWWKHLQVXIÀFLHQFLHVRIRXUH[LVWHQFHDUHÀUPO\ grounded in human nature. What, however, is required is both a vision of a society that is not characterized entirely by parallel and independent institutions – whether schools, hospitals, sports groups, labour unions or political parties – and that can exhibit DÁH[LELOLW\RIPLQGDQGKHDUWVXIÀFLHQWWRZRUNWRZDUGDPRUHFRRSHUDWLYHLGHDO7KH Commission’s proposed programme presents Ontarians with one new opportunity to assess the degree to which such an ideal may be within reach. A positive response to such a challenge is a complex matter and one of the disadvantages of the Commission’s recommendations is that, if adopted, they will complicate rather than simplify the Ontario schooling environment. This is unfortunate but complexity may be the price of a focus on multiple rather than single objectives. Moreover, the programmes envisioned in the Commission’s recommendations are certainly no more complicated than (and are, in some ways, a special case of) Ontario’s and Canada’s more general problem of developing a society which avoids both the anarchy of extreme cultural pluralism and the totalitarianism that can result from using schools or other social institutions to stamp out diversity. Further, the recommendations GRQRWLQIDFWSURSRVHYHU\UDGLFDOFKDQJH0DQ\UHIRUPHUVZLOOWKHUHIRUHÀQGWKH UHFRPPHQGDWLRQVLQVXIÀFLHQWEXWH[SHULHQFHGRHVRIWHQVXJJHVWWKDWVPDOOFKDQJHV are likely to be enduring changes. In considering options and in making plans, the government of Ontario and those responsible for the Province’s schools – both public and independent – must remain aware, as the Commission itself has tried to do, of the new constraints on the freedom of choice represented by The Canadian Charter of Rights and Freedoms. The currently pending challenge to the extension of funding to Roman Catholic secondary schools may not be entirely relevant to the recommendations of this Commission since the Commission’s concerns with discrimination are based on both legal and moral grounds. 1HYHUWKHOHVVWKH2QWDULRDQG&DQDGLDQFRXUWVFRXOGIRUH[DPSOHÀQGIDXOWZLWKWKH Commission’s conception of equity. In addition, since a more active arrangement for judicial intervention is a relatively new phenomenon in Canadian constitutional experience, the quite unexpected may, in fact, develop. For example, it is not unimaginable that the government support of religion, seemingly so central and distinctive a dimension of Canadian experience, may come under attack if the judicial system begins, in its interpretation of the Charter, to respond positively to such issue as establishment, entanglement, and the justice of requiring some individuals to support institutions in 390

4. OFFICIAL REPORTS

which they do not believe and to which they are, at best, indifferent. The Commission does not itself foresee this particular eventuality but its mere possibility is illustrative of the quite new context which Canadians have provided for themselves. That some change is required is not, however, simply a function of Ontario and/or Canadian experience. The world itself is changing and its various jurisdictions are becoming, as is frequently emphasized, more and more interdependent. Thus, even if the wider objectives (e.g., a commitment to intellectual and moral autonomy including the pursuit of moral values such as truth, courage, justice and friendship) remain the same, society will need to make different choices so that these ends can be achieved. The Commission hopes that its recommendations are an imaginative response to this challenge of change. Certainly, the Commission has approached its task in the belief that there is nothing inevitable about either the improvement or the decline of our schools. The effort to improve them will depend upon the quality of our ideas and the quality of our ideals, ideals that may never be fully achieved but are not, therefore, to be abandoned.

APPENDIX D ´/(*$/$1'&2167,787,21$/$63(&762)38%/,& )81',1*)2535,9$7(6&+22/6,1217$5,2µ Neil Finkelstein* Dated January 29, 1985

CONTENTS Introduction 1. Laws Currently in Force Respecting Private Education in Canada 2. Pre-Charter Constitutional Position With Respect to Jurisdiction Over Education 3. What Effect, If Any, Has the Promulgation of the Canadian Charter of Rights and Freedoms Had With Respect to State Obligations vis-à-vis Private Schools? Conclusion Footnotes Appendix: Section 93, Province by Province

391

STATE SUPPORT FOR RELIGIOUS EDUCATION

,1752'8&7,21 On June 12th, 1984, Premier Davis of Ontario announced in the Legislature that public funding for the Roman Catholic separate school system would be extended past the current Grade 10 level to the end of high school.1 The fact that Roman Catholic separate schools are publicly funded raises serious constitutional issues about whether the state is obligated to fund private schools in light of certain provisions of the Canadian Charter of Rights and Freedoms. With the promulgation of the Charter and the coming into force of the equality guarantee in s. 15 thereof on April 17, 1985, we must ask i) ZKHWKHUWKHUHLVQRZDFRQVWLWXWLRQDOULJKWWRHVWDEOLVKSULYDWHVFKRROVLQWKHÀUVWSODFH ii) if there is, the extent to which the state may regulate them; and iii) what funding obligations, if any, the state has with respect to private schools? Before dealing with these questions, I shall review both the laws across Canada with respect to funding private schools, with particular emphasis on Ontario, and the scope of provincial legislative jurisdiction over education prior to the Charter.

 /$:6&855(17/<,1)25&(5(63(&7,1*35,9$7( EDUCATION IN CANADA Education is, with certain exceptions, a provincial matter pursuant to s. 93 of the Constitution Act, 1867. Laws respecting education thus vary from province to province. 2QO\4XHEHFDQG%ULWLVK&ROXPELDKDYHVSHFLÀFVWDWXWHVUHVSHFWLQJSULYDWHVFKRROV Pursuant to the Private Education Act2, Quebec provides more state funding for private schools than any other jurisdiction in North America.3 Once the Quebec Minister of (GXFDWLRQGHFODUHVDQLQVWLWXWLRQWREHRI´SXEOLFLQWHUHVWµGHÀQHGDVDQLQVWLWXWLRQ which “ensures services of quality and contributes to the advancement of education in Quebec”4DFFRUGLQJWRVSHFLÀHGFULWHULDLWLVHOLJLEOHWRUHFHLYHJUDQWVHTXDOWRRI the average cost of educating each pupil5. Furthermore, the Minister may “recognize” other institutions which are not declared to be of public interest6. These institutions receive grants of 60% of the average cost per pupil. In British Columbia, the School Support (Independent) Act7 establishes a group FODVVLÀFDWLRQV\VWHPIRUSULYDWHRU´LQGHSHQGHQWµVFKRROV7KHFODVVLÀFDWLRQVDUHEDVHG upon the quality of the facilities and teachers8 and require that the curriculum not include programs which foster doctrines of racial or ethnic superiority, religious intolerance or social change through violence9. The Act provides a formula for calculating grants IRUVFKRROVZKLFKIDOOZLWKLQWKHVHFODVVLÀFDWLRQV Alberta, Saskatchewan, Manitoba and Newfoundland have legislation which permits SXEOLFIXQGLQJRISULYDWHVFKRROVEXWWKHLUVWDWXWHVDUHQRWVSHFLÀFDOO\GLUHFWHGDWSULYDWH education. For example, in Alberta, the establishment and operation of private schools is governed by the Department of Education Act,10 and the School Act11. These two statutes read together provide that a child may attend a private school which is approved by the Lieutenant Governor in Council. The approval is predicated upon various criteria set out in the regulations regarding both operation and curriculum. Under the “School Grants Regulations”12, enacted pursuant to what is now s. 7 of the Department of Education Act, the Minister of Education approves grants to private schools. A similar framework

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IRU ÀQDQFLQJ DQG UHJXODWLQJ SULYDWH VFKRROV H[LVWV LQ 0DQLWRED 6DVNDWFKHZDQ DQG Newfoundland.13 Both the availability and amount of funding in these provinces is considerably more restricted than in Quebec or British Columbia. New Brunswick, Nova Scotia, Prince Edward Island and the Yukon Territory have no legislation governing the establishment of private schools. Each jurisdiction has compulsory school attendance requirements with exemptions made where, in the opinion of the designated authority, the child is receiving adequate instruction elsewhere. The exemptions indirectly allow for the operation of private schools.14 In Ontario, private schools are regulated by the government but they do not receive DQ\GLUHFWÀQDQFLQJ*RYHUQPHQWSROLF\KDVEHHQWKDWDSDUWIURPWKH5RPDQ&DWKROLF separate schools, public funding should be restricted to public schools. This policy has been based upon a concern for the maintenance of a strong and viable public school system.15 It should be noted that enabling legislation is in place to allow public funding for private schools should government policy change or the Charter require that such funding be extended. Section 10(3) of the Education Act16 empowers the Minister of Education, with the approval of Cabinet, to promulgate regulations to apportion and distribute monies appropriated by the Legislature for educational purposes. As to separate schools, the Government currently provides funding up to and including Grade DQGUHFHQWO\DQQRXQFHGWKDWÀQDQFLQJZRXOGEHH[WHQGHGWRWKHHQGRIKLJKVFKRRO No regulations have as yet been promulgated to effect the extension. $OWKRXJK WKH JRYHUQPHQW GRHV QRW GLUHFWO\ ÀQDQFH SULYDWH VFKRROV LW SURYLGHV limited assistance in the form of books and services. The Ministry of Education provides free curriculum guidelines, resource materials, and access to its Book Purchase Plan, and charges only nominal fees for inspections and the use of the Student Guidance ,QIRUPDWLRQ6HUYLFH,QDGGLWLRQQRQSURÀWSULYDWHVFKRROVDUHH[HPSWHGIURPUHWDLO sales tax on school supplies and equipment. 7RHVWDEOLVKDSULYDWHVFKRROLQ2QWDULRDQRWLFHRILQWHQWLRQPXVWEHÀOHGZLWK the Minister of Education pursuant to s. 15 of the Education Act. The Minister may UHTXLUH LQVSHFWLRQ DQG ÀOLQJ RI VWDWLVWLFDO UHWXUQV UHJDUGLQJ VWDIÀQJ HQUROPHQW DQG courses of study.17 If the school wishes to grant Ontario diplomas, an inspector will visit the school,18 inspect the programs in relation to Ministry of Education curriculum JXLGHOLQHVDQGLIKHLVVDWLVÀHGZLWKWKHOHYHORILQVWUXFWLRQDXWKRUL]HWKHVFKRROWR grant diplomas. Most secondary schools in Ontario avail themselves of this Ministry service. Apart from the foregoing, the Minister of Education does not impose any academic requirements upon private schools and is concerned only that they comply ZLWKDSSOLFDEOHÀUHKHDOWKDQG]RQLQJUHJXODWLRQV:KLOHWKH0LQLVWHUKDVWKHVWDWXtory power to inspect for academic reasons, since section 20(2) of the Education Act excuses a child from compulsory school attendance only if he is receiving “satisfactory instruction at home or elsewhere”, historically only children studying at home have EHHQPRQLWRUHG7KLVSUHVXPDEO\UHÁHFWVDYLHZWKDWSULYDWHVFKRROVKDYHSURYLGHGD high quality of education. Private schools in Ontario are thus free to provide educational programs which cater to different religious beliefs and traditions. The major restriction upon a family’s freedom of choice is that private schools do not receive government ÀQDQFLQJ)DPLOLHVZKLFKZDQWDOWHUQDWLYHSURJUDPVPXVWSD\ERWKSXEOLFRUVHSDUDWH school taxes, depending upon their religion, and private school tuition fees.19 393

STATE SUPPORT FOR RELIGIOUS EDUCATION

 35(&+$57(5&2167,787,21$/326,7,21:,7+ 5(63(&772-85,6',&7,2129(5('8&$7,21 Section 93 of the Constitution Act, 1867, the only pre-Charter constitutional provision VSHFLÀFDOO\GHDOLQJZLWKHGXFDWLRQUHDGVDVIROORZV 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: (2) All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen’s Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen’s Protestant and Roman Catholic Subjects in Quebec. (3) Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen’s Subjects in relation to Education. (4) In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this section. Pursuant to s. 93, education is a provincial matter subject to the exceptions with respect to minority Roman Catholic or Protestant denominational schools. The promulgation of the Constitution Act, 1982 has not changed this allocation of legislative jurisdiction, although the Charter limits its ambit where guaranteed rights are involved. Not surprisingly, the litigation with respect to s. 93 has been largely concerned with the exceptions concerning denominational schools. The conditions of applicability of these exceptions are well summarized by Chouinard J. in A.G. Que. v. Lavigne20: “In order to claim the protection of (s. 93), the following conditions must of necessity be met: (a) there must be a right or privilege affecting a denominational school; (b) enjoyed by a particular class of persons; (c) by law; (d) in effect at the time of the Union; (e) and which is prejudicially affected.”

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Because only rights and privileges protected “by law at the Union” are constitutionally guaranteed, the core of rights protected in each province varies according to the different laws in force at Confederation.21 “Laws” in this context means statute law, not de facto or customary obligations existing at Confederation.22 It should be noted that the scope of these rights does not vary with developments in society, but rather is frozen in time.23 In addition, only those rights which are determined by reference to religious belief are guaranteed by s. 93.24 Even as regards those, the Legislature may regulate them as long as the regulation does not “prejudicially affect” their denominational character.25 For example, a wholesale usurpation of management, even when done for the purpose of enforcing a non-denominational regulation, has been held to “prejudicially affect” separate school rights guaranteed by s. 93.26 Section 93 draws a demarcation line between legislation which “prejudicially affects” denominational schools, and is therefore ultra vires, and legislation which PHUHO\´DIIHFWVµLW7KHGLVWLQFWLRQLVVRPHWLPHVGLIÀFXOWWRDSSO\LQSUDFWLFH$SDLU of Ontario cases considering the dismissal of separate school teachers who married outside the Roman Catholic Church27LOOXVWUDWHVWKHGLIÀFXOW\RIGHFLGLQJZKHWKHUD legislative dealing with this issue “affects” or “prejudicially affects” denominational rights in s. 93. In Re Essex County Roman Catholic Separate School Board and Porter28, a provincial board of reference set aside certain separate school teachers’ dismissals for marrying outside the faith. The Ontario Court of Appeal held that the right in separate school trustees to dismiss for denominational cause was a right or privilege protected by statute at Confederation. The provincial Legislature, lacking jurisdiction itself, could not give jurisdiction to a board of reference to set aside the dismissals. On the other hand, in Essex County Roman Catholic Separate School Board v. Tremblay-Webster29, provincial legislation permitted collective bargaining. One of the terms in a separate school collective agreement prohibited the discharge of teachers without just cause, in this case for marrying outside the faith. The school board argued on the basis of Porter that the Legislature could not empower the parties to negotiate out of protected rights any more than it could empower a board of reference to impose a ruling. The Court of Appeal held that while the statute “affected” protected rights, it did not do so prejudicially because entry into the collective agreement was voluntary. The discharged teacher could therefore use the grievance procedure. ,KDYHGLIÀFXOW\ZLWKWKH&RXUWRI$SSHDO·VUHFRQFLOLDWLRQRIPorter and TremblayWebster. The “class of persons” protected by s. 93 are individual families, not school trustees. The only real difference between Porter and Tremblay-Webster is that in Porter the Legislature restricted the denominational rights. In Tremblay-Webster it was done by the trustees who voluntarily entered into the collective agreement. However the parents of children attending these denominational schools may well not have voted for the SDUWLFXODUWUXVWHHVLQRIÀFHDQG\HWHYHQDVGLVVHQWHUVWKHLUVULJKWVDUHFXUWDLOHG30 In my view, the distinction between the two cases should be reconsidered. Roman Catholic Separate School Trustees for Tiny v. The King31 is the locus classicus of the law on separate schools in Ontario at Confederation. The statutes in force in Ontario in 1867 were the Common Schools Act, 185932 and An Act to Restore to Roman Catholics in Upper Canada Certain Rights in Respect to Separate Schools33 395

STATE SUPPORT FOR RELIGIOUS EDUCATION

(the Scott Act). The separate school trustees in Tiny claimed, inter alia, the right to establish grades of education and curricula as were established in continuation schools, collegiate institutes and high schools, and the right to exemptions for their supporters in respect of rates for post-elementary schools not regulated by the trustees. Viscount Haldane, speaking for the Privy Council, reviewed the development of the common and separate school systems in Ontario up to Confederation. Before 1867 there were three principal classes of schools, common schools, grammar schools, and separate schools. The common and separate schools were permitted to educate students up to the age of twenty-one but did not in fact do so. Continuation schools, collegiate institutes and high schools as such only developed after Confederation. The pre-Confederation statutory law showed that the Legislature wanted to bring the common and separate schools under the same regulatory umbrella. The Scott Act in 1863 provided that separate school teachers were subject to the same examinations DQGTXDOLÀFDWLRQVDVFRPPRQVFKRROWHDFKHUVDQGWKHVHSDUDWHVFKRROVZHUHVXEMHFW to inspections by the Chief Superintendent of Education and to detailed regulation by the Council of Public Instruction for Upper Canada. Also, the Chief Superintendent and the Council for Public Instruction exercised great discretion over the grades of instruction in separate schools, the stages at which instruction should be given and the funding allocations. Viscount Haldane held that, given the discretion exercised by the Council at Confederation over grading and levels of instruction, there was no constitutionally guaranteed right in separate school trustees to offer secondary level education. He said:34 “(Their Lordships) are not one with (the Chief Justice of Canada) in thinking that separate school trustees could give secondary education in their schools otherwise than by permission, express or implied, of the Council of Public Instruction. The separate school was only a special form of common school, and the Council could in the case of each determine the courses to be pursued and the extent of the education to be imparted.” The importance of Tiny cannot be overstated for the purposes of this paper. It establishes the core area of s. 93(1) constitutional guarantee to Roman Catholic separate schools with regard to public funding. It follows from the Privy Council’s holding that, since separate school trustees could offer elementary but not secondary level education as a matter of right, there was no concomitant state obligation to fund separate schools beyond the elementary school level. Accordingly, government funding at the current junior high school level and the contemplated high school level is a matter of government policy rather than constitutional right.

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 :+$7())(&7,)$1<+$67+(35208/*$7,212) THE &$1$',$1&+$57(52)5,*+76$1')5(('206 HAD :,7+5(63(&77267$7(2%/,*$7,2169,6$9,635,9$7( SCHOOLS? I shall now address the issues of i) whether there is a constitutional right to establish private schools; ii) if there is, the extent to which they may be regulated by the state; and iii) whether the state has any funding obligations to these schools.

i) constitutional right to establish private schools Any constitutional right to establish private parochial or non-parochial schools will be found in s. 2 or 7 of the Charter. These provisions read in relevant part as follows: “s. 2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; … s. 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. Section 7 is wider than s. 2 because, if the right to establish private schools is comprehended within its “liberty” guarantee, it encompasses both parochial and non-parochial schools. It is unclear at this stage whether s. 7 contains a substantive guarantee of life, liberty and security of the person or whether it is limited to procedural safeguards. The question is currently before the Supreme Court of Canada in Reference re Section 94(2) of the Motor Vehicle Act (B.C.), a case which is on appeal from the British Columbia Court of Appeal.35 In Reference re Section 94(2), the impugned statutory provision created an absolute liability offence of driving while one’s licence was suspended, punishable by an automatic minimum seven day jail term. The British Columbia Court of Appeal struck down the provision, holding that “fundamental justice” in s. 7 requires the courts to examine the substantive content of legislation.36 If the British Columbia Court of Appeal is correct, as I believe it is, the next question is whether the liberty clause in s. 7 guarantees the right to establish private schools. Modern human rights documents often contain provisions guaranteeing to parents the right to ensure the religious and moral education of their children.37 These documents are based on the value in a democratic society of protecting pluralism in thought and belief, coupled with the recognition that the family is the natural place for the inculcation of these matters. In Canada, this right is recognized by provincial statutes which provide for either alternate instruction or the right to withdraw the child from religious instruction to which the parent objects.38 In Donald v. Hamilton Board of Education39, a pre-Charter case, a Jehovah’s Witness UHIXVHGRQUHOLJLRXVJURXQGVWRDOORZKLVFKLOGUHQWRVDOXWHWKHÁDJDQGVLQJWKHQDWLRQDO anthem in school. The children were expelled, and he sought an order for mandamus to have them readmitted. The education statute in force at the time contained a religious H[HPSWLRQ )RU PRVW SHRSOH VDOXWLQJ WKH ÁDJ DQG VLQJLQJ WKH QDWLRQDO DQWKHP DUH GLVSOD\VRISDWULRWLVPZLWKRXWUHOLJLRXVVLJQLÀFDQFH+RZHYHUWKH&RXUWRI$SSHDO

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took a wide view of religion, accepting the complainant’s contention of religious faith DWIDFHYDOXHDQGJUDQWHGVXIÀFLHQWODWLWXGHWRKLVGLYHUJHQWEHOLHIV*LOODQGHUV-$ quoted with approval the following passage from State of New York v. Sandstrom:40 “There are many acts which are not acts of worship and which for most men have QRUHOLJLRXVVLJQLÀFDQFHDQGDUHHQWLUHO\XQUHODWHGWRWKHSUDFWLFHRIDQ\UHOLJLRXV principle or tenet but which may involve a violation of an obligation which other men may think is imposed on them by divine command or religious authority”. In Chabot v. School Commissioners of Lamorandiere,41 another pre-Charter case and the leading Canadian decision to date on the right of parents to educate their children. Jehovah’s Witness children refused to participate in religious exercises at a Catholic public school and were accordingly expelled. The Quebec Court of Appeal granted an order for mandamus that the children be readmitted on the basis that, as a matter of statutory interpretation of the relevant legislation, the school could not make participation in Catholic religious courses a condition of attendance. Chabot is particularly noteworthy for some of its obiter comments about a “natural law” right of parents to control the religious instruction of their children. Pratte J. stated:42 “It appears useful to recall that the right to give one’s children the religious education of one’s choice, like freedom of conscience, is anterior to positive law”. As support for this proposition he cited Re Meades43 where it stated: “The authority of a father to guide and govern the education of his child is a very sacred thing, bestowed by the Almighty, and to be sustained to the uttermost by human law. It is not to be abrogated or abridged, without the most coercive reason”. Undoubtedly, the strongest statement on natural law was made by Casey J.:44 ´2QWKLVSRLQWWKHUHFDQEHQRGRXEWIRULIWKHVHULJKWVÀQGWKHLUVRXUFHLQSRVLWLYH ODZWKH\FDQEHWDNHQDZD\%XWLIDVWKH\GRWKH\ÀQGWKHLUH[LVWHQFHLQWKHYHU\ nature of man, then they cannot be taken away, and they must prevail should they FRQÁLFWZLWKWKHSURYLVLRQVRISRVLWLYHODZ&RQVHTXHQWO\LIWKHUHJXODWLRQVXQGHU which, rightly or wrongly, this school is being operated make it mandatory that non-Catholic pupils submit to the religious instructions and practices enacted by the Catholic Committee, then these regulations are ultra vires the Committee, and invalid”. Taschereau J., in translation stated:45 “It would also be contrary to natural law as well as to the most elementary principles RIRXUGHPRFUDWLFLQVWLWXWLRQVWKDWDIDWKHUFRXOGQRWH[HUFLVHWKHULJKWRUIXOÀOKLV obligation to instruct his children without renouncing his religious faith”. Own J., stated:46 “Freedom of worship includes the right of a parent to have his children follow the religious training of the parent’s choice and also the right of not being forced to have his children subjected to religious training of another faith”.

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I do not cite the above passages for the proposition that “natural law” overrides positive law in Canada. The generally accepted view is quite the contrary.47 However, in my view the statements in ChabotJRWRGHÀQHWKHFRQVWLWXWLRQDOYDOXHVZKLFKXQGHUOLH the liberty clause in s. 7 and the freedom of religion guarantee in s. 2 of the Charter of Rights.48 American jurisprudence based upon the liberty clause in the Fourteenth Amendment is also instructive. In Pierce v. Society of Sisters,49 Oregon enacted a compulsory public school attendance law. It was challenged by a parochial school and a military academy as an interference with parental liberty to direct their children’s education. Justice McReynolds, speaking for the U.S. Supreme Court, stated:50 “We think it entirely plain that the act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of this State to standardize its children by forcing them to accept instruction from public teachers only…” 7KHVLJQLÀFDQFHRIKDYLQJDPLOLWDU\DFDGHPLFDVRQHRIWKHSDUW\SODLQWLIIVFDQQRWEH overstated. If a parochial school was the sole plaintiff, Pierce could be explained as a religion case. Given the presence of the military academy, it establishes that there is a constitutional right to educate one’s children outside the public school system, provided the education is consistent with legitimate state interests. Another source of law which is likely to be persuasive is international law. Numerous international conventions recognize a liberty interest in parents to direct their children’s education and, by implication, a concomitant right to establish private schools.51 While international treaties have no direct application in Canada until implemented by competent legislation,52 they are evidence of what is done in other free and democratic societies. International law has been considered in both pre-Charter53 and Charter cases,54 and is thereby useful at least indirectly on questions of Canadian law. In my view, given the consistency among the Canadian, American and international law of the point, the liberty interest in s. 7 of the Charter comprehends the right of parents to educate their children and establish private schools.55 If I am wrong, perhaps because the Supreme Court of Canada will hold that s. 7 is purely procedural, we must consider whether there is a constitutional right pursuant to s. 2 of the Charter, which is unquestionably substantive in nature, to establish at least parochial schools. I believe that there is. In addition to the above sources, which apply equally to the freedom of religion guarantee in s. 2 as to the liberty clause in s. 7, the American case of Wisconsin v. Yoder56 indicates that particular deference is given to a parent’s right to educate his child in religious matters. In Yoder, Amish parents withdrew their children from school after Grade 8 and were convicted of violating Wisconsin’s compulsory school attendance laws. They argued that they should be exempted from WKHODZ·VDSSOLFDWLRQEHFDXVHVHSDUDWLRQIURPZRUOGO\LQÁXHQFHVDQGDOLIHVW\OHFRQnected with the land were central tenets of their religious faith. The Court agreed and 399

STATE SUPPORT FOR RELIGIOUS EDUCATION

exempted them. It held that the state had a legitimate interest in universal education, but that interest had to be balanced against fundamental rights such as religion.57

ii) the extent to which the state may regulate private or parochial schools The constitutional right of parents to establish private schools does not denude the state of the right to regulate such schools. The state has a legitimate, and indeed compelling, interest in the universal education of its citizens. I would suggest that this interest is twofold.58 First, a democracy such as ours operates best where there is an educated citizenry which is capable of making informed choices. The rationale gains nourishment in Canada from Chief Justice Duff’s famous passage in the Alberta Press Case:59 “… The [Constitution Act, 1867] contemplates a Parliament working under the LQÁXHQFHRISXEOLFRSLQLRQDQGSXEOLFGLVFXVVLRQ7KHUHFDQEHQRFRQWURYHUV\ WKDWVXFKLQVWLWXWLRQVGHULYHWKHLUHIÀFDF\IURPIUHHSXEOLFGLVFXVVLRQRIDIIDLUV from criticism and answer and counter-criticism, from attack upon policy and administration and defence and counter-attack; from the freest and fullest analysis and examination from every point of view of political proposals… … It is axiomatic that the practice of this right of free public discussion of public affairs, notwithstanding its incidental mischiefs, is the breath of life for parliamentary institutions.” It follows that, if Canadian democracy is founded upon free public discussion and dissemination of ideas, the corollary is that the citizenry should be educated and informed, capable of understanding the issues of the day. Similarly if such discussion is the “breath of life of parliamentary institutions”, those institutions, in this case the Legislature of Ontario, have a legitimate interest and indeed a high duty to provide universal education provided that adequate allowances are made for parents to make alternative choices. The state’s second legitimate interest in universal education is to prepare its children to function as adults without being an excessive burden on the state.60 In furtherance of these objectives, the state may inspect and supervise schools,61 enact FRPSXOVRU\DWWHQGDQFHODZVSURYLGHGVXIÀFLHQWUHOLJLRXVH[HPSWLRQVDUHJUDQWHG62 require teachers to be of good moral character, require that essential studies are properly taught and ensure that its health and safety rules are followed.63 The restriction is that the UHJXODWLRQPXVWEHÁH[LEOHHQRXJKWRDFFRPPRGDWHDOWHUQDWLYHEHOLHIVDQGYDOXHV Two American cases illustrate the balancing which must be done to ensure that full rein is given to the expression of alternative family values. In Meyer v. Nebraska,64 a Nebraska law forbade the teaching of modern languages other than English in any school in the state. A parochial school instructor was convicted of teaching German. In support of the law, the state argued that it had a legitimate interest in promoting “civic development by inhibiting training and education of the immature in foreign tongues and ideals before they could learn English and acquire American ideals”.65 The Supreme Court accepted the legitimacy of the goal in the abstract, but held that the law went too far in light of the countervailing individual interest involved. On the other hand, in Prince v. Massachusetts66 a state child labour law prohibited children under twelve from distributing literature on the street. A Jehovah’s Witness

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challenged the law as violative of his free exercise of religion. The U.S. Supreme Court upheld the law as consistent with a compelling state interest. The Court said:67 “Neither rights of religion or parenthood are beyond limitation. Acting to guard the general interest in youth’s well being, the state as parens patriae may restrict the parent’s control by requiring school attendance, regulating or prohibiting the FKLOG·VODERXUDQGLQPDQ\RWKHUZD\V,WVDXWKRULW\LVQRWQXOOLÀHGPHUHO\EHFDXVH the parent grounds his claim to control the child’s course of conduct on religion and conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death. … The catalogue need not be lengthened. ,WLVVXIÀFLHQWWRVKRZZKDWLQGHHGDSSHOODQWKDUGO\GLVSXWHVWKDWWKHVWDWHKDVD wide range of power for limiting parental freedom and authority in things affecting the child’s welfare; and that this includes, to some extent, matters of conscience and religious conviction.” Thus freedom of choice does not include the right to jeopardize the health and safety of the child or the community. In the international arena, the European Court of Human Rights has considered the degree to which states may regulate schools. Essentially, the state is entitled to pursue its legitimate interests, such as the protection of health and safety and ensuring that parental choices will not leave children unable to take care of themselves as adults. However, as held in Kjeldsen et al.,68 the state cannot pursue an “aim of indoctrination”. 7KLVLQGRFWULQDWLRQWHVWZDVDIÀUPHGE\WKH&RXUWLQForty Mothers v. Sweden.69 The basic law in other jurisdictions, and I believe in Canada as well pursuant to s. 2 and 7 of the Charter, is that the state may regulate the operation of private schools. However, its power does not extend to permit the standardization of children.

iii) whether the state must fund private schools As a preliminary matter, it is useful to ask whether there is a constitutionally guaranteed ULJKWWRDWOHDVWDJRYHUQPHQWÀQDQFHGSXEOLFDVRSSRVHGWRDSULYDWHHGXFDWLRQLQ Canada. In my view, such a right is found in the liberty clause of s. 7 of the Charter. It may also exist in s. 36, which provides, inter alia, that Parliament and the provincial Legislatures are committed to “providing essential public services of reasonable quality to all Canadians”. In today’s socio-economic and technological environment, I would argue that education is an “essential public service” contemplated by s. 36. Regard may also be had to international law, which clearly recognizes a right to a public education.70 7KHPRUHGLIÀFXOWTXHVWLRQLVZKHWKHUWKHUHLVDOVRDFRQVWLWXWLRQDOO\JXDUDQWHHG right to public funding for private schools. In my opinion, neither s. 2 nor s. 7 of the Charter standing alone, unconnected with the equality guarantee in s. 15, comprehends a free-standing right to public funding for private schools. As we shall see shortly, there is no such right in other jurisdictions either. Furthermore, s. 36 of the Charter refers to a commitment to provide “essential public services”. With respect to the freedom of religion guarantee in s. 2 of the Charter, the 401

STATE SUPPORT FOR RELIGIOUS EDUCATION

TXHVWLRQRIWKHH[WHQWRIWKHVWDWH·VSRVLWLYHREOLJDWLRQVLIDQ\LVPRUHGLIÀFXOWWKDQ with the liberty clause in s. 7. Clearly the state must abstain from impeding or infringing upon a person’s free exercise of religion.71 Furthermore, under the Charter the state may as a matter of policy give support to religion, albeit within narrow limits.72 The preamble to the CharterVSHFLÀFDOO\SURYLGHVWKDW´&DQDGDLVIRXQGHGXSRQSULQFLSOHV that recognize the supremacy of God …”. Section 27 provides that the Charter should be interpreted consistently with “the preservation and enhancement of the multicultural heritage of Canadians”. Section 29 of the Charter preserves the denominational and separate school rights guaranteed by s. 93 of the Constitution Act, 1867. The issue of whether it is permissible in Canada to adopt a public policy of state advancement of religion and education has been addressed by the Federal Court of Canada in McBurney v. The Queen.73 “It is apparent, then, that both the advancement of education and the advancement of UHOLJLRQDUHÀUPO\DQGIDYRXUDEO\URRWHGLQWKHSXEOLFSROLF\RIRXUODZ0RUHRYHULW is not stretching matters to say that even in the modern, secular age the advancement of religion is rooted in our law and in our Constitution. That policy is readily discernable in the declatory preambles to the Canadian Bill RI5LJKWVDQGWKH&DQDGLDQ&KDUWHURI5LJKWVDQG)UHHGRPVZKLFKERWKDIÀUPWKDW Canada ‘is founded upon principles that’ acknowledge and recognize ‘the supremacy of God’ and ‘the rule of law’. That is not to say that our country is even remotely similar to a theocracy such as have been established in past ages and in the present day in some countries. Far from it. We do not have any established church or State religion. Those Canadians who profess atheism, agnosticism or the philosophy of secularism are just as secure in their civil rights and freedoms as are those who profess religion. So it is that while Canada may aptly be characterized as a secular State, yet being declared by both Parliament and the Constitution to be founded upon principles which recognize ‘the supremacy of God’, it cannot be said that our public policy is entirely neutral in terms of ‘the advancement of religion’. (On the other hand it seems now more than ever before to turn away from any purported ‘charity’ in the service of atheism). The legal and constitutional recognition of God necessarily imports and involves a polity which leans in favour of belief, or faith – that is, the profession of religion among our people. Just as that same polity (it must be emphasized) also secures the rights and freedoms of those who profess no religion, it concurrently turns away from those professions of religion which range all the way from practices inimical to the security of our people and our constitution to practices which are RIQREHQHÀWWRWKHSXEOLF7KLVLVDQRWKHUSHUFHSWLRQRIWKHSROLF\RIWKHODZDQG the Constitution.” There is thus ample support for the proposition that the state is not prohibited from providing support to religion as a policy matter. However there is nothing in s. 2 which obligates the state to provide such funding, and in my view no such obligation can be applied into s. 2.

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The same is not true of the equality guarantee in s. 15(1) of the Charter which reads as follows: 15. (1) Every individual is equal before and under the law and has the right to WKHHTXDOSURWHFWLRQDQGHTXDOEHQHÀWRIWKHODZZLWKRXWGLVFULPLQDWLRQDQGLQ particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Section 1 of the Charter is also relevant: 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 laws as can be GHPRQVWUDEO\MXVWLÀHGLQDIUHHDQGGHPRFUDWLFVRFLHW\ 6HYHUDO SRLQWV DERXW V   VKRXOG EH QRWHG )LUVW ZKLOH LW FRQWDLQV D VSHFLÀF enumeration of prohibited grounds of discrimination, this list is not exhaustive. On the contrary, s. 15(1) is a blanket anti-discrimination provision and sets out the list only for greater particularity. Second, the provision extends to every individual “the right to the equal protection DQGHTXDOEHQHÀWRIWKHODZµ7KLVGLVWLQJXLVKHVVRIWKHCharter from the equality guarantee in s. 1(b) of the statutory federal Bill of Rights.74 In R. v. Drybones,75 the leading case under the Bill of Rights, section 94 of the Indian Act76 made it an offence for an Indian to be intoxicated off a reserve either in public or in private. The Northwest Territories Liquor Ordinance,77 a law of general application, prohibited any person from being intoxicated in a public place. Thus an Indian could be guilty of an offence off a reserve in places (i.e. private places) where another citizen would not be. In declaring the law inoperative, Ritchie J., speaking for a majority of the Supreme Court of Canada, said:78 ´«ZLWKRXWDWWHPSWLQJDQ\H[KDXVWLYHGHÀQLWLRQRI¶HTXDOLW\EHIRUHWKHODZ·,WKLQN that section 1(b) means at least that no individual is to be treated more harshly than another under the law. …” (emphasis added) Section 15(1) of the Charter is not predicated upon a harshness test. On the contrary, it VSHFLÀFDOO\SURYLGHVWKDWWKHHTXDOLW\JXDUDQWHHFDQEHWULJJHUHGZKHUHWKHVWDWHIDYRXUV RQHJURXSRISHRSOHRYHUDQRWKHUE\JLYLQJLWDGGLWLRQDOEHQHÀWV State funding of Roman Catholic separate schools but not private schools is therefore prima facie discriminatory within the meaning of s. 15, because the former receive DEHQHÀWQRWVKDUHGE\WKHODWWHU7KLVLVVRUHJDUGOHVVRIWKHIRUPZKLFKWKHSXEOLF ÀQDQFLQJWDNHV,IWKHJRYHUQPHQWGHFLGHVWRÀQDQFHWKHVHSDUDWHVFKRROVRXWRIJHQHUDO revenues, the discrimination is obvious because no other groups receive similar funding. $OWHUQDWLYHO\ZKHUHDVQRZWKHVFKRROVDUHÀQDQFHGLQZKROHRULQSDUWRXWRIUDWHV paid by separate school supporters who receive an exemption from public school taxes, it is equally discriminatory because non-Roman Catholics who wish to educate their children outside the public school system are not accorded a similar exemption. They must pay both public school taxes and private school tuition. The next issue is whether the discrimination is saved by the limitation in s. 1 of the Charter.79

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Pursuant to s. 1, a limitation on a Charter right is valid provided that, in context, LWLVL UHDVRQDEOHLL SUHVFULEHGE\ODZDQGLLL GHPRQVWUDEO\MXVWLÀHGLQDIUHHDQG democratic society. The burden of proof is on the party seeking to uphold differentiation. The operation of s.1 has been described by the Ontario Court of Appeal in Re Southam Inc. and The Queen (No. 1).80 “… Section 2 states that everyone has the named fundamental freedoms. Section 1 guarantees those rights and, although the rights are not absolute or unrestricted, makes it clear that if there is a limit imposed on these fundamental rights by law, WKHOLPLWVPXVWEHUHDVRQDEOHDQGGHPRQVWUDEO\MXVWLÀHGLQDIUHHDQGGHPRFUDWLF society. The wording imposes a positive obligation on those seeking to uphold the limit or limits to establish to the satisfaction of the court by evidence, by the terms and purpose of the limiting law, its economic, social and political background, and, if felt helpful, by references to comparable legislation of other acknowledged free and democratic societies, and such limit or limits are reasonable and demonstrably MXVWLÀHGLQDIUHHDQGGHPRFUDWLFVRFLHW\«µ and: “In determining the reasonableness of the limit in each particular case, the court must examine objectively its argued rational basis in light of what the court understands to be reasonable in a free and democratic society. Further, there is, it appears to PHDVLJQLÀFDQWEXUGHQRQWKHSURSRQHQWRIWKHOLPLWRUOLPLWVWRGHPRQVWUDWHWKHLU MXVWLÀFDWLRQWRWKHVDWLVIDFWLRQRIWKHFRXUW«µ81 In my opinion, it is reasonable within the meaning of section 1 for the reasons which follow to exclude non-parochial private schools from public funding. However, it is not UHDVRQDEOH WR ÀQDQFH 5RPDQ &DWKROLF VHSDUDWH VFKRROV EXW QRW RWKHU SDURFKLDO schools.82 $VWRSDURFKLDOVFKRROVLWLVFOHDUWKDWDEHQHÀWLVEHLQJJLYHQWR5RPDQ&DWKROLFV which is being denied to other religious denominations. The differentiation is particularly REMHFWLRQDEOHZLWKUHVSHFWWRMXQLRUKLJKVFKRRODQGKLJKVFKRROÀQDQFLQJ3XUVXDQW to the Privy Council’s holding in Roman Catholic Separate School Trustees for Tiny v. The King,83WKHJRYHUQPHQWLVQRWUHTXLUHGWRÀQDQFHVHFRQGDU\OHYHOVHSDUDWHVFKRRO education. It is therefore doing so as a matter of policy rather than constitutional obligation. In my view, this discrimination cannot be saved by s. 1 of the Charter. If the equality guarantee stands for anything, it stands for the proposition that the government cannot, as a matter of state policy and being under no obligation to do so, favour one group over another strictly on the basis of religion. The government must either terminate the funding of Roman Catholic separate secondary schools, or, in the alternative, extend it to other parochial schools. 7KHLVVXHLVPRUHGLIÀFXOWZLWKUHJDUGWRVHSDUDWHVFKRROVDWWKHHOHPHQWDU\VFKRRO level. The primary argument in favour of the continued differentiation between Roman Catholic and other parochial elementary schools is that s. 93(1) of the Constitution Act, 1867 requires that the former be funded. This guarantee was carried forward by s. 29 of the Charter and, it can be argued, the distinction was thereby preserved even within the Charter’s framework. 404

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In my view, this argument is misconceived. Section 93 explains why the state must fund Roman Catholic separate elementary schools. It does not explain why it is UHDVRQDEOHQRWWRJLYHRWKHUGHQRPLQDWLRQDOVFKRROVWKHVDPHEHQHÀWVSDUWLFXODUO\ since such extended funding would not, in the words of s. 29 of the Charter, “abrogate or derogate from” separate school rights. It would not affect those rights one way or another. Clearly s. 93 does not restrict the application of the Charter. On the contrary, WKHWZRVKRXOGEHLQWHUSUHWHGLQVXFKDZD\DVWRDYRLGFRQÁLFWZKHQHYHUSRVVLEOH Section 15 of the CharterDQGVFDQEHPDGHFRPSDWLEOHE\H[WHQGLQJHTXDOÀQDQFLQJ to other parochial schools. In Reference re Education Act,84 the Ontario Court of Appeal had to decide whether full implementation of the minority language rights in s. 23 of the Charter would unconstitutionally interfere with the separate school system. The Court said both s. 23 and 93 could apply, stating:85 “As we view the Charter, it grants supporters of denominational schools a right in addition to those granted them in 1867 by s. 93. They are now entitled, by virtue of s. 23, to have their children receive denominational education in either the minority or majority language. If, because of s. 93, s. 23 were treated as inapplicable to denominational schools, an anomalous and, indeed, patently unacceptable result would follow, French speaking members of the Roman Catholic Community would then be required to forego their denominational education rights protected by s. 93 in order to avail themselves of the new minority language educational rights conferred RQWKHPE\VRIWKH&KDUWHU:HVHHQRFRQÁLFWEHWZHHQWKHWZRSURYLVLRQV compelling that result. In our opinion, s. 23 and s. 93 are compatible and capable of living and operating in harmony with one another.” Admittedly the Court of Appeal’s decision in Reference re Education Act was made easier by the Mackell86 case, which held that language was not a matter of denominational concern. However, the case is still good authority for the proposition that Charter ULJKWVZLOOEHJLYHQIXOOÁRZHUZKHUHSRVVLEOHDVORQJDVWKH\DUHQRWLQFRQVLVWHQWZLWK s. 93. Whatever the situation in 1867, the Roman Catholic minority in Ontario needs less protection today than other religious minorities. Their roots are longer and better established, and they are numerically superior. If the purpose of the equality guarantee is to guard against majoritarian abuse, weaker minorities should be able to claim at least as much support as Roman Catholics. Section 93 was intended to prevent discrimination, not foster it. It would be very odd indeed if s. 93 could be used as the fulcrum to justify religion-based discriminatory funding under the Charter. The better view is that s. 93 and s. 15 of the Charter should be read together to oblige the state to fund all denominational schools equally. Additional support for this view can be found in s. 27 of the Charter which requires the Charter to be interpreted consistently with the multicultural heritage of Canadians. It may be that some religious groups are so small in particular areas that a separate, SXEOLFO\ÀQDQFHGVFKRROZRXOGEHSURKLELWLYHO\H[SHQVLYH,QVXFKFDVHVLWZRXOG undoubtedly be reasonable within the meaning of s. 1 to impose a restriction of funding

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limiting it to situations “where numbers warrant” similar to that in s. 23 with respect to minority language rights. In my view, the situation regarding s. 1 of the Charter is different for non-parochial schools.87 The government’s rationale for excluding private schools from state funding is a concern for maintaining a strong and viable public school system. I believe that a FRXUWZRXOGÀQGWKDWWKLVUDWLRQDOHLVUHDVRQDEOHZLWKLQWKHPHDQLQJRIVSURYLGHGWKDW the government can prove that funding non-parochial private schools would endanger the public school system. The counter-argument is that this rationale applies equally to parochial schools, and it is thereby unreasonable to differentiate between parochial and non-parochial schools. A parent should, in view of the freedom of religion and conscience guarantee in s. 2 of the Charter, be equally free of economic constraint to send his children to non-parochial private schools as to parochial ones. Also, one could argue that freedom from discrimination on religious grounds in s. 15 of the Charter means not only that the state may not favour one religion over another, but that religion is not a legitimate policy consideration at all under the Charter. The government is thus not entitled to differentiate between parochial and non-parochial schools. The answer to these arguments is that, as set out in the excerpt from the McBurney case which has been previously quoted, our public law cannot be said to be entirely neutral with respect to the advancement of religion. The legal and constitutional recognition of God in preambles to both the federal Bill of Rights and the Charter imports a policy which leans in favour of the profession of religion. Section 2 of the Charter guarantees freedom of religion, and language preventing a state establishment of religion similar to that in the First Amendment to the U.S. Constitution is notably absent. Finally other provisions, such as s. 27 and 29 of the Charter and s. 93 of the Constitution Act, 1867, militate against a notion of state neutrality. That is not to say that Canada may have an established religion or state theological line. I do not believe that it can. But it is entitled to recognize and advance religion in certain types of situations. It is therefore my opinion that, while the Ontario Legislature is obliged to extend equal treatment to different religions, it is entitled to differentiate between religious and non-religious schools. If I am wrong in this for the reasons set out above, my comments ZLWKUHVSHFWWRWKHJRYHUQPHQW·VREOLJDWLRQWRÀQDQFHSDURFKLDOVFKRROVDSSO\HTXDOO\ to non-parochial schools. $VWRWKHOHJDOSUHVFULSWLRQHOHPHQWLQVLWLVFOHDUWKDWWKHJRYHUQPHQW·VÀQDQFLQJ of public and Roman Catholic separate schools to the exclusion of private schools is prescribed by law. Section 10(3) of the Ontario Education Act permits the Minister of Education, with the approval of Cabinet, to make regulations for the distribution of SXEOLFIXQGVIRUHGXFDWLRQ7KHVHFWLRQSHUPLWVEXWGRHVQRWUHTXLUHWKHÀQDQFLQJRI private schools. The Minister therefore has jurisdiction as a matter of statutory law to DGRSWWKHHGXFDWLRQDOÀQDQFLQJV\VWHPFXUUHQWO\LQIRUFH 7KHÀQDOHOHPHQWLQVLVZKHWKHU2QWDULR·VUHIXVDOWRÀQDQFHSULYDWHQRQSDURFKLDO VFKRROVFDQEHMXVWLÀHGE\UHIHUHQFHWRZKDWLVGRQHLQDIUHHDQGGHPRFUDWLFVRFLHW\ 7KHHYLGHQFHLQ&DQDGDLVLQFRQFOXVLYHEHFDXVHWKHGHJUHHRISULYDWHVFKRROÀQDQFLQJ varies by province from heavy funding in Quebec to none at all in Ontario. In other MXULVGLFWLRQVWKHGHFLVLRQDERXWZKLFKVFKRROVWRÀQDQFHLVRQHRIJRYHUQPHQWSROLF\ 406

4. OFFICIAL REPORTS

rather than constitutional obligation. The European Court of Human Rights’ decision in the Belgium Linguistics Case88 is a good example. Article 2 of the First Protocol to the European Convention on Human Rights states: “No person shall be denied the right to education. In the exercise of any function which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions”. Article 14 of the Convention states: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with the national minority, property, birth or other status”. In Belgium, the state subsidizes virtually all private schools.89 The Belgian Constitution provides that the use of either of the two languages, French and Flemish, is optional. The Flemish parts of the country passed regulations limiting the use of French on penalty of loss of state funding. French parents argued on the basis of Articles 2 and 14 that once a state undertakes to provide or subsidize a particular type of education, it must do so without discrimination. The European Court rejected the argument in these terms:90 “The negative formulation indicates … that the Contracting Parties do not recognize such a right to education as would require them to establish at their own expense, or to subsidize, education of any particular type or of any particular level. … There neither was, nor is now, therefore, any question of requiring each State to establish >DJHQHUDODQGRIÀFLDOHGXFDWLRQDO@V\VWHPEXWPHUHO\RIJXDUDQWHHLQJWRSHUVRQV subject to the jurisdiction of the Contracting Parties the right, in principle, to avail themselves of the means of instruction existing at a given time.” The European Human Rights Commission in Forty Mothers v. Sweden took the same position:91 “Article 2 of the Protocol does not go as far as to oblige the High Contracting Parties to subsidize any private education or teaching”. These cases indicate that state subsidization of private schools under the European Convention is a matter of government policy rather than constitutional imperative. The same is true in the United States, except that the Establishment Clause in the First Amendment prohibits state funding of parochial schools. Otherwise, state governments have discretion to decide as a matter of policy which schools should be publicly funded and how much those schools should receive. In San Antonio Independent School District v. Rodriguez,92 it was argued before the U.S. Supreme Court that the Equal Protection Clause in the Fourteenth Amendment guaranteed equal funding at least as among public schools. In Rodriguez, the Texas SXEOLFVFKRROV\VWHPZDVÀQDQFHGWKURXJKORFDOSURSHUW\WD[HVZLWKWKHUHVXOWWKDW the funds available in any particular district depended upon the size of its tax base. 3XEOLFVFKRROVLQSRRUHUDUHDVDFFRUGLQJO\UHFHLYHGOHVVÀQDQFLQJWKDQWKRVHLQZHDOWK\

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neighbourhoods. Powell, J., speaking for the Court, held that education was not a fundamental right.93 Accordingly there only had to be a “rational” relationship between the funding system and the way education was provided. The Court found that such a rational relationship existed as long as the system could “provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process”.94 The Court found that the challenged funding system met this test.95 In Norwood v. Harrison,96 the U.S. Supreme Court struck down a textbook lending program which included private schools with racially discriminatory policies in its ambit. Supporters of these schools argued that students in attendance would be denied the equal protection of the law if their schools were denied access to the program. In the course of his reasons, Chief Justice Burger, speaking for the Court, responded to this argument by saying that the Equal Protection Clause did not guarantee private schools the right to receive public funding:97 “It has never been held that if private schools are not given some share of public IXQGVDOORFDWHGIRUHGXFDWLRQWKDWVXFKVFKRROVDUHLVRODWHGLQWRDFODVVLÀFDWLRQ violative of the Equal Protection Clause. It is one thing to say that a State may not prohibit the maintenance of private schools and quite another to say that such schools must, as a matter of equal protection, receive state aid”. To summarize the American position with respect to funding non-denominational education, the state has an obligation to provide a minimum level of public education WRLWVUHVLGHQWVRQFHLWKDVFRPPHQFHGSURYLGLQJHGXFDWLRQLQWKHÀUVWSODFH+RZHYHU once it has achieved that minimum, its distribution of funds for public or private schools is, within the limits of the Establishment Clause, a matter of government policy rather than constitutional right.98 The result of this survey of other Canadian provinces, the law in international jurisdictions and in the United States is that public funding of non-parochial private VFKRROVLVODUJHO\DPDWWHURISXEOLFSROLF\8QHTXDOÀQDQFLQJDWOHDVWZLWKLQOLPLWV does not implicate the respective constitutional instruments. My conclusion is therefore that Ontario’s refusal to fund non-parochial private schools is reasonable, assuming the government can lead adequate evidence to show that its rationale of public school protecWLRQLVVRXQGSUHVFULEHGE\ODZDQGGHPRQVWUDEO\MXVWLÀHGLQDIUHHDQGGHPRFUDWLF society. Thus, in my opinion, its policy of differentiation, excluding that with respect to parochial schools, is constitutional.

CONCLUSION In my opinion, the coming into force of the equality guarantee in s. 15(1) of the Charter of Rights on April 17, 1985 will, due to the current legal and constitutional context RI HGXFDWLRQ LQ 2QWDULR UHTXLUH D UDGLFDO DOWHUDWLRQ RI WKH JRYHUQPHQW·V ÀQDQFLQJ arrangements for schools in the province. My major conclusions may be summarized as follows: 1) Section 93(1) of the Constitution Act, 1867, as interpreted by Roman Catholic Separate School Trustees for Tiny v. The King,99 guarantees the right of Roman 408

4. OFFICIAL REPORTS

Catholic separate school trustees to offer elementary level education, together with DULJKWWRSXEOLFÀQDQFLQJWKHUHRI 2) Pursuant to Tiny, separate school trustees do not have a constitutional right to provide post-elementary school education. Accordingly, the government’s current ÀQDQFLQJRIVHSDUDWHVFKRROMXQLRUKLJKVFKRROLVEHLQJGRQHDVDPDWWHURISROLF\ rather than constitutional obligation;  7KHÀQDQFLQJRI5RPDQ&DWKROLFVHSDUDWHVFKRROVWRWKHH[FOXVLRQRISULYDWH schools generally is a prima facie violation of s. 15(1) of the Canadian Charter of Rights and Freedoms, which comes into force on April 17, 1985. The issue is whether the differentiation is saved by s. 1 of the Charter; 4) In my view, the constitutional implications of the funding of Roman Catholic separate schools is different for parochial and non-parochial schools: a) as to parochial schools The funding of Roman Catholic separate schools but not other parochial schools LVEDVHGH[FOXVLYHO\RQUHOLJLRQDVSHFLÀFDOO\HQXPHUDWHGKHDGRIGLVFULPLQDWLRQ in s. 15(1) of the Charter, and cannot be saved by s. 1 as being reasonable in the circumstances: L  7KH JRYHUQPHQW·V ÀQDQFLQJ RI VHSDUDWH VFKRRO MXQLRU KLJK VFKRROV DQG LWV SURSRVDOWRÀQDQFHVHSDUDWHVFKRROKLJKVFKRROVEXWQRWRWKHUSDURFKLDOVFKRROV is strictly a matter of policy rather than constitutional obligation. In my view, the government is not constitutionally entitled to make such a differentiation in the absence of compelling reasons which are not present in this case. The government’s remedy is therefore to either terminate funding for post-elementary separate school education or extend it to other parochial schools equally; LL 7KHJRYHUQPHQW·VÀQDQFLQJRIVHSDUDWHVFKRROHOHPHQWDU\VFKRROVLVFRQVWLWXtionally required by s. 93(1) of the Constitution Act, 1867, and this requirement is carried forward by s. 29 of the Charter. This only explains why Roman Catholic schools must be funded, but it does not explain why it is reasonable within the meaning of s. 1 of the Charter to exclude other parochial schools from equal funding. Section 93 of the Constitution Act, 1867 and s. 15 of the Charter may be PDGHFRPSDWLEOHE\ÀQDQFLQJDOOSDURFKLDOVFKRROVHTXDOO\DQGLQP\YLHZWKLV must be done. It is unreasonable to use s. 93, a provision designed to protect the Roman Catholic minority in Ontario from majoritarian abuse, as the constitutional pivot to support discrimination against other religious minorities. b) as to non-parochial private schools The law in other jurisdictions is that the government may support private schools EXWLVQRWUHTXLUHGWRGRVR6XEMHFWWRWKHTXDOLÀFDWLRQVH[SUHVVHGLQWKLVSDSHU that it might be impermissible to differentiate between parochial and non-parochial schools, I believe that the government will not be required by the Charter to ÀQDQFHQRQSDURFKLDOVFKRROV7KHGLIIHUHQWLDWLRQLVSUHGLFDWHGRQDFRQFHUQIRUWKH

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maintenance of a strong and viable public school system. Assuming the government can show that funding non-parochial private schools would pose a danger to the V\VWHPWKHJRYHUQPHQWPD\ZLWKKROGVXFKÀQDQFLQJ

APPENDIX: SECTION 93 3529,1&(%<3529,1&( Perhaps the most remarkable feature of section 93 rights and privileges is that they are not uniform across Canada. This is due to their “frozen in time” character and the fact that the various versions of section 93 which were implemented as other provinces joined the Union are not identical. As a result, it is necessary to analyze section 93 rights and privileges province by province.

New Brunswick and Nova Scotia There were no special laws with regard to separate schools in these two provinces at Confederation. When the New Brunswick legislature passed The Common Schools Act, 1871, which compelled all residents to support a system of common schools, there was strong opposition. Two cases resulted, Maher v. The Town of Portland,100 and Ex Parte Renaud.101 These cases established the principle that section 93 rights must be legal rights guaranteed by statute. The fact that prior to Confederation various denominational schools received public funds did not amount to a right to tax supported denominational schools. It was also found that there was no right to an exemption from assessment for the common schools. As a consequence, the only right in relation to separate schools in these two provinces is the common law rights which existed at Confederation to establish separate schools.

Manitoba The controversy over separate schools in Manitoba in the 1890s was very divisive for Canada. The relevant provision is s. 22 of the Manitoba Act102 which reads as follows: 22. In and for the Province, the said 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 or practice in the Province at the Union: (2) An appeal shall lie to the Governor General in Council from any Act or decision of the Legislature of the Province, or of any Provincial Authority, affecting any right or privilege, of the Protestant or Roman Catholic minority of the Queen’s subjects in relation to Education: (3) In case any such Provincial Law, as from time to time seems to the Governor General in Council requisite for the due execution of the provisions of this section,

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is not made, or in case any decision of the Governor General in Council on any appeal under this section is not duly executed by the proper Provincial Authority in that behalf, then, in every such case, and as far as only as the circumstances of each case require, the Parliament of Canada may make remedial Laws for the due execution of the provisions of this section, and of any decision of the Governor General in Council under this section. Section 22 thus differs from s. 93 in that it protects rights and privileges existing in law and practice. These words were added quite deliberately since in 1870 no denominational rights existed in law. As a result, Riel’s delegates to Ottawa in 1870 were insistent on the words “in practice” because otherwise no separate school rights would exist. In 1870, Manitoba was divided fairly equally between Protestants and Catholics. By 1890, the Protestants were a clear majority. The Public Schools Act of 1890 ended public funding for separate schools and compelled all rate payers to support the public school system. This began what may be compendiously called the Manitoba School Question. A Catholic rate payer went to court in Barrett v. City of Winnipeg.103 The separate school supporters were successful before the Supreme Court of Canada, where Chief Justice Ritchie stated:104 “While it is quite clear that at the time of the passing of this Act (Manitoba Act) there were no denominational or other schools established and recognized by law, it is equally clear that there were at that time in actual operation or practice a system of denominational schools in Manitoba well established and the de facto rights and privileges of which were enjoyed by a large class of persons.” and105 “But it is said that the Catholics as a class are not prejudicially affected by this Act. Does it not prejudicially, that is to say injuriously, disadvantageously, which is the meaning of the word ‘prejudicially’ affect them when they are taxed to VXSSRUWVFKRROVRIWKHEHQHÀWRIZKLFKE\WKHLUUHOLJLRXVEHOLHILQWKHUXOHVDQG principles of their church, they cannot conscientiously avail themselves, and at the VDPHWLPHE\FRPSHOOLQJWKHPWRÀQGPHDQVWRVXSSRUWVFKRROVWRZKLFKWKH\FDQ FRQVFLHQWLRXVO\VHQGWKHLUFKLOGUHQRULQWKHHYHQWRIWKHLUQRWEHLQJDEOHWRÀQG VXIÀFLHQWPHDQVWRGRERWKWREHFRPSHOOHGWRDOORZWKHLUFKLOGUHQWRJRZLWKRXW either religious or secular instruction?” The Privy Council reversed Lord MacNaghten, in considering the affect of the addition of the word “practice”, stated:106 “These words were no doubt introduced to meet the special case of a country which had not as yet enjoyed the security of laws properly so called. It is not perhaps very HDV\WRGHÀQHSUHFLVHO\WKHPHDQLQJRIVXFKDQH[SUHVVLRQDV¶KDYLQJDULJKWRU privilege by practice’. But the object of the enactment is tolerably clear. Evidently the word ‘practice’ is not to be construed as equivalent to ‘custom having the force of law’. Their Lordships are convinced that it must have been the intention of the OHJLVODWXUHWRSUHVHUYHHYHU\OHJDOULJKWRUSULYLOHJHDQGHYHU\EHQHÀWRUDGYDQWDJH

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in the nature of a right or privilege, with respect to denominational schools, which any class of persons practically enjoyed at the time of the Union.” and107 “[Roman Catholics] would have had by law the right to establish schools at their own expense, to maintain their schools by school fees or voluntary contributions, and to conduct them in accordance with their own religious tenets. Every other religious body, which was engaged in a similar work at the time of the Union would have had precisely the same right with respect to their denominational schools. Possibly this ULJKWLILWKDGEHHQGHÀQHGRUUHFRJQL]HGE\SRVLWLYHHQDFWPHQWPLJKWKDYHKDG attached to it as a necessary or appropriate incident the right of exemption from any contribution under any circumstances to schools of a different denomination.” Thus, because the separate school supporters did not have a positive right to a rate exemption when Manitoba entered the Union, their loss thereof did not “prejudicially affect” any guaranteed right or privilege. Barrett was not the end of the matter. Section 22(2), like s. 93(3), contains a provision for appeals to the federal Cabinet, which then has the power to direct the province to remedy the situation. If the province fails to do so, Parliament can enact remedial legislation pursuant to s. 22(3). The separate school supporters in Manitoba appealed to the federal Cabinet. The appeal was challenged on the ground that the legislation did not “affect” any right or privilege protected by law or practice, and therefore the Cabinet did not have jurisdiction pursuant to s. 22(3) to deal with the matter. The Supreme Court of Canada, perhaps chastened by the Privy Council’s reversal of Barrett, held against the separate school supporters in Borphy v. A.G. Manitoba.108On appeal to the Privy Council109 the Supreme Court of Canada’s decision was again reversed. The Privy Council stated:110 “Before these [Acts] passed into law there existed denominational schools, of which the control and management were in the hands of Roman Catholics, who could select the books to be used and determine the character of the religious teaching. These schools received their proportionate share of the money contributed for school purposes out of general taxation of the province, and the money raised for these purposes by local assessment was, so far as it fell upon Catholics, applied only towards the support of Catholic schools. What is the position of the Roman Catholic minority under the Acts of 1890? Schools of their own denomination, conducted according to their views, will receive no aid from the State. They must depend entirely for their support upon the contributions of the Roman Catholic community, while the taxes out of which State aid is granted to the schools provided for by this statute fall alike on Catholics and Protestants. Moreover, while the Catholic inhabitants remain liable to local assessment for purposes, the proceeds of that assessment are no longer destined to any extent to the support of Catholic schools, but afford the means of maintaining schools which they regard as no more suitable for the education of Catholic children than if they were distinctly Protestant in their character.

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In view of this comparison it does not seem possible to say that the rights and privileges of the Roman Catholic minority in relation to education which existed prior to 1890 have not been affected.” The Manitoba School Question was resolved, however unsatisfactorily, by an agreement between Prime Minister Laurier and Premier Greenway of Manitoba in 1896. The remedial part of section 22 was not used. The agreement provided for religious instruction in public schools during the last half-hour of each day and, where numbers warranted, Catholic parents might petition the school trustees to employ a Roman Catholic teacher.111 Catholics, of course, were not the only group adversely affected by the new education policy of 1890. There was and is a large community of Mennonites from Russia in Manitoba, which had been encouraged to immigrate to Canada by the federal government. A federal Order-in-Council passed on August 13, 1873 stated in part: “That the Mennonites will have the fullest privilege of exercising their religious principles, and educating their children in schools, as provided by law, without any kind of molestation or restriction whatever.” In Rex v. Hildebrand,112 the Manitoba Court of Appeal held that the federal Orderin-Council was ultra vires, and accordingly was no defence for Mennonite parents convicted of violating compulsory public school attendance laws. Education was a provincial matter, and accordingly the federal Order-in-Council was of no effect so far as education was concerned.

British Columbia When British Columbia joined Confederation in 1871, there were no special laws protecting denominational schools. As a consequence, section 93 rights are very limited. As stated by McIntyre J., speaking for the Supreme Court of Canada in Caldwell v. Stuart:113 “The rights of denominational schools were very limited at the time of Confederation. It has been said that they were limited to the right to exist (see Abrey S. Brent, ‘The Right to Religious education and the Constitutional Status of Denominational Schools’ (1974-5), 40 Sask. Law Review 239)”.114 It should be noted that British Columbia, quite independent of any s. 93 rights, allows for public funding for private schools under the School Support (Independent) Act,115 provided that certain conditions are met, as previously discussed in the main body of this paper.

Prince Edward Island When Prince Edward Island joined Confederation in 1873, there were no special laws in regard to denominational schools. While in practice denominational schools were publicly supported, there was no law which gave this right. There have been no major disputes with regard to section 93 rights in Prince Edward Island.

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Saskatchewan and Alberta When Saskatchewan and Alberta joined Confederation as provinces in 1905, s. 17 of both the Alberta Act116 and the Saskatchewan Act,117 in identical form, provided for separate school rights as follows: 17. 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 Northwest 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 monies 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 thereof, there shall be no discrimination against schools of any class described in the said chapter 29. (3) Where the expression “by law” is employed in paragraph (3) of the said section 93, it shall be held to mean the law as set out in the said chapters 29 and 30; and where the expression “at the Union” is employed in the said paragraph (3), it shall be held to mean the date at which this Act comes into force. Section 17 is wider than section 93 in that it extends constitutional protection to religious instruction in all schools. Section 17(2) also explicitly provides that there be no discrimination in the appropriation and distribution of public funds for separate school education. The validity of Parliament’s variation of section 93 by section 17 was upheld by the Supreme Court of Canada in Reference re Section 17 of the Alberta Act.118 In Regina Public School v. Grattan Separate School,119 a Saskatchewan statute which altered the allocation of taxes paid by corporations and thereby increased the separate schools’ share of taxes was held valid. In McCarthy v. The City of Regina,120 it was held that all ratepayers of a separate school district who are of the religious faith of the minority establishing the district should be assessed as separate school supporters whether they voted for the establishment of the district or not. In McCarthy v. The City of Regina and Board of Trustees of the Public School Board,121 it was held that a person who is not of the religious faith of a minority which has established a separate school cannot escape the obligation of being assessed for the support of the public school. In Bintner v. Regina Public School Board District No. 4,122 the unusual holding was made that members of a minority which has established a separate school district may have a separate school, but this gives them no right to enrol their children in the public school. It was argued, among other things, that this amounted to discrimination

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on the basis of religion and so was contrary to the Saskatchewan Bill of Rights. Culliton C.J.S. stated:123 “Under the laws of this Province, a minority group within a public school district has a right to establish a separate school. That group may be ‘Protestant’ or ‘Roman Catholic’. In the Regina public school district the minority which established the separate school district was, and is Roman Catholic. It thus follows that the Public School Board in limiting its obligations to educating children of the faith of the public school community, do, in fact, refuse to enrol children of the Roman Catholic faith. Such, however, is the inevitable result of the policy but not the purpose thereof.” ,Q$OEHUWDVHFWLRQZDVÀUVWFRQVLGHUHGLQRex ex rel Brooks v. Ulmer,124 where a German Lutheran parent was convicted of a violation of The School Attendance Act in that his child attended a German Lutheran Protestant School which had not been JUDQWHGDFHUWLÀFDWHZKLFKH[HPSWHGLWVVWXGHQWVIURPDWWHQGDQFHDWDSXEOLFVFKRRO 7KHVFKRROLQVSHFWRUZKRKDGWKHDXWKRULW\WRLVVXHFHUWLÀFDWHVKDGUHIXVHGWRGRVRRQ the ground that the instruction in the school was unsatisfactory, without giving further reasons. The Court of Appeal upheld the parent’s conviction. In Schmidt v. Calgary Board of Education and Alberta Human Rights Commission,125 the Alberta Court of Appeal considered whether the practice in Alberta of charging a fee to parents of students who are enrolled in a school other than that of the parent’s religion was discriminatory and in violation of The Individuals Rights Protection Act. The Court upheld the practice. The Court found that there is a statutory right for the establishment of separate school systems based upon a minority religion in Alberta. Further, a persons’s faith determines which school system his children must attend. Taxes can only be paid to the school system which embraces the taxpayer’s faith. There was found to be no discrimination in charging a fee if such a parent wishes to send his children to the other school system. In Calgary Board of Education v. A.G. Alberta and Board of Trustees of Calgary Roman Catholic Separate School District No. 1,126 a new system of apportioning FRUSRUDWHWD[HVEHWZHHQSXEOLFDQGVHSDUDWHVFKRROVZDVFKDOOHQJHGDVEHLQJLQFRQÁLFW with section 17 rights. This case presented the interesting question of whether section 17 protected the majority, as well as the minority in a school district. The Alberta Court of Appeal held that section 17 gives constitutional protection to the rights of certain minorities with respect to separate schools but does not protect the majority.

Newfoundland When Newfoundland joined Confederation in 1949, Term 17 of the Terms of Union of Newfoundland with Canada127 was submitted for section 93. Term 17 is, without question, the widest statutory provision in relation to denominational schools in any province in Canada. Section 17 states: 17. In lieu of section 93, of the British North America Act, 1867, the following shall apply in respect of the Province of Newfoundland:

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STATE SUPPORT FOR RELIGIOUS EDUCATION

In and for the Province of Newfoundland the Legislature shall have exclusive authority to make laws in relation to education, but the Legislature will not have authority to make laws prejudicially affecting any right or privilege with respect to denominational schools, common (amalgamated) schools, or denominational colleges, that any class or classes or persons have by law in Newfoundland at the date of Union, and out of public funds of the Province of Newfoundland, provided for education. (a) all such schools shall receive their share of such funds in accordance with scales determined on a non-discriminatory basis from time to time by the Legislature for all schools then being conducted under authority of the Legislature; and (b) all such colleges shall receive their share of any grant from time to time voted for all colleges then being conducted under authority of the Legislature, such grant being distributed on a non-discriminatory basis. The Newfoundland school system is largely denominational in character. There is no “public” education as such.128

4XHEHF In Hirsch v. Protestant Board of School Commissioners of Montreal,129 the Privy Council considered the effect of s. 93 on the Quebec school system. The controversy arose over the education of Jewish children primarily in Montreal. In 1903, the province passed an Act which stated that Jewish children should, for school purposes, be treated in the same manner as Protestants. The Privy Council held that this Act was ultra vires the province to the extent that it would enable Jewish people to be appointed to the Protestant Board of Commissioners, as this would prejudicially affect the rights or privileges of denominational school supporters. However the Privy Council held that Jewish children had the right to attend Protestant schools in Montreal and could be admitted as a matter of grace to schools in the rural municipalities. The Privy Council also held that section 93 did not prevent the establishment of schools as a matter of government policy for persons who were neither Protestant nor Catholic. In Perron v. School Trustees of the Municipalities of Rouyn and A.G. Quebec,130 a parent who was a Jehovah’s Witness successfully sought mandanus against trustees of a dissident school who had refused to let his children attend the school. The parent was a former Catholic and was still on the assessment rolls for the Catholic Public School. Among other things, the school board objected to a Jehovah’s Witness being characterized as a Protestant. Bissonnette J. stated:131 ´,QFRQFOXVLRQWREHFRQVLGHUHGD3URWHVWDQWLWLVVXIÀFLHQWWREHD&KULVWLDQDQG to repudiate the authority of the Pope.” Since Jehovah’s Witnesses were Protestants and Protestants were a class of persons with protected rights pursuant to section 93, the Court found that the children of the Jehovah’s Witness parent had the right to attend the dissident Protestant school. In A.G. Quebec v. Lavigne,132 the Supreme Court of Canada had to deal with a 4XHEHFVWDWXWHZKLFKHVWDEOLVKHGDQHZV\VWHPRIVFKRROÀQDQFLQJEDVHGSULPDULO\

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XSRQJRYHUQPHQWJUDQWVUDWKHUWKDQVSHFLÀFDOO\HDUPDUNHGWD[DWLRQ7KHVWDWXWHDQ amendment to the provincial Education Act, applied to all public schools in Quebec, whether denominational or not, and provided that 1) the Minister of Education must make rules regarding allowable expenses which are eligible to be covered by grants; 2) school commissioners and trustees must levy taxes to cover non-eligible expenses; 3) the tax assessment was subject to a ceiling; and 4) any taxation in excess of the ceiling had to be approved by referendum of the electors. The court struck down the statute. After reviewing the education statute133 in force at Confederation, the Court concluded that the right of Catholics and Protestants in 1867 to direct and control their denominational schools was recognized by law. As to ÀQDQFLQJWKHODZUHFRJQL]HGDULJKWWRUHFHLYHIXQGVRQDSURSRUWLRQDWHEDVLVIURPWKH electors within their municipality. By omitting to state that the grants must be distributed on a proportionate basis, and by making the boards submit to a referendum in respect of certain expenses which could include electors from outside the school district, the statute under consideration in Lavigne prejudicially affected rights guaranteed by s. 93(1). It was accordingly ultra vires the Legislature.

Ontario The important cases in Ontario relating to section 93 rights have already been referred to elsewhere in this paper.

)227127(6

B. A., C. A., LL.B. (McGill), LL.M. (Harvard), Blake, Cassels & Graydon, Toronto. The author would like to offer particular thanks to Mr. Roger Horst, an articling student at Blake, Cassels, for his thorough and scholarly research assistance throughout this project. This study was funded under contract by the &RPPLVVLRQRQ3ULYDWH6FKRROVLQ2QWDULR7KLVVWXG\UHÁHFWVWKHYLHZVRIWKHDXWKRUVDQGQRWQHFHVVDULO\ those of the Commissioner. 1. On July 30, 1984, the Minister of Education, Dr. Bette Stephenson, announced the appointment of two royal commissions to study the planning and implementation of the expansion of the separate school system DQGWKHÀQDQFLQJRIHOHPHQWDU\DQGVHFRQGDU\HGXFDWLRQLQ2QWDULR7KUHHGD\VODWHUVKHDQQRXQFHGWKDW Dr. Bernard Shapiro had been appointed as a one-man royal commission to inquire into the role and status of private schools. 2. S. Q. 1968, c. 67. 3. Bezeau, “The Public Finance of Private Education in the Province of Quebec”, Canadian Journal of Education 4: 2 (1979), 23 at 38. 4. supra, s. 9, footnote 2. 5. Ibid., s. 14 6. Ibid., s. 14 7. R. S. B. C. 1979, c. 378 8. Ibid., 5 and 6 9. Ibid., s. 5 10. R. S. A. 1980, c. D-17 11. R. S. A. 1980, c. S-3

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12. Alta, Regs. 171/76 as amended by Alta. Regs. 153/79 and 279/80 13. In Manitoba, see the Education Administration Act, S. M. 1980, c. 31 and the Public Schools Act, S. M. 1980, c. 33; in Saskatchewan, see the Education Act, S. S., 1978, c. E-0.1; and in Newfoundland, see the Schools Act, R. S. N. 1970, c. 346. 14. In New Brunswick, see the Schools Act, N.S.N.B. 1973, c. s-5 s. 59(2); in Nova Scotia, see the Education Act, R.S.N.S. 1967, c. 81, s. 81; in Prince Edward Island, see the School Act, R.S.P.E.I. 1974, c. S-2; and in the Yukon, see the School Ordinance, O.Y.T. 1978, c. S-3, s. 29. 15. Presumably on the theory that public funding for private schools would inevitably lead to an exodus of public school students. I suspect that this rationale is highly speculative. The major laboratory for the assessment of this reasoning is currently Quebec given its high level of private school funding, and it does not appear that the Quebec public school system is in any imminent danger of closing down. 16. R. S. O. 1980, c. 129 17. Ibid. s. 15(5) and (6) 18. Ibid. s. 15(7) 19. For the past several years, the structure of private education in Ontario has been changing with new schools being established at an accelerating rate. As I understand it, the major factors in this pattern are the following: (i) Increasing numbers of Roman Catholic parents have been sending their children to private Catholic schools for grades 11, 12 and 13 upon graduation from the publicly funded separate school systems at grade 10. This accounts for the majority of the secondary level growth over WKHODVWÀYH\HDUV (ii) The initiation of private denominational elementary schools, which account for most of the elementary school growth. (iii) The establishment of the so called visa schools providing grades 11, 12 and 13 to foreign students. (iv) The establishment of small special schools designed to serve children with special needs. (v) The practice of enrolling children below school age. 20. Unreported S.C.C. rendered December 20, 1984 at p. 6. 21. See Appendix hereto for a review of the law respecting s. 93 on a province by province basis. 22. See Ottawa Separate School Trustees v. Mackell [1917] A. C. 62 at 69. Also, as stated by the Ontario Court of Appeal in reference Re Education Act of Ontario and Minority Language Education Rights (1984) 47 O.R. (2d) 1 at page 46: “The phrase ‘by law’ has been construed to mean that only statutory rights or privileges in existence in 1867 are afforded protection; long standing practices, customs or privileges of a voluntary character do not qualify under section 93(1); Maher v. Town of Portland (1874), Wheeler’s Confederation Law of Canada, 338 at page 367; Hirsch v. Protestant School Board Commissioners of Montreal et al. supra, at page 1048 D. L. R., page 210 A. C.” Thus, for example, as indicated by a comparison of A.G. Que. v. Lavigne and Roman Catholic Separate Schools Trustees for Tiny v. The King [1928] A. C., 363, the legal rights and powers of separate schools trustees in Quebec and Ontario are different. In Manitoba, by virtue of section 22 of the Manitoba Act, 33 Vict., c. 3, the rights and privileges protected are those which existed “by law or practice”. Nevertheless, it was held in City of Winnipeg v. Barrett [1892] A. C., 445 that the inclusion of the word “practice” did not prevent Manitoba from abolishing the denominational system of public education then in existence. 23. Roman Catholic Separate School Trustees for Tiny v. The King [1928] A. C. 363 at 267 24. Ottawa Separate School Trustees v. Mackell [1917] A. C. 62, where the Privy Council upheld an English only regulation as not prejudicially affecting denominational rights. 25. Ibid

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26. Thus, for example, in Ottawa Separate School Trustees v. City of Ottawa [1917] A.C. 76, the Privy Council struck down a law which, for the purpose of enforcing the English-only regulation which was upheld in Ottawa Separate School Trustees v. Mackell [1917] A. C. 62, authorized the transfer of all management functions from separate school trustees to a provincial board. 27. The Supreme Court of Canada recently held in Caldwell v. Stuart, unreported S. C. C. rendered December 20, 1984, a case decided pursuant to the British Columbia Human Rights Code, R.S.B.C. 1979, c. 186, s. 8, that adherence to religious faith, including rules regarding intermarriage, can be a ERQDÀGH occupational TXDOLÀFDWLRQIRUHPSOR\PHQWLQD&DWKROLFVFKRRO0F,QW\UH-VSHDNLQJIRUWKH&RXUWVDLGDWS “The Board found that the Catholic school differed from the public school. This difference does not consist in the mere addition of religious training to the academic curriculum. The religious or doctrinal aspect of the school lies at its very heart and colours all its activities and programs. The role of the teacher in this respect is fundamental to the whole effort of the school, as much in its spiritual nature as in the academic. It is my opinion that objectivity viewed, having in mind the special nature and objectives of the school, the requirement of religions conformance including the acceptable and observance of the Church’s rules regarding marriage is reasonably necessary to assume the objects of the school”. Roman Catholic rules regarding intermarriage can thus be a “management” issue in Catholic schools. 28. (1978), 21 O.R. (2d) 255, 89 D.L.R. (3d) 445 29. (1984), 2 O.A.C. 74 30. Quare whether Tremblay-Webster is inconsistent with Oil, Chemical and Atomic Workers International Union v. Imperial Oil [1963] S.C.R. 584, where the Supreme Court of Canada upheld provincial legislation prohibiting a trade union from making political contributions out of compulsory dues. When Oil, Chemical is read with McKay v. The Queen [1965] S.C.R. it is clear that the underlying principle must have been protection of the freedom of speech of dissenting dues payers. See Finkelstein, “Relevance of Pre-Charter Caselaw to Post-Charter Adjudication” (1982) 4 Sup. Ct. L.R. 267 at 270-1. 31. [1928] A.C. 363 32. 22 Vict., c. 64 33. 1863, 26 Vict., c. 5 34. supra footnote 30 at p. 387 35. [1983] 3 W.W.R. 756 36. Ibid. For the contrary view that “fundamental justice” in s. 7 is purely procedural, see R. v. Hayden (1983), 3 D.L.R. (4th) 361 (Man. C.A.); Re Mason and the Queen (1983), 1 D.L.R. (4th) 361 (Ont. S.C.); Public Service Alliance of Canada v. The Queen in Right of Canada (1984), 11 D.L.R. (4th) 337 at 368 (F.C.T.D.) 37. See footnote 50, infra 38. For example, s. 50 of the Ontario Education Act provides: (1) Subject to the regulations, a pupil shall be allowed to receive such religious instruction as his parent or guardian desires or, where the pupil is an adult, as he desires. (2) No pupil in a public school shall be required to read or study in or from a religious book, or to join in an exercise of devotion or religion, objected to by his parent or guardian, or by the pupil, where he is an adult. 39. [1945] O.R. 518 40. (1939), 279 N.Y. 533 at 535 41. (1957), 12 D.L.R. (2d) 796 42. Ibid at 802 43. (1871) I.R. 5 Esq. 98 at page 103 44. supra. footnote 41 at p. 807

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45. Ibid at p. 824 46. Ibid at p. 840 47. See F. R. Scott, Comment, (1958), 36 C.B.R. 248: Bureau Metropolitan de Ecoles Protestants de Montreal v. Ministre de L’Education du Quebec [1976] C.S. 430 where Deschenes J. quoted with approval the opinion of the European Court of Human Rights that “natural” rights are not immune from Government interference. For further commentary on the Chabot case, see Donald Johnston and Marvin Gameroff, “Comment”, 4 McGill L.J. 268. 48. It should be noted that the Canadian cases are not unanimous in their tolerance of religious differences. In Rex ex rel Brooks v. Ulmer. [1923] 1 W.W.R. 1 (Alta. C.A.) the accused parent sent his child to a German Lutheran Protestant parochial school. The education statute then in force in Alberta exempted a child from DWWHQGDQFH DW SXEOLF VFKRRO LI D VFKRRO LQVSHFWRU FHUWLÀHG LQ ZULWLQJ WKDW KH ZDV UHFHLYLQJ VDWLVIDFWRU\ instruction in the alternative private school. The parent was liable to penalty if his child failed to attend public VFKRROZLWKRXWWKHFHUWLÀFDWH7KHLQVSHFWRUUHIXVHGWRJUDQWWKHFHUWLÀFDWH7KH$OEHUWD&RXUWRI$SSHDO upheld the parent’s conviction pursuant to the statute, holding that the magistrate could not go behind the LQVSHFWRU·VUHIXVDOWRLVVXHWKHFHUWLÀFDWHWRLQTXLUHLQWRWKHIDFWV,QPerepolkin v. Superintendent of Child Welfare (No. 2), (1957) 23 W.W.R. 592, the British Columbia Court of Appeal dismissed a challenge to the constitutionality of a compulsory education statute which forced a child to attend school contrary to the parent’s religious belief. Sidney Smith J.A. held that, whether or not jurisdiction over religion was a federal matter, the phrasing of s. 93 of the Constitution Act, 1867 made “it clear that the mere fact that ERQDÀGH legislation on education may indirectly affect religion in some aspects does not affect its validity”, Ibid at p. 59. See also R. v. Hildebrand [1918] 3 W.W.R. 286. In R. v. Jones, unreported Alta. C.A. released June 15, 1984, a post-Charter case, the accused pastor sent his children to a school which he had created called “The Western Baptist Academy”. He did not apply pursuant to the School ActIRUFHUWLÀFDWLRQWKDWKLVFKLOGUHQ ZHUHUHFHLYLQJHIÀFLHQWLQVWUXFWLRQHOVHZKHUH7KH$OEHUWD&RXUWRI$SSHDOHQWHUHGFRQYLFWLRQVDJDLQVWKLP for violation of the compulsory school attendance laws. The decision was based on the narrow ground that, because he had never applied for approval and consequently had never been refused, his freedom of religion had not been infringed. The case is not that helpful due to the narrowness of its ratio decidendi. 49. 268 U.S. 510 (1925) 50. Ibid at pages 534-5 51. The Universal Declaration of Human Rights of the United Nations, Art. 26, s. 3 states: “Parents have a prior right to choose the kind of education that shall be given to their children”. The International Covenant on Economic, Social and Cultural Rights, Art. 13, s. 3, states: “The States Parties to the present Covenant undertake to have respect for the liberty of parents, and when applicable, legal guardians to choose for the children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of the children in conformity with their own conviction.” also Art. 14, s. 2: “The States Parties to the present Covenant recognize that, with a view of achieving the full realization of this right: (a) Primary education shall be compulsory and available free to all: (b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education”. The First Protocol to the European Convention on Human Rights, Art. 2, states: “No person shall be denied the right to education. In the exercise of any functions which it assumes in the relation to education and to teaching, the State shall respect the rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions”.

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The International Covenant on Civil and Political Rights Art. 18, s. 4 states: “The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions”. 52. Francis v. The Queen [1956] S.C.R. 618 (treaty exempting Indians from paying duty on goods when crossing the Canadian/U.S. border not enforceable until implemented or sanctioned); Capital Cities Comm. Inc. v. C.R.T.C. [1978] 2 S.C.R. 141, 81 D.L.R. (3d) 609 (Court held 6:3 that the C.R.T.C. was not an agent of the Government of Canada, and that in any event there were no internal consequences arising from the Inter-American Radio Communication Convention of 1937 unless they arose through implementing legislation, per Laskin C.J.C. at p. 173 S.C.R. However see the dissent of Pigeon J. at p. 188 S.C.R. that such a position LVDQ´RYHUVLPSOLÀFDWLRQµ6HHDOVR3RVW2IÀFHY(VWXDU\5DGLR/WG(1968), 2 Q.B. 740, cited by Pigeon J., that there is a presumption that the Crown does not intend to break a treaty. Thus, according to Lord 'LSORFNDUDWLÀHG&RQYHQWLRQZRXOGEHELQGLQJRQWKH&RXUWXQOHVVRYHUULGGHQE\DFRQÁLFWLQJVWDWXWHRU order-in-council); Re A.G. Canada and Stuart (1982), 137 D.L.R. (3d) 740 at 748-9 (F.C.A.); Re Dixon and Manitoba Labour Board (1981), 127 D.L.R. (3d) 752 (Man. Q.B.). Furthermore, it is likely that implementing OHJLVODWLRQPXVWVSHFLÀFDOO\UHIHUWRWKH&RQYHQWLRQRUDWOHDVWFRQWDLQDVXIÀFLHQWDPELJXLW\EHIRUHUHJDUG may be had to it. See Shavernoch v. Foreign Claims Commission (1982), 136 D.L.R. (3d) 447 (S.C.C); Capital Cities Comm. Inc. v. C.R.T.C. supra at p. 631 D.L.R.; c.f. CAPAC v. CTC [1968] S. C. R. 676. 53. Re Drummond Wren (1945) O.R. 778 (Ont. H.C.) 54. R. v. Video Flicks, unreported Ont. C.A. released September 19, 1984. For the effect of international law on the interpretation of the Charter, see Cohen and Bayefsky “The Canadian Charter of Rights and Freedoms and International Law” (1983), 61 Can. Bar Rev. 265, See also Re Mitchell and The Queen (1983), 42 O.R. (2d) 481 (O.H.C.) 55. For further discussion, see Nicholas Bala and J. Douglas Redfern, “Family Law and the ‘Liberty Interest’: Section 7 of the Canadian Charter of Rights” (1983), 14 Ottawa L.R. 74; J. A. Clarence Smith, “The Right to an Appropriate Education: a Comparative Study” (1980), 12 Ottawa L.R. 367; “Note: The Constitution and the Family” (1980) 93 Harvard L.R. 1156; Catherine Ross Fuller, “Access to Education: A Constitutional Right” (1982) 51 Cinn. L.R. 819 56. 406 U.S. 205 (1971) 57. I have focussed until now on parental rights as support for a constitutional right to educate children and establish private schools. Children’s rights have not been as fully explored in caselaw and international treaties, but it can be argued that the right to establish alternate schools is predicated on the right of children WRUHFHLYHDQHGXFDWLRQ7KHGLIÀFXOW\KDVDOZD\VEHHQWKDWDWWKHVWDJHLQDFKLOG·VOLIHZKHQHGXFDWLRQPXVW begin, the child is too young to make mature choices. Thus the real issue is often not the “right of the child” per se but rather who as between the parent and the state should make decisions on his behalf. The leading decision on children’s rights is that of Mr. Justice Douglas in Wisconsin v. Yoder: The record VKRZHGWKDWWKHFKLOGRIRQO\RQHRIWKHWKUHHVHWVRISDUHQWVKDGWHVWLÀHGDQGDJUHHGWKDWKHZLVKHGWREH exempted from public attendance. Douglas J. in dissent could not acquiesce to allowing parental determination of the issue without hearing the views of the children from the other two sets of parents. He said at 406 U.S. 205 at 242: “If the parents in this case are allowed a religious exemption, the inevitable effect is to impose the parents’ notion of religious duty upon their children. Where the child is mature enough to express SRWHQWLDOO\FRQÁLFWLQJGHVLUHVLWZRXOGEHDQLQYDVLRQRIWKHFKLOG·VULJKWVWRSHUPLWVXFKDQLPSRVLWLRQ without canvassing his views”. Chief Justice Burger’s response for the majority did not adequately address the issue on the merits. Instead his response was highly technical, resting on the locus standi point that the parents rather than the children were charged with violating the law. The decision did not deal with the problem that the children’s future was being seriously affected without their involvement at a time when, at the age of fourteen, they were capable of at least some degree of mature judgment. 7U\LQJWRUHVROYHWKHFRQÁLFWLQJULJKWVRISDUHQWDQGFKLOGLQWKHHGXFDWLRQDOFRQWH[WFDQFUHDWHYLUWXDOO\ intractable problems, particularly where the issue is posed in the abstract, unconnected with any factual context to provide some direction. The Yoder case is a good illustration of the tension that can arise on a

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particular set of facts, where a decision is made for a child by his parents which severely limits his future opportunities at a time when he is capable of making informed choices. Other fact situations where a parent sends a very young child to a school which offers both religious and standard academic instruction may UDLVHGLIIHUHQWFRQVLGHUDWLRQV,WLVWKHUHIRUHGLIÀFXOWWROD\GRZQJHQHUDOSULQFLSOHV,WLVVXIÀFLHQWWRVD\ that a parent has a prima facie right to educate his children and to establish alternative private schools for that purpose. This right may be restricted in certain cases by the child’s competing rights. For further discussion, see “Comment, Adjudicating what Yoder Left Unresolved: Religious Rights for Minor Children After Danforth and Carey” (1978), 126 U. of Penn. L.R. 1135. 58. This is true in the United States as well, and has been articulated in a number of cases. In Brown v. Board of Education, 347 U.S. 483 (1954), Chief Justice Warren of the U.S. Supreme Court stated: “Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to culture values, in preparing him for later professional training, and in helping him to adjust normally to his environment.” Similarly, Chief Justice Berger stated in Wisconsin v. Yoder, supra footnote 57 at p. 221: “The State advances two primary arguments in support of its system of compulsory education. It notes, as Thomas Jefferson pointed out early in our history, that some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence. Further, education prepares individuals to be self-reliant and VHOIVXIÀFLHQWSDUWLFLSDQWVRIVRFLHW\:HDFFHSWWKHVHSURSRVLWLRQVµ 59. Reference re: Alberta Statutes [1938] S.C.R. 100, [1938] 2 D.L.R. 81 at 107 60. supra footnote 57 61. Pierce v. Society of Sisters, supra footnote 48 at p. 534 62. Donald v. Hamilton Board of Education, supra footnote 41; Chabot v. School Commissioners of Lamorandiere, supra footnote 43; Wisconsin v. Yoder, supra footnote 57 63. Prince v. Massachusetts 321 U.S. 158 (1944) 64. 262 U.S. 390 (1923) 65. Ibid at p. 401 66. 321 U.S. 158 (1944) 67. Ibid at p. 166-7 68. 1976 Yearbook of the European Convention on Human Rights 502 at 504 69. 1977 Yearbook of the European Convention on Human Rights 214 at 240  &DQDGD KDV UDWLÀHG ZLWK WKH XQDQLPRXV FRQVHQW RI WKH SURYLQFHV WKH International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. Article 13, s. 1 of the former Covenant states: “The States Parties to the present Covenant recognize the right of everyone to education”. Article 13 goes on to provide that the states who are parties to the Covenant will attempt to achieve full realization of this right by making primary education available free to everyone. These Covenants have not yet been implemented in Canada by competent legislation. They are therefore not binding on Canadian courts. However they have been used by the courts to interpret Charter provisions. See R. v. Video Flicks, unreported Ont. C.A. released September 19, 1984. Using these instruments as persuasive authority, I would suggest that the Charter guarantees a right to a publicly funded education. 71. R. v. Video Flicks, supra footnote 57 72. There is no prohibition in the Charter as there is in the U.S. Constitution against state support for religion. Even in the United States, notwithstanding the existence of the Establishment clause in the U.S. Constitution, American courts have long allowed the state to provide some services to religious institutions or schools as

422

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part of the state’s general programs. As stated recently by Mr. Justice Byron White in Committee for Public Education and Religious Liberty v. Regan, 100 S. Ct. 840 at 846 (1980): “A legislative enactment does not contravene the Establishment Clause if it has a secular legislative purpose, if its principle or primary effect neither advances nor inhibits religion, and if it does not foster an excessive Government entanglement with religion”. In Everson v. Board of Education, 330 U.S. 1 (1947), the U.S. Supreme Court considered the constitutionality of state subsidization of a general scheme of student transportation to and from school. The subsidy was challenged on the basis that it was made available to students of Catholic parochial schools contrary to the Establishment Clause. Mr. Justice Hugo Black, speaking for the Court, stated at page 16: “New Jersey cannot consistently with the ‘establishment of religion’ clause of the First Amendment contribute tax-raised funds to the support of an institution which teachers the tenets and faith of any church. On the other hand, other language of the amendment commands that New Jersey cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Methodists, Non-Believers, Presbyterians, or the members of any other faith, because of WKHLUIDLWKRUODFNRILWIURPUHFHLYLQJWKHEHQHÀWVRISXEOLFZHOIDUHOHJLVODWLRQ:KLOHZHGRQRW mean to intimate that a state could not provide transportation only to children attending public schools, we must be careful, in protecting the citizens of New Jersey against state established churches, to be VXUHWKDWZHGRQRWLQDGYHUWHQWO\SURKLELW1HZ-HUVH\IURPH[WHQGLQJLWVJHQHUDOVWDWHODZEHQHÀWV to all citizens without regard to their religious belief”. In Board of Education v. Allen 393 U.S. 236 (1938), New York required local public school authorities to lend text books free of charge to both public and private school students. The Supreme Court followed Everson and upheld the legislation. Mr. Justice White, speaking for the Court, stated at pages 243-44: ´7KHODZPHUHO\PDNHVDYDLODEOHWRDOOFKLOGUHQWKHEHQHÀWVRIDJHQHUDOSURJUDPWROHQGVFKRRO books free of charge. Books are furnished at the request of the public and ownership remains, at least WHFKQLFDOO\LQWKH6WDWH7KXVQRIXQGVIRUERRNVDUHIXUQLVKHGWRSDURFKLDOVFKRROVDQGWKHÀQDQFLDO EHQHÀWLVWRSDUHQWVDQGFKLOGUHQQRWWRVFKRROV3HUKDSVIUHHERRNVPDNHLWPRUHOLNHO\WKDWVRPH children choose to attend a sectarian school, but that was true of the state-paid bus fares in Everson and does not alone demonstrate an unconstitutional degree of support for a religious institution”. It should be noted that neither Everson nor Allen required that the state subsidy of transportation or books be extended to private schools. They merely held that it was allowed as a matter of policy. The issue of whether the state was obliged to establish a school near a religious colony arose in 'HHUÀHOG Hutterian Association v. Ipswich Board of Education, 468 F. Supp. 1219 (1979), where a Federal District Court in South Dakota upheld a school board’s refusal to establish a school at or near a Hutterite colony. The Hutterites, relying upon Wisconsin v. Yoder 406 U.S. 205 (1972), argued that their religion required them to EHVHSDUDWHGIURPRWKHUZRUOGO\LQÁXHQFHV7KH-XGJHVWDWHGDWSDJH “The Yoder case does not stand for the proposition that if a religious group feels strongly about its religious tenets and wishes its children segregated from the world, it can force the state to set up and pay for a separate school for their children”. The effect of these cases is that the state is entitled to support private and parochial school education to a limited extent but is not constitutionally required to do so. 73. (1984) 84 D.T.C. 6494 (F.C.C) 74. 1960 (Can.), c. 44. The text of section 1 (b) of the Canadian Bill of Rights states: 1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely, (b) the right of the individual to equality before the law and the protection of the law. 75. [1070] S.C.R. 282 (1969) 9 D.L.R. (3d) 473 76. R.S.C. 1952, c. 149 77. R.O.N.W.T. 1956, c. 60. s. 19 (1) 78. supra footnote 74 at p. 484

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79. For cases where s. 1 has been determinative, see, for example, Federal Republic of Germany v. Rauca (1983), 41 O.R. (2d) 225; Re Southam No. (1) (1983), 41 O.R. (2d) 113. For further discussion on s. 1, see Finkelstein, “Section 1: The Standard for assessing Restrictive Government actions and the Charter’s Code of Procedure and Evidence” (1983), 9 Queen’s L.J. 143; Finkelstein, “A Question of Emphasis: The State’s Burden in Federal Republic of Germany v. Rauca” (1983), 30 C.R. (3d) 112 80. (1983) 41 O.R. (2d) 114 at page 124 81. Ibid at p. 129. See also Re Federal Republic of Germany and Rauca (1983) 41 O.R. (2d) 225 at 246 82. It is worth noting that the situation in other countries, particularly with regard to parochial education, is not strictly comparable because their constitutional arrangements are different. The United States cannot directly fund any religious schools at all due to the Establishment Clause, so a singling out of Roman Catholic or Protestant minority denominational schools would not arise. Here there is a constitutional requirement WKDWVXFKVFKRROVEHSXEOLFO\ÀQDQFHGVRDQHTXDOSURWHFWLRQSUREOHPRFFXUV,QWKHBelgium Linguistic Case and Forty Mothers v Sweden, Articles 2 and 14 of the First Protocol to the European Convention on Human Rights were phrased differently from our equality guarantee. The two Articles read together formulated the guaranteed rights in the negative, implying that the state did not have a positive obligation to subsidize private schools. The equality guarantee in s. 15 of the Charter imposes a positive obligation XSRQWKHVWDWHWRJLYH´HTXDOEHQHÀWVµLIEHQHÀWVDUHJLYHQRXWDWDOOXQOHVVWKHUHDUHUHDVRQDEOHJURXQGV for differentiation. This positive obligation distinguishes the Canadian constitutional situation from those governed by the Convention. 83. supra footnote 22 84. (1984) 47 O.R. (2d) 1 85. Ibid at p. 50 86. supra footnote 23 ,UHFRJQL]HWKDWLWPD\EHGLIÀFXOWLQFHUWDLQFDVHVWRGLIIHUHQWLDWHEHWZHHQSDURFKLDODQGQRQSDURFKLDO schools. The range of religious content in a school’s curriculum may range from total absence to complete immersion. As one moves to the middle of the spectrum the boundary separating the two becomes blurred. That does not mean, however, that the distinction is not viable. There is clearly a distinction at least at the opposite ends of the spectrum. If and when the Government promulgates regulations which draw the line in the wrong place, those regulations may be susceptible to attack. 88. 1968 (II) Yearbook of the European Convention on Human Rights 832, 45 I.L.R. 114 89. For an excellent short treatment of private education in the European Economic Community, see Peter Mason, Private Education in the EEC, 1983, prepared for ISIS (Independent Schools Information Service). It sets out both the factual and statistical features of private education in the member countries and the legal and constitutional positions. 90. supra footnote 86 at 858 91. 1977 Yearbook of the European Rights 214 at p. 238 92. 411 U.S. 1 (1973) 93. Ibid at p. 35 94. Ibid at p. 37 95. On the other hand, in Plyer v. Doe 102 S. Ct. 2382 (1982) the U.S. Supreme Court found such a rational relationship to be absent where a Texas statute withheld state funds from local school districts for the education RILOOHJDOLPPLJUDQWFKLOGUHQ7KHXQGRFXPHQWHGVWDWXVRIWKHFKLOGUHQZDVQRWDVXIÀFLHQWUDWLRQDOEDVLVIRU denying what the state afforded to other residents. 96. 410 U.S. 455 (1973) 97. Ibid at p. 462 98. Thus, to illustrate, in Guadalupe Organization v. Temple Elementary School District No. 3, 587 F. 2d 1022 (1978) the 9th Circuit Federal Court of Appeal held that a school district had no obligation to provide

424

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bilingual education to Mexican-American and Yacqui Indian children. In 'HHUÀHOG+XWWHULDQ$VVRFLDWLRQ v. Ipswich Board of Education 468 F. Supp. 1219 (1979), a South Dakota federal district court held that the state had no obligation to set up a separate school near a Hutterite colony so that Hutterite children could EHVHSDUDWHGIURPZRUOGO\LQÁXHQFHV 99. supra footnote 22 100. (1874) Wheeler’s Confederation Law of Canada, 338 101. (1874) 2 Cart. 445 (S.C.C) 9LFWF&DQ FRQÀQHGE\WKH%ULWLVK1RUWK$PHULFD$FW 103. [1892] A.C. 445 reversing (1892) 19 S.C.R. 374 104. Ibid at p. 385 (S.C.R.) 105. Ibid at p. 338 106. Ibid at p. 452-3 (A.C.) 107. Ibid at p. 454 108. (1893) 22 S.C.R. 577 109. [1985] A.C. 202 110. Ibid at p. 227 111. See Berger, Fragile Freedoms, page 74 112. [1919] 3 W.W.R. 286 113. Unreported S.C.C. delivered December 20, 1984, at p. 33 114. In Perepolkin v. Superintendent of Child Welfare (No. 2) (1957), 23 W.W.R. 592 (BCCA), Doukhobours challenged a magistrate’s order which had committed a Doukhobour child to the Superintendent on the ground of habitual truancy. The child was not attending school as required by law. It was argued that the compulsory school attendance laws should be read down so as to exclude Doukhobours because school attendance was contrary to their religious beliefs. The law was impugned as being in relation to religion and not education. Smith J.A. stated at page 599: “The B.N.A. Act. sec. 93 expressly gives exclusive jurisdiction over education to the provinces with a few enumerated exceptions, none of which applies here. Even assuming that the provinces cannot legislate on religion sec. 93 I think makes it clear that the mere fact that ERQDÀGH legislation on education may indirectly affect religion in some aspects does not affect its validity. Any other view would make the enumerated exceptions nonsensical”. 115. R.S.B.C. 1977, c. 378 116. 4-5 Edw. VII, c. 3 117. 4-5 Edw. VII, c. 42 118. [1927] S.C.R. 364 119. (1914), 50 S.C.R. 589, 18 D.L.R. 571, 7 W.W.R. 7 120. [1917] 1 W.W.R. 1105 (Sask. C.A.) 121. [1917] 1 W.W.R. 1088 (Sask. C.A.) 122. (1965), 55 D.L.R. 646 (Sask. C.A.) leave to appeal denied by the Supreme Court of Canada on February 8, 1966 123. Ibid at p. 653. This decision has been critized by Tarnopolsky at page 215 of Discrimination and the Law. 124. [1923] 1 W.W.R. 1 (Atla. C.A.) 125. [1976] 6 W.W.R. 717 >@::5DIÀUPHG>@::5$OWD&$

425

STATE SUPPORT FOR RELIGIOUS EDUCATION

&RQÀUPHGE\WKHBritish North America Act, 1949, 12-13 Geo, VI, c. 22 (U.K.) 128. In Stack v. Roman Catholic Board of St. John’s  '/5G 1ÁG6&7ULDO'LYLVLRQ D teacher was dismissed without notice. In its defence, the school board offered the interesting proposition that at the date of Union with Canada, the province had legislation which authorized a school board to dismiss a teacher for “immoral conduct” and that while this legislation had since been repealed, the legislature lacked the authority to repeal the legislation because of Term 17, and that therefore the school board could rely on the “immoral conduct” provision. Noel J. stated at page 283: “Term 17 does not, expressly or by implication, state an intention that all law relating to education would become unalterable at the date of Union.” It was found that Term 17 had no application to this wrongful dismissal case. 129. [1928] A.C. 200 130. [1955], [1956] 1 D.L.R. (2d) 414 (C.A.) 131. Ibid at p. 417 132. Unreported S.C.C. delivered December 20, 1984 133. An Act respecting Provincial Aid for Superior Education, – and Normal and Common Schools C.S.L.C. 1861, c. 15.

426

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APPENDIX E ´7+()81',1*2)35,9$7(6&+22/6,1217$5,2 3+,/2623+<9$/8(6$1',03/,&$7,216)25)81',1*µ Mark Holmes

'(3$570(172)('8&$7,21$/$'0,1,675$7,21 7+(217$5,2,167,787()25678',(6,1('8&$7,21 This study was funded under contract by the Commission on Private Schools in Ontario. 7KLVVWXG\UHÁHFWVWKHYLHZVRIWKHDXWKRUDQGQRWQHFHVVDULO\WKRVHRIWKH Commissioner.

December 1984

CONTENTS Forward Introduction Chapter One

Some Preliminary Assumptions: Education as a Good; Mandatory Education; Public Funding

Chapter Two

Philosophical Background to the Provision of Education

Chapter Three

Values and Educational Operation

Chapter Four

Operational Policies for the Operation of Private, and Public, Education in Ontario

Chapter Five

Conclusion

Footnotes Appendix I

Charter of Rights and Freedoms, Constitution Act 1982

Appendix II

Relationships among Philosophies, Values and Educational Arrangements

Appendix III

Choosing among the Options

Appendix IV

Rank Order of Options by Examples Provided on Appendix III

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STATE SUPPORT FOR RELIGIOUS EDUCATION

)25(:25' This paper has been prepared on behalf of the Commission on Private Schools in Ontario. Its purpose is to examine the values underlying the various options open to the Province as it decides whether and how it should fund private schools. The paper is not intended to be a scholarly contribution to the literature. It is intended as a practical FRQWULEXWLRQWRDYHU\GLIÀFXOWDUHDRISXEOLFSROLF\PDNLQJ The paper then is not a work of philosophy, sociology or economics, although all those disciplines are relevant to the issue at hand. No more is it intended to deal with WKHGD\WRGD\DGPLQLVWUDWLYHSUREOHPVRIIXQGLQJDOWHUQDWLYHV,KDYHWULHGWRÀQGD PLGGOHZD\EHWZHHQDQDFDGHPLFDSSURDFKZKLFKZRXOGÀOOVHYHUDOERRNVDQGD discussion of problems of implementation, which would avoid the crucial issues. I have tried to analyse the beliefs, values and rationality lying behind a variety of different policy positions. $GLVFXVVLRQRIYDOXHVLVVHQVLWLYHWRWKHLQÁXHQFHRIWKHZULWHU·VRZQYDOXHVDQG this paper is no exception to that general rule. I have tried to deal with the different positions in a spirit of impartiality, but I warn the reader that the selection and emphasis of different values and their consequences are value laden choices. The criteria I develop E\ZKLFKWRMXGJHWKHYDULRXVRSWLRQVUHÁHFWFHUWDLQYDOXHVDQGQRWRWKHUV7KHUHDGHU must be careful to ensure that additional criteria are added if necessary. I began this exercise with few clear preferences with respect to the treatment of private schools and tried to keep an open mind as I worked my way through the labyrinth. I found that my YLHZVEHJDQWRFU\VWDOL]HE\WKHWLPH,UHDFKHGWKHVSHFLÀFRSWLRQV,IWKHH[HUFLVHZDV helpful to me in that respect, perhaps it will also be so to my readers, some of whom will, without doubt, reach conclusions very different from my own.

,1752'8&7,21 The Context The context of this paper is Ontario 1984, with the decision having been made by the provincial Government that full funding, from kindergarten to grade twelve, will be extended to Roman Catholic separate schools. The possible implications for private schools are obvious. If one alternative to the public school is to be fully funded are there reasons why all other alternatives should not be? If only selected alternatives should be funded, then how do we determine a dividing line? In this paper, I explore the value positions that underlie the possible arrangements under which schooling could be provided in the Province of Ontario. It is important to identify and recognize the strengths of the different value positions which people sincerely hold about the education of our children. Some value positions stand out FOHDUO\LQDQHDVLO\GHÀQDEOHZD\+RZHYHUWKHFRPSURPLVHDUUDQJHPHQWVWKDWDUH IUHTXHQWO\WKHSROLWLFDORXWFRPHVRIYDOXHFRQÁLFWVDUHOHVVHDVLO\FKDUDFWHUL]HGE\D clear set of values. Even so, it would be wise to consider carefully the values being compromised as new educational arrangements are forged.

428

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7KH)DFWRUV$IIHFWLQJWKH2UJDQL]DWLRQDO$UUDQJHPHQWRI3XEOLF(GXFDWLRQ It is important to recognize, as values sets are developed and considered, that public policy is not necessarily, or usually, based on a clearly enunciated set of beliefs. )XUWKHU HGXFDWLRQDO SROLFLHV DUH OLNHO\ WR EH VLJQLÀFDQWO\ DIIHFWHG E\ IDFWRUV RWKHU than value sets to which some thoughtful people adhere. We have a history and a present. If we were beginning public education, the question of Catholic education would be in a quite different context; but we are not, there is a tradition and there is a physical fact of Catholic schools. Many Catholics, were we beginning, might well EHZLOOLQJWRHQGRUVHFRPPRQSXEOLFVFKRROVWKDWZRXOGWRVRPHGHJUHHUHÁHFWWKH Catholicity of a substantial minority of Ontarians. The same people are less likely to endorse the dismantling of a school system, apparently in favour of a secular public VFKRROV\VWHPZKLFKLVQRWUHÁHFWLYHRI&DWKROLFLW\,QDGGLWLRQWRRXULQKHULWHGDUrangements, there is the law. In Canada, parliament is less clearly supreme than it once was. The new Constitution goes far beyond the BNA Act with its entrenchment of the &KDUWHURI5LJKWVDQG)UHHGRPV$SSHQGL[, ZKLFKPD\ZHOOVLJQLÀFDQWO\LQÁXHQFH the educational arrangements a province may offer. Will it be possible, for example, to operate schools which discriminate on grounds of sex, native or origin or religion, particularly if the act of discrimination takes the form of requirements for registration? 7KDWTXHVWLRQEHFRPHVSDUWLFXODUO\DSSRVLWHLIWKHGLVFULPLQDWLRQFDQQRWEHMXVWLÀHG either by recourse to provisions in the BNA Act or to provisions in the Charter for the protection of disadvantaged minorities. There are limits to the jurisdiction of the &KDUWHU5LJKWVDUHRQO\HQIRUFHDEOHWRWKHH[WHQWWKH\DUHGHPRQVWUDEO\MXVWLÀDEOHLQ the context of a free and democratic society. Further, provincial parliaments have the ULJKWWROHJLVODWHVSHFLÀFDOO\DJDLQVWFHUWDLQULJKWVE\WKHXVHRIWKH´QRWZLWKVWDQGLQJµ clause (see Appendix I). These legal limitations, particularly the operation of the “notwithstanding” clause, reinforce the importance of what I term the political factor. In one sense of the word political, this entire paper is a matter of politics, in that it is couched in terms of public policy. It is also political in the sense that the issues are, potentially, a matter for debate among the provincial political parties. In this context, I am using the word in neither of those perfectly legitimate senses. I am using the word to describe public questions that are notably susceptible to public suasion, with or without the help of constituted political parties. The problem then is not just one of second guessing the 6XSUHPH&RXUW²GLIÀFXOWHQRXJKLQLWVHOI7KHSUREOHPLVFRPSRXQGHGE\WKHHTXDOO\ important political question: What will the public, both the majority and vociferous and LQÁXHQWLDOPLQRULWLHVEHSUHSDUHGWRDFFHSWDVIDLU")RUH[DPSOHHYHQLIWKH6XSUHPH Court were to permit full funding of Catholic schools and no funding to evangelical Christian private schools, would the public accept that arrangement as fair? Will an opposition party (no matter which party is in power) seek added electoral support by promising to introduce Government funding for private Christian schools? In this area, the political powers of parliament and interest groups may well be stronger than their equivalents in the United States. That statement may be a surprise to Canadians who believe that lobbying and interest groups are American inventions. The major factor preventing the funding of private schools in the United States is the entrenched

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separation of church and state. There is no such prohibition in Canada. Until recently, Canadian schools, both public and Catholic, were generally perceived as being, quite openly and appropriately, Christian. In many parts of the country, public schools were seen as being just as Protestant as Catholic schools were Roman Catholic. In Quebec, the schools remain to this day, constitutionally although not in fact, either Catholic or Protestant.

Chapter One 620(35(/,0,1$5<$668037,216('8&$7,21$6$ *22'0$1'$725<('8&$7,2138%/,&)81',1* Education as a Good 0\ÀUVWDVVXPSWLRQLVWKDWHGXFDWLRQLVDJRRG,PHDQE\HGXFDWLRQWKHIRUPDODQG deliberate attempt to bring about change in human beings; I refer particularly to change in the mind, to the enhancement of the ability to understand, to discriminate and to evaluate, but I also include training in skills such as computation and the ability to use a second language. Education may include many other things. Most of these things are IXUWKHUVSHFLÀFDWLRQVRIWKHJHQHUDOLWLHVRIP\RULJLQDOGHÀQLWLRQMREWUDLQLQJDHVWKHWLF appreciation, aesthetic expression, and social adaptation are examples. However, there are two further aspects of education that are rather distinctive. I refer to spiritual and/or moral development and physical development. Clearly, the concept of education can VXUYLYHWKHDEVHQFHRIVRPHRIWKRVHVSHFLÀFH[DPSOHVDQGSUREDEO\WKHORVVRIVSLULWXDO and physical aspects. But the prospect of those losses leads one to ask how much can EHORVWIURPWKHGHÀQLWLRQRIHGXFDWLRQLILWLVWRUHPDLQDJRRG The question of education as a good foreshadows the later discussion of options in educational arrangements and the place of public funding. I have noted that I assume that education is a good. This assumption is not unreasonable because we know, from opinion polls, and from the ubiquity of publicly funded, compulsory elementary and secondary education within the developed world, that the assumption is generally held. %XWP\GHÀQLWLRQRIHGXFDWLRQDOORZVIRUWKHLQFOXVLRQRImiseducation. It is possible to conceptualize a school whose major thrust is towards the development of children’s minds so that they will learn to despise those different from themselves and to learn that it is normal and reasonable to use violence to settle differences with those who are contemptibly inferior, by virtue of their race, religion or culture. Indeed, it is arguable that such schools have existed in Nazi Germany and Stalinist Russia. This illustrates the gap between my assumption that educationLVDJRRGDQGP\GHÀQLWLRQRIHGXFDWLRQ It is generally true that when we say education is good we mean something different from when we say that education is carried out in schools all over the world. Now we could solve the semantic problem by using the term education for what we want and WKHWHUPVFKRROLQJIRUZKDWLV2U,FRXOGVLPSO\DGGWRP\GHÀQLWLRQRIeducation those qualities which I believe will distinguish education for good from miseducation. I KDYHQRWGRQHHLWKHURIWKRVHWZRWKLQJVIRUWZRUHDVRQV7KHGHÀQLWLRQ,KDYHDGRSWHG is one which is consistent with everyday usage. Further, the gap between education

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and education for good is instructive. To me, education for good involves not only HGXFDWLRQEXWHGXFDWLRQWKDWZLOOKHOSOHDUQHUVVHHNDQGÀQGWUXWKDQGMXVWLFH1RW everyone will agree. Some will argue that good education (i.e. education that should have a claim on the public purse) should be morally neutral, insofar as it is possible within a value laden world; only the values intrinsic to education, to learning, should be promulgated. Whether the reader prefers my position, which is vulnerable to the charge that my selected values are personal and arbitrary, or the alternative, which is vulnerable to the charge that it merely substitutes one rather vague orthodoxy for another, is immaterial at this juncture. The point is that while it is reasonable to assume that education is a good, while we can probably reach a common sense understanding of what we normally mean by education, we cannot automatically assume that we all have exactly the same thing in mind when we say education is a good. This may seem an unreasonably fastidious distinction in a context where nearly everyone is in favour of public funding of elementary and secondary schools, which, we may assume, generally satisfy in some vague way most of our conceptions of education as a good. But it is not such a fastidious distinction if we consider the possibility of extending public funding WRDQ\SULYDWHVFKRROZLWKERQDÀGHVWXGHQWV I have drawn a distinction between good education and miseducation. We must also accept the conceptual possibility of there being neutral education; i.e. education ZKLFKVDWLVÀHVP\GHÀQLWLRQRIHGXFDWLRQEXWZKLFKQHLWKHUHQKDQFHVQRUUHWDUGVWKH development of those qualities I have termed good; or more likely it may enhance certain qualities while others are retarded or left in abeyance. Thus it is possible that some publicly funded schools today contribute to the development of the awareness RIVFLHQWLÀFWUXWKEXWGRQRWHQKDQFHWKHGHYHORSPHQWRIDVHQVHRIPRUDOWUXWKDQG MXVWLFH 7KH H[LVWHQFH RI WKLV WKLUG FDWHJRU\ GHSHQGV RQ RQH·V GHÀQLWLRQV RI good education and miseducation. If one believes that good education necessarily includes a, b and c (e.g. the development of the beliefs that the Bible is literally true, that only those who are “saved” will go to heaven and that education is more concerned with personal salvation than intellectual development), then it follows that schools lacking a, b and c are miseducative.

Mandatory Education My second assumption is that elementary and secondary education should be compulsory. The simplest argument for this position is that education is a good. But that DVVHUWLRQLVLQVXIÀFLHQW)LUVW,KDYHDUJXHGWKDWWKHUHLVLQFRPSOHWHDJUHHPHQWRQZKDW constitutes good education. How can we make something compulsory without knowing ZKDWLWLV"7KLVSRLQWLVOHVVFRPSHOOLQJWKDQLWDSSHDUVDWÀUVWVLJKW7KHUHLVQRUHDO SUREOHPLQGHÀQLQJWKHIRUPWKHVXEVWDQFHWKHVWXIIRIHGXFDWLRQ²LWLVVFKRROLQJZKDW happens in schools (although parents may also be approved to provide the equivalent stuff at home). Further, even though we may not all agree on what constitutes good educationWKHUHLVVXIÀFLHQWFRQVHQVXVWRPDNHPDQGDWRU\HGXFDWLRQWKHQRUPLQWKH developed world. The second problem is more substantial. Everything that is good is not mandatory. It is good for young people to be courteous to adults, but there is no law that makes

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courtesy compulsory. It is good for young people to help and honour their parents, but there is no law. It is good for young people to work for their community, but again no law. It would be overly cynical to remark that sending children to school can be regulated more easily than manners for community involvement or respect for parents. For one thing, attending school and receiving an education are not identical. The legitimate reasons for mandatory education are essentially three: truth, justice and cultural continuity. Children should be educated because we believe in the general broadening of knowledge and truth – it is a central good, not just one among many. All children should be educated both as a matter of justice and to understand justice; so much in our society depends on education that it is unfair to allow even the parent to deprive the child of that opportunity. Children should be educated because our society is so complex, and the division of labour so highly structured, that it is necessary for RXUFKLOGUHQWREHHGXFDWHGWRIXOÀOWKHLUUROHDVIXWXUHFLWL]HQV In asserting these three legitimate reasons why education should be mandatory, I am QRWGHQ\LQJWKHYDOLGLW\RIRWKHUSKLORVRSKLFDOMXVWLÀFDWLRQVIRUHGXFDWLRQ7R'HZH\ education serves the purpose of developing children, and only those experiences that hinder future growth are seen as miseducative. The development itself becomes the end. Now it can of course be argued that education should be mandatory precisely because such development is a universal good and should therefore be universally applied. This is not the end of that particular argument. I shall return to the question of the value of HGXFDWLRQDVDSULYDWHJRRGIRULQGLYLGXDOVHOIIXOÀOPHQW%XWLQWKLVFRQWH[W,DP assuming that education is mandatory for some combination of the three reasons I have presented. Dewey himself acknowledged the importance of the individual’s social role, and the social relevance of education. Whatever one thinks of the claims of personal development as a goal of education, it cannot stand alone as the reason why the public universally accepts education as mandatory. It is mandatory because certain types of development are desirable – for the development of truth, for social justice and for cultural continuity. These arguments, it will be noted, apply to children – to those who are not fully ÁHGJHGFLWL]HQVDQGRQZKRVHEHKDOIGHFLVLRQVDUHOHJLWLPDWHO\PDGHE\SDUHQWVDQG by Government. Implicit in this assumption is the idea that the state has the authority to override the wishes of parents. Parents may not choose not to educate their children. I have already suggested that the idea of education as a good implies the undesirability of miseducation. So I am assuming further that not only should parents not be permitted to fail to educate their children; they should not be permitted to miseducate their children. It would be perverse indeed to argue that education is mandatory because it is an overwhelming, unquestioned good and at the same time that parents have the right to miseducate their children, i.e. to pervert that good in a deliberate fashion. None of WKLVKHOSVXVGHÀQHH[DFWO\ZKDWLVgood education and what is miseducation, but it does demonstrate that mandatory education makes sense, to the general public, only if it refers to good education rather than miseducation. Education is a good, and education is mandatory because the public believes it is good.

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3XEOLF)XQGLQJDQG3XEOLF3URYLVLRQ A third assumption is that elementary and secondary education should be paid for from public funds. It must be noted that public funding is not a necessary consequence of mandatory education, and mandatory education is not a necessary consequence of public funding. Many things are mandatory without their being publicly funded. Parents must provide, by law, material support for their children, but funds for that support, in the form of social welfare, are only provided by default. Indeed, there is some sense of opprobrium attached to being dependent on the state for the welfare of one’s children, while there is no comparable shame in being dependent on the state for their education. Similarly, many things are publicly funded without being mandatory. Medical care is generally publicly funded in Canada, but is only made compulsory for children in extremis. Adults are not compelled to use medical services. Libraries and parks are publicly funded – but their use is optional. Many developing countries pay for education which is neither compulsory nor universally available. $GLVWLQFWLRQLVRIWHQGUDZQEHWZHHQVXFKVHUYLFHVDVGHIHQFHSROLFLQJDQGÀUH protection and services such as health care, transport and education. It is normally LPSRVVLEOHIRUDQLQGLYLGXDOWRDYRLGEHLQJGHIHQGHGDQGSROLFHG7KHÀUHEULJDGHZLOO SXWRXWWKHÀUHLQDKRXVHZLWKRXWWKHKRPHRZQHU·VUHTXHVWHYHQDJDLQVWWKHRZQHU·V wishes (who might prefer the insurance). These services are provided by the will of the majority in a democracy. They are universal and individuals can no more avoid the use of the services than they can avoid taxation to pay for them. However, in general, it is possible for individuals not to use health services, schools and public transport. The argument for public funding (through universal taxation) is therefore less compelling WKDQLQWKHFDVHRIWKHÀUVWJURXSRIVHUYLFHV2QHFDQQRWDUJXHUHDVRQDEO\WKDWRQHGRHV not want to use the defence and police services and that therefore one should not pay for them. But one can (and some do) avoid health services by not going to the doctor when sick; and one can avoid educational services by educating children at home or paying for their private education. The argument for public funding cannot therefore be based on the mandatory nature RIHGXFDWLRQ1RPRUHFDQSXEOLFIXQGLQJEHMXVWLÀHGE\XVHRIDGLUHFWDQDORJ\ZLWK public funding of defence. To justify the assumption of public funding, we must join three arguments together. First, education is a good (for the growth of truth, for social justice and for cultural continuity). Further, this good is so powerful that education should be mandatory. Finally, that good is either so necessary or so desirable for society’s welfare that public IXQGLQJLVMXVWLÀHG The rationale for the assumption that education should be publicly funded seems to be reasonably, if not perfectly, clear. Education is a powerful personal good of which QRFKLOGVKRXOGEHGHSULYHGIXUWKHUDQGPRUHLPSRUWDQWO\VRFLHW\LWVHOIEHQHÀWVIURP having an educated citizenry. In this, education is a unique public service. But the step from public funding to public operation is no longer, if it ever was, axiomatic. Many explanations can be and have been advanced for the prevalence of public operation of education. The major explanation appear to be the following:

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1) In most of the western world, including Canada, education became compulsory during the late nineteenth and early twentieth centuries. It is not at all clear, even WRGD\WKDWPDVVSULYDWHRSHUDWLRQZDVDYLDEOHDOWHUQDWLYH7KHÀUVWUHIHUHQFHWR what we now call the voucher system (although it can be argued that John Stuart Mill foresaw it) dates from 19291. By that time education was universally compulsory in the English speaking democratic world. The debate about compulsory education was about whether it should be compulsory, and, if it should, how much of it should be compulsory. It was assumed that compulsion meant not just public funding but public operation. 2) Some of the arguments for compulsory, publicly funded education appear to be highly compatible with public operation: a) all children should learn the same basic things; there should be a common education, at least a core curriculum; b) all children would have an equal opportunity to obtain different kinds of secondary education and should have an equal opportunity to prepare themselves; c) an advanced, industrial society requires a highly educated population, for the maintenance of its complex, democratic political frameworks, for the continuity RILWVFLYLOL]DWLRQDQGIRUWKHVDWLVIDFWRU\IXOÀOPHQWRIWKHYDULHGWDVNVQHFHVVDU\ where there is sophisticated division of labour. 3) Revisionist, usually Marxist, historians argue that the real reasons for the establishment of mass education were: a) basic training was necessary for future workers; b) workers must be trained to be docile and obedient; c) the class structure of the capitalist society, with children being educated according to their social origin as a preparation for the corresponding future social role. Those explanations are not compelling arguments why public operation should FRQWLQXHLQGHHGWKHÀUVWDQGODVWDUHTXLWHZHDN7KHVHFRQGH[SODQDWLRQLVFUXFLDO for our current circumstance. Is equal opportunity an important and feasible goal, and, if so, is it dependent on a common education? Must a high level of education for the general public imply publicly operated education? Rather glibly, one might comment that if the answer to those questions is generally yes, then there would seem to be no reason for the existence of private, alternative schools at all. And if the answer is no, there would seem to be no reason for public operation of education at all, except as a last resort in the same way that society provides for the physical welfare of the children whose parents manifestly fall short of their obligations. It can be seen then that we have reached the nub of the question that this paper sets out to address. For the purposes of this paper, I am assuming: i) that education is a good, provided that it meets some fairly general criteria on which there may not be complete agreement; ii) that education should be mandatory for all young people, provided that it is not miseducation; and iii) that education should be publicly funded. 7KRVH WKUHH DVVXPSWLRQV OHDYH WZR VLJQLÀFDQW DQG FORVHO\ UHODWHG TXHVWLRQV XQ answered:

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a) if education is a good that must be both mandatory and publicly funded, must it be publicly provided, i.e. must the state provide schooling in the form of publicly operated schools? and b) if miseducation is not what we have in mind as a mandatory good to be publicly funded, where do we draw the line between education and miseducation? If one accepts the most compelling argument for a common, publicly operated educational system – that there should be equality of educational opportunity – one is led to a single provincial system without private alternatives. The heart of the matter is then: If elementary and secondary education is good, mandatory and publicly funded what, if any, should be the nature of public and/or private involvement in its operation? Two aspects are examined before I turn to the range of options for public involvement: 1) philosophical viewpoints on the purposes of education and 2) value positions with respect to the administration of educational provision.

Chapter Two 3+,/2623+,&$/%$&.*5281'727+(3529,6,212) EDUCATION In Chapter One, I explained assumptions that underlie this paper: that education is a good; that education should be mandatory; and that education should be publicly funded. The critical question of whether or not schools should be publicly operated was left open. The main purpose of this essay is to outline sets of values that may be related to different ways in which education can be provided. But, underlying those values are deeper philosophical concerns. The purpose here is not to provide a conceptual map of the great philosophies. Rather, the issue being addressed is the philosophical framework underlying the values and options open to Ontario in 1984. The philosophical outlines will be linked to value sets, and the value sets will in turn be linked to options in school operation. The connections among the three categories – philosophical viewpoints, values and options for educational arrangements – may be read either way. The three categories shown in Appendix II were developed simultaneously. 7KH ÀYH FHQWUDO SKLORVRSKLFDO SRVLWLRQV ZKLFK DUH UHOHYDQW WR WKH LVVXH DW KDQG are: the classical/Judaeo-Christian group; the Rousseau derived groups; progressive, Deweyan pragmatism; utilitarianism and subjectivist existentialism.

I. Classicism, Judaism and Christianity – Traditionalism in Education What differentiates this group from the others is a belief in an absolute – either God, the good or some compilation of virtues. Traditionalism at its core is concerned with a set of values with which life itself, and most certainly the education of children, should be concerned. All traditionalists will not agree on exactly which are the fundamental virtues, but few will dissent from the Aristotelian set of truth, justice, courage and friendship. Major contributions from the Judaeo-Christian heritage are humility and 435

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compassion. Traditionalists see these virtues as being unifying rather than competing. Above all, traditionalist education is concerned with the development of character. Not all contemporary Christians and Jews will adhere to this brand of philosophy, particularly when it is applied to education. Many mainstream Protestants, reform Jews and liberal Catholics believe in a rather remote and impersonal God whose actions, wishes and prohibitions are equally uninhibiting. Such a belief has no automatic implication for educational values or operation. Such people can and do readily adhere to one of the other philosophical groupings. Today, the main lines of thought supporting absolutist ideas are to be found principally among neo-Classicists, traditional Catholics, Orthodox and Conservative Jews and such strict Protestant groups as evangelical Baptists, Mennonites and those seen as belonging to the evangelical “moral majority.” There are major differences among traditionalists. The education promulgated by a neo-Classicist2, based, on the idea of inducting children into the path of the good OLIHUHÁHFWHGLQWKHYLUWXHVRIWUXWKFRXUDJHMXVWLFHDQGIULHQGVKLSLVGLIIHUHQWIURP that demanded by Renaissance International. Despite the differences, there are commonalities. For traditionalists, education is centrally about an external good; education is something that is, to a very large degree, imposed from outside. If there are some WKLQJVWKDWDUHWUXHVRPHYLUWXHVWKDWFDQQRWEHVHULRXVO\TXDOLÀHGWKHQWKH\FDQQRWEH ignored in school: on the contrary, they must be taught or, at least, reinforced, certainly not undermined. Jacques Maritain3D&DWKROLFSKLORVRSKHUVWDWHVWKDWWKHUHDUHÀYHGLVSRVLWLRQVWREH fostered in children in school: love of trust; love of good and justice; “a good animal” – one that is open to existence; work; and cooperation. If education is concerned, centrally if not entirely, with an external good, clearly HGXFDWLRQFDQQRWEHSULPDULO\FRQFHUQHGZLWKSHUVRQDOGHYHORSPHQWZLWKVHOIIXOÀOment, with personal growth. It is not that traditionalists disapprove of development or IXOÀOPHQWRUJURZWKLWLVMXVWWKDWWKHW\SHRIGHYHORSPHQWDQGIXOÀOPHQWDQGJURZWK WKDW LV WR EH QXUWXUHG PXVW DOZD\V EH VSHFLÀHG DQG OLPLWHG ,W LV QRW D TXHVWLRQ RI checking a few excessive outbursts, it is a question of the major lines of growth and development being determined in advance. In this respect, traditionalist philosophy is set apart from all the others. Either there is some external good which determines the nature of education, or there is not. There can be no compromise. The case for traditional education is that it provides for cultural continuity; it provides a backdrop of meaning and purpose to all our lives, particularly to lives of children and adolescents who are seeking, testing and questioning as they form their characters. Traditionalists argue that the basic virtues are accepted de facto by most citizens: They are part of our cultural baggage. It is more arbitrary, they assert, to suggest there are QRÀUPYDOXHVZKHQRXURZQEHOLHIVDQGFXOWXUHVXJJHVWWKHFRQWUDU\WKDQWRDIÀUP traditional wisdom. Traditionalists have no objection to many of the other accepted purposes of modern education. 7KH LPSOLFDWLRQ IRU WKH RSHUDWLRQ RI HGXFDWLRQ LV DW ÀUVW VLJKW WKDW D FRPPRQ education should be provided for all, preferably by the state or, alternatively, by some RWKHU DJHQF\$ GLIÀFXOW\ DULVHV LQ LQWHUSUHWLQJ GLIIHUHQW VWUDQGV RI WUDGLWLRQDOLVP Orthodox Jews and evangelical Baptists are unlikely to accept the same education for 436

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their children. In Saudi Arabia, Israel and in Mississippi, the majorities might incline towards legislating some cultural adherence to their views, but in Canada, where several strands of traditionalism coexist, the degree and level of adherence would undoubtedly be muted. Ontario’s Education Act, in section 235, speaks of the teacher’s duty to “inculcate by precept and example respect for religion and the principles of Judaeo-Christian morality and the highest regard for truth, justice, loyalty, love of country, humanity, benevolence, sobriety, industry, frugality, purity, temperance, and all other virtues.” In practice, this section has fallen into disuse within an educational system where traditionalism is no longer dominant. As traditionalists lose their dominance they are faced with two dilemmas. First, there are among them extreme forms for whom no traditionalist, let alone modernist, consensus is likely to prove satisfactory. Second, even mainstream traditionalists have found themselves overwhelmed in an educational world where their views are no longer strongly supported, in the media and even in many churches. They are therefore increasingly inclined to look for some educational alternative to the public school which WKH\VHHDVQRORQJHUUHÁHFWLQJDFHQWUDOWUDGLWLRQDOFRPSURPLVH The case against traditional education stems from these two dilemmas. If the 2UWKRGR[-HZVDUHULJKWLQWKHLUHGXFDWLRQDOVSHFLÀFDWLRQVWKHQWKH0HQQRQLWHVFDQQRW be. And it appears inconsistent for traditionalists to demand the right to impose an appropriate education on minorities when they form the majority, and, later, for them to demand a place for their own beliefs when power passes to the secular humanists. As Ontario becomes increasingly characterized by cultural pluralism it becomes increasingly inappropriate, traditionalism’s critics argue, to impose a single traditional, FXOWXUDOKHJHPRQ\XSRQWKHP6RFLHW\·VYDOXHVDUHFRQVWDQWO\LQÁX[²7RURQWRLQ is not strongly redolent of sobriety, frugality and purity. A second criticism made of traditionalism is that it is ultimately dependent on indoctrination. Traditionalists have a doctrine – and traditionalist education is unsuccessful if that doctrine is not successfully inculcated in the young. There can only be one absolute value, claim the critics. If education is a search for truth, the path to virtue VKRXOGQRWEHGHÀQHGLQDGYDQFH

,,5RXVVHDX²8QIHWWHUHG&KRLFHDQG,QGLYLGXDO'HYHORSPHQW The philosophical ideas developed by Rousseau4 are the converse of traditionalism, implicit in traditionalism is a sense of evil or sin – the duality of good and bad. The imposition of the good is required because there is much that is bad abroad in the land and it will grow, spread and fester if it is not overcome and subdued. Rousseau proposed an education for Emile based on natural development. Nature, and human beings, are naturally good. Children’s upbringing should be based on their free behaviour, but within a carefully controlled and rich environment. It is not possible to point to a clearly formed contemporary constituency espousing such views. The ideas are included more as a philosophical and intellectual counterpoint to traditionalism than as a coherent set that could underlie a provincial system of education.

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Rousseau’s ideas have helped pave the way to two completely different philosophical DSSURDFKHVWRHGXFDWLRQ7KHVHHGRIWKHVHWZRYDULDQWVFDQEHUHDGLO\LGHQWLÀHGZLWK the advantage of hindsight, in Rousseau’s prescription for the education of the mythical Emile. On the one hand, Rousseau emphasizes everything that is natural, gives Emile free choice of activities. Latter day libertarians approve. On the other hand, the “natural” environment is carefully selected to provide the most favourable conditions of growth. Temperate France is chosen as the site for his education rather than a tropical or arctic region, as those regions would adversely affect Emile’s intellectual development. Even a potential spouse is carefully selected. This emphasis on the structuring of a favourable environment foreshadows the totalitarian environment of contemporary Communist countries. Emile would not need to frequent singles bars, as his father had placed a highly suitable mate in his selected environment; workers in the Eastern bloc do not need “free” trade unions as their working environments are designed by a paternalist state. In addition to these two rather extreme variants, Deweyan pragmatism and the progressive movement owe much to Rousseau and the associated ideas developed further by such educators as Comenius and Froebel. That branch is considered separately. There is no need to dwell on the case for extreme libertarian ideas about education. The assumption has already been made that education should be both mandatory and publicly supported. A Communist authoritarian form of public education assumes an authoritarian state which very few Ontarians desire. We would be talking then not of choosing an education system but of revolutionary societal change. That possibility is not being addressed in this paper. A more moderate educational prescription for young children, based on Rousseau’s ideas, is to be found in Laurier LaPierre’s report To Herald a Child.5 However, even this more moderate prescription is extreme by contemporary standards and illustrates WKHGLIÀFXOW\RIPDNLQJ5RXVVHDX·VLGHDVDJHQHUDOSUDFWLFH7KHFHQWUDOGLIÀFXOW\RI libertarianism in education is the question of whose liberty one has in mind: the parents’ or the child’s. And if the parents’, which particular parent’s. LaPierre comes down ÀUPO\RQWKHVLGHRIWKHFKLOG´3DUHQWVGRQRWKDYHWKHULJKWWRDEXVHWKHLUFKLOGUHQ physically or to deprive them of medical care, shelter, food and clothing, to prohibit the reading of books or the watching of television as a matter of principle, to prevent their offspring learning about sex and drugs, and to limit their children’s experiences or their acquisition of knowledge.”6 To enforce this children’s bill of rights, it should be a criminal offence for any adult to “abuse a child physically, spiritually, sexually or psychologically.”7 Set against this, the United Nations’ Bill of Rights, to which Canada is a signatory, gives parents the right to determine their children’s education. The case for education based primarily on the wishes of children is that children will learn most easily and most successfully when they choose the subject matter, the time and the methodology. We work best, it is said, by intrinsic motivation. Imposition IURPZLWKRXWFUHDWHVKRVWLOLW\VXSHUÀFLDOFRPSOLDQFHDQGZRUNWRUXOHPHQWDOLW\ The implications for educational provision are not entirely clear. At one extreme, some libertarians would like education left entirely to parents. At the other extreme, Marxist countries provide a single state system, to which a private alternative is forbidden. LaPierre argues that his prescriptions would make private schools unnecessary. He prescribes 75% funding for private schools, but would only permit them to be 438

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carried out by the public or separate school systems. 8 As LaPierre would not allow the “proliferation” of private schools, one assumes that the children’s rights previously listed would override any “right” parents might have to determine the education of their children. The case against Rousseau is based on the fundamental contradiction that allows his ideas to be used by both libertarians and totalitarians. If we mean by freedom for children, a lack of adult interference in their lives, then presumably virtually all action, with the possible exception of that leading to direct physical harm, should be allowed them. But Rousseau and LaPierre for example, would have televisions sets in every classroom controlled, presumably democratically, by the children. If we mean by freedom, the ability to choose one’s course of actions from an array of options developed by an intelligent appreciation of the situation, then adults will accept the responsibility to provide the background education which will in turn provide such intelligent appreciation. Once the decision is made to structure children’s environment in such a way that certain outcomes may be achieved, the choice of type of structure becomes one of convenience, effectiveness and cost more than one of fundamental principle. Simply, freedom for parents means restraints on children; freedom for children begs the question of who will provide the environment in which they are nominally free.

III. Pragmatism – Dewey and the Progressive Movement 'HZH\DFFHSWHGDQGFRGLÀHGPXFKRIWKHLQKHULWDQFHIURP5RXVVHDX/LNH5RXVVHDX he rejected external verities. “To imposition from above is opposed expression and cultivation of individuality; to external discipline is opposed free activity; to learning from texts and teachers, learning through experience; to acquisition of isolated skills and techniques by drill, is opposed acquisition of them as means of attaining ends which make direct vital appeal; to preparation for a more or less remote future is opposed to making the most of the opportunities of present life; to static aims and materials is opposed acquaintance with a changing world.”9 Dewey, however, besides providing the background for contemporary progressivism, PDGHWZRVSHFLÀFDGGLWLRQVWRWKHWKHQH[LVWLQJKROLVWLFLGHRORJ\)LUVWKHVLWXDWHG HGXFDWLRQDOTXHVWLRQVZLWKLQWKHVFLHQWLÀFFRQWH[WRIWKHSUREOHPDWLF7KXVKHUHVSRQGV to the traditionalist criticism of progressive education, that it provides no underlying reason why one course of action should be preferred to another, by arguing that the problem facing one is itself the source of subsequent action. Only by addressing real problems and ignoring non-problems can education be advanced. Problem-solving VNLOOV PXVW EH DGGUHVVHG ZLWKLQ D GLVSDVVLRQDWH VFLHQWLÀF IUDPHZRUN 6HFRQG KH acknowledged the force of the social environment. He recognized social pressures as causes of our behaviour and of our problems, whereas Rousseau seemed to imply we would set up a new society unaffected by the old, all the time unaware that his own prescriptions were based securely in eighteenth century France. Beyond that, Dewey saw that education must be in and of the society in which it takes place. Perhaps this FRQWULEXWLRQZDVOHVVRULJLQDOWKDQWKHÀUVWEXWWKHFRKHUHQFHZLWKZKLFKKHDGGUHVVHG WKHLVVXHKDVKDGFRQVLGHUDEOHLQÁXHQFHRQHGXFDWLRQLQWKH(QJOLVKVSHDNLQJZRUOG 439

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The case for a Deweyan education, based on children’s everyday life experiences, is that learning that is integrated in the everyday life experiences of the pupil is more likely to be seen as being valuable and relevant. Education, instead of stemming from H[WHUQDOVSHFLÀFDWLRQVEHFRPHVVHOIVXVWDLQLQJZLWKFKLOGUHQDGYDQFLQJDWGLIIHUHQW speeds in different directions depending on their individual interests and varied abilities. Dewey then integrates the worldliness of a practical education with the spontaneity of an ongoing search for knowledge that characterizes self directed learning. The precise place of public and private education implied by Deweyan pragmatism is not entirely clear. Holistic learning for all children certainly implies publicly supported education. The need for integration of experiences and integration of school life outside the school also appears to imply a heterogeneous social environment; the school life of students in Upper Canada College is less full of relevant experience, in the Deweyan sense, than is that of a small town high school serving youngsters from a variety of backgrounds. The case against Deweyan progressivism is that the thrust for relevance, integration and experience is often antithetical to a thrust for excellence. If children learn in their own way at their own pace, many will inevitably learn little and slowly. More fundamentally, the idea that educational questions should be allowed to arise spontaneously as problems implies the rejection of fundamental, ongoing truths which require constant nurturing if they are not to be lost in a complex, hedonistic society. Dewey speaks little of excellence, virtue, truth; a major criticism of contemporary education at all levels is that it has cultivated an embrace of mediocrity – mediocrity in academic achievement, in the arts, in the trades and, not least, in morality. A case can be made that it is the Deweyan inheritance that keeps the mediocrity of progressivism alive.

,98WLOLWDULDQLVP²(GXFDWLRQZLWK3RVLWLYH&RQVHTXHQFHV Utilitarianism, in one of its many forms, underlies most of contemporary education and much contemporary thought, including this paper – whose author would be quick to forswear utilitarianism. It stems from Hume, Locke, Bentham and, particularly, John Stuart Mill. It is concerned with the consequences of human action, that act being best which provides the greatest good for the greatest number. An examination of the industry of education in the world today would suggest that utilitarianism is its mainspring. Education is valued by users (and their parents) FKLHÁ\IRULWVPDWHULDOSXUSRVHV²WKHMREVWKHLQFRPHWKHVRFLDOVWDWXVWKHSUHVWLJH it will bring. It can be argued that pursuit of truth can be a genuine utilitarian activity ²QRWMXVWEHFDXVHVFLHQWLÀFGLVFRYHU\PD\SURYLGHDEHWWHUKDPEXUJHUEXWEHFDXVHWKH search is intrinsically enjoyable and valuable. Perhaps so; but worldly materialism is inarguably utilitarian and is inextricably intertwined with massive increases in enrolment in educational institutions all over the world, in Russia, in China, in Japan, in Africa, as well as in the capitalist west. The case for utilitarianism is that it reduces all educational matters to an empirical base; there is no advance acceptance of a set of virtues and no a priori belief in the goodness of unfettered development. It seems to be particularly compatible with individualistic democracies in which each individual is allocated rights and freedoms.

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The common good stems not from an inherited, ongoing culture with honoured traditions. Instead, it is determined from year to year, even day to day, according to the ÁXFWXDWLRQVRIDQWLFLSDWHGHIIHFWVDQGSRSXODURSLQLRQ(GXFDWLRQWKHQLVZKDWPDNHV most sense at the particular moment in time. There are no ultimate truths and values; only those which appear to be useful to the majority of the population, without being damaging to minorities whose good must also be considered. $WÀUVWVLJKWXWLOLWDULDQLVPZRXOGDSSHDUWREHKLJKO\FRPSDWLEOHZLWKPDVVHGXFDWLRQSURYLGHGE\WKHVWDWH3XEOLFO\HOHFWHGRIÀFLDOVFDQLQWHUSUHWDPDQGDWHSURYLGHG by the people and ensure that all their children are given the education seen as most useful at the time. But Mary Warnock notes that John Stuart Mill, the most famous proponent of utilitarianism, was highly sceptical of state education. “A general State education is a mere contrivance for moulding people to be exactly like one another; and as the mould in which it casts them is that which pleases the predominant power in the Government, whether this be a monarch, a priesthood, an aristocracy or the majority of an existing JHQHUDWLRQ LQ SURSRUWLRQ DV LW LV HIÀFLHQW DQG VXFFHVVIXO LW HVWDEOLVKHV D GHVSRWLVP over the mind, leading by natural tendency to one over the body.”10 Yet Mill supported compulsory education. Education should be required but not operated by the state. Mill’s views would not be inconsistent with what we now describe as a voucher system. The case against utilitarianism is that it is a sophisticated structure based on sand; if there are no ultimate truths, no god, no virtue, why should not the powerful exercise their power purely in their own best interest? Why is enlightened self-interest better than unenlightened self-interest? Ideas about education, professed “needs”, rationalized policies, all reduce to mere personal preferences. Once all is reduced to personal pleasure, morality and virtue are eliminated except insofar as they please the rulers. According to utilitarianism, we should be educating our children to capitalize best on their own potential self-interest, to cooperate where cooperation will produce a return and to have concern for public morality only insofar as it is required for survival. Public support for HGXFDWLRQFDQRQO\EHXOWLPDWHO\MXVWLÀHGE\WKHXWLOLWDULDQHWKLFLILWLVLQWKHLQWHUHVW of those with the power to decide what is in the best interest of most people.

V. Subjectivist Existentialism Existentialism begins and perhaps ends with being. If rationalists argue, “I think, therefore I am,” existentialists assert, “I am, so perhaps I may think.” Traditionalists GHYHORSWKHLULGHDVIURPÀUPYDOXHV5RXVVHDXEHOLHYHGLQWKHJRRGQHVVRIPDQWKDW could be liberated by unfettered development. Existentialists begin with nothing save the meaninglessness of existence. It can be argued that nothing at all follows for education from the embrace of existentialism. If our starting point is our own personal existence and our awareness of others, then a society can come to no overall consensus about how that existence and awareness should be used. While traditionalists argue that our culture and heritage compel us to draw moral conclusions from existential statements (e.g. because that person is a teacher, she should set a good moral example to her pupils), existentialists join with utilitarians in arguing that values cannot be derived from factual assertions.

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Yet, a prominent contemporary writer on existentialism in education argues that existentialism implies that education should be concerned with the avoidance of the “escape from freedom.”11 That is to say, our existentialist truth is choice; therefore as freedom is the centrality of our existence, the education of our young should always encourage individual freedom rather than constraint. Such an argument is far from being self-evident. The converse appears equally valid: If freedom is all we have and all there is, it makes little difference what we, as consciously dying animals, do as we await death. Morris argues “that society is authentic in the degree to which it summons the citizen to stand by himself, for himself, in shaping the direction of his life, and therefore the meaning of his existence. That society is authentic which never achieves a ‘national purpose.’ On the one hand, pure existentialist nihilism provides no educational prescription – indeed it is the nemesis of education. On the other hand, Morris’s more moderate brand brings us closer to the libertarian branch of philosophy with which Rousseau’s ideas are not inconsistent. A distinction can be made, perhaps, between Rousseau’s emphasis on growth and development – which was followed by Deweyan pragmatism and Piagetian psychology – and Nietzsche’s emphasis on human will, which is more consistent with Morris’s view of the importance of freedom of choice. The case for existentialist education is, at bottom, a negative one. There can be no ÀQDOHPSLULFDOSURRIRI*RGRUJRRGRUYLUWXHLQZKLFKFDVHOLIHLVZLWKRXWDEVROXWH meaning. Meaning must therefore be constructed from the only starting points we have – the fact of our being and our freedom and the fact of our imminent death. Education should be concerned with augmenting children’s freedom of action so they may best express their being. The implications for educational provision are ambiguous. Nihilism would contradict the conclusion reached in the previous paragraph; if life is meaningless we should hardly bother to erect a complex educational structure based implausibly on there being some desirable meaning or purpose. More moderately, it could be argued that state supported mandatory education under the control of individual parents, with a voucher system, would be consistent with an attempt to enhance children’s chances of developing their individual freedom, unconstrained by any formalized sense of coherent national purpose. The case against an existentialist education is that it violates our sense that there is right and wrong, that there is purpose in life and that freedom is not the ultimate value. Freedom is an important value because it allows us to choose the right way, but it is no more synonymous with the right way than action is with right action. Freedom allows us to lie, maim and kill just as it allows us to search for truth, beauty and justice. Education bent on nothing more than the development of freedom is the education of an animal rather than that of an aware human being who knows right from wrong, honour from dishonour, loyalty from treachery, truth from falsehood, moderation from licence and justice from inequity.

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Philosophy and Educational Provision 7KLV V\QRSVLV LOOXVWUDWHV KRZ GLIÀFXOW LW LV WR UHDFK D GHFLVLRQ RQ VFKRRO RSHUDWLRQ E\ GHÀQLQJ SKLORVRSKLFDO GLIIHUHQFHV ,QGHSWK SURELQJ RI 2QWDULDQV WR ÀQG ZKLFK philosophical standpoint is most strongly supported will not lead directly to the selection of a particular form of schooling. Traditionalists may well choose a single system supported and provided by the province. They may be joined by some utilitarians, many pragmatists and most Marxists. The problem with such a happy consensus is that the single system each has in mind is very different. Even among traditionalists, there would be differences about the place of God, Christianity and its various interpretations and such issues as pre-marital sex and abortion within the single common curriculum. Except among libertarians and existentialists, who are few in number, support for (or antagonism to) the public system will depend very much on what the public system represents. That does not mean that fundamental philosophical ideas are irrelevant to the practical issue of public and private schooling. The synopsis does illustrate that there is no simple clash of minds between one position supporting a single best system and, another, supporting choice. Different philosophies do, in some cases, lead to different types of operation. But, equally important, a single philosophy may lead to different provisions depending on what the single best system actually looks like. The question of funding private schools is not simply a matter of whether or not we believe in freedom of choice in some abstract way, although some do. Most of us tend to believe in choice if the single system is not what we want. Thus what we want, and what the public system represents are central issues. I have tried to present the different ideas in an objective light. That I do not consider all the views equally valid will be obvious enough to all who know me and my educational writing. More important, I would not wish to give the impression that all these philosophies are equally represented in Ontario. Ontarians fall predominantly into three groups – traditionalists, generally seen as being on the conservative right; utilitarians, falling in the centre, and pragmatists (or progressives), falling on the left – other views will be vociferously defended but they tend to be those of small minorities. Broad philosophical statements help us understand the problem, but they do not bring us directly to a solution. It is sensible then to narrow the points of observation, to focus on values which most clearly differentiate Ontarians with respect to educational provision. In the meantime, we must bear in mind that Ontarians do differ very greatly on basic educational philosophy and that compulsory education in a philosophy not of one’s choosing is unlikely to be accepted with rapture.

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Chapter Three 9$/8(6$1'('8&$7,21$/23(5$7,21 I have suggested that there is a wide spectrum of educational philosophies within Ontario, but these philosophies do not lead very directly to particular types of educational operation. It is worth turning then to values that are likely to be more directly related to the optional forms of educational provisions. In trying to reach a closer match between values and options for educational SURYLVLRQ,KDYHVHOHFWHGWZRVHWVRIYDOXHV7KHÀUVWLVVHOHFWHGRQWKHFULWHULRQRI conceptual relevance. The arena of public and private schooling, and educational options within either context, is one where the assertion of rights, public, parental and FKLOGUHQ·VLVFRQWHVWHG9DOXHVDUHÀUVWDQDO\VHGLQWHUPVRIWKRVHFRPSHWLQJULJKWV The second set of values is selected on the basis of political policy-making relevance. Political arguments for and against private schools are made on the basis of the values of equality of educational opportunity; social homogeneity or heterogeneity; and common curricular experience; the enhancement or diminution of individual differences, and the encouragement of educational excellence.

7KH5LJKWVRIWKH3DUHQWWKH6WDWHDQGWKH&KLOG At the risk of undermining much of the discussion that follows, I must begin with a caveat. It must be repeatedly emphasized that those who believe in the state’s right to impose an education on every child are not normally willing to embrace any education that any state may actually choose to promulgate. Liberal rationalists objected to the Catholic hegemony of French education in the Province of Quebec. They, in turn, now that education in that province has been largely secularized de facto (but not yet de jure) are loth to consider the objections of those who, in turn, reject secular humanism. Traditionalists in this country are eager enough to embrace an education that LQFXOFDWHVWKHEDVLFWUDGLWLRQDOYDOXHVEXWWKH\ÀHUFHO\RSSRVHDQ\WHQGHQFLHVWRZDUG the inculcation of relativism – and would do so even if a majority Government decided WRGRVRE\IRUPDODFWRISDUOLDPHQW7KLVLQFRQVLVWHQF\PD\VHHPLUUDWLRQDOVHOÀVK – a desire to have it both ways. But it is surely explicable. If some things are right and good and just, a will to share what is right and good and just is understandable. Even if the majority wants wrongdoing, evil and injustice, it is understandable others would wish to oppose them. Thus, the question of rights is a second order question – because the rights the province legislates will depend on the situation. If Catholics decided that a common school system based on fundamental values would be satisfactory for them, and if such a system were adopted, then constitutional rights to basic Catholic education would be redundant. In Britain, where Catholics are a small minority and where the tradition of Catholic education is less strong, such a situation is not inconceivable. In Ontario, as in France, where recent Government proposals to fold publicly funded Catholic schools into the public system were vehemently opposed and withdrawn, the historical context makes such a decision impossible. Nevertheless, the point illustrates that rights are embedded in the social context and are not inalienable in any meaningful sense. 444

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That does not stop an individual believing that certain rights ought to be inalienable. Indeed, this paper is based on assumptions which carry with them the establishment of certain rights, e.g. the right of every child to receive publicly supported elementary and secondary education. a) Education as a Private Good Those who hold this view see individual adult citizens as being the primary unit and the family groups they form the secondary unit. Government is merely a matter of convenience, whereby individuals and families join together for joint services – for SURWHFWLRQDJDLQVWLQWHUQDODQG H[WHUQDOHQHPLHVIRU SURWHFWLRQDJDLQVW ÀUH IRU WKH construction of roads and, perhaps, for the maintenance of health services. The individual is seen as having a social contract with the state. Individuals give up part of the freedom ZKLFKLVULJKWIXOO\WKHLUVLQWXUQIRUVSHFLÀFVHUYLFHVWKH\GHVLUH It can be argued that nothing prevents individuals from coming together to choose a single provincial system of education, just as individuals choose a single police force and not sets of competing protection agencies. The point is valid insofar as there is nothing in logic to prevent individuals from so doing; but, in fact, they all do not. Whereas there is probably not a single citizen who objects to our having a police force, there are numerous citizens who would object very strenuously if their children were WREHFRQÀQHGWRDVLQJOHSURYLQFLDOV\VWHPRIHGXFDWLRQ,QGHHGWKHWLPHPD\FRPH very soon when more pupils are being educated in Ontario outside the public, secular system than are being educated within it. Of these, a sizeable minority (approximately 5% of the total school population) actually pays for private education in addition to the public education supported through taxation. A strongly individualistic position implies that parents have a prior right to determine the education of their children. The United Nations’ Declaration of Human Rights, to which Canada is a signatory, appears to support this individualistic notion quite directly. Therefore, if we assume that education should be compulsory and publicly supported, and if we accept the prior right of parents to select the appropriate education for their children, there are only two suitable arrangements of educational provision. Most simply, the province should provide a provincial insurance scheme similar to the OHIP provision for medical care. Parents would be obligated to assure the education of their children, but they would be reimbursed by the province according to laid down conditions and scales. Alternatively, a single umbrella organization could operate schools of various types according to the popular demand. Analogously, we have public hospitals, but individuals hire their own doctors to treat them within the public building. Two objections may be raised to this line of argument. First, I may be accused of misinterpreting the rights of parents intended by the United Nations. Perhaps what they had in mind was more the right of parents collectively than the right of individual SDUHQWV%\WKLVDFFRXQWVFKRROVVKRXOGUHÁHFWWKHZLOORIWKHLUORFDOFRPPXQLW\UDWKHU than that of some remote bureaucracy. I do not consider this to be an argument of much substance. Suppose a Mormon family lives within a secularist, humanist community. Is the education of the Mormon family to be determined by the community consensus, or not? If it is, then obviously education is not seen as a private good, determined by

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SDUHQWVEXWDVDFRPPXQLW\JRRG,QGHHGLWLVGLIÀFXOWWRGLIIHUHQWLDWHEHWZHHQDORFDO community and an Ontario school board, or, for that matter, the Province of Ontario, in a discussion of individual rights. If parents have a right to determine the education of their child, then it is not a matter of great consequence whether the right is abrogated by the Province, the school board or the community. That is not to conclude that my initial interpretation of the United Nations’ charter is the correct one. But, if the declaration is ambiguous, it is because it is not clear whether education is the responsibility of the child’s parents or parents in general by means of some collective, democratic process. ,WZRXOGEHGLIÀFXOWWRFODLPWKDWWKHGHFODUDWLRQVKRZVSUHIHUHQFHIRURQHNLQGRI collectivity over another. The second objection is more substantial. If, one may argue, we are concerned with individual rights, why would society defer to the rights of the parent rather than to those of the child? Even if parents must act on behalf of very young children, should their rights not give way very quickly to the rights of the children themselves? Suppose, for example, a child of fourteen of humanist parents wants a Catholic education. Who intervenes for the child? If a ten-year-old child runs away from a school which is inculcating a doctrine quite incompatible with that promulgated in the Provincial schools, should the Province be obliged to ensure that the child complies with the parents’ wishes? I shall not pursue this objection much further. It is one of the most GLIÀFXOWRILVVXHVEHFDXVHWKHFKLOG·VZLVKHVPXVWDOZD\VEHLQWHUSUHWHGDQGVXSSRUWHG by adults – either parents or agents of the state. However, the problem illustrates why advocates of individual rights are sometimes willing to see limits placed on the right RISDUHQWVRYHUWKHLUFKLOGUHQ,QSUDFWLFHLWLVGLIÀFXOWWRHQIRUFHSDUHQWDOULJKWVRQFH FKLOGUHQEHFRPHSRWHQWLDOO\VHOIVXSSRUWLQJ²VD\DJHGÀIWHHQWRVL[WHHQ b) Education for the good of the state An alternative to education as a private good is education for the good of the state. This would appear to be the principle behind education in Marxist totalitarian states. In this case, parents are seen as members of the larger community. Just as the community has obligations to the individual – to provide shelter, food, good health, employment – so the individual has reciprocal obligations to the community – to support the community, to bring up children so they will be good contributing members of the community. By this view, there is no individualistic social contract. A contract implies voluntary action – the word is nonsense without volition. Yet the individual within a society cannot choose not to participate in that society. If a young person decides, at an extreme, to emigrate and leave the society altogether in order to avoid participation, that person is already indebted to the community for, say, sixteen years of food, shelter, education, love, socialization and protection. Thus society is not characterized by independent, dyadic, mutual contracts but by complex sets of interlocking obligations. If this is so, then it would be folly indeed for a state to permit a system of formal education that would harm itself – the point made by the French sociologist Emile Durkheim many years ago. For the state to encourage several competing different systems would be for the state to acknowledge it did not know what it wanted. None of this means that every child should get the same education. The state needs secretaries,

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engineers, librarians and farmers; they may require differentiated education. But there is no necessity to set up different systems with quite different philosophies and goals. Some may object to the use of totalitarian Communism as my example of education for the good of the state. I am not trying to smear the idea of education for the state. But, the Soviet system does appear to be the logical extreme of this set of values. Certainly, many besides Communists value education as a good for society. Traditionalists, for example, share the Communists rejection of the social contract. To them, society is a growing, developing organism. But, traditional societies have had some totalitarian characteristics. In effect, compulsory education for and by the state is a totalitarian concept. Now, we can be totalitarian in education without being totalitarian in everything else, but we can be sure that private school supporters will attack any notion of totalitarianism. Their attack will be supported by many others who will simply argue that complete state operation is an attack on individual rights. F (GXFDWLRQDVDQ,QGLYLGXDO*RRG If education is to be directed neither by parents nor by the state, it may perhaps be GLUHFWHGE\FKLOGUHQWKHPVHOYHV,KDYHDOUHDG\GLVFXVVHGWKHGLIÀFXOW\RIGHWHUPLQLQJ exactly when and where children’s rights begin. Some will avoid the problem of direction of schools by children by asserting a right to full development. It is worth trying to determine what it would mean, in terms of school operation, to develop a system predicated on the child’s right to full development. Unfortunately, it does not help very much in a practical way for us to agree consensually that education should be for the good and full development of children. No one is going to argue that education should be for evil, or for stunted development. We soon revert to the essential problem: Who decides what full development is and the PHDQVE\ZKLFKLWZLOOEHUHDFKHG"$QGZHDUHUHWXUQHGDJDLQWRWKHFRQÁLFWEHWZHHQ SDUHQWDODQGVWDWHSULPDF\,IFKLOGUHQ·VULJKWVWRIXOÀOWKHPVHOYHVDUHDVVHUWHGWKHUH still remains the question as to who will mediate those rights. Who will act on behalf of the child-parent or state? 1HYHUWKHOHVVLIWKHUHZHUHFRQVHQVXVRQLQGLYLGXDOIXOÀOPHQWDVWKHSULPHJRDO RI HGXFDWLRQLW ZRXOG QDUURZ WKH ÀHOG RI FRQÁLFW ,I HLWKHUSDUHQW RU VWDWH EHFDPH prime mediator the other party should have recourse to question what the other did, DOZD\VDSSHDOLQJWRWKHDXWKRULW\RILQGLYLGXDOIXOÀOPHQW8QIRUWXQDWHO\DJDLQHYHQ WKDWDGYDQFHLVDPHDJUHRQH$WKLUGSDUW\DQDGXOWZLOOKDYHWRGHÀQHWKHOLPLWVRI IXOÀOPHQW,QSUDFWLFHQHLWKHUSDUHQWQRUVWDWHLVOLNHO\WRSHUPLWWKHGHYHORSPHQWRI FKLOGUHQLQZD\VTXLWHDQWLWKHWLFDOWRWKHLUYDOXHV,QRWKHUZRUGVLQSUDFWLFHIXOÀOPHQW LVOLNHO\WREHGHÀQHGLQWHUPVRIWKHSUHYDLOLQJFXOWXUH,QHVVHQFHWKHQDOWKRXJKWKHUH are three parties involved, the real issue reduces to one between parent and state. Both may sincerely believe they are acting on behalf of the child, and may in fact be doing so, but, the child is not going to be provided the fundamental right to direct personal IXOÀOPHQW

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d) Education as an external good Traditionalists will feel completely comfortable with neither parental nor state rights. To assert that individual parents should have total control of their children’s education is to accept that there is no ultimate good toward which we should all be contributing. That is anathema to traditionalists. But to assert that children belong to the state is equally unpalatable. 8WLOLWDULDQV·EHOLHIVDUHPRUHÁH[LEOHEXWWKH\WRRPD\EHXQZLOOLQJWRFRQFHGH that the greatest good can be achieved by opting for either of the two alternatives. Parental control may lead to ignorance and anti-social behaviour, state control to state aggrandisement and totalitarianism. Traditionalists in particular will argue that education is neither a private good QRUDVWDWHJRRG1RPRUHLVLWIRULQGLYLGXDOVHOIIXOÀOPHQW7KHJRRGZHVHHNLQ education, they claim, is transcendent – it is a good outside ourselves, outside our *RYHUQPHQWDQGEH\RQGLQGLYLGXDOLVWLFIXOÀOPHQW7KLVLVQRWWRDVVHUWWKDWLWGRHV not exist within ourselves or within our Government, merely that its existence does not depend on individual will.) Whether we call the end good or God is, at this point, irrelevant. Education is for the good of society, not the state. It is to develop character in conformity with our notion of goodness, rather than skills for the service of the state. Quite simply, education is for good – not for parents, not for the state and certainly not for individualistic narcissism. Education for some external sense of good or utility may perhaps be seen as being best operated by the state. It can articulate on behalf of society what is good and represent democratically a consensual set of utilities. Yet, Government bureaucracies develop a hidden curriculum of goals and ideologies of their own – not least their dedication to their own importance and continuance. There is no guarantee that Government, still less its bureaucracies, will be directed toward the good. Indeed, much of the current criticism of the public schools comes from traditionalists who claim that the schools are beset by secular humanism and have virtually abandoned any faith in the good. Thus provincial operation of education becomes a moot point for these people. The acceptance of provincial operation depends on the extent to which the provincial school system is seen as representing what is good. The greater the disparity in people’s recognization of public and separate schools as representing that good, the less the endorsement of provincial operation. e) The Private School Parent Where do private school parents stand with respect to these values? Some obviously believe that education is a private good. The province should provide for the education of their children in accordance with their wishes just as it provides for the education of the children of the majority in accordance with its wishes. They recognize they are minorities, but believe their wishes should be respected. A second group sends its children to private school by default. Members of this JURXS DUH GLVVDWLVÀHG ZLWK WKH SXEOLF DQG VHSDUDWH VFKRROV7KH\ IHHO WKHUH VKRXOG EHVRPHIRUPRIÀQDQFLDOVXSSRUWIRUWKHHGXFDWLRQRIWKHLUFKLOGUHQ$IWHUDOOWKH\ are sending their children to private schools reluctantly. If the province provided an

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appropriate kind of education they would be happy to send their children to public or separate schools. There remains a third group that is not adequately represented in the value sets I have described. Many private school parents, and some others who are not connected with private schools, believe that parents should have the right to choose an alternative HGXFDWLRQ7RWKHPÀQDQFLDOVXSSRUWLVQRWWKHFHQWUDOLVVXH6XFKSHRSOHPD\EHOLHYH education is a good, that it should be mandatory, that it should be publicly funded and that it should be publicly operated. They simply believe that the individual should have the right to refuse to be involved. The following is an analogy. It is possible to believe that the state should provide universal, free health care but that individuals should be allowed to decline the service and buy it privately. They are not demanding an univeralistic voucher scheme – they are merely demanding the right not to participate. Holders of this position may be accused of inconsistency. If they really believe in choice, why should not everybody, rich and poor alike have choice? If in fact they do believe in choice as a principle, I have already dealt with their position – they believe in education as a private good. It appears inconsistent to endorse education as a public good, but then demand that a certain class of citizens (those with money) be excluded from involvement in the public operation. After all, if their support of public operation is based only on utility, presumably they would support a viable voucher system. If, on the other hand, public education is good in itself, they would want their own children to share in that good. How then can one justify the combination of public operation and private fee-paying alternatives except as a pragmatic compromise? How can one argue that the status quo VDWLVÀHVVRPHEDVLFFRQVLVWHQWYDOXHV" The case for the combination of unfunded private and funded public schools would appear to be only indirectly related to conceptions of education and the prior rights of either parents or children. Private school parents in this third category are not asserting such rights as generalities. They are asserting a more general right not to be coerced by the state. They may approve, for example, of provincial parks. They still want the right to purchase extensive pieces of coastline, which may thereby indirectly deprive other members of the public of its use. Further, they are asserting the right to choose their children’s companions. As long as school choice is limited to such criteria as the goals and philosophies I have discussed, an important element of schooling is lost. This third category of parent asserts the right to choose a peer group of children like their own child. To them, such a peer group has intrinsic value. Their child will thereby not be exposed to values they oppose. The private school has extrinsic value in that connections made in school, and the cachet of attending a school of high prestige, will be useful in later life. In addition, the very act of paying fees increases the value of the service. Erickson looked at private schools in British Columbia before and after their receipt of Government funds and concluded that parents and students both perceived a decline in the value of the education received after Government funding began.13 Thus, for many, the values around the private school are not a direct outcome of clash between state and parent. They have more to do with the general rights of adults in a democratic society. 449

STATE SUPPORT FOR RELIGIOUS EDUCATION

The problem with the right to a private education is that it differs from the right not to receive a state pension or a family allowance cheque. It differs from the right not to use the provincial park. Such choices hurt no one else. Even the right to a private doctor does not necessarily hurt anyone else. But the exercise of the right of private education necessarily hurts other children unless the perceptions of those who make the purchase of private education are entirely faulty. If the peer group within the private school does have the positive effects private school parents believe, the loss of that peer group is a disadvantage to those who do not make the choice. If the private school FOLPDWHDQGFDFKHWJLYHEHWWHUOLIHFKDQFHVE\GHÀQLWLRQWKHOLIHFKDQFHVRIRWKHUVDUH thereby reduced. If fee-paying does increase the quality of education, the inability and the unwillingness to pay fees reduce both the quality of education and the life chances of children attending publicly funded schools. In exploring educational values, I am leading toward a discussion of different types of school operation. What kind of alternatives should be available and how should WKH\EHIXQGHG"6XSHUÀFLDOO\LWÀUVWDSSHDUVWKDWWKHGLYLVLRQLVEHWZHHQVWDWHVRFLHW\ rights people – who believe in the one best system – and parent rights people, who believe in free choice of systems. But the more we delve into the values underlying this dichotomy the more complicated the question becomes. Most of those who believe in one best system cease to believe in it the moment it fails to represent them. Beyond that, my discussion of the third category of private school parents suggests that they would be among the strongest opponents of fully provincially funded free choice of schools. They want access to education to be dependent on money because money is what they have. Just as intelligent parents pass on their intelligence to their children both genetically and culturally, just as caring parents help their children by providing a loving, supportive environment, so wealthy parents want to help their children by SXUFKDVLQJVXSHULRUHGXFDWLRQDOHQYLURQPHQW7KH\PD\QRWZDQWDKHOSLQJÀQDQFLDO hand from Government, but what they want most of all is the freedom to use the LQÁXHQFHRIWKHLUPRQH\WRKHOSWKHLUFKLOGUHQ

Educational Policies and Educational Provision: A Selection of Issues It would be impractical for me to attempt to examine all educational issues and their bearing on the public and private operation of schools. It still seems sensible to address some of the more central ones. Equality of Educational Opportunity 7KLVLGHDOLVGHÀQHGLQDQXPEHURIGLIIHUHQWZD\V6RPHGHÀQHLWLQWHUPVRIHTXDO FKDQFH RI DFFHVV WR GLIIHUHQW HGXFDWLRQDO SURJUDPV 2WKHUV GHÀQH LW DV PHDQLQJ D common educational experience, on the grounds that the notion of “separate but equal” education was legally dismissed in the U.S.A. as unattainable. Yet others argue that opportunities can only be measured by results; if outcomes are different among groups (say blacks and whites, or men and women) then the opportunities must have been different. Despite this vagueness, to the general public, equality of educational opportunity remains an important value.

450

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*HQHUDOO\VSHDNLQJUHJDUGOHVVRIWKHOHYHORIGHÀQLWLRQIDYRXUHGWKHVWURQJHURQH·V belief in this value, the more likely one is to want state operation of schools with a minimum of alternatives. If everyone has the same education, at least schooling will not exaggerate the social differences children bring with them from home. Least compatible with equality of opportunity would be a public system side by side with a large private system whose accessibility is determined by ability to pay. The likely result of such a dichotomy would be schools for the rich and schools for the poor. 7KHVLJQLÀFDQFHIRUHTXDOLW\RIRSSRUWXQLW\ RIDYRXFKHUV\VWHPZLWKDFDSRQ total school spending is more complex. On the one hand, it will be argued that any differentiation of education provides inequality. Some parents will be more adept to making choices than others and so will provide advantages to their children. On the other hand, it may be argued that parents are more likely to have their children’s best interest at heart than are state bureaucracies. Some leftists (notably Robert Everhart)14 endorse freedom of choice for precisely this reason. They argue that children of low social status are ill served by large bureaucratic school systems which discriminate, unintentionally perhaps, against them. Such children’s parents will make choices and demands best suited to their own children. Quite recently, an education critic for Ontario’s New Democratic Party endorsed the voucher system for such reasons.15 Societal Homogeneity or Heterogeneity A powerful argument for a single state system of education, with minimal exceptions, is that it is good for society if all members have had to live together in a common educational experience. Living together provides increased mutual understanding and tolerance. Nations require some common sense of purpose, sense of being and some common ground. Their shared values should be augmented and celebrated rather than de-emphasized. Furthermore, this value interacts with equality of educational opportunity. If all young people attend the same schools, there is an increased probability that their opportunities will be similar. In other words, social homogeneity is produced in heterogeneous common schools. On the other hand, most western countries, including Canada, where Ontario is particularly affected, are experiencing increasing social heterogeneity, Ontario’s populaWLRQLVPXFKPRUHYDULHGE\HWKQLFLW\WKDQLWZDVÀIW\\HDUVDJR7KHLQFUHDVLQJHWKQLF PL[KDVEHHQUHÁHFWHGLQIHGHUDODQGSURYLQFLDOPXOWLFXOWXUDOSROLFLHVLQFOXGLQJWKH provision of heritage language classes. There is increasing pressure for local schools WRUHÁHFWWKHYDULHW\RIVRFLDOJURXSVUHSUHVHQWHGLQWKHLUSDUWLFXODUVFKRROSRSXODWLRQV The pressures towards recognition of social heterogeneity lead to variations among VFKRROV GHSHQGLQJ RQ WKHLU VRFLDO PL[7KLV FRQÁLFWV ZLWK WKH LGHD WKDW DOO VFKRROV should be colour and language and culture blind. Overall, the value of social heterogeneity within a school, which, it was hoped, would lead to an integrated if not homogeneous society, is less universally accepted than it once was. The movement toward explicit recognition of social differentiation has gained force in Ontario during the last decade. However, it is probably still true to state that the majority of Ontarians would prefer a strong public school system working for social homogeneity. Even so, as school districts and school catchment areas become

451

STATE SUPPORT FOR RELIGIOUS EDUCATION

more distinctive by social class and culture the idea of the local school being a cultural leveller becomes increasingly remote. A Common Curricular Experience There is strong support for some common curricular experiences, even among supporters of private schools. Much of the instruction in private schools parallels that in the public schools, and they would soon lose support were it not so. At one extreme, some educators argue that all children should have the same curricular experiences to the end of high school. With a common education for twelve years, social homogeneity is further assured, cultural continuity is maintained and a further degree of equal opportunity provided. Research support for the idea is provided by the followers of Bloom’s “mastery learning.”16 Bloom argues that schools could, if they adopted his ideas, narrow rather than broaden the variation in children’s achievement levels. Thus, a common school curriculum could be used to provide a more equal level of outcomes among children from widely varying backgrounds. Ontario has been moving, over the last decade, to a more common secondary school experience, by providing for more compulsory credits. Inconsistently, Ontario has shown little interest in adopting mastery learning methodologies. Indeed, the Province’s emphasis on individualization and independent studies is the reverse of mastery learning and can be expected to provide more varied learning outcomes. Even the extreme suggestion of a common elementary and secondary education using mastery learning techniques would merely postpone social election to the postsecondary years. The variation in jobs, income and social prestige within our highly segmented society would remain. Thus the question reduces to one of when and how social differentiation should take place, not whether. There would appear to be little point in encouraging the development of a variety of schools if all were to use identical curricula and identical instructional methodologies. +RZHYHULIWKH0LQLVWU\ZHUHWRFRQÀQHLWVFXUULFXODUGRFXPHQWVWRVWDWHPHQWVRIREMHFtives and content, schools would have some room to differentiate their offerings. If the publicly operated schools continue to move further in the opposite direction, towards a more uniform curriculum taught by centrally mandated methodologies, (while providing a large range of individual outcomes), then private schools will be even more obviously the only alternative to a single pattern. Thus, unless the single curriculum is imposed on the private schools, the differentiation between those who attend public schools and those who attend private schools may become more marked, and enrolments in private schools may increase. It is arguable that left wing forces in Britain demanding greater homogenization within the public school sector have led, ironically, and unintentionally, to increased enrolments in and support for that country’s YHU\LQÁXHQWLDOSULYDWHVHFWRU 7KH(QKDQFHPHQWRU'LPLQXWLRQRI,QGLYLGXDO'LIIHUHQFHV It is becoming increasingly apparent that schools are not necessarily a black box into which children enter and from which must leave young adults carefully sorted according to their parents’ social background. Bloom demonstrated that the organization of

452

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LQVWUXFWLRQFDQLQÁXHQFHWKHGHJUHHWRZKLFKFKLOGUHQ·VGLIIHUHQFHVLQLQLWLDOVFKRRO readiness are enhanced or diminished. The more we individualize and cater to individual differences, the greater those differences are likely to become. The more we ensure that VSHFLÀFREMHFWLYHVDUHDFKLHYHGE\DOOWKHOHVVPDUNHGWKRVHLQLWLDOGLIIHUHQFHVVHHP Now, such instructional variations, about which research is still in a quite primitive state, are not directly related to public and private schooling. Mastery learning might, or might not, be used in public or private schools. Nevertheless, if our top educational priority were to diminish individual differences, we would place all children in state schools with heavy dependence on cooperative, mastery learning techniques. Against that position, it will be argued that the most able and the most highly motivated will be held back as they work with the less able and that mediocrity will be the result. Further, if the social differentiation of the adult workforce remains the same, social distribution will still be carried out by schools, colleges and universities – based RQÀQHUDFDGHPLFGLVWLQFWLRQVDQGRQRWKHUOHVVHDVLO\PHDVXUHGTXDOLWLHV Educational Excellence Can we be equal and excellent too? This question has been debated at length by HGXFDWLRQDOSROLF\PDNHUVZLWKQRYHU\ÀUPFRQFOXVLRQV$GYRFDWHVRISULYDWHVFKRROV argue that their schools provide lighthouses of excellence towards which other schools can aspire. Upper Canada College, for example, has enviable academic results which PD\EHPRUHWKDQDUHÁHFWLRQRIWKHHQYLDEOHDFDGHPLFSRWHQWLDORIWKHSXSLOVLWHQUROV In a controversial research report, James Coleman argued that private schools in the U.S.A. do a better job than their public equivalents, even with student background characteristics held constant.17 The international achievement studies carried out in the late 60s and early 70s found that the academic performance of the top 9% of the age cohort in countries with highly selective school systems (e.g. France, West Germany, Britain) was about equal to that in countries with much less selective systems (e.g. U.S., Sweden).18 Those who support mass, less differentiated, comprehensive education conclude that it is possible to have both quantity and quality without rigid streaming. Those who support greater academic selectivity conclude that it is possible to achieve just as good results with a PXFKPRUHHIÀFLHQWHGXFDWLRQDOV\VWHP,QVWHDGRISUHSDULQJODUJHQXPEHUVRISHRSOH for post-secondary academic work of whom only a few would actually participate in academic study, the selective systems succeeded in channelling the academically able to university while, at the same time, training others for jobs in the workforce. ,WLVGLIÀFXOWWRJHQHUDOL]HRQWKLVLVVXH1HYHUWKHOHVVLWLVOLNHO\WKDW&DQDGLDQV would tend to believe that complete reliance on a single, universal provincial system would be unlikely to produce lighthouse schools of exceptional excellence. It is generally accepted that some private schools and some public schools have built up worthy reputations for excellence, with the help of a variety of selection mechanisms.

Conclusions Most of the arguments, whether they are based on fundamental rights or broader policy issues, lead to and support a dichotomy. The ideas of fundamental parental

453

STATE SUPPORT FOR RELIGIOUS EDUCATION

rights, social heterogeneity and multiculturalism, educational variety and educational excellence lead, with varying degrees of conceptual clarity, to parental choice – to an open voucher system. The ideas of state right, equality of educational opportunity, a common curricular experience and social homogeneity lead, in general, to a single provincial system of education. Yet, the latter is clearly impractical in Ontario in 1984 and the former is almost as improbable. Two systems of education, public and Catholic, are constitutionally enshrined. The Government plans to extend that constitutional ULJKWRUUHGHÀQHWKHULJKW VRWKDWWKHUHZLOOEHDIXOOGXDOV\VWHPRISXEOLFO\IXQGHG education from kindergarten to the end of secondary school. Private schools have always existed and no one seriously advocates they will be legislated out of existence. Yet, the arguments for private schools based on ability to pay are probably less compelling than those for a more accessible system of alternatives. But there are many objections to a full voucher system, whereby every parent of a school-age child would receive a cheque worth, say, $2400 to be spent on that child’s formal education in any school of the parent’s choice. The problem then is to identify compromise plans that will salvage as much as SRVVLEOHRIWKHDGYDQWDJHVRIRQHDOWHUQDWLYHZLWKRXWORVLQJDOOWKHEHQHÀWVRIWKHRWKHU And this has to be achieved within a given political and legal framework.

&KDSWHU)RXU 237,21$/32/,&,(6)257+(23(5$7,212)35,9$7($1' 38%/,&('8&$7,21,1217$5,2 There are innumerable possible approaches to the problem of the operation of public and private schools. I generally avoid the elaboration of options that appear totally unfeasible in the Ontario context. However, I do include enough to illustrate the conceptual range RIFKRLFHV$OOWKHPRGHOVSUHVHQWHGFDQEHPRGLÀHGLQYDULRXVZD\VWRPRGHUDWHWKHLU effects, but the range developed covers the major conceptual and practical issues. I have not attempted to deal with detailed problems of administration, but I do recognize that some are more practical than others for political and economic reasons.

The Ten Options 1. A single provincial school system. This option implies one provincial system with little variation among schools. Private schools would be banned by legislation. Public and separate school boards would be combined and, in time, schools would be integrated into a common system. Within this model, there is room for varying degrees of local autonomy. This model is common, by law or in fact, in eastern and northern Europe. 2. Status quo (with complete provincial funding of Catholic schools). Virtually no public funding is allowed for private schools and religions other than Roman Catholic are not provided public support for their schools. The public schools

454

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are nominally Judaeo-Christian, but in practice they tend to be humanist in orientation in the urban and suburban areas and Protestant in orientation in rural areas. 3. Status quo plus provision of some services for approved private schools. Subsidies would be provided for school materials, transportation and, eventually perhaps, teachers’ salaries but there would be no direct support to parents of private VFKRROFKLOGUHQ7KLVPRGHOZRXOGSURYLGHÀQDQFLDOVXSSRUWIRUSULYDWHVFKRROVLQWKH least visible way. 4. Status quo plus tax deductibility of school fees for parents with children in approved private schools. Within this model, there is the issue of whether Ontario would be able to persuade the federal Government to allow federal deductibility. The assumption must be the more limited one of deductibility for provincial tax purposes only. 5. Taxable grants. Such grants are made to parents with children in approved private schools. A major variant of this model, which I do not discuss, would be the provision of taxable grants only where children attend schools spending less than, say, $2500 per annum per pupil. 6. Partial funding (say 75%) for pupils attending approved private schools. Alberta is in this category. Funds might be paid directly to schools or to parents, but the grants would not be taxable. 7. Partial funding with cap on spending. The same partial funding as in Option #6 would be provided on the condition that total pupil spending not exceed, say, 105% of the spending for equivalent pupils in a public school. 8. The associated schools model. Schools meeting certain requirements would be eligible for up to, say, 95% funding through their local school board. Their total budgets would be limited to a maximum of approximately 105% of that of the public schools in the area. 9. A voucher system with a cap. This differs from Option #8 in that the funded private schools would operate entirely independently of the public systems. 10. A full voucher system. All parents of students attending approved private schools would receive a voucher for the equivalent of their child’s cost of education in a public school. This could be paid directly to parents, as a non-taxable grant, or directly to the schools.

455

STATE SUPPORT FOR RELIGIOUS EDUCATION

1. A Single Provincial System. Under this plan, public and separate school boards would be amalgamated, but schools would remain, for a time, Catholic or public. Such a system is found in New Brunswick’s urban centres and has worked well for many years. However, in Ontario, such an arrangement would be of doubtful constitutionality and would probably be unfeasible politically. One does not add to the powers of separate boards one year and amalgamate them with public boards the next. Even so, the model is worth mentioning. As we have seen, many strongly held values lead directly to this system. Many non-Catholics and even some Catholics would, in different circumstances, if we were starting from scratch, support this model. The strength of this model explains the attachment to the status quo – and to the status quo EHIRUHWKH*RYHUQPHQW·VGHFLVLRQWRH[WHQGIXQGLQJWRWKHÀQDOJUDGHVLQWKH&DWKROLF schools. It is not that people have any great faith in the compelling logic of funding ten grades rather than twelve, and not that people want to fund Catholic but not Anglican schools. It is, in the main, if we leave aside the legitimate self-interest of employees in public school systems, a question of a strong belief in the one best system. Thus, while it is easy to answer that because we fund Catholic schools voluntarily, we should also fund all the other kinds of schools as a point of fairness and logic, we should remember that to many, one separate system is one too many. If a single system is out of the question in the foreseeable future, it should not be impossible to pass permissive legislation that would encourage public and separate school boards to amalgamate by choice. There may well be some parts of the province where pupils are so sparse that joint school operation will appear to be a lesser evil. Shared schools would be another option. However, as general solution, Option #1 is a non-starter. I have noted that there is no support in Ontario for the abolition of private schools. 7KH6WDWXV4XR Despite the fact that the status quo is likely to be the closest thing we are likely to get to the one best system, it is unstable. The very fact the Commission for which this paper is prepared was set up illustrates the instability. If the Government voluntarily IXQGV&DWKROLFVFKRROVEH\RQGLWVFRQVWLWXWLRQDOFRPPLWPHQWLWLVH[WUHPHO\GLIÀFXOW to justify, legally and politically, not funding Jewish and Anglican schools. The constitutional question is a legal one beyond resolution in this paper (or anywhere other than the Supreme Court and provincial parliaments). The Premier stated, “The new direction is not compelled by or founded upon a reinterpretation of old statutes or jurisprudence.”19 That appears to indicate that he saw the extension of funds as an act of political will. However, he also said at the same time that the extension will “honour the intents of the original Constitution.” Whatever the legalities, political issues take precedence for two reasons. The Province has the right to override the Charter of Rights and Freedoms, but not the original BNA Act. Public opinion will LQÁXHQFHJRYHUQPHQWDOEHKDYLRXUHYHQZKHQFRXUWVPD\QRW The Premier said the decision was voluntary, i.e. not forced by anticipated court acWLRQ7KDWYHU\YROXQWDU\DFWLRQPDNHVLWGLIÀFXOWIRUIXWXUHJRYHUQPHQWVDQGRSSRVLWLRQ

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parties, to refuse to support religious schools for other denominations. Ontarians have a traditional sense of fairness and that sense will be outraged either if local public schools are converted for use by separate boards or if new Catholic schools are built when RWKHUVQHDUE\DUHKDOIHPSW\ZKHQDWWKHVDPHWLPHÀQDQFLDOVXSSRUWIRU$QJOLFDQ or Jewish schools is being rejected. Imagine the feelings of a fundamentalist Baptist whose local public school is turned into a Catholic school while the local Christian school is turned down for funding. In short, the status quo in June 1984 was pedagogically absurd. But it stemmed from DWUDGLWLRQWKDWPDGHLQFRPSUHKHQVLEOHDQGFRQVWLWXWLRQDOO\MXVWLÀDEOH7KHQHZVWDWXV quo is equally illogical from the point of view of religious minorities, and has little legal, historical or political tradition on which to rest. Inaction is always tempting to a Government in power. In this case, inaction will leave Ontario’s educational problems vulnerable to decision by the federal Supreme Court. 7KH6WDWXV4XR3OXV3URYLVLRQRI/LPLWHG6HUYLFHVIRU$SSURYHG3ULYDWH Schools. It may be political attractive to provide support through special subventions in a nonobvious way. However, there are major problems with this gradualist approach. To avoid charges of unequal treatment of pupils of different religion, the province would probably still have to invoke the “notwithstanding” clause in the Constitution, unless prior agreement could be reached with all the private schools concerned. Even then, a new religious school could start at any time and demand funding equal to that provided separate schools. Simply, although this option looks like a not very expensive compromise it would not solve the basic legal and ethical problems – and it would cost some money. Much more important, however, is the principle involved. Once funding is provided by Government to private schools to which parents may add additional funds in the form of fees, the Government is providing subsidies to the rich which are unavailable to the poor. Let us suppose that the subsidies are worth $500 per pupil per year and that tuition, for instruction without board, averages $4000. Only those parents who can afford the $3500 difference are eligible for the subsidy. The more the state provides an incentive to the rich to send their children elsewhere, the more the remaining school population suffers by having to attend a school with a less stimulating environment. Further, if one assumes that provincial expenditure on education is a constant, every GROODUVSHQWRQSULYDWHHGXFDWLRQXVHGPDLQO\E\WKHDIÁXHQWLVXQDYDLODEOHWRWKH public schools, used by the poor. 6WDWXV4XR3OXV7D['HGXFWLELOLW\RI)HHV3DLGWR$SSURYHG3ULYDWH6FKRROV The objection to this option is similar to the objection to subsidized services. The objection here, from the point of view of social equity, is even greater than in that case. Option #3 makes the private school affordable by a slightly greater proportion of the population – the provincial moneys go, in effect, equally to all parents of children in private schools, always provided that the private schools do not take the opportunity to increase revenue by absorbing the Government subsidies and not reducing fees. In

457

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the case of tax deductibility, the Government support is greatest for those in the highest income tax brackets. If there is a tendency for schools to raise fees as Government DLGDUULYHVWKHOHVVDIÁXHQWZRXOGEHHYHQZRUVHRIIWKDQEHIRUH²WKHIHHVZRXOGJR up and their tax savings would be minuscule. The rich would be relatively insensitive to fee increases because they would be cushioned by tax deductibility. This option has very little to commend it except for the rich who object to paying double, once for the support of the public system and then again for the private schools. It does retain the appearance of private school independence. As the schools would receive QR*RYHUQPHQWPRQH\GLUHFWO\WKHFKDQFHRI*RYHUQPHQWLQÁXHQFHLVUHGXFHG%\ the same token, some would argue that if the Government provides the subsidy, or tax concession, to the rich there ought to be some return value to the state. This option does have the attractiveness of easy administration and the avoidance of direct provincial involvement in private schooling. From most of the values analyzed, it has little to commend it overall. Once again, this option does not address the most fundamental ethical and legal problems. 5. Taxable Grants to Parents with Children in Approved Private Schools. ,IWKHREMHFWLYHVRIOLPLWHGIXQGLQJRISULYDWHVFKRROVDUHWRUHGXFHWKHÀQDQFLDOEXUGHQ on parents and make the private school more accessible, then taxable grants make more sense than tax deductions. The assumption here is that the grants would be relatively small, below 50% of the per pupil cost of instruction in a public school. If the grants are much greater than that, a new inequity arises. Consider the case of middle and upper income parents. Such parents will surely argue that their child’s access to religious schools is, in effect, being taxed – while Catholics pay no such tax, and indeed receive completely free education. A small subsidy could be used politically to gain support; the larger the subsidy becomes the more obvious the remaining inequities appear. Although this option has fewer objectionable features than Option #4 it is questionable whether it is either durable or politically feasible. It provides funding for private schools, to which many will object, without dealing in a satisfactory way with the questions of accessibility and equal opportunity. It does have the virtue of ensuring WKDWÀQDQFLDOHIIRUWLVPRUHHTXDOO\GHPDQGHGRIDOOSULYDWHVFKRROSDUHQWVÀQDQFLDO support is provided but a genuine commitment must still be made. The ethical and legal problems remain. A more extreme variation of this plan would see the province fund low income pupils by means of scholarships to private schools. Such a plan would surely imply that private schools are superior and thus merely serve to aggravate the ethical and legal problems. The sharing of scholarships among schools would be an administrative nightmare. 6. Partial Funding for Pupils Attending Approved Private Schools. This option differs from the last in two ways; the grants, say, 75% of the public school per pupil cost, may be considerably greater, and, they are not taxable. Options #3 to #5 are unlikely to have very much effect on private school enrolments. They are designed principally to assuage the perceived problem of double payment for educational services.

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Option #6 is different in two ways: 75% funding may substantially increase enrolment LQDQGDFFHVVLELOLW\RISULYDWHVFKRROVDQGLWPD\LIHQUROPHQWLQFUHDVHVVXIÀFLHQWO\ save rather than cost provincial funding. If we assume a constant provincial educational budget, money saved from funding an increasing proportion of students at 75% could be used to increase expenditure on public schools. Thus although the decision to fund existing private school students at 75% would be an additional cost, it would be partially offset if large numbers of additional students enrolled in private schools at the reduced 75% funding rate. Although there would be increased accessibility, partial funding is not equal funding. The equity question remains. )LQDQFLDO FRQVLGHUDWLRQV DUH LQVXIÀFLHQW WR FRPPHQG WKLV SODQ 7KH SURSRUWLRQ of students attending private school would have to more than double before any cost saving was actually achieved. The more essential issue: Is there gain or loss in increasing enrolment in private schools, and who gains and who loses? The fear of public schools is that, gradually, they will be leached of their most teachable pupils – those with the best minds and most supportive parents. Their schools will become places of lower and lower repute. In some neighbourhoods, it may become a sign of failure if one is unable to come up with the fees beyond the 75% paid by the Government. The parallel system of private schools we now have will be more entrenched with the aid of public subsidies. 3XEOLFVFKRROSHRSOHZLOOEHWROGWRÀJKWEDFNLIWKHLUSURGXFWLVJRRGHQRXJKZK\ will people want to pay more for an alternative? However, the public schools may EHÀJKWLQJDORVLQJEDWWOHHGXFDWRUVLQWKHPZLOONQRZWKH\ZLOOKDYHWRUHWDLQPRVW of the poor, the learning disabled, the behavioural problems. How can their image compare with those beginning with a selection of the most favoured? A major issue to be addressed should this plan be adopted will be the question of the level of compliance with provincial policies to be demanded in return for public funding. I shall discuss that issue more fully in the context of the next option, which brings us closer to a viable, accessible and varied system. 7. Public Funding with a Spending Cap. One of the central objections to Option #6 is that the Province would, in effect, be fundLQJWKHDIÁXHQWWRIRXQGDWKLUGV\VWHPRIVFKRROV7KDWVLWXDWLRQLVUDGLFDOO\FKDQJHGLI provincial funding is conditional on total per pupil expenditures by the private school QRWH[FHHGLQJDVSHFLÀHGOLPLW)RUH[DPSOHWKH3URYLQFHPLJKWXQGHUWDNHWRIXQG 75% of the per pupil cost in the public system providing that the per pupil expenditures in the private school do not exceed 105% of the public schools expenditures. Let us suppose the public school expenditures are $2500 per pupil. The private school subsidy would be $1875 and the average maximum fee demanded of parents would be $750. If funds were obtained from other sources (community fundraising activities, bequests, trust funds etc.) or if the school could manage at a level of expenditure below that of the public schools, the fees could be very much reduced. Alternatively, private schools might introduce a sliding fees schedule based on ability to pay. If low income parents could be guaranteed access under such a scale it is just possible that the legal problem of unequal treatment of Catholics and others would be satisfactorily addressed.

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This model has much to commend it. It is one of the least costly models. Traditional elite private schools would probably not join the plan as the effect on their budgets would be too drastic, but they would continue independently. In terms of equity, the vast majority of Ontarians would be able to afford private education if they so chose. The net cost to the province might, after several years, be close to zero. That is to say, the cost of the 75% subsidy to children now in private schools would be offset by the reduced cost of new children attending private schools. The sense of commitment which fee paying may engender would be kept and very IHZLIDQ\FKLOGUHQZRXOGEHGHSULYHGRIDSULYDWHHGXFDWLRQIRUÀQDQFLDOUHDVRQV Indeed, the Province might even go further and legislate that no child could be refused on the grounds of inability to pay, thereby mandating a sliding fee schedule. That would bring new problems to the private schools, but it might be seen as a reasonable price IRUWKHPWRSD\LQRUGHUWRUHFHLYHSURYLQFLDOÀQDQFLDOVXSSRUW Thus, control over clientele becomes an important issue. Should a provincially subsidized school have the right to choose its clientele – on grounds of religion, on grounds of ethnicity, on grounds of academic ability, on grounds of general attractiveness and potential? Some of these questions will doubtless be addressed by the courts in time. In the meantime, it seems sensible to arrive at a reasonable set of provisos that should be stipulated if private schools are to receive substantial Government support. The more regulations that are made to govern their operation, the more the point of the private, independent schools is lost. Yet, if there are no regulations, why should the province subsidize competing schools which are not limited by regulations made, SUHVXPDEO\IRUWKHJHQHUDOJRRGRIWKHSURYLQFH"6KRXOGWHDFKHUVEHFHUWLÀHG"6KRXOG the schools follow the curriculum laid down by the province for the public schools? It would seem unreasonable to argue for complete deregulation, equally unreasonable to argue for complete regulation. No one is going to support the idea of private schools failing to conform to general standards of physical safety. An equally strong argument can be made for prohibiting private schools from promoting immoral education or, more tendentiously, miseducation. At the beginning of this paper, I assumed that HGXFDWLRQZDVDJRRG,GHÀQHGJRRGHGXFDWLRQDVKHOSLQJOHDUQHUVVHHNDQGÀQGWUXWK and justice and provide cultural continuity. Therefore, private schools which clearly and deliberately set out to conceal truth (e.g. by denying the holocaust, by refusing to LQFOXGHVFLHQWLÀFLGHDVDQGGLVFRYHULHVDERXWWKHHYROXWLRQDU\GHYHORSPHQWRIWKHZRUOG and its species, by banning reasoned expositions for unpopular political ideologies, such as Communism) or which promote social, racial, political or class hatred and violence, should not be eligible for public funding, if indeed they would be permitted to exist at all. This stipulation illustrates the implications of some of the fundamental assumptions made earlier, and those assumptions deserve careful consideration by policy-makers. If education is a good (and I believe nearly all Ontarians agree with me that it is), it is important that we decide what it is that makes it a good. If, in contrast to the position I have outlined, it is determined that education is a good solely for purposes of that particular development or training which an individual parent desires, then my DUJXPHQWLQIDYRXURI TXLWHVSHFLÀFVWLSXODWLRQVLV LQYDOLG+RZHYHU  IXQGLQJ would also be invalid in that case – as the argument for equality among all individual

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parents’ wishes leads directly to either no funding at all for education or to a voucher system (Option #10). ,IZHGUDZEDFNDV,UHFRPPHQGIURPDOPRVWWRWDOGHUHJXODWLRQGLIÀFXOWLHVDULVH Just where does one draw the line? Some will argue that private schools should not have the right to “censor” books. This seems to me an irrational argument. All schools everywhere “censor” books in the sense that certain books are selected for use in schools and for circulation by the library, and others are rejected at the same time. In one sense, all the rejected books are “censored”. Clearly, books used in literature classes in a fundamentalist Christian school will differ from those used in a secular public school in GRZQWRZQ7RURQWR$Q\SDUWLFXODUOLQHGUDZQZLOOEHGLIÀFXOWDQGPD\DSSHDUDEVXUG just as inclusions and exclusions in the Ministry’s Circular 14 often appear absurd to the casual onlooker. It would seem reasonable for the Government to give itself the VSHFLÀFSRZHUWRGHWHUPLQHDOLVWRIEDVLFPDWHULDOVWKDWPXVWEHIUHHO\DYDLODEOHLQDOO Government supported schools. The list would include dictionaries, encyclopaedias, standard works of literature (The Bible, Shakespeare, major Canadian, American and British writers), and standard works in the social and physical sciences. The list will inevitably be open to attack on the grounds of its arbitrary nature. The dangers of not having such an arbitrary list are greater. Yet, I have suggested regulation can be taken too far. If private schools are expected to live by all the regulations and policies affecting public schools, they will become public schools. The point of their existence will be lost. Indeed, as many public schools turn a blind eye to some regulations and policies the very careful policing of provincially funded private schools would make them more royal than the Queen. For example, it would be ironic if private schools were compelled to devote 60 minutes a week to religious education, a regulation ignored by most public boards. In terms of curriculum and its organization, private schools should have fairly complete freedom, always given the general stipulation that education is concerned with the acquisition of knowledge, justice and wisdom. However, should they wish to give provincial graduDWLRQFHUWLÀFDWHVWRWKHLUJUDGXDWHVWKH\ZRXOGKDYHWRIROORZWKHEDVLFUHTXLUHPHQWV laid down by the Ministry. As for instructional programs, emphasis should be placed on the learning outcomes rather than on the process of instruction. Private schools will surely wish to experiment with a number of methodologies and should not be prohibited from so doing. My own personal position on this issue is that choice of instructional methodology should not be prescribed for either private or public schools. However, my point here is that it would be unreasonable to expect private schools to abide by detailed Ministerial curriculum documents specifying instructional methodologies, but not unreasonable to expect them to maintain certain academic standards. 7KH FHUWLÀFDWLRQ RI WHDFKHUV DQG DGPLQLVWUDWRUV LV DQRWKHU GLIÀFXOW LVVXH 7KH HDVLHURQHWRGHDOZLWKLVWKHFHUWLÀFDWLRQRIDGPLQLVWUDWRUV$YHU\VWURQJFDVHFDQ be made that it would be inappropriate to demand that private school administrators ² SULQFLSDOV YLFHSULQFLSDOV DQG VXSHUYLVRU\ RIÀFHUV ² EH FHUWLÀHG WR VXSHUYLVH LQ 2QWDULRSXEOLFDQGVHSDUDWHVFKRROV7KHUHTXLUHPHQWVIRUFHUWLÀFDWLRQDUHGLUHFWHG WRWKHLGLRV\QFUDWLFSROLFLHVRI2QWDULRDQGWKH\PDNHLWGLIÀFXOWRULPSRVVLEOHIRU DGPLQLVWUDWRUV LUUHVSHFWLYH RI H[SHULHQFH DQG TXDOLÀFDWLRQ WR EH DSSRLQWHG IURP outside the province. As it is sometimes such idiosyncrasies that private schools are 461

STATE SUPPORT FOR RELIGIOUS EDUCATION

set up to avoid, it would be unreasonable to insist on administrators undergoing a training opposed to the purposes of the school. However, there would be no similar REMHFWLRQ WR GHPDQGLQJ WKDW DGPLQLVWUDWRUV KDYH FHUWDLQ DFDGHPLF TXDOLÀFDWLRQV ,W PLJKWEHUHDVRQDEOHWRGHPDQGDFTXDLQWDQFHZLWKWKHÀHOGRIHGXFDWLRQ2QFHDJDLQ I emphasize the assumption that education is a good, and that its primary purpose is WKHGHYHORSPHQWRIWUXWKDQGMXVWLFH$Q\GHPDQGIRUFHUWLÀFDWLRQLQSULYDWHVFKRROV should be based on those presuppositions and not on knowledge of regulations and methodologies approved by the Ontario Ministry of Education. 7KDWSRLQWLVUHOHYDQWWRWKHFHUWLÀFDWLRQRIWHDFKHUV2QWDULR·VFHUWLÀFDWLRQUHTXLUHments for teachers are much more general than those for administrators and do not restrict national mobility. Essentially, new teachers are required to have a relevant XQLYHUVLW\GHJUHHDQGDTXDOLÀFDWLRQLQSHGDJRJ\7KHÀUVWLVFOHDUO\UHOHYDQWWRSULYDWH VFKRROVDQGVRPHDFTXDLQWDQFHZLWKWKHÀHOGRIHGXFDWLRQDQGSHGDJRJ\LVDUJXDEO\ desirable for all teachers in public funded systems. One further important issue is capital costs. As Ontario has a stock of school facilities comparable with or superior to those of other developed parts of the world, and as enrolment will remain well below the peaks recently experienced, it would not seem reasonable to anticipate much new school building – public, separate or private – except in a few areas of exceptional growth. A school buildings commission might be set up with the power to transfer empty or potentially redundant public and separate buildings to publicly funded private schools where there is reasonable public demand. The Commission would have a very delicate task and the onus of doubt should always ZHLJKLQWKHIDYRXURISXEOLFVFKRROV+RZHYHUZKHUHIRUUHDVRQVRIHIÀFLHQF\DQG good instruction, schools are closed, they should be made available without cost to publicly funded private schools. The major issues to be addressed with respect to compliance with governmental policy are: health; safety and morality; curricula; goals and objectives; standards of DFKLHYHPHQWWH[WVDQGOHDUQLQJPDWHULDOVDGPLQLVWUDWLYHTXDOLÀFDWLRQVDQGWHDFKLQJ TXDOLÀFDWLRQV ,Q DGGLWLRQ WKHUH PD\ EH VWURQJ SXEOLF SUHVVXUH IRU WKH WUDQVIHU RI existing facilities. The greater the level of public funding, the more important all these issues become. 2SWLRQLVWKHÀUVWRQHZKLFKWLOWVVWURQJO\WRZDUGVDFFHSWLQJDSSURYHGSULYDWH schools as legitimate alternatives to the existing public (including separate) systems. For that reason, I have looked at the stipulations appropriate for the allocation of public IXQGVLQWKLVFRQWH[W7KHVHVWLSXODWLRQVDUHHTXDOO\UHOHYDQWIRU2SWLRQ7KHÀUVWVL[ options essentially see the private school as being an anomaly. Options #7 and #8 see DSSURYHGSULYDWHVFKRROVDVOHJLWLPDWHDOWHUQDWLYHVIRUVLJQLÀFDQWPLQRULWLHV2SWLRQV #9 and #10 see schooling as being largely a matter of individual parental choice. 8. The Associated Schools Plan 7KH SUHYLRXV GLVFXVVLRQ LOOXVWUDWHV WKH FRQÁLFW DPRQJ EDVLF YDOXHV 7KH PRUH RQH believes in a single best system, the more one objects to the funding of private schools. The more one believes in parents’ rights to choose their children’s education the more one believes in alternatives. Even those who would believe in a single best system,

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were it designed to their taste, may like to have a choice once that single system appears to deviate too far from their own wishes. Many parents like the idea of being able to choose among a variety of public schools, all operated by the same board. Thus many school boards offer alternatives to the neighbourhood school. French immersion, special education, summer session, night schools, alternative schools (a term usually denoting more permissive schools with fewer rules and regulations), open enrolment policies permitting out of zone transfer, arts schools, independent learning centres, correspondence courses and technical/vocational schools are all examples of options available within public school systems. In general, French immersion being a prominent exception, these options have been developed by administrators, teachers and, occasionally, school trustees. Only very rarely do they derive from parents themselves. In contrast, private schools, particularly church related ones, are frequently developed by and for parents. This model is intended to bring together some of the advantages of alternative schools within the system and private schools. Is it possible to reconcile a degree of equity with parents’ rights, at the same time avoiding the destruction of the public school system? The associated schools plan takes partial funding with a capRQHORJLFDOVWHSIXUWKHU7KLVSODQHQYLVDJHVÀYHGLIIHUHQW types of school: fully funded public and separate schools; alternative schools within the system; fully funded private schools; partially funded private schools; and totally LQGHSHQGHQWSULYDWHVFKRROV7KHÀUVWVHFRQGDQGODVWFDWHJRULHVH[LVWDOUHDG\DQG require no further comment. The fully funded private schools would receive grants from the local school board equal to 100% of the per pupil operating cost of the school board less an administrative overhead which would be not greater than, say 10% except by mutual consent (i.e. the board would be able to deduct an administrative overhead according to demonstrated costs up to that maximum). The schools would be permitted to raise an additional 5% by some combination of fees, charges and fund-raising measures. In return, the private schools would agree to: use the provincially approved goals and objectives for the various subject areas; maintain standards no lower than those prevalent in comparable public schools; use materials as laid down by the Ministry; SUHSDUHVWXGHQWVIRUWKH2QWDULRJUDGXDWLRQGLSORPDKLUHSURYLQFLDOO\FHUWLÀHGWHDFKHUV (there would be a grandfather clause for teachers hired before the legislation); and not use inability to pay, race or ethnic background as criteria for exclusion of pupils. Religion is a notable omission from that list. Preferably, religion should be added, but only if it is also clearly stipulated that Roman Catholic schools may not discriminate against the acceptance of non-Catholic pupils. Once again, the Supreme Court may intervene, unless the “notwithstanding” clause is exercised. Private schools, once planned or operating, would apply to either the public or the separate board for associated status. Should agreement with both be unattainable, there ZRXOGEHDSRVVLELOLW\IRUGLUHFWDSSURYDOE\WKH0LQLVWU\ZKRZRXOGÀQDQFHWKHVFKRROV itself and would provide administrative review services directly at cost. Partially funded (i.e. 50% funded) private schools might, in the event, prove to be a redundant feature of the plan. These would be schools whose compliance with provincial requirements is at a lower level – they might be unwilling, for example to prepare pupils for provincial diplomas according to OSIS regulations. Fully funded schools which fail to comply completely with their provincial obligations, a problem 463

STATE SUPPORT FOR RELIGIOUS EDUCATION

experienced in Alberta with some of its partially funded schools, would be faced with the possibility of reversion to partially funded status. Their administrative costs might be, say, a maximum of 5% and their private funding cap an additional 50%. School boards and associated schools would be encouraged to develop cooperative planning. It might make sense for school boards to provide transportation, custodial, maintenance, purchasing and payroll to the associated schools. In some circumstances, the board might provide school buildings without recourse to the Commission envisaged under Option #7. Goals of this model would be to bring many private schools under the umbrella of a public system, and, at the same time, provide a large variety of public choice. In time, some associated private schools might become alternative schools entirely within the system. The costs of this scheme are not great. Initially, the very success of the scheme would involve the provincial funding of education of some children now in independent, private schools. In the long run, the existence of parallel private schools might well keep the cost of public schools in check. Once operating, the schools would certainly be no more costly, and quite possibly less costly, than the current arrangements. Two major objections to this plan are its complexity and the possible proliferation of small schools. There is no question that cooperation is more complex than independence. Options #2, #7 and #8 are administratively clean. There are dangers in complexity. Teachers in associated schools might join the same associations as teachers in the board with which they were connected. Clearly no board could allow itself to be put in a position of having to inherit teachers in whose hiring it had had no say from a failed associated school. Equally clearly, this would be a matter of negotiation. Private schools might fear contamination from contact with public schools; public schools might feel that proximity makes the private alternatives too readily available. The problem of proliferation is endemic with all models that imply increased accessibility to private schools. One partial solution to the problem is to legislate minimum size as one criterion for the funding of associated schools. In addition, legislation might provide that, if the setting up of an associated school would affect the viability of a public school in a small isolated community, the board concerned would have the option of providing a mixed public school representing, in part, the desires of the dissenting group. However, this problem may not be quite as serious as it would seem on paper. Private schools, excluding boarding schools, tend to be found most frequently in urban areas, for the good reason that they require a market. Other factors too would appear to inhibit the growth of alternative schools of all kinds in rural Ontario. Rural schools have probably been more sensitive to traditionalism than have urban schools. Rural VFKRROVRIWHQUHÁHFWDJUHDWHUVHQVHRIFRPPXQLW\ Closely related to the question of proliferation is the problem of dilution. As more competing schools are opened, there is a danger that the public schools will become VFKRROVRIODVWUHVRUWKROGLQJDUHDVIRUWKRVHZKRDUHGLIÀFXOWWRWHDFK7KHSUREOHPRI expense is easier to handle than that of attitude and morale. The Ministry (or local school boards) could set aside earmarked funds for special education which could be segregated from the per pupil expenditures. These grants would be targeted to the hard-to-teach, whether in private or public schools. Associated schools would only be entitled to the 464

4. OFFICIAL REPORTS

funding equivalent for the kinds of students they enrolled. The problem of attitude is much more complex. The very fact that parents seek out private or optional schools suggests an unusual interest in their children’s education. If the private schools enrol, in the main, highly motivated children with highly motivated parents, as the numbers increase, the public schools will vary and inequality of opportunity will result. We are back to the basic conundrum – freedom to choose or equality. But, if we choose equality, how can we reconcile that value with our continuing to allow choice to Catholics and to those with money? It can also be argued, speculatively, that the very possibility of such losses will force the public schools to respond much more quickly and more effectively to the public will. Indeed, one of the arguments for greater parental choice is that schools are increasingly being operated in the interests of educators rather than in the interests of learners. If reasonable stipulations are enforced, competition between private and public schools will be fair and parents and pupils may both gain. 9. Voucher System with Cap A more straightforward version of Option #8 would be the provision of grants equal to per pupil public spending to all parents who enrol their children in private schools, with two provisos – i) that schools’ educational spending may not exceed the grant by more than 5%; and ii) that the grants are devoted entirely to educational (i.e. not extraneous) expenses. This requires less legislation, less administration and creates fewer bureaucratic problems. However, it does more to assure the setting up of three large systems – public, Catholic and funded private – excluding the existing elite private schools which would presumably refuse to accept the cap on spending. The advantage of Option #8 is that it encourages cooperation between private and public schools and blurs the distinction between them. The public schools, being sensitive to public demand, will become more like private schools, the private schools, being sensitive to government funding, more like public schools. With Option #9, conditions like those suggested under #7 and #8 might be imposed as an additional stipulation. The Ministry would have to review adherence to such rules. However, pressure would quickly be brought to bear on M.P.P.s not to permit the withdrawal of funding once it was established. Whereas, under Option #8, the boards would have every incentive to ensure that private schools were playing by the rules. Ministry inspection teams under Option #9 would be under great local pressure to look the other way if rules were being bent. In practice, by legislative design and by default, this option would probably provide greater leeway to the funded private schools. It leans further to freedom and is more likely to damage the public schools. 10. Voucher System The pure voucher system is that advocated by Milton Friedman, the American laissezfaire economist. Every parent would be entitled to a voucher for each school age child as currency for educational services. There would be no limit to the amount that could be added in the form of school fees.

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,QWKHVKRUWUXQWKLVZRXOGEHDGLUHFWVXEVLG\WRWKHDIÁXHQWSDUHQWVRISULYDWHVFKRRO children. In the longer run, schools would probably develop to cater to different levels RIDIÁXHQFH²ZHZRXOGKDYHZDUGVHPLSULYDWHDQGSULYDWHOHYHOVRIHGXFDWLRQ The problems of this system are considerable. For example it might prove uneconomic to offer anything other than the basic level of education (that which could be purchased with the vouchers) in poor, isolated communities. Teachers’ salaries would be commensurately low and the result would be a downward spiral in education and industry. There would also be a tendency for the value of the voucher to stay low as most parents would be paying additional school fees. This would prove economical to the provincial treasury, but very hard on low-income parents. It is doubtful in the extreme whether this plan would be politically feasible in Ontario.

&KDSWHU)LYH CONCLUSION 7KHUHLVOLWWOHOLNHOLKRRGRIDFKLHYLQJFRPSOHWHFRQVHQVXVRQWKLVPRVWGLIÀFXOWTXHVtion. The value differences are very great in magnitude and varied in kind. Those with major stakes in the public school systems will, understandably, be strongly opposed to any actions that may serve, advertently or inadvertently, to reduce their size. Those who feel ill-served, or simply not served, by the public systems feel that funding of their choices is a simple matter of fairness. If Catholics are to have their schools, why should they not have theirs. Appendix III illustrates a decision making matrix. It must be treated with great caution. It is not feasible to incorporate every possible value and the values I have VHOHFWHGDUHQRWQHFHVVDULO\TXDQWLÀHGWRHYHU\RQH·VVDWLVIDFWLRQLQWKHVLPSOHZD\, have illustrated. Ideas such as freedom and equality of opportunity are complex and GHÀQDEOHLQYDULRXVZD\V3HRSOHPD\VLQFHUHO\DQGUHDVRQDEO\IHHOWKDWWKHLUYHU\ different educational proposals are compatible with such ideals. Nevertheless, using simple broad strokes, I have attempted to show some of the trade-offs that are necessary as political policy-making takes place. The various sample matrices illustrate well how we reached the status quo; not everyone likes it very much but all can see far worse alternatives. Appendix IV, showing the rank ordering of the various options according to stimulated representations of various interest groups, suggests that four of the options, besides the status quo, deserve particularly careful study, none being rejected violently by anyone. These four options are: a) Limited Support to private schools, in the form of subsidized materials, transportation etc.; b) Taxable Grants to parents of private school pupils; c) Associated Schools; and d) a Voucher System with a Cap on Total School Spending (the Netherlands model). 7KHÀUVWWZRDUHPRVWHDVLO\LPSOHPHQWHGGLVWRUWWKHVWDWXVTXROHDVWDQGIRUWKDW reason, are likely to be least objectionable to public school supporters. Neither is likely to have any severe consequences. Both cost money, but the costs can easily be control-

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led by limiting the support grants, whether to schools or to parents. However, neither of these approaches addresses the central issues raised by the funding of a complete Catholic system. To ensure that such limited support to private religious schools would be constitutional, the province would probably have to pass overriding legislation; in other words it would have to place on record the belief that it intended to discriminate in favour of Catholics against Jews, Baptists, Anglicans and other minorities. The *RYHUQPHQWPLJKWQRWÀQGWKDWSDODWDEOHFHUWDLQO\PDQ\RIWKHJURXSVDIIHFWHGZRXOG ÀQGLWTXLWHXQSDODWDEOH The two remaining options, Associated Schools and Vouchers with a Cap on Spending, are more radical and may be expected to have more far-reaching effects. However, both provide equal treatment to all groups, but also provide safeguards to protect the public systems from unfair competition. They would not be protected from fair competition. If the publicly funded systems really do represent the mass of the public, they have little to fear from competition whose overall spending is limited in the same way as their own. Most parents will not want to experiment with their children in a cavalier fashion. ,IRQWKHRWKHUKDQGDVPDQ\RIWKRVHVRPHZKDWGLVVDWLVÀHGZLWKWKHSXEOLFV\VWHP LQVLVWWKHSXEOLFVFKRROVDUHRSHUDWHGWRRORRVHO\ZLWKDQLQVXIÀFLHQWFRPPLWPHQW to traditional values, then either the public systems will change or they will lose their clientele. The major effect, then, of these two options would be to encourage the public systems to become more responsive to the wishes of the public they serve. The greater the gap, the more they will have to change. If there is little or no gap, the new funding should pose little threat. Of the two, the Associated Schools Plan may be preferable. 0RUHGLIÀFXOWWRVHWXSLWSURYLGHVPRUHUHDG\FKHFNVDQGEDODQFHVDJDLQVWDEXVHDQG encourages greater cooperation between public and private schools.

)227127(6 1. Robinson, Gordon, Private Schools and Public Policy, Loughborough, England: Department of Social Science and Economics, Loughborough University of Technology, 1971. 2. See, for example, the philosophy of Alasdair MacIntyre in After Virtue, Notre Dame, Indiana: University of Notre Dame Press, 1981. 3. Maritain, Jacques. “Education at the cross roads,” Chapter in Selected Readings in the Philosophy of Education, edited by Joe Park, New York: Macmillan, 1958. 4. Rousseau, Jean Jacques, Emile, New York: Appleton, 1897. 5. LaPierre, Laurier. To Herald a Child. Ontario Public School Men Teachers’ Federation, Toronto, 1981. 6. Ibid., p. 49 7. Ibid., p. 51 8. Ibid., p. 29 9. Dewey, John, Experience and Education. New York: Collier Books, 1963, pp. 19-20. 10. Warnock, Mary. Schools of Thought. London: Faber and Faber, 1977, p. 68. 11. Morris, Van Cleve, Existentialism in Education. New York: Harper and Row, 1966, p. 102. 12. Ibid., 103.

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STATE SUPPORT FOR RELIGIOUS EDUCATION

13. Erickson, Donald A. “Disturbing evidence about the ‘one best system’.” In The Public School Monopoly, edited by Robert B. Everhart, Cambridge, Massachusetts; Ballinger Publishing Company, 1982, pp. 393422. 14. Everhart, Robert B. “Leftist agendas, educational vouchers: Toward a critical appraisal.” Interchange,14, 3, 1983, pp. 46-64. 15. “An interview with Dr. Ted Bounsall, NDP critic in the Ontario Provincial Parliament.” Field Development Newsletter, 10, 9, 1980, p. 6. 16. Bloom, Benjamin S. Human Characteristics and School Learning. New York: McGraw-Hill, 1976. 17. Coleman, J. S., Hoffer, T. and Kilgore, S. High School Achievement: Public, Catholic and Private Schools Compared. New York: Basic Books, 1982. 18. Purves, Alan C. and Levine, Daniel U. Educational Policy and International Assessment. Berkeley, California: McCutchan, 1975. 19. Premier William Davis. Address to the provincial legislature, June 12, 1984.

Appendix 1 &+$57(52)5,*+76$1')5(('206&2167,787,21$&7 1982 The following is taken from a summary published by the Federal Government of Canada. Equality Rights. Every individual will be considered equal under Canadian law and entitled to protection against discrimination by governments, particularly on the grounds of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. $WWKHVDPHWLPHWKHUHLVSURYLVLRQLQWKH&KDUWHUIRUDIÀUPDWLYHDFWLRQSURJUDPV designed, for example, to improve the conditions of disabled persons. Such programs will not be considered discriminatory. Restrictions7KHSURWHFWLRQVRIULJKWVFDQQRWEHPDGHDEVROXWH$Q\GHÀQLWLRQRI individual rights must be balanced against the rights of all people in a society. Hence, the Charter’s acknowledgment that the rights it recognizes might have to be restricted in the general interest. The restrictions must be reasonable, however, and must be prescribed by law and EHGHPRQVWUDEO\MXVWLÀDEOHLQWKHFRQWH[WRIDIUHHDQGGHPRFUDWLFVRFLHW\$QH[DPSOH of such a restriction would be the laws against libel and slander limiting the right to freedom of speech. In addition the Constitution gives Parliament and provincial legislatures limited powers to pass laws that may expressly override fundamental freedoms, legal rights and equality rights protected by the Charter. But in passing such laws legislators must state clearly that this is what they are doing, by inserting a clause saying that the action is taken notwithstandingDVSHFLÀFSURYLVLRQRIWKH&KDUWHU7KHH[FHSWLRQDOQDWXUHRI WKLVSURYLVLRQLVUHÁHFWHGLQWKHIDFWWKDWZKHQVXFKDODZLVSDVVHGLWH[SLUHVZLWKLQ ÀYH\HDUVXQOHVVVSHFLÀFDOO\UHHQDFWHGZLWKDQRWKHU´QRWZLWKVWDQGLQJµFODXVH

468

4. OFFICIAL REPORTS

Appendix II 5(/$7,216+,36$021*3+,/2623+,(69$/8(6$1' ('8&$7,21$/$55$1*(0(176 PHILOSOPHICAL BASES

EDUCATIONAL VALUES

EDUCATIONAL ARRANGEMENTS

I SUBJECTIVIST EXISTENTIALISM

A. Educational as a Private Good

i) Voucher System

ii) Vouchers With Cap

iii) Associated Schools Mediated By: II PRAGMATISM    Natural Development

B. Education for 6HOI)XOÀOPHQW

1) parents iv) Partial Funding-Cap 2) state

III ROUSSEAU Controlled Development

v) Partial Funding

C. Education For Good of State

vi) Taxable Grants

vii) Fees Deductibility

viii) Limited Support IV UTILITARIANISM

D. Education as an External Good For:

ix) Status Quo

V TRADITIONALISM

1) Society 2) Character 3) Eclectic Goals

x) Single Provincial System

LEGEND

Major Relationships Minor Relationships

469

STATE SUPPORT FOR RELIGIOUS EDUCATION

Appendix III.1 CHOOSING AMONG THE OPTIONS CRITERIA

1

WEIGHT N/A

2

3

4

5

6

7

8

9

10

11

12

13

14

15

N/A

N/A

N/A

N/A

N/A

N/A

N/A

N/A

N/A

N/A

N/A

N/A

N/A

Total

OPTIONS 1. Single Provincial System

0

0

9

6

0

9

9

9

9

0

9

9

0

8

N/A

2. Status Quo

2

3

8

9

1

7

6

8

3

3

8

8

9

7

N/A

3. Limited Support Services

4

6

7

8

2

3

5

7

5

4

6

4

6

5

N/A

4. Fees Deductibility

3

8

1

4

6

1

3

7

5

3

6

4

5

0

N/A

5. Taxable Grants

7

6

1

6

6

5

2

6

4

5

5

4

7

2

N/A

6. Partial Funding

7

7

1

5

7

3

2

5

3

5

1

4

4

6

N/A

7. Partial Funding with a Cap

7

5

3

6

7

6

2

3

2

7

2

5

5

6

N/A

8. Associated Schools

9

5

4

5

8

6

4

5

4

7

3

6

8

5

N/A

9. Vouchers with Cap

9

5

2

5

9

6

3

3

3

8

2

5

7

5

N/A

10. Vouchers

8

9

0

0

9

0

0

0

0

9

0

0

0

9

N/A

KEY FOR CRITERIA: 1. Traditionalism 2. Freedom 3. Statism 4. Progressivism 5. Existentialism

6. Equal Opportunity 7. Homogeneity 8. Common Curricula 9. Reduction of Individual Differences

470

10. Excellence 11. Least Harm to Public Systems 12. Help to Public Systems 13. Political Feasibility 14. Economy 15. Total

4. OFFICIAL REPORTS

Appendix III.2 75$',7,21$/,67&+5,67,$1:,7+&+,/'5(1,138%/,& SCHOOLS CRITERIA 1

2

3

4

5

6

7

8

9

10

11

12

13

14

WEIGHT 6

3

1

0

0

3

1

1

1

4

2

2

2

3

15

16

1. Single Provincial System

0

0

9

0

0

27

9

9

9

0

18

18

0

24

123

9

2. Status Quo

12

9

8

0

0

21

6

8

5

12

16

16

3. Limited Support Services

24

18

7

0

0

9

5

7

5

16

12

8

18

21

151

4

12

15

138

8

OPTIONS

4. Fees Deductibility

18

24

1

0

0

3

3

7

5

12

12

8

10

0

103

10

5. Taxable Grants

42

18

1

0

0

15

2

6

4

20

10

8

14

6

146

6

6. Partial Funding

42

21

1

0

0

9

2

5

3

20

2

8

8

18

139

7

7. Partial Funding with a Cap

42

15

3

0

0

18

2

3

2

28

4

8

10

18

153

3

8. Associated Schools

54

15

4

0

0

18

4

5

4

28

6

10

16

15

179

1

9. Vouchers with Cap

54

15

2

0

0

18

3

3

3

32

4

12

14

15

178

2

10. Vouchers

48

27

0

0

0

0

0

0

0

36

0

10

0

27

148

5

KEY FOR CRITERIA: 1. Traditionalism 6. Equal Opportunity 2. Freedom 7. Homogeneity 3. Statism 8. Common Curricula 4. Progressivism 9. Reduction of Individual 5. Existentialism Differences

10. Excellence 15. Total 11. Least Harm to Public Systems 16. Rank 12. Help to Public Systems 13. Political Feasibility 14. Economy

471

STATE SUPPORT FOR RELIGIOUS EDUCATION

Appendix III.3 352*5(66,9(+80$1,67:,7+&+,/'5(1,138%/,& SCHOOLS CRITERIA 1

2

3

4

5

6

7

8

9

10

11

12

13

14

WEIGHT 0

2

3

6

2

3

2

2

0

1

5

3

2

1

15

16

1. Single Provincial System

0

0

27

36

0

27

18

18

0

0

45

27

0

8

216

2

2. Status Quo

0

6

24

54

2

21

12

16

0

3

40

24

3. Limited Support Services

0

12

21

48

4

9

10

14

0

4

30

12

18

7

227

1

12

5

181

3

4. Fees Deductibility

0

16

3

24

12

3

6

14

0

3

30

5. Taxable Grants

0

12

3

36

12

15

4

12

0

5

25

12

10

0

133

8

12

14

2

152

5

6. Partial Funding

0

14

3

30

14

9

4

10

0

5

5

12

8

6

120

9

OPTIONS

7. Partial Funding with a Cap

0

10

9

36

14

18

4

6

0

7

10

15

10

6

145

7

8. Associated Schools

0

10

12

30

16

18

8

10

0

7

15

18

16

5

165

4

9. Vouchers with Cap

0

10

6

30

18

18

6

6

0

8

10

15

14

5

146

6

10. Vouchers

0

18

0

0

18

0

0

0

0

9

0

0

9

9

54

10

KEY FOR CRITERIA: 1. Traditionalism 6. Equal Opportunity 2. Freedom 7. Homogeneity 3. Statism 8. Common Curricula 4. Progressivism 9. Reduction of Individual 5. Existentialism Differences

10. Excellence 15. Total 11. Least Harm to Public Systems 16. Rank 12. Help to Public Systems 13. Political Feasibility 14. Economy

472

4. OFFICIAL REPORTS

Appendix III.4 5(/,*,286*52830(0%(5:,7+&+,/'5(1,135,9$7( 6&+22/²$9(5$*(,1&20( CRITERIA 1

2

3

4

5

6

7

8

9

10

11

12

13

14

WEIGHT 5

8

0

0

0

3

0

1

0

2

1

1

3

3

15

16

1. Single Provincial System

0

0

0

0

0

27

0

9

0

0

9

9

0

24

78

10

2. Status Quo

10

24

0

0

0

21

0

8

0

6

8

8

3. Limited Support Services

20

48

0

0

0

9

0

7

0

8

6

4

24

21

130

8

18

15

135

7

4. Fees Deductibility

15

64

0

0

0

3

0

7

0

6

6

4

15

0

120

9

5. Taxable Grants

35

48

0

0

0

15

0

6

0

10

6. Partial Funding

35

56

0

0

0

9

0

5

0

10

5

4

21

16

160

3

1

4

12

18

150

5

OPTIONS

7. Partial Funding with a Cap

35

40

0

0

0

18

0

3

0

14

2

5

15

18

150

5

8. Associated Schools

45

40

0

0

0

18

0

5

0

14

3

6

21

15

167

1

9. Vouchers with Cap

45

40

0

0

0

18

0

3

0

16

2

5

21

15

165

2

10. Vouchers

40

72

0

0

0

0

0

0

0

18

0

0

0

27

157

4

KEY FOR CRITERIA: 1. Traditionalism 6. Equal Opportunity 2. Freedom 7. Homogeneity 3. Statism 8. Common Curricula 4. Progressivism 9. Reduction of Individual 5. Existentialism Differences

10. Excellence 11. Least Harm to Public Systems 12. Help to Public Systems 13. Political Feasibility 14. Economy

473

15. Total 16. Rank

STATE SUPPORT FOR RELIGIOUS EDUCATION

Appendix III.5 3$5(17:,7+&+,/'5(1,1(/,7(35,9$7(6&+22/6 CRITERIA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

A1

A2

15

WEIGHT

2

4

0

0

0

1

0

0

0

4

2

1

5

4

10

2

Ttl. Rank

16

1. Single Provincial System

0

0

–

–

–

9

–

–

–

0

18

9

0

32

0

0

68

10

2. Status Quo

4

12

–

–

–

7

–

–

–

12

16

8

45

28

20

8

160

8

3. Limited Support Services

8

24

–

–

–

3

–

–

–

16

12

4

30

20

40

10

167

5

4. Fees Deductibility

6

32

1

12

12

4

25

0

80

12

184

3

5. Taxable Grants

14

24

5

20

10

4

35

8

30

14

164

6

6. Partial Funding

14

28

3

20

2

4

20

24

80

14

209

2

7. Partial Funding with a Cap

14

20

6

28

4

5

25

24

10

14

150

9

8. Associated Schools

18

20

6

28

6

6

40

20

10

12

166

5

9. Vouchers with Cap

18

20

6

32

4

5

35

20

10

14

164

6

10. Vouchers

16

36

0

36

0

0

0

36

90

18

232

1

OPTIONS

KEY FOR CRITERIA: 1. Traditionalism 6. Equal Opportunity 2. Freedom 7. Homogeneity 3. Statism 8. Common Curricula 4. Progressivism 9. Reduction of Individual 5. Existentialism Differences A1. Right to Support Children

474

10. Excellence 11. Least Harm to Public Systems 12. Help to Public Systems 15. Total 13. Political Feasibility 16. Rank 14. Economy A2. Heterogeneity

4. OFFICIAL REPORTS

Appendix III.5 %/$1.0$75,;)255($'(5·686( CRITERIA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

A1

A2

15

WEIGHT OPTIONS 1. Single Provincial System 2. Status Quo 3. Limited Support Services 4. Fees Deductibility 5. Taxable Grants 6. Partial Funding 7. Partial Funding with a Cap 8. Associated Schools 9. Vouchers with Cap 10. Vouchers

KEYS TO CRITERIA: 1. Traditionalism 6. Equal Opportunity 2. Freedom 7. Homogeneity 3. Statism 8. Common Curricula 4. Progressivism 9. Reduction of Individual 5. Existentialism Differences

10. Excellence 11. Least Harm to Public Systems 12. Help to Public Systems 13. Political Feasibility 14. Economy

475

A1. A2. 15. Total 16. Rank

16

STATE SUPPORT FOR RELIGIOUS EDUCATION

Appendix III.7 &200(17$5<21$33(1',&(6,,,,,, Appendix III is a decision-making matrix based on the major options facing the Province of Ontario in 1984 and the values developed in this paper. In Appendix III.1, the options are shown horizontally from 1 to 10 and the criteria, including political feasibility and economy, are shown in vertical columns from 1 to 14. The numerals in the chart are based on a scale from 0 to 9. These numerals represent my judgment of the variables. In all cases, both 0 and 9 have been used. The options for educational arrangements are those described in Chapter IV. 'HÀQLWLRQVRIWKHFULWHULDDUHDVIROORZV 1. Traditionalism – a belief that our society has fundamental cultural values, notably the traditional virtues, that should underlie formal education and be respected and included. 2. Freedom – a belief in individual liberty which normally overrides the convenience of the state: it includes belief in the freedom of parents to choose the education of their children. 3. Statism – a belief that the interest of the state must have priority over those of parents in the education of children. 4. Progressivism – a belief that the best education is that which provides children a healthy environment in which they may make intelligent choices about problem VROYLQJWKDWZLOOOHDGWRWKHLUSHUVRQDOIXOÀOPHQW 5. Existentialism – a belief that our being is all we have and that education should emphasize the essence of existence and the power to think and choose that go with it. 6. Equal opportunity – a belief that the state has a responsibility to provide pupils from a variety of backgrounds with equality of educational opportunity; principally, it consists of the provision of equal access to educational programs; to some degree, it implies the provision of the same curriculum to all pupils, at least in the elementary grades, and there should be sensitivity to inequality of outcomes among groups. 7. Homogeneity – a belief that it is valuable for children of different backgrounds to work and play together so that they adopt some common values and understandings; some readers may prefer to substitute the reverse value of heterogeneity. 8. Common Curriculum – a belief that a comparatively undifferentiated curriculum is desirable because it will provide all pupils with a similar basis of knowledge from which they can choose their futures freely. 9. Reduction of Individual Differences – a belief that schools should consciously try to reduce rather than increase the inequalities in levels of educational functioning which children bring to school from home. 10. Excellence – a belief that great emphasis should be placed on the encouragement of individual achievement in all areas of school activity – academic, social, extra-mural, moral, aesthetic, physical.

476

4. OFFICIAL REPORTS

11. Least Harm to Public Systems – a belief that changes should be developed such that least damage will be done to existing publicly funded schools. 12. Help to Public Systems – a belief that new arrangements might help public systems, by providing additional funding, or by providing fair competition. 13. Political Feasibility – the likelihood of an idea being acceptable to a governing political party. 14. Economy – probable expense to provincial, including local, taxpayers: a high score represents low cost. NOTE: Readers will observe that there is no variable representing utilitarianism. Appendix II suggests that utilitarianism is most compatible with education for a wide variety of external goods. However, it can also be argued that utilitarianism can support education as a private good and education for the good of the state. It may be argued that some of the variables, such as equality of educational opportunity, are utilitarian in origin. In any case, utilitarians will have to handle this problem for themselves in their own way.

Use of the Matrix The matrix cannot be used simply by adding the horizontal scores in Appendix III.1. The result would be meaningless. The assumption behind such behaviour would be that the reader holds all values, including contradictory ones, to be of equal worth. I have simulated some examples in Appendices III.2 to III.5. They are far from exhaustive. Appendix III.6 is provided for the reader’s own use. In completing the matrix, the following steps should be followed: 1. Check the options provided and add additional ones if desired: 2. Check the criteria and add additional ones if desired; more room can be found E\GHOHWLQJVXSHUÁXRXVRQHVIRUH[DPSOHLWLVXQOLNHO\WKDWDQ\UHDGHUZLOO want to use both traditionalism and progressivism); 3. Apply weights to the selected criteria: it probably makes sense to keep the total weights in the 25 to 35 range; the higher the weight the more important the value; 4. Apply the 0 to 9 scale for the different options; for each criterion chosen make sure both a 0 and a 9 are used in every vertical column in order that some values are not unintentionally weighted differently from others; 5. Multiply the weight by the scale score for every criterion and every option; 6. Add the totals found by step #5 horizontally; 7. Calculate and check the rank order. Has it worked right? Have you arrived at the “right” answer? If not, was the “right” answer really the “right” answer. Adjust WKHVFRUHVLIQHFHVVDU\WRUHÁHFW\RXUWUXHMXGJPHQW   7RWDOWKHVFRUHVÀQDOO\DQGDUULYHDWDUDQNRUGHUWRWKHRSWLRQV Step #7 is the crucial step in which readers must come to terms with their own values, by adjusting the weights, by adding new values or by coming to new conclusions.

477

STATE SUPPORT FOR RELIGIOUS EDUCATION

Simulated Value Positions $SSHQGL[,,,7UDGLWLRQDO&KULVWLDQZLWKFKLOGUHQLQSXEOLFVFKRROV Mrs. McIntyre is a Presbyterian. She has always considered herself a supporter of the public schools; she has little sympathy with the idea of elite private schools. However, in recent years she has become increasingly uneasy with the public schools’ educational offerings. She does not expect public schools to teach her particular brand of Christianity, but she does expect them to support basic moral values – honesty, justice, loyalty, courage, humility, friendship, personal responsibility, independence, industriousness. It seems to her that teachers rarely if every directly address moral examples themselves. If WKH\GRDGGUHVVVXFKLVVXHVLWLVQHDUO\DOZD\VLQWKHFRQWH[WRIYDOXHFODULÀFDWLRQZLWK pupils being encouraged to choose their own values without regard to their parental or religious upbringing. Teachers are apt to deal with family and sexual matters as though either these questions are mere matters of personal preference or they are matters to be GHDOWZLWKLQFOLQLFDOO\VFLHQWLÀFWHUPV6KHLVDOVRGLVVDWLVÀHGZLWKWKHVFKRROV·DSSURDFK to program. She feels that there is too little rigour, too little concern for standards, particularly in language and social studies. Her children sometimes bring home quite mediocre work, either unmarked or highly praised – often containing numerous spelling and other errors. She no longer feels that the public schools represent her. It is not that she has a strong view of individual rights; she believes in fact that most parents share her views. However, she sees the school system as being somewhat out of tune with majority values and would welcome the opportunity to send her children to a rigorous school with a strong sense of values. She has considered sending her children to Catholic schools, but is not sure they are really very different. She believes in equal opportunity and thinks the Province should make her alternative available to her. She would not be opposed to an alternative within the system rather than a private alternative but doubts that her board would willingly provide one; she thinks her board would not want to make such an alternative readily available. $SSHQGL[,,,3URJUHVVLYH+XPDQLVWZLWK&KLOGUHQLQ3XEOLF6FKRROV Mr. Thomas agrees with Mrs. MacIntyre that the ethos of the public schools is humanist, but argues that is what it should be. He is a strong supporter of the public schools. The public schools, he thinks, should be used to protect children from their parents, from people like Mrs. MacIntyre who want to impose their views on their children. He himself was brought up in a strongly Protestant home and wants children in school to be protected from that kind of rigid narrow-mindedness. He would prefer to see private and Catholic schools abolished altogether but realizes that such an extreme position is just not in the political cards. In any case, as long as the private and Catholic parents are kept away from the public system, he believes that the public schools are fairly safe in humanist hands. He would like to see the schools become much more open and progressive and is frightened that they are slipping back into traditional ways EHFDXVHRISROLWLFDOSUHVVXUHV+HZRXOGOLNHWRVHHFKLOGUHQKDYHPRUHLQÁXHQFHRQ their own lives in school and would like to see the high schools become much less regimented and more open to unconventional ways of learning. He is not sure about

478

4. OFFICIAL REPORTS

social homogeneity. Certainly he believes in the core neighbourhood school enrolling children from all backgrounds, but he also likes the idea of developing their cultural differences provided that there will be equality of opportunity at the end of secondary school. He sees the extension of funding of Catholic schools as being fair, but he wants to make sure that the public schools do not suffer in the process. He thinks the Ministry of Education and his local school board administrators are probably being clever in talking about standards and rigour while, at the same time, they are quietly pressing ahead with some progressive reforms. He is strongly opposed to any funding of private schools. He does not think parents should be permitted to give their children a narrow, fundamentalist education. $SSHQGL[,,,5HOLJLRXV*URXS0HPEHUZLWK&KLOGUHQLQ3ULYDWH6FKRRO 0UV9DQ'DPLVRI'XWFKRULJLQ$OWKRXJKVKHKDVH[SHULHQFHGÀQDQFLDOGLIÀFXOWLHV she has recently transferred her children to a private Christian school. She comes from a strong Lutheran background, but she says that religion is only a part of the reason for transferring her children. She feels, like Mrs. MacIntyre, that the public schools are QRWVXIÀFLHQWO\ULJRURXVHLWKHULQWHUPVRIWKHLUWHDFKLQJRULQWHUPVRIWKHLUFRQWURORI children’s behaviour. She got on well with all her children’s teachers in public schools and found them pleasant and supportive. However, she does not feel she was fully LQIRUPHG ZKHQ WKH FKLOGUHQ KDG GLIÀFXOWLHV 6KH ZDV QRW WROG XQWLO VKH GHPDQGHG precise information from the principal, that one of her children was well below average in both reading and mathematical skills. She thinks her son is lazy and feels he must be made to work at school just as she and her husband have to make him work hard at home. She thinks the school lets him idle away his time. She is a strong believer in religious freedom and remembers that she went to a private religious school in Holland when she was a girl. The Canadian public schools, she believes, are moving further and further away from Christianity; maybe that is what people want. But she wants KHUFKLOGUHQEURXJKWXSKHUZD\6KHÀQGVLWKDUGHQRXJKFRQWHQGLQJZLWKWHOHYLVLRQ PRYLHVURFNFRQFHUWVDQGPDJD]LQHVZLWKRXWKDYLQJWRÀJKWWKHLGHDVKHUFKLOGUHQ pickup from school, and, particularly, from the friends they make at school. She does not see why she should pay taxes for an education she does not want and then pay DGGLWLRQDOIHHVDWJUHDWVDFULÀFHIRUKHURZQVFKRRO6KHWKLQNV&KULVWLDQVFKRROVOLNH the one her children attend should get the same funding the Province gives the public schools. She does not feel strongly about whether private schools should be allowed to raise additional money beyond that provided by the Province but does feel strongly they must be free to choose their own teachers and to teach programs in their own way. She does not mind the Province insisting on appropriate academic standards, but certainly does not want the Province telling teachers how to teach. $SSHQGL[,,,(OLWH3ULYDWH6FKRRO3DUHQW Mr. Gilchrist has three children, two boarding in elite private schools and one attending an elite private school on a daily basis. He considers himself a good supporter of the public schools and agrees they should be compulsory, publicly funded and provincially operated. He does not begrudge the tax money spent on education. However, he does

479

STATE SUPPORT FOR RELIGIOUS EDUCATION

feel very strongly that his own school fees, which total over $25,000 a year, should be tax deductible. His preference is for a pure voucher system or for substantial aid to private schools, but realizes those options may not be feasible for economic and political reasons. He thinks tax deductibility might be less objectionable. Mr. Gilchrist is a strong believer in the Laissez-faire, free market system and believes that the more it is applied to the school system the better the schools will become. If there can be no voucher system, he is quite prepared to pay his share of school taxes. He believes that education is useful for cultural purposes and essential if individuals and the nation as a whole are to become economically competitive. He is not too happy, in his experience, with the graduates of the public school system. He would like them to have a better grounding in the basic skills, and, even more important, he would like them to have better attitudes towards business, and be more aware of the importance of punctuality, conscientiousness, courtesy and cooperation. He thinks he should be able to spend his money on his children as he wishes and, in any case, he thinks the country needs the kind of leadership that traditional private schools can provide.

Appendix IV 5$1.25'(52)237,216%<(;$03/(63529,'(',1 APPENDIX III Options 1. Single Provincial System 2. Status Quo 3. Limited Support 4. Fees Deductibility 5. Taxable Grants 6. Partial Funding 7. Partial Funding – Cap 8. Associated Schools 9. Vouchers with Cap 10. Vouchers

3 Traditionalist

2 Religious

4 Humanist

1 Elitist

9 4 8 10 6 7 3 1 2 5

10 8 7 9 3 5 8 1 2 4

2 1 3 8 5 9 7 4 6 10

10 8 4 3 6 2 9 5 6 1

NOTE: It would not be sensible to combine these rankings as “traditionalists” and “humanists” (i.e. those generally represented by Mrs. MacIntyre and Mr. Thomas,) are much more numerous than the “religious” and “elitist” groups. It would appear that options #2, #3, #5, #8, and #9 are those that would receive least opposition.

480

4. OFFICIAL REPORTS

$SSHQGL[) ´$/7(51$7,9(0(7+2'62)),1$1&,1*35,9$7( 6&+22/6,1217$5,2µ Stephen Lawton January 31, 1985 This study was funded under contract by the Commission on Private Schools in Ontario. 7KLVVWXG\UHÁHFWVWKHYLHZVRIWKHDXWKRUDQGQRWQHFHVVDULO\WKRVHRIWKH Commissioner.

$%675$&7 Were the government of Ontario to offer funds to private schools in the Province, how might it do so and how much might it cost? This paper provides a number of answers to these questions, all within a framework that views government as having three major economic roles – allocation, stabilization, and redistribution – and that distinguishes government funding from government operation, and private funding from private operation. To provide the data needed to develop cost estimates, a survey was conducted of 1 in 4 private schools in Ontario. Of the 130 questionaires mailed, 55 (or 42 percent) were returned. It was concluded 1) that types of possible aid differed by the form of aid (direct payment, provision of goods and services, exemptions from tax, tax deductions, and tax credits) and by recipient (children, parents, benefactors, staff, schools, and school systems); 2) that current indirect forms of aid (e.g., property tax exemptions and tax deductions) are equivalent to approximately one-sixth the expenditures per pupil in private schools; and 3) that an extension of further aid could only be defended (in economic terms) on the basis of Government’s role in redistributing wealth and income in society. Assuming government were, on the basis of equity or other arguments, to extend further aid to private schools, three types are suggested as being most practicable and defensible: 1) provision of textbooks and equipment to private school pupils; 2) provision of free transportation to private school students on the same basis it is made available in school boards; and 3) “pooling” the property taxes of parents with children in private schools, with these funds to be allocated to private schools on an equitable basis. The total cost of these proposals would be approximately $45,000,000 per year. It is also suggested that allowing all private school systems (e.g., the Board of Jewish Education, the Ontario Alliance of Christian Schools) the option of becoming publicly 481

STATE SUPPORT FOR RELIGIOUS EDUCATION

operated school boards under the Education Act would be consistent with the extension of public funds to private schools and the Government’s recent decision to allow private Roman Catholic secondary schools to become part of the Roman Catholic separate school system. This option could cost as much as $200,000,000 per year.

7$%/(2)&217(176 Abstract Acknowledgements List of Tables Introduction Economic Functions of Government Forms of Aid Recipients Type of Aid Survey of Private Schools Selection of Sample Questionnaire Design Administration of Questionnaire

Description of Actual Sample Description of Questionnaire Results The Cost of Providing Aid Current Programs of Aid The Cost of Full Funding The Cost of Different Forms of Aid Transitional Costs of Providing Aid Discussion, Conclusion, and Recommendations Addendum Footnotes Bibliography Appendix A

/,672)7$%/(6 Table No. 1. Production and Purchase of Education in Ontario, 1984

2. Description of Private Schools in Ontario: Population, Target Sample and Actual Sample

3. Grade Distribution of Schools in Sampled Population, Target Sample and Actual Sample

4. Distribution of Elementary and Secondary

5. $IÀOLDWLRQRI6FKRROLQ6DPSOHG3RSXOD-

6. Distribution by Region of Schools in

tion, Target Sample and Actual Sample

Sampled Population, Target Sample and Actual Sample

7. Average Revenues for Private Schools

8. Average Expenses for Private Schools

in Ontario for Last Fiscal Year Based on Sample Data

in Ontario for Last Fiscal Year Based on Sample Data

9. Student Fees and Awards

10. Teaching Staff Salaries

11. Size, Revenues, Expenditures, Enrol-

12. Private School Facilities

Schools in Sampled Population, Target Sample and Actual Sample

ment and Salaries by Type of School

482

4. OFFICIAL REPORTS

13. Transportation of Private School Pupils

14. Enrolment Projections in Private Schools

15. Estimated Income of Families with Children in Private Schools

16. Percentage of Schools Registered as Charities

17. Scheme for Different Types of Aid to Private Schools

,1752'8&7,21 +RZPXFKÀQDQFLDODLGLVJRYHUQPHQWIHGHUDODQGSURYLQFLDO FXUUHQWO\SURYLGLQJ private schools in Ontario? How much would it cost for government to fully fund private schools in Ontario? What methods can government use to allocate funds to schools? 7KHVHDUHHDV\TXHVWLRQVWRDVNEXWWKH\KDYHEHHQGLIÀFXOWWRDQVZHULQODUJHSDUW due to a lack of adequate data. Indeed, aside from a listing of private schools registered with the Ontario Ministry of Education1, which includes statistics on the number of pupils enrolled, the number of full-time staff, the number of part-time staff, and the UHOLJLRXVDIÀOLDWLRQRIWKHVFKRROWKHUHDUHYLUWXDOO\QRH[LVWLQJVWDWLVWLFVRQZKLFK estimates of the various costs noted above could be derived. It is for this reason that this study entailed a questionnaire survey of a sample of private schools requesting data needed to make estimates. As important as statistical data is the conceptual framework within which one works; the framework conditions not only the types of data sought, but the character of answers given. In this regard, the author takes a standard approach referred to as “welfare economics” in which the Government’s objective in setting a public policy is to maximize a given “social welfare function”. 7KDWLVLWGHVFULEHVKRZLWFDQEHVWH[HUFLVHLWVÀVFDOSRZHUVWRPD[LPL]HWKHEHQHÀWV and minimize the costs to the public associated with the public policy.2 This paper, then, is organized in the following manner. First, there is a brief review of the economic functions of government viewed from within a framework of welfare economics. This is followed by an outline of methods by which governments can (and have) funded private schools. Second, the results of a survey of a sample of private schools in Ontario are reported. The questions themselves were determined by the framework and options developed in the preceding section. Third, cost estimates are derived for the various options for funding private schools in Ontario. Finally, the various options are discussed and arguments given for and against various options.

(&2120,&)81&7,2162)*29(510(17 A discussion of the economic functions of government is an appropriate place to begin this discussion of methods for funding private schools for several reasons. First, governments’ traditional legislative, executive and judicial functions have been supplemented by an economic responsibility of equal magnitude. Second, education

483

STATE SUPPORT FOR RELIGIOUS EDUCATION

is seen as playing an important, and perhaps increasing, economic role in society. And WKLUGÀQDQFLQJHGXFDWLRQLQFOXGLQJSRVVLEO\SULYDWHVFKRROVFOHDUO\LQYROYHVÀVFDO and therefore economic matters. One useful typology of government economic activity holds that government has three economic functions: allocation, distribution, and stabilization.3 In carrying out the ÀUVWDFWLYLW\JRYHUQPHQWVPXVWGHFLGHZKDWDFWLYLWLHVDUHWRUHFHLYHSXEOLFIXQGVDQG which are not. In carrying out the second, governments redirect income and wealth from one segment of the population to another. In carrying out the third, governments use WKHLUÀVFDOSROLFLHVDQGDWWKHIHGHUDOOHYHOOHYHUVVXFKDVWKHEDQNUDWHDQGDPRXQWRI money in circulation) to maintain, as best they can, low rates of unemployment and a high degree of price stability. Also under the heading of stabilization comes the objective of economic development, which is in effect increasing the level of economic activity in a manner that is self-sustaining; i.e., in a manner that contributes to the generation of wealth. This last point becomes of critical importance when we turn to the role of education in economic development at a later point. Education, in fact, calls for all three types of economic activity on the part of government. Governments must decide how much public money should be allocated for schooling; how the service should be “distributed” (to all, regardless of income, or to the few); and how large the whole enterprise is to be. At present, public education (including both “public” boards of education and “separate” school boards in Ontario) receives a great deal of support from local and provincial governments, and modest support from the federal government; it is available to all; and in most communities it is a large, if not the largest, single source of employment. As well, according to the tenets of human capital theory, it is a major (perhaps the major) contributor to the maintenance and growth of the nation’s economy.4 Another particularly important distinction must be made, given the current topic, concerning the allocation of goods and services; that is the distinction between government funding (or provision) and government production. When government provides a good or service, it provides the funds necessary to pay for the good or service, but it may or may not produce the good or service in question. For example, school buildings and highways are typically produced by private businesses, though paid for out of government funds. When government produces a good or service, on the other hand, it may or may not charge for this service. The postal service and Ontario Hydro, for example, are expected to be self-supporting. Universities in Ontario charge fees meant to cover about one-sixth of the full cost of education to Canadian students and landed immigrants, but charge fees meant to recover two-thirds of the full cost to most students studying on student visas.5 Thus, when we talk of government and education, four combinations are possible: 1) government funding and government production 2) government funding and private production 3) private funding and government production 4) private funding and private production

484

4. OFFICIAL REPORTS

Based on statistical data reported later, we estimate the four categories of funding and production to be approximately as follows, counting only direct government funding (i.e., excluding tax deductions, exemptions, and other forms of indirect support). Table 1 clearly reveals the dominance of publicly funded, publicly operated education in Ontario, though it may be noted that from an international perspective Ontario’s support of Roman Catholic schools is viewed as support of private schools because of the separate schools’ denominational nature.8 In fact, the line between what is private and what is public education is clear only in the ideals (and rhetoric) of 19th century reformers who sought non-sectarian, often national, systems of education.9 In Ontario, DWOHDVWWKHFRQÁXHQFHRIWKHLGHDOVRIUHOLJLRXVHGXFDWLRQand locally elected school boards gave rise to a public system of education that retains certain theocratic elements.10 For the purposes of this study, public and separate school boards are collectively viewed as the public education system of Ontario. Privately produced, privately funded education, even including the now private Roman Catholic secondary schools, is modest by comparison, representing an expenditure equal to only 3 percent of the public expenditure on the public system. After the expansion of the separate system is complete, private expenditures on private education will constitute less than 2 per cent of the public expenditure for public education. Table 1. Production and Purchase of Education in Ontario, 1984 Privately Purchased Goods (Private Goods & Services)

Goods Provided through Govt. Budgets (Social Goods)

Public production, millions of dollars

$ 18 a

$6,300 b

Private production, millions of dollars

$ 193 c

$<1d

a The only category included here are fees paid by “visa” students. There are an estimated 4500 visa students enrolled in Ontario public secondary schools. Costs average about $4,000 per year. Excluded are fees paid by continuing education students in programs not fully covered by grants or local taxes and “private” funds raised by schools for extra-curricular activities or special school facilities since no province-wide data on these exist. A recent B.C. study suggested private funds to public schools in that province totals about 15 million dollars; given Ontario has just over three times B.C.’s population, 50 million dollars in private funds may go to Ontario’s public and separate schools each year. See K. Salloum and N. Robinson, “Public Education-Private Subsidy”, The B.C. Teacher, December/January, 1985, pp. 37-39. b  %DVHGRQSXEOLFVWDWHPHQWVE\WKH&RPPLVVLRQHURQ6FKRRO)LQDQFH'U,DQ0DF'RQDOG7KLVÀJXUH represents approximately a 6% increase of Ministry of Education 1983 estimates. 6 c Based on survey estimates of a cost of $2,310 per pupil in private schools (see tables 2 and 8) and enrolment of 83,643. 7 Once 30,485 Roman Catholic secondary students are transferred to the public funded DQGRSHUDWHGV\VWHPVWKLVÀJXUHZRXOGGURSWRDQHVWLPDWHGPLOOLRQ d

Numerous private schools in the sample reported Federal French Language grants. In all cases, these average less than $4 per student enrolled. One reported receipt of a grant for teaching another language from a federal ministry. Under current regulation, Ontario school boards cannot pay tuition for pupils in private schools, though it can purchase “services” that might include some instruction. No statistics are available RQWKHODWWHUH[SHQGLWXUHV.QRZOHGJHDEOHRIÀFLDOVLQGLFDWHWKH\DUHTXLWHPRGHVW

485

STATE SUPPORT FOR RELIGIOUS EDUCATION

7KHSULYDWHSXUFKDVHRISXEOLFHGXFDWLRQLQ2QWDULRLVQRWDEOHVLQFHLWUHÁHFWVIRUWKH most part, students from abroad who have come to study in Ontario, thereby adding to the Province’s economy. As well, perhaps 5 percent of privately produced education in Ontario is also purchased by these “visa” students. In all, such overseas students provide a boost of about 80 million dollars to Ontario’s economy.11 Very little in the way of public purchase of private education apparently occurs in Ontario. The majority of this (estimated by the author at $320,000 but by others as up to $700,000) is in the form of French language instruction grants from the federal government.12 Excluded here, however, is the purchase of care in special institutions E\WKH2QWDULR0LQLVWU\RI&RPPXQLW\DQG6RFLDO6HUYLFHV7KLVODWWHUÀJXUHZDVQRW determined, but is relevant to the possible transfer of responsibility for these individuals to the Ministry of Education under Bill 82, which requires school boards to meet the special education needs of all school age residents within their jurisdictions. In terms of Table 1, then, public funding of private schools would imply that government has decided either to pay for the education of students at privately operated schools which have heretofore been funded privately (i.e., move funds from cell c to cell d in Table 1) or has decided to shift the production of some publicly funded, publicly operated education to privately operated schools (i.e., move funds from cell b to cell d in Table 1). The proper criteria for assessing such a step and the particular methods used to implement it include their effects on the allocation, distribution and stabilization functions of government. For example, if private production of education LV PRUH HIÀFLHQW WKDQ SXEOLF SURGXFWLRQ DV VRPH KDYH VXJJHVWHG  WKHQ D PRYH WR expand enrolment in privately operated schools may reduce the cost of education to society; if some in society gain more than others from this step, then the distribution of educational services may be less equitable; if there is a shift in employment from one group or community to another, then the stability of local economies and rates of unemployment may be affected. 7KHVHWKUHHFULWHULDDUHQRWVXIÀFLHQWKRZHYHUWRMXGJHWKHZLVGRPRIVKLIWLQJ expanding public funding of private schools. The key criterion is the social objective which the government seeks to achieve. That is, in carrying out a reallocation of public funds, is it trying to achieve greater equity or is it more concerned with stabilizing – or expanding – the economy? First, let us assume government is primarily concerned about reducing the currently high rate of unemployment by expanding the economy. Further, let us assume it believes DUHGXFWLRQLQWKHSXEOLFGHÀFLWLVDGYLVDEOH,QWKLVFDVHDSROLF\DLPHGDWVKLIWLQJ enrolments from the public schools to private schools and reducing the number of SULYDWHVFKRROVWXGHQWVUHWXUQLQJWRWKHSXEOLFV\VWHPFRXOGEHMXVWLÀHGLILWFRXOGEH accomplished without losing the advantage of lower costs in private schools. If it was further believed that private schools are more effective at inculcating the knowledge, skills and values needed for a more productive economy, then such a policy could be MXVWLÀHGHYHQLIWKHUHZHUHQRVDYLQJV0RVWZRXOGKROGWKHVFHQDULRMXVWRXWOLQHGZRXOG reduce equity, in that the public schools would be left with the less able students.13 Under the above assumptions, equity could only be increased if a policy to fund private VFKRROVD VRXJKWWRVWHPDQ\ÁRZRXWRIWKHSXEOLFV\VWHPVE VRXJKWWRHQFRXUDJH students to move from private schools to public schools; c) sought to “teach” the public 486

4. OFFICIAL REPORTS

VFKRROVWREHDVHIÀFLHQWDQGDVHIIHFWLYHDVSULYDWHVFKRROVDQGG RIIHUHGDLGRQO\WR private schools whose quality was less than that of neighbouring public schools. 7KXV RQH·V VRFLDO REMHFWLYHV DORQJ ZLWK RQH·V EHOLHIV DERXW WKH HIÀFLHQF\ DQG HIÀFDF\RISULYDWHVFKRROVUHODWLYHWRSXEOLFVFKRROVFRQGLWLRQVWKHW\SHRIVWDQFHRQH takes vis-à-vis the extension of public funding to private schools. Before pursuing this issue further, an overview of different techniques for funding private schools will be presented.

)25062)$,' There are two dimensions that appear to characterize the forms that aid to private schools can take. First, there is the question of who receives the aid; second, is the question of the type of aid that is given. The total number of the combinations and permutations of recipients and types of aid is virtually unlimited; thus this discussion is limited to examples of the more commonly discussed arrangements, with special note of those that currently apply in Ontario.

5HFLSLHQWV Recipients can be placed into six groups: children, parents, benefactors, staff, schools and school systems. Dual registration of a private school student in a public or separate VFKRROIRUYRFDWLRQDOWUDLQLQJZLWKRXWFKDUJHZRXOGEHDQH[DPSOHRIWKHÀUVWYRXFKHUV provided to pay for the education of their children in the school of parents’ choice would be an example of the second; tax deductions for gifts by individuals to a school (or agency supporting a school) would be an example of the third; grants to teachers to supplement teachers’ salaries to bring them up to a level of publicly employed teachers would be an example of the fourth; direct per pupil payments to a school would be DQH[DPSOHRIWKHÀIWKDQGSHUSXSLOSD\PHQWVWRDERG\WKDWRSHUDWHVRURYHUVHHVD JURXSRIDIÀOLDWHGVFKRROVZRXOGEHDQH[DPSOHRIWKHVL[WK

Type of Aid )LYHFDWHJRULHVRIDLGKDYHEHHQLGHQWLÀHGLQWKHFRXUVHRIWKLVVWXG\DVL[WKPRGHRI DFFRPSOLVKLQJSHUKDSVVLPLODUUHVXOWVZLOODOVREHGHVFULEHG7KHÀYHPDMRUFDWHJRULHV are 1) direct payments by government; 2) provision of goods and services in kind; 3) exemptions from taxes; 4) allowance of tax deductions; and 5) allowance of tax credits. Ths sixth vehicle for “aid” to private schools entails raising the cost of publicly operated schools by charging fees to students who attend publicly operated schools. 'LUHFWSD\PHQWVWKHÀUVWRSWLRQDUHPRVWRIWHQPDGHWRSDUHQWVVWDIIVFKRROV or school systems. In their structure, many of the techniques currently used to fund SXEOLFO\RSHUDWHGVFKRROVPD\EHXVHGHJÁDWJUDQWVIRXQGDWLRQJUDQWVHTXDOL]DWLRQ grants, matching grants, and the like. For example, in the case of staff, a grant might be based on the difference between a staff member’s current salary and the salary he or she would be paid either a) on average in the Province, or b) on average in the local SXEOLFDQGVHSDUDWHERDUGVJLYHQWKHVDPHTXDOLÀFDWLRQVDQGH[SHULHQFH,QWKHFDVH RIVFKRROVDPRGLÀHGIRUPRIWKH2QWDULR0LOO5DWH(TXDOL]DWLRQ*UDQW3ODQPLJKW be used, with a school’s revenue from tuition, grants from other bodies, endowment, 487

STATE SUPPORT FOR RELIGIOUS EDUCATION

and the like being used in place of the revenue raised by the basic levy required for full grants in the grant regulations. The same technique could apply to the funding of a system of private schools, in which their collective income (rather than individual school incomes) were assessed. Variations on both these latter schemes are used in Australia where a School’s Recurrent Resource Index (SRRI) is derived by the formula: SRRI =

Private Resources Available

x 100

Total Resources Required to Operate at Standard Government School Costs and then used to classify a school in three (formerly six) subsidy categories. In 1983, the highest level of subsidy was set at 40 percent. Under this plan, all Roman Catholic schools were treated as one body. Presumably, governors of this system of education could then ensure that the largest amounts of aid (even in excess of overall 40 percent ÀJXUH ZRXOGJRWRVFKRROVQHHGLQJLW In recent years, the most widely discussed form of grants to parents has been the idea of giving them vouchers which would be turned in to school authorities when a child is registered in school. These vouchers would then be redeemed by school authorities for their cash value. Voucher plans come in many varieties – regulated and unregulated; equalized and non-equalized. A regulated voucher is one that might be good at only certain types of schools (e.g., those deemed to use acceptable educational practices); equalized vouchers are those that vary with family need: poorer families receive vouchers worth more than wealthier families since it is unlikely that the former would be able to supplement the voucher with their own contribution to a school’s tuition.15 Cash grants, less often mentioned in the literature, would presumably be given only to parents with children enrolled in private schools, since parents with children in public VFKRROVDOUHDG\REWDLQWKHEHQHÀWRIJRYHUQPHQWVXSSRUWHGHGXFDWLRQ7KHDPRXQWRI WKHJUDQWPLJKWEHÀ[HGUHODWHGWRIDPLO\LQFRPHWRWXLWLRQSDLGRUWRSURSHUW\WD[HV paid in support of the publicly operated system in order to eliminate what some claim to be “double taxation”. One form of cash grant, namely the $100 award accompanying a student being designated an Ontario Scholar, is in fact already available to private school students in Ontario. Subsidies are also available to private school pupils engaged in Ontario’s international student exchange program. However, neither of these special programs are meant to subsidize the basic education of these students. Provision of goods and services is a form of aid usually provided either a school, a school system, or a pupil. Ontario already provides a host of free services or goods to private schools without charge, including – free copies of curriculum guidelines and materials – seminars for principals at times of major policy changes such as OSIS – access to single copies of free texts under the book purchase plan – access to Ontario’s teacher exchange program without the subsidy available to assist the travel – distribution of all pertinent policy and safety memoranda – publishing and distributing lists of private schools

488

4. OFFICIAL REPORTS

As well, nominal charges are made for other services, such as use of the computerized guidance system, SGIS, and inspection for the purpose of being authorized to grant Ontario graduation diplomas.17 Additional goods and services that could be provided private schools include the provision of (secular) textbooks and library books, complete testing and guidance services, psychological services, media equipment and materials (either on loan or as gifts) and so on. Already, some private schools purchase some of these from public and separate school boards; particularly notable is the rental of school buildings made vacant by enrolment declines. 6WXGHQWVFRXOGEHWKHSULPDU\EHQHÀFLDULHVRIFHUWDLQRWKHUJRRGVDQGVHUYLFHV Transportation is one major service that might be provided. Indeed, already private school students in Ontario are entitled to lower student fares on public transit and some private schools have arranged, on a fee-paying basis, to have their pupils carried on regular school buses. However, as will be made clear later, most private school students must arrange their own transportation to school. 7D[H[HPSWLRQVWKDWLVQRWKDYLQJWRSD\DVSHFLÀFWD[ DUHDIRUPRIindirect rather than direct aid by government to individuals or institutions. Also referred to as “tax expenditures”, indirect forms of aid do not appear in the government’s budget since the revenue they represent was never collected. At various times, proposals have been made to eliminate tax exemptions to various public and private institutions (including those for property tax on the properties of public and separate schools, churches, and private schools) and to replace them with a system of direct government grants to the institutions to offset the cost of the taxes. Supporters of such a reform argue that by making tax expenditures visible in the government’s budget they will receive closer scrutiny and that the tendency of governments to add continually to the list of exempt properties will be curtailed. Other forms of indirect aid, incidentally, include tax deductions and credits, subjects which will be discussed separately. $WSUHVHQWQRQSURSULHWDU\LHQRWIRUSURÀW SULYDWHVFKRROVDUHH[HPSWIURP property taxes; formerly, at the time public and separate schools were exempt from the VDOHVWD[SULYDWHLQVWLWXWLRQVDOVRHQMR\HGWKLVH[HPSWLRQ$VQRQSURÀWLQVWLWXWLRQVDQG XVXDOO\UHJLVWHUHGFKDULWLHVSULYDWHVFKRROV·HQGRZPHQWVFDQHDUQWD[IUHHSURÀWVDV ZHOOLIDQDQQXDORSHUDWLQJSURÀWLVPDGHWKHVHWRRDUHWD[H[HPSW In theory, at least, exemptions to private schools might be extended. The exemption to sales tax could be restored or their employees could be allowed to receive part of their salaries as tax exempt payments (much as politicians have arranged for themselves) in order to offset the “deemed” donation they make to their institutions by accepting lower salaries. Tax deductions, which are variable amounts subtracted from total income before income tax is computed, are one of the most widely discussed options for offsetting the cost of private schooling to parents. They are also relevant to benefactors, who may subtract donations to charities (including either private schools themselves or associated organizations such as churches that subsidize schools). Much of the literature on this topic is from the U.S. where problems with the judicial interpretations of the constitutional amendment upholding the separation of the church and state have made tax deductions seem one of the few possible vehicles for indirectly routing funds to 489

STATE SUPPORT FOR RELIGIOUS EDUCATION

support private (and especially private religious) schools. Given Canada’s different legal and constitutional arrangements, much of this literature is of little relevance. Nevertheless, various ideas on the topic are worthy of note. First, straight tax deductions (say for the full cost of tuition) are notoriously regressive in their effect. That is, they favour higher income individuals far more than lower income individuals. Second, individuals must be able to pay the tuition and forego use of the value of the deduction for a full tax year before they recover it in the form of lower taxes. Thus, the effective decrease in the price of private schooling is obscured, a fact that may discourage parents from selecting private schools (a matter of importance to those who see increased choice and competition as the raison d’être for funding private schools). Deductions can, of course, be made more equitable. First, they can be restricted to relatively modest amounts – say $500. This ensures that high income individuals SD\LQJYHU\KLJKWXLWLRQVWRHOLWHLQVWLWXWLRQVGRQRWHQMR\WKHEXONRIWKHEHQHÀWV$OVR deductions can be made “refundable”. That is, if they more than offset taxes owed, the balance can still be “refunded” by the government. To calculate this amount, one would KDYHWRÀJXUHWKHWD[SD\DEOHZLWKRXWWKHGHGXFWLRQDQGVXEWUDFWWKLVDPRXQWIURP the total allowed value of the deduction; this balance would be paid by government to the individual. Deductions to benefactors are unrelated to matters of tuition. Generally, they are made to schools of their supporting organizations which are registered as charities; their size is unlimited. For members of a religious community who have children of school age and who have a school supported by the church, large numbers of benefactors (or a few very generous benefactors) can greatly reduce the size of tuition since the church subsidizes the school. At the same time, the “tax expenditure” represented by the lost income to government by virtue of the charitable gift means that government, both federal and provincial, is an arms-length partner in the enterprise. In the past, larger religious communities, such as the Roman Catholic community, seemed to be WKHSULPDU\EHQHÀFLDU\RIDUUDQJHPHQWVVXFKDVWKRVHGHVFULEHG+RZHYHUZLWKUHFHQW GHFLVLRQRI-XVWLFH)UDQFLV&0XOGRRQLQWKH0F%XUQH\FDVHWKHEHQHÀWVDSSO\WR parents belonging to even small religious communities which support one or more schools, assuming of course they wish their children to attend these schools.18 Another form of tax deduction is that for tuition paid by a student. Normally, this is associated with post-secondary students; however, it is possible for parents to loan funds interest free to children over 18, and for these youth to deduct their private secondary school tuitions from the interest earned on the loans before taxes are paid. For younger children, it is necessary to set up a trust in their name. Income from such a trust is taxable in the child’s name, so expenses including private school tuition, summer camp, and music lessons can be provided at far less cost in terms of after-tax dollars than would be the case for the parent or relative (who would no doubt enjoy a rather high income in order to capitalize such a trust) who set up the trust. Tax credits are in many ways similar to tax deductions. Indeed, the literature often treats the two interchangeably, and some argue that it is a distinction without merit. In practice, at least, tax credits are applied after income tax has been computed and are applied to reduce the tax payable (rather than the income on which the tax is paid). 490

4. OFFICIAL REPORTS

A good example of a tax credit which has been designed to be progressive (rather WKDQUHJUHVVLYHDVDÁDWWD[FUHGLWZRXOGEH LVWKH2QWDULR3URSHUW\DQG6DOHV7D[ Credit. To make it progressive, one subtracts two percent of one’s income from the calculated value of credit; for higher income people this will reduce or cancel the credit altogether. At the other end of the spectrum, this credit is refundable; i.e., a low income person with no taxable income can generate a refund from government. One FRXOGLPDJLQHDPRGLÀFDWLRQRIWKLVFUHGLWWRHQULFKLWIRUWKRVHZKRVHFKLOGUHQDWWHQG private schools by allowing these individuals to add tuition paid (up to some maximum) to the property taxes paid. This then would provide them a larger tax credit, assuming that their income was low. Tax deduction or tax credits are as applicable to corporations as individuals. If a corporation donates to a charity (say a private school) it can deduct the expense. The DPRXQWWKDWLWVWD[HVDUHUHGXFHGE\GRLQJVRUHÁHFWVDWD[H[SHQGLWXUHE\JRYHUQPHQW that is as valuable to the school as a direct grant from government would be. The inclusion of refundable tax credits and deductions in this discussion blurs the line between these and government grants. Why should a low income person who will have a large tuition “refund” under a tax credit plan have to wait a year? Why not give DJUDQW²SUREDEO\DWD[DEOHJUDQWRUYRXFKHU²LQWKHÀUVWSODFH"(YHQLIVXFKJUDQWV went to high income individuals as well, a progressive system of income taxation could HQVXUHWKDWEHQHÀWVZHUHFDSWXUHGE\WKRVHPRVWLQQHHG&KULV%XUNHLQDVHULHVRI articles in the Globe and Mail concerned with the equity of the current income tax system, suggests the use of “a scheme that could be called the ‘clawback’. It would involve taxing these payments at higher than usual rates.” 20 In practice, one might provide all families with private school pupils taxable grants of say up to $500 per pupil to offset tuition, but would tax these families on, say, 150 percent of this grant; “the effect would be to exaggerate the basic progressivity of the tax system, not costing the poor anything, but clawing back a good proportion of the payments from the rich.” 21 Quite different from all of the proposals above are those by economist E. G. West in Non-public School Aid. In effect, he advocates that all future increases in publicly operated schools’ expenses be funded by fees charged to the parents of the students in order to narrow the gap in the price of education between public and private schools. He argues this would have the same economic effect as providing funds to parents of those in private schools in order to offset tuition, but would do so in a way that 1) would ensure the value of such grants were not used to raise costs rather than lower tuition and 2) would minimize the need for government regulation of private schools. %\LPSOLFDWLRQSXEOLFVFKRROVRIIHUIDPLOLHVEHQHÀWVWKDWVKRXOGEHWD[DEOHEHQHÀWV ,QWKHRU\DFRPELQDWLRQRIIHHVIRUSXEOLFVFKRROVDQGWD[HVRQWKHEHQHÀWVRIIUHH VFKRROLQJZRXOGEHPRUHHTXLWDEOHLQWKDWWKHEHQHÀWRIHDFKFKLOG·V HGXFDWLRQZRXOGEHWD[HGSURJUHVVLYHO\UDWKHUWKDQEHLQJUHFHLYHGDVDWD[IUHHEHQHÀW from society. Extra revenue from this source would allow government to lower income tax rates, offsetting the fees paid by low-income individuals. As well, both parents with children in public operated and private schools could argue they were double taxed! In any case, the moderate income family, who under this scheme would be paying fees SOXVSHUKDSVLQWD[HVIRUWKHEHQHÀWRIDSXEOLFRUVHSDUDWHVFKRROHGXFDWLRQIRU

491

STATE SUPPORT FOR RELIGIOUS EDUCATION

WKHLUFKLOGPLJKWÀQGWKHH[WUDFRVWRIDSULYDWHVFKRROUHGXFHGWRDQDPRXQWZRUWK the marginal expense. :HVWLWPLJKWEHDGGHGEHOLHYHVWKDWSXEOLFVFKRROV\VWHPVDUHRSHUDWHGWREHQHÀW bureaucrats and teachers, and not the public.22 In terms of Table 1 (page 6), he would rather see public schooling moved in the direction of cell a from cell b rather than to have private schooling moved from cell c to cell d. He fears that the latter move would EHWKHÀUVWVWDWHLQPDNLQJSULYDWHVFKRROVLQWRSXEOLFVFKRROVLHSODFLQJWKHPWRR in cell b.23

6859(<2)35,9$7(6&+22/6 To estimate the cost of various funding proposals outlined in the preceding section, a questionnaire survey was conducted to a sample of private schools in Ontario. This section describes the sample selection, the questionnaire used in the survey, and the survey results.

Selection of Sample 7KH VDPSOLQJ SURFHVV LQYROYHG IRXU VWHSV GHÀQLQJ WKH SRSXODWLRQ VHOHFWLRQ RI D sampling frame, selection of the sample size, and selection of the sample of schools to receive questionnaires. 7KHGHÀQLWLRQRIDSULYDWHVFKRROXVHGLQ2QWDULR·VEducation Act was accepted DV WKH DSSURSULDWH GHÀQLWLRQ RI WKH PHPEHUV RI WKH SRSXODWLRQ WR EH VWXGLHG 7KLV GHÀQLWLRQUHDGV “private school” means an institution at which instruction is provided at any time EHWZHHQWKHKRXUVRIDPDQGSPRQDQ\VFKRROGD\IRUÀYHRUPRUHSXSLOV who are of or over compulsory school age in any of the subjects of the elementary RUVHFRQGDU\VFKRROFRXUVHVRIVWXG\DQGWKDWLVQRWDVFKRRODVGHÀQHGHOVHZKHUH  in this section.24 Every private school is required by the Act to submit an annual “intention to operate” by the 1st of September in a given year. The sampling frame for this study was the list of private schools in Ontario on record as of July 1, 1984, which included 519 schools in operation (as opposed to new schools opening in 1984/85 or awaiting Ministry approval, both of which were excluded from the sample).25 Thus, new schools or schools which failed to give proper notice to the Ministry were excluded from the study. As well, one further condition was imposed; namely, that enrolment and teaching staff data had to be available from the schools’ September 30, 1983 reports submitted to the Ministry.26 A sample size of 130 (or 1 in 4 schools) was selected. This size was viewed as DGHTXDWHWRHVWLPDWHNH\SDUDPHWHUVLQWKHVWXG\ZLWKVXIÀFLHQWSUHFLVLRQWRGUDZYDOLG conclusions, even if the return rate was relatively low (e.g., 50 percent). The target sample was drawn using systematic sampling with a random start. The sampling interval, k, was 4 (since 519/4=130). In practice, a random number table was used to select a digit between 1 and 4 to begin the sample, then every fourth school thereafter was selected, as long as enrolment

492

4. OFFICIAL REPORTS

and staff data were available. When such data were missing, the subsequent school was selected.

4XHVWLRQQDLUH'HVLJQ The purpose of the questionnaire was to collect statistical information needed to estimate both how much government was currently contributing to private schools (directly DQGLQGLUHFWO\ DQGWRHVWLPDWHWKHFRVWRIWKHYDULRXVÀQDQFLQJRSWLRQV7KHDXWKRU·V knowledge of current grant regulations and school budgeting was used to develop an eight-part questionnaire which was vetted by the Commissioner and several leading proponents of private schools. The eight sections included: A. Description of the school (e.g., enrolment, full-time equivalent (FTE) staff, JUDGHHQUROOHGDQGDIÀOLDWLRQ  % 5HYHQXHVDQGH[SHQGLWXUHVIRUODVWÀVFDO\HDU C. Student Fees and Awards D. Teaching Staff Salaries E. Facilities (including cost and quality) F. Student Transportation (including mode and distance) G. Enrolment capacity projections H. Income of families served and charitable status of the school The complete questionnaire is reproduced as Appendix A.

$GPLQLVWUDWLRQRI4XHVWLRQQDLUH Administration of the questionnaire involved three steps, all during October 1984. First, OHDGHUVRIÀYHNH\RUJDQL]DWLRQVZLWKZKLFKSULYDWHVFKRROVLQ2QWDULRDUHDIÀOLDWHG (e.g., the Ontario Alliance of Christian Schools, the Board of Jewish Education, the Conference of Independent Schools) were contacted, informed of the survey, and sent sample copies of the questionnaire. Second, copies of the questionnaire and covering letter were mailed to all 130 schools in the sample. Finally, two weeks later, a follow-up letter was sent to all 130 schools requesting prompt return of the completed survey. Follow-ups were sent to all 130 schools since no coding or numbering of the questionnaires was done in order to ensure participants anonymity. On return of the questionnaires, data were keyed for analysis using SPSS-X. Data VHWVRQVFKRROHQUROPHQWVVWDIIDQGDIÀOLDWLRQZHUHDOVRSUHSDUHGIRUWKHHQWLUHVDPSOH and population.

Description of Actual Sample Tables 2 through 6 provide key statistics for the sample of 55 schools that actually returned questionnaires, as well as the values for the same variables for the target sample and the population. In this way, it can be determined if there is a bias in the actual sample, and if so, the magnitude and direction of this bias. Table 2, row 1 indicates that data were available for 95 percent of the sampled SRSXODWLRQDVGHÀQHGE\WKHVDPSOLQJIUDPH WKDWWKHWDUJHWVDPSOHFRQVWLWXWHG SHUFHQWRIWKHSRSXODWLRQDQGDFWXDOVDPSOHMXVWSHUFHQW7KHODWWHUWZRÀJXUHV indicate that the overall return rate was 42.3 percent, lower than had been expected 493

STATE SUPPORT FOR RELIGIOUS EDUCATION

(though somewhat better than the 35.4 percent that was reported in one recent major U.S., study of private schools).27 Comparison of enrolment statistics (Table 2, row 2) indicates that the sample drawn was quite representative of the population, but that the actual sample is biased toward ODUJHUVFKRROV,QGHHGWKHDYHUDJHVFKRROLQWKHÀQDOVDPSOHZLWKDQHQUROPHQWRI is about 40 percent larger than the average school in the population. The percentile data (row 2d) indicate that most of the bias is due to the omission of very small schools. ,QWKHSRSXODWLRQWKHVFKRRODWWKHWKSHUFHQWLOHKDVDQHQUROPHQWRILQDÀQDO VDPSOHDQHQUROPHQWRI7KLVODWWHUÀJXUHH[FHHGVWKHHQUROPHQWRIWKHVFKRRODW the 50th percentile of the population. The bias toward schools with larger enrolments is also evident in the data on teaching staff, where the mean for the actual samples is 14.4, that for the sample selected 9.7, and that for the population 10.9. The bias toward larger schools is of most importance when one is measuring totals. For example, if one were to estimate the total numbers of students enrolled in private VFKRROVIURPWKHÀQDOVDPSOHRQHZRXOGJHWDQH[FHVVLYHO\KLJKHVWLPDWH (226.82 x 55)/(10.6/100) = 117,690. 7KHFRUUHFWÀJXUHIRU6HSWHPEHUZDV Table 2. Description of Private Schools in Ontario: Population, Target Sample and Actual Sample a

1. Percent of Total Pop.

Sampled Population (n = 493)

Target Sample (n = 130)

Actual Sample (n = 55)

95.0%

25.0%

10.6% b

160.78 5.0 1241.0

154.89 6.0 862.0

226.82 7.0 1502.0

27 79 206

28 89 202

93 142 285

10.88 1.0 100.0

9.71 1.0 48.0

14.35 1.0 74.0

3 6 13.0

3 7 13.0

5 9 15

14.8

16.0

15.8

2. Enrolment a. Mean b. Minimum c. Maximum d. Percentiles 25th 50th 75th 3. FTE Staff a. Mean b. Minimum c. Maximum d. Percentiles 25th 50th 75th 4. PTR (2a/3a) x 100

494

4. OFFICIAL REPORTS

5 a. Total Enrolment (2a x n) b. % of Pop. 6 a. Total Staff (3a x n) b. % of Pop.

Sampled Population (n = 493)

Target Sample (n = 130)

Actual Sample (n = 55)

79,265

20,136

12,475

94.8%

24.1%

14.9%

5,364c

1,262

789

?

?

?

a The July 1, 1984 listing of private schools includes 519 schools in operation. There were 493 schools in WKH-XO\OLVWLQJIRUZKLFKHQUROPHQWDQGVWDIÀQJGDWDZHUHDYDLODEOHRQWKH6HSWHPEHUVFKRROUHSRUWV See footnotes 25 and 26. b

Overall rate of return was therefore 42.3 percent.

c

Sept. 30 1983 data report 507 schools, 3370 full-time staff, 3923 part-time staff and 83,643 pupils. If part-time staff are all counted as .5 FTE, an estimate of 5332 FTE staff is arrived at in these schools, or 5646 in the 519 schools listed on July 1, 1984.

On the other hand, estimates of ratios, such as the pupil teacher ration (PTR), tend not to be so biased. As seen in row 4 of Table 1, the estimated PTR from the actual sample LVQRWVLJQLÀFDQWO\GLIIHUHQWIURPWKDWFDOFXODWHGIURPGDWDIRUWKHWDUJHWVDPSOH and one pupil higher than the 14.8 calculated for the population from data on schools available from the September 30 reports. 7KHWRWDOQXPEHURIIXOOWLPHHTXLYDOHQWVWDIILVGLIÀFXOWWRGHWHUPLQHIURPERWK 0LQLVWU\GDWDRURXUVXUYH\GDWDDOEHLWIRUGLIIHUHQWUHDVRQV,QWKHÀUVWFDVHVWDIIDUH recorded as either full-time or part-time; the percentage of time for the latter is not recorded or reported. In the analysis done here, it is assumed each part-time employee is a half-time person. For the survey, the number of FTE was requested. Here, however, ZHDUHFRQIRXQGHGE\WKHXSZDUGELDVLQWKHVL]HRIWKHVFKRROLIVWDIÀQJGDWDDUHXVHG WRHVWLPDWHDQRYHUDOOÀJXUH,QDQ\FDVHDOOHVWLPDWHVDUHEHWZHHQDQG FTE. )RUHVWLPDWHVLQWKLVVWXG\SHUWDLQLQJWRWHDFKLQJVWDIIDÀJXUHRI)7( will be used. Table 3 compares the grade organization of the schools in the population, the target sample, and the actual sample. Of particular note is the large variety of combinations; in all, we counted 74 different grade structures (including ungraded schools) among WKHVFKRROVLQWKHVDPSOHGSRSXODWLRQ2IWKHVHW\SHVDSSHDUHGLQWKHÀQDO sample, including the categories of “other elementary” (including JK to 8), “other elementary/secondary”, and “other secondary” (including grades 9 to 13). Note that a school with grades 7 to 12 would be considered other “elementary/secondary”, as one example.

495

STATE SUPPORT FOR RELIGIOUS EDUCATION

Table 3. Grade Distribution of Schools in Sampled Population, Target Sample and Actual Sample Sampled Population (n = 493)

Target Sample (n = 130)

Actual Sample (n = 55)

Grades a

n

%

n

%

n

%

1-8

84

17.0

13

10.0

5

9.1

11-13

72

14.6

18

13.8

5

9.1

K-8

50

10.1

14

10.8

17

30.9

JK-8

27

5.5

9

6.9

1

1.8

9-13

14

2.8

3

2.3

2

3.6

9-12

14

2.8

4

3.1

4

7.3

JK-6

11

2.2

4

3.1

1

1.8

7-13

9

1.8

3

2.3

1

1.8

K-11

8

1.6

3

2.3

0

0.0

12-13

7

1.4

3

2.3

1

1.8

JK-12

7

1.4

2

1.5

1

1.8

JK-4

7

1.4

2

1.5

1

1.8

K-12

7

1.4

1

0.8

3

5.5

1-7

7

1.4

3

2.3

0

0.0

JK-1

7

1.4

2

1.5

0

0.0

1-10

6

1.2

3

2.3

0

0.0

JK-13

5

1.0

1

0.8

0

0.0

11-12

5

1.0

1

0.8

0

0.0

Other El.

60

12.2

21

16.2

5

9.1

Other El./Sec.

78

15.8

17

13.1

8

14.5

8

1.6

3

2.3

0

0.0

130

100.0

55

99.9 b

Other Sec. Total a

493

99.6

b

In order of frequency in sampled population. Grades JK to 8 are considered elementary; 9 to 13 second-

ary. b

Percentages do not sum to 100 due to rounding errors.

The sample of responding schools reveals a bias, here, as it did with size. In particular, K to 8 schools seem to be over-represented by a factor of 3, while other grade school options, such as JK to 8, seem under-represented. Perhaps a better representation of the levels of the schools in the study is given in Table 4 where they are grouped into three categories: elementary, elementary/secondary, and secondary. This table suggests that WKHÀQDOVDPSOHDVZHOODVWKHWDUJHWVDPSOH LVZHOOUHSUHVHQWDWLYHRIWKHSRSXODWLRQ

496

4. OFFICIAL REPORTS

with about half of all schools in the elementary category, and about a quarter each in the elementary/secondary and secondary categories. $IÀOLDWLRQVRIWKHVFKRROVLQWKHSRSXODWLRQWDUJHWDQGÀQDOVDPSOHVDUHUHSRUWHG in Table 5. In this case, four columns are shown, with the last expressing the number RIVFKRROVLQWKHÀQDOVDPSOHDIÀOLDWHGZLWKDJLYHQUHOLJLRQRUJURXSDVDSHUFHQWDJH RIWKHQXPEHURIVFKRROVLQWKHWDUJHWVDPSOHDIÀOLDWHGZLWKDJLYHQUHOLJLRQRUJURXS Since the overall return rate was 42.3 percent, an unbiased representation of a group LQWKHÀQDOVDPSOHZRXOGEHUHÁHFWHGLQDSHUFHQWDJHRILQWKHIRXUWKFROXPQ,Q IDFWWKHQWKHVDPSOHKDVVRPHQRWDEOHELDVHVLQWHUPVRIWKHDIÀOLDWLRQRIWKHVFKRROV with Roman Catholic, Jewish, Amish/Mennonite, and non-sectarian schools being under-represented and Ontario Association of Christian Schools, Anglican, Canadian Reformed and United Church schools being over-represented. Only Baptist and Seventh Day Adventist schools appear to be proportionately represented. Note too, that it was possible in this table for a school to be placed in more than one category. Table 4. Distribution of Elementary and Secondary Schools in Sampled Population, Target Sample and Actual Sample Sampled Population Category of School

a

Target Sample

Actual Sample

n

%

n

%

n

%

Elementary

253

51.3

68

52.3

30

54.5

El./Sec.

120

24.3

30

23.1

12

21.8

Secondary

120

24.3

32

24.6

13

23.6

130

100.0

55

99.9 b

Total

493

99.9

b

a

Grades JK to 8 are considered elementary; 9 to 13 secondary.

b

Percentages do not sum to 100 due to rounding errors.

7DEOH$IÀOLDWLRQRI6FKRROLQ6DPSOHG3RSXODWLRQ7DUJHW6DPSOHDQG$FWXDO Sample

$IÀOLDWLRQ

Sampled Population

Target Sample

Actual Sample

n

%

n

%

R.C.

78

15.8

19

14.6

5

7.7

26.3

OACs

66

13.4

18

13.8

15

23.1

83.3

Jewish

17

3.4

9

6.9

2

3.1

22.2

Amish/ Men.

74

15.0

20

15.4

4

6.2

20.0

Anglican

15

3.0

3

2.3

3

4.6

100.0

497

n

Actual Sample as % of Target Sample

%

STATE SUPPORT FOR RELIGIOUS EDUCATION

Sampled Population

$IÀOLDWLRQ

n

%

Baptist

22

Lutheran

NAa

Can. Reform. Presbyt.

Target Sample

Actual Sample

Actual Sample as % of Target Sample

n

%

n

%

4.5

8

6.2

3

4.6

37.5

–

NA

–

0

0.0

NA

10

2.0

4

3.1

3

4.6

75.0

0

0.0

0

0.0

0

0.0

NA

22

4.5

4

3.1

2

3.1

50.0

3

0.6

1

0.8

1

1.5

100.0

Non-sect.

155

31.4

35

26.9

10

15.4

28.6

Con/Ind/ Sch

NA

–

NA

–

4

6.2

NA

Montessori

NA

–

NA

–

2

3.1

NA

Waldorf

NA

–

NA

–

1

1.5

NA

Spec. Ed.

NC b

–

NC

–

0

0.0

NA

French

NC

–

NC

–

0

0.0

NA

Bilingual

NA

–

NA

–

1

1.5

NA

Other

31

6.3

9

6.9

9

13.8

100.0

Total

493

99.9

130

100.0

65 c

100.0

NA

SDA United

a

Not available.

b

Not coded.

c

Respondents were allowed to check more than one option. Hence, total exceeds the actual number of returns, which was 55.

7KHLPSOLFDWLRQVRIWKHELDVLQWKHDIÀOLDWLRQVRIUHVSRQGLQJVFKRROVLVGLIÀFXOWWRDVVHVV In the case of Roman Catholic schools, it may not matter so much since most of these will become part of the separate school system in the long run. Under-representation of Jewish and Amish/Mennonite schools may mean that, if these schools are themselves ´GLIIHUHQWµIURPWKHUHVSRQGLQJVFKRROVLQWHUPVRIWKHLUVL]HÀQDQFLQJDQGVRIRUWK WKHVHGLIIHUHQFHVZLOOQRWEHUHÁHFWHGLQWKHVWXG\7KHGLUHFWRURIWKH$PLVK0HQnonite schools, incidentally, wrote a courteous letter noting that after some discussion, WKLVJURXSKDGGHFLGHGQRWWRSDUWLFLSDWHLQWKHVWXG\7KHIHZUHWXUQVSUREDEO\UHÁHFW returns made before this decision was taken.) 7DEOHSURYLGHVWKHÀQDOFRPSDULVRQRIDFWXDOVDPSOHWDUJHWVDPSOHDQGSRSXODWLRQ data, indicating the schools by region of province. Western Ontario, Central Ontario H[FOXGLQJ0HWUR7RURQWRDQG0HWUR7RURQWRVFKRROVDUHDOOUHSUHVHQWHGLQWKHÀQDO sample roughly in proportion to their numbers in the population, while Eastern Ontario

498

4. OFFICIAL REPORTS

schools are over-represented by a factor of two, and Northern Ontario schools underrepresented by about a factor of one-half. Table 6. Distribution by Region of Schools in Sampled Population. Target Sample and Actual Sample Sampled Population

Target Sample

Actual Sample

Region

n

%

n

%

n

%

Western Ont.

99

20.1

23

17.7

12

21.8

Central Ont. exclud. Metro

217

44.0

56

43.1

20

36.4

Metro Toronto

117

23.7

31

23.8

14

25.5

Eastern Ont.

39

7.9

10

7.7

8

14.5

Northern Ont.

21

4.3

10

7.7

1

1.8

Total

493

100.0

130

100.0

55

100.0

The various biases in the actual sample are probably not without explanation. It is clear that Roman Catholic and Amish/Mennonite schools are less represented because of a ORZHULQWHUHVWLQJRYHUQPHQWIXQGLQJ²LQWKHÀUVWFDVHEHFDXVHLWKDVQRWEHHQJUDQWHG and in the second because it is not desired. Many schools associated with the Ontario Alliance of Christian Schools clearly indicated on their questionnaires (as well as in other forums) that they would like to see government funding of some kind. Thus, the VDPSOHELDVHVLQSDUWUHÁHFWWKHLQWHUHVWRIWKHGLIIHUHQWJURXSVLQSRVVLEOHIXQGLQJIRU their schools.

'HVFULSWLRQRI4XHVWLRQQDLUH5HVXOWV 7DEOHVWKURXJKSUHVHQWVWDWLVWLFDOGDWDUHODWHGWRWKHÀQDQFLDOVLWXDWLRQRIWKHSULYDWH schools that responded to the questionnaire. From these can be derived estimates of certain statistics, such as per pupil expenditures, for the entire population of private schools. Revenue data are reported in Table 7. About 71 percent of the revenue for the average school came in the form of tuition payments; the second most important source was grants, which typically provided 18 percent of the income. In the main, grants were received from associated organizations, such as churches or religious associations. However, included among these were modest French language instruction grants from the federal government. The smallest source of income, notably, was from endowments, averaging only $11,506 in the 18 schools reporting such income. Much more important were gifts and other sources of revenue, which would include rental and investment income, fees, donations, and bake sales. Overall revenue for the average school was $532,572 (or $2,348 per pupil). As would be expected, there was tremendous variability in revenue, the lowest being $600 and the highest over 3 million dollars.

499

STATE SUPPORT FOR RELIGIOUS EDUCATION

Table 7. Average Revenues for Private Schools in Ontario for Last Fiscal Year Based on Sample Data Item

Average

Minimum

Maximum

s.d.

n

a. Tuition

$379,296

$0

$ 2,769,445

$494,415

51

0

55,514

18,240

18

a

b. Endowment Income

11,506

c. Grants

96,808

0

2,131,056

381,655

33

d. Gifts

50,965

0

200,000

56,287

39

e. Other rev. 1

40,758

0

441,161

92,296

40

Other rev. 2

28,495

0

227,500

51,123

28

600

3,242,287

701,929

49

f. Total rev.

532,572

b

a Distinguishing of non-responses from “$0” response was not possible if questionnaire items were left blank. Therefore, averages are given only for those schools that gave unambiguous responses (see column headed “n”). b

Does not equal the sum of the averages in rows above due to different “n”s. See note a.

The average expenses for the schools that responded to the questionnaire are reported in Table 8. While an exact percentage distribution of expenses is not possible since different numbers of schools responded to different items, a typical school appears to spend about 70 percent of its budget on wages and salaries, 6 percent each on HPSOR\HHEHQHÀWVDQGRQVXSSOLHVSHUFHQWRQPDLQWHQDQFHDQGHQHUJ\SHUFHQWRQ transportation, and 5 percent on debt and capital. On average, expenses are reported to be less then revenues, and the average per pupil expense is $2,310. As with revenues, there is extremely wide variation in expenditures. Minimum expenditures are nil in most categories, including staff wages, whereas maximum expenditures are typically in the hundreds of thousands. Clearly, some of the schools operate outside the “cash economy” altogether, whereas others are paying the full market costs for all school resources.

500

4. OFFICIAL REPORTS

Table 8. Average Expenses for Private Schools in Ontario for Last Fiscal Year Based on Sample Data Item

Average

Minimum

Maximum

s.d.

n

a. Wages & Salaries

$372,968

$0

$2,639,121

$502,698

51

E(PSOR\HH%HQHÀWV

32,548

0

166,450

42,208

38

c. Supplies & Materials

29,463

250

308,771

50,152

48

d. Maintenance & Energy

40,400

0

257,944

61,367

45

e. Transport’n

24,407

0

140,000

33,972

35

f. Capital excl. debt

14,434

0

119,148

23,661

33

g. Debt

14,761

0

122,932

27,488

32

h. Other

44,767

39

701,327

115,469

36

i. Total

523,964

620

3,209,287

675,035

51

Student fees and awards, Table 9, again show tremendous diversity. Tuition is free in at least one school and is $8,000 at one (residential) school in the sample. The average tuition is $1,981, which would cover about 86 percent of the reported average expenses per pupil. Most student aid, when it is available, comes from internal sources; relatively little comes in the form of direct tuition aid from associated churches and the like (though, it will be recalled, grants and subsidies from such groups were important sources of revenue, and could be looked upon as a source of revenue to lower tuition fees for all students). Also noted on a number of questionnaires was the practice of charging a fee to a family, rather than to a child, so that the cost would not be higher for larger families. In a few cases, a fee was levied on all members of a church community, with the children of members eligible to attend school without charge. 7HDFKLQJVWDIIVDODULHVWKHSULQFLSDO·VVDODU\DQGWKHDFDGHPLFTXDOLÀFDWLRQVRIWKH principal are reported in Table 10. In order to control for different levels of experience DQGTXDOLÀFDWLRQVUHVSRQGHQWVZHUHDVNHGWKHVDODULHVWKDWZRXOGEHSDLGWRWHDFKHUV with different characteristics if they were employed at the school. Again, the range in responses is notable. For a university graduate with an Ontario Teaching Credential and 12 years experience, a minimum salary of $11,000 was indicated while the maximum was $42,000, about the same as in publicly operated schools.28 On average, teachers in the sample schools earned $21,244, about 33 percent less than the $31,601 earned by the median elementary teacher in Ontario and 41 percent less than that earned by the median secondary teacher.29 On average, then, we can say that private school teachers earn about 37 percent less than teachers in the publicly operated system, though it should be noted that the bias of the sample could affect this conclusion.30 For example, teachers in the smaller schools that did not respond may earn less; as well, those in the currently private Roman Catholic secondary schools may earn more (since their salaries tend to be on a par with local separate school teachers). Principal’s salaries, averaging $34,601, were roughly equivalent to the average teacher’s salary in public operated schools. Current principals’ salaries in the public 501

STATE SUPPORT FOR RELIGIOUS EDUCATION

operated system now range from the mid 40s to about $60,000. No mean or median ÀJXUHLVUHDGLO\DYDLODEOHEXWLWVHHPVIDLUWRVD\WKDWDWOHDVWDSHUFHQWGLIIHUHQWLDO exists between the salaries of public and private school principals. The private school principals responding to the survey were an experienced and well educated group, it should be emphasized. They average 16.5 years experience as educators and 35 of the 48 responding (or 75 percent) had taken post-graduate level work. Table 9. Student Fees and Awards Item

Average

Minimum

Maximum

s.d.

n

Average Annual Tuition

$ 1,981

$0

$ 8,000

$ 1,349

53

a

500

618,285

121,185

28

1,500

85,000 b

23,718

12

Total value of internal tuition aid

53,544

Total value of external WXLWLRQDLGIURPDIÀO Church

15,043 b

a 32 of the 54 schools responding (or 59.3 percent) indicated that they had internal tuition aid. Of these 32, 28 responded to this question. Others noted that tuition was charged on a family rather than individual basis, or that all members of a Church community were assessed a fee.

 RIVFKRROVUHVSRQGLQJRUSHUFHQW LQGLFWHGDQDIÀOLDWHG&KXUFKRIIHUHGVFKRODUVKLSRURWKHU forms of tuition aid.

b

Table 10. Teaching Staff Salaries

1. Typical salaries for: a. University grad, OTC, 12 yrs. experience b. MA, OTC, no exper. c. No univ. degree, OTC, 12 yrs. experience 2. Average salary of teachers including principal 3. Principal’s salary & experience: a. Total experience b. Academic qual. no univ. univ. post-grad other no respon. c. Salary

Average

Minimum

Maximum

s.d.

n

$25,011

$11,000

$42,000

$ 6,765

43

20,053 19,054

11,000 8,000

41,000 36,000

5,134 8,013

37 40

21,244

5,000

39,305

7,559

53

16.5 yrs.

3 yrs.

32 yrs.

8.9 yrs.

– – – – – $34,601

– – – – – $12,000

– – – – – $65,000

– – – – – $12,272

502

1 14 35 3 2 48

4. OFFICIAL REPORTS

It would be expected that much of the variation in salaries, school size, and the like might be attributable to the level of schooling. Table 11 reports the averages for a number of key statistics broken down by level; elementary, elementary/secondary combined, and secondary. As expected, enrolment and the number of teaching staff tend to increase with the level of the school, with elementary schools averaging 148 pupils and 9.5 staff, and secondary schools averaging 364 pupils and 21.8 staff. However, tuition income did not follow this pattern; it was least at the secondary level, highest for combined elementary/secondary schools, and in-between for elementary schools. Table 11. Size, Revenues, Expenditures, Enrolment and Salaries by Type of School a Elem. (n=25)

Elem./Sec. (n=12)

Sec. (n=13)

Overall

148 9.5

274 18.4

364 21.8

242 15.1

$ 1,662

$ 2,229

$1,218

$ 1,689

Average expend./pupil

2,023

2,723

2,376

2,250

Average tuition b charged

1,771

2,822

1,640

1,981

Salary of univ. graduate, OTC, 12 yrs. exper.

22,859

23,683

31,369

25,010

Principal’s salary

31,215

32,949

43,167

34,601

Enrolment FTE Teachers Average tuition b income/pupil

a Averages are unweighted by school size. Weighting by school can affect averages; for example, the weighted average expenditure per pupil is $2,310 (see Table 1) while the unweighted is $2,250. b

Tuition income per pupil is less than average tuition charged due to scholarships, exemptions and the like.

,QDOOSUREDELOLW\WKHVHUHVXOWVUHÁHFWWKHUHODWLYHO\ORZWXLWLRQVRIWHQOHVVWKDQ  charged in Roman Catholic high schools. For example, St. Michael’s College School in Toronto, which is returning to independent status, charges fees of just $1,150. 31 Reported expenditures per pupil follow a different pattern; they are lowest in elementary schools, highest in combined elementary/secondary schools, and in-between for secondary schools. In all cases they are well below expenses reported in public sector education. $FFRUGLQJWRÀQDQFLDOVWDWHPHQWVRI2QWDULRVFKRROERDUGVWKHDYHUDJHSXEOLF elementary expenditure per pupil was $2,982 in public elementary county boards DQGLQVLGHGHÀQHGFLWLHVLH:LQGVRU2WWDZD/RQGRQ+DPLOWRQDQG0HWUR Toronto). Comparable secondary expenditures were $4,026 and $4,717, while separate VFKRROH[SHQGLWXUHVZHUHLQFRXQW\ERDUGVDQGLQGHÀQHGFLWLHV32 The

503

STATE SUPPORT FOR RELIGIOUS EDUCATION

average private school expends about 36 percent less per pupil than does the average publicly operated school. Average salaries, for both teachers and principals, are lowest in elementary secondary schools, only slightly higher in elementary/secondary schools, and highest in secondary VFKRROV$JDLQWKHLQÁXHQFHRI5RPDQ&DWKROLFKLJKVFKRROVSUREDEO\DFFRXQWVIRU the relatively large difference between secondary schools and either elementary or combined schools. That is, salaries in these schools tend to be comparable to separate school boards. It is apparent, then, that grade levels taught does explain considerable YDULDWLRQLQVFKRROFKDUDFWHULVWLFVEXWWKDWRWKHUIDFWRUVVXFKDVDVFKRRO·VDIÀOLDWLRQ with a particular religious group or association, may be equally or more powerful in explaining these differences, especially in the realm of tuition, expenditures and salaries. The type, value and quality of private school facilities are reported in Table 12. On average, respondents indicated that the replacement cost of their facilities is 1.45 million dollars; again, a tremendous range in responses existed. Thirty of the schools indicated that their facilities were either slightly inferior or very inferior to neighbouring public operated schools. On average, respondents estimated a cost of about $360,000 to bring their facilities up to comparable standards. Very few private schools suggested they had better facilities. Special facilities were quite common in the private schools: 70 percent report J\PQDVLDSHUFHQWSOD\ÀHOGVDQGSHUFHQWOLEUDULHV+RZHYHURQO\SHUFHQW had music rooms and just 4 percent swimming pools. Table 12. Private School Facilities Average

Minimum

Maximum

s.d.

n

Replacement cost of facilities

$1,450,162

$ 1,500

$8,000,000

$1,730,553

40

Cost to bring up to standards of public schools

361,607

15,000

2,000,000

496,452

28/30 a

Facilities available: gymnasium SOD\ÀHOG library music room swimming pool other

% 70.9 80.0 78.2 34.5 3.6 34.5

Quality of facility in comparison to nearby public schools: very inferior slightly inferior comparable better

% 16.4 38.2 41.8 3.6

Total

100.0

a

Applicable only to those 30 schools with facilities rated “slightly inferior” or “very inferior”.

504

55 55 55 55 55 55

55

4. OFFICIAL REPORTS

Student transportation can be a major cost and problem to schools. Table 13 reports the mode and distance travelled by students. The averages indicate relatively few pupils walk to their private schools – only 11 percent. Almost 40 percent are driven by their parents; 21 percent take public transit and 23 percent a bus provided by the school. The reasons most students are transported rather than walk to their schools is clear from the distances travelled. Only 11 percent live less than a mile (1.7 km.) from school and 18 percent between 1 and 2 miles (1.7 – 3.5 km.). In contrast, 26 percent travel from 2 to 5 miles (3.5 – 8 km.) and 43 percent more than 5 miles (8 km.). Table 14 indicates the capacity of the schools in the sample as well as their expected enrolment trends. The typical school, which now enrols 227 students, could therefore increase its enrolment by 60 percent without expanding its facilities. Their enrolment projections indicate that growth is expected – 25 percent for 1985/86; 6 percent for 1986/87; and 3 percent for 1987/88. That is, they expect an average growth rate of about 12 percent per year. Whether these are hardnosed projections or wishful thinking, RIFRXUVHLVGLIÀFXOWWRVD\ Table 13. Transportation of Private School Pupils Average % a. walk b. driven by parent c. public transit d. school bus e. other

11.3 38.5 21.1 23.3 3.0

Distance to school (n = 55) a. reside at school b. travel ‹1 mi. (‹1.7 km.) c. travel 1-2 mi. (1.7-3.5 km.) d. travel 2-5 mi. (3.5-8 km.) e. travel ›5 mi. (›8 km.)

2.2 11.1 18.2 25.8 42.6

Minimum Maximum % % Mode of transportation to school (n = 55) 0.0 100.0 0.0 100.0 0.0 95.0 0.0 99.0

0.0 0.0 0.0 0.0 0.0

96.0 50.0 100.0 80.0 100.0

Average

Minimum

Maximum

s.d.

n

364

15

2000

336

51

284 302 312

10 10 10

1800 1900 2000

318 332 342

52 52 52

Expected enrol. in future yrs. 1985/86 1986/87 1987/88

505

16.4 34.2 28.1 36.7 13.3 13.4 11.7 19.9 20.3 31.9

Table 14. Enrolment Projections in Private Schools

Optimum enrol. in school

s.d.

STATE SUPPORT FOR RELIGIOUS EDUCATION

The distribution of family incomes served by the private schools in the sample are reported in Table 15. Relatively few (8.3 percent) were estimated to have family incomes less than $15,000; the majority (51.3 percent) were believed to be in the $15,000 – $30,000 range; the balance concentrated in the $30,000 – $50,000 category (28.7 percent), with relatively few in the over $50,000 range (11.6 percent). Using 1981 &HQVXVÀJXUHVIRU2QWDULRIDPLO\LQFRPHVDOORZVWKHIROORZLQJURXJKFRPSDULVRQ7KH top two categories are collapsed since the Census report does not break down the over UDQJHVHSDUDWHO\QRDFFRXQWLVEHLQJWDNHQRILQÁDWLRQVLQFH  Private Schools

Ontario33

< $15,000

8.3%

23.0%

$15,000-$30,000

51.3

39.9

> $30,000

40.3

37.2

7KHVH ÀJXUHV VXJJHVW WKDW XSSHU LQFRPH IDPLOLHV DUH SURSRUWLRQDOO\ UHSUHVHQWHG LQ private schools, middle income families are slightly over-represented; and lower income families are considerably under-represented. Finally, Table 16 reports that 83 percent of the private schools that responded to WKHVXUYH\KDYHEHFRPHUHJLVWHUHGFKDULWLHV7KUHHQRWHGWKDWWKHLUDIÀOLDWHGFKXUFKHV held such status, and a few others noted that had applied for such status. It would seem WKDW VRRQ DOO QRQSURÀW SULYDWH VFKRROV ZLOO KDYH HQVXUHG WKDW WKH\ DUH UHJLVWHUHG charities. 7KLVVWDWLVWLFDOSURÀOHRISULYDWHVFKRROVLQ2QWDULRLVEXWDPHDQVWRDQHQG7KRXJK of interest in itself, the major purpose of the survey data is to provide the information needed for costing out various methods of funding private schools in Ontario, including present indirect methods that are in use but perhaps not widely recognized. Table 15. Estimated Income of Families with Children in Private Schools (n = 53)

Category

Average %

Minimum %

Maximum %

s.d. %

a. ‹$15,000

8.3

0.0

60.0

10.4

b. $15-30,000

51.3

0.0

99.0

28.2

c. $30-50,000

28.7

0.0

80.0

22.1

d. ›$50,000

11.6

0.0

85.5

18.1

Table 16. Percentage of Schools Registered as Charities (n = 53) % Yes No

82.7 a

17.3

 7KUHHWKDWUHVSRQGHG´QRµQRWHGWKDWWKHLUDIÀOLDWHG&KXUFKHVZHUHUHJLVWHUHGFKDULWLHV

a

506

4. OFFICIAL REPORTS

7+(&2672)3529,',1*$,' This paper began with three questions concerning government aid to private schools: what are the costs of any current programs to aid private schools; what would be the cost to fully fund private schools; and how might such funds be allocated? In this section we provide answers to these questions and estimates of their costs. A caveat is necessary, however; because of the weakness of the statistical data base for cost estimates, it must be recognized some of them are only rough estimates requiring numerous assumptions. ,QVXFKFDVHVWKHHVWLPDWHVVKRXOGEHYLHZHGDVÀUVWDSSUR[LPDWLRQVRSHQWRUHÀQHPHQW by others having access to better sources of data, should they become available.

Current Programs of Aid In describing various methods which Ontario might use to fund private schools in the second section of this paper (Forms of Aid), mention was made of numerous forms of direct aid available to private schools in Ontario at the present time (see, for example, the list in Forms of Aid). While questions might be raised concerning why WKHVHSDUWLFXODUIRUPVRIVXSSRUWDUHJUDQWHGDQGQRWRWKHUVWKHLQWHUHVWKHUHLVFRQÀQHG WRWKHLVVXHRIWKHLUFRVWWRJRYHUQPHQW,WZRXOGDSSHDUWKDWDOOVHUYLFHVLGHQWLÀHGLQ WKLVVWXG\GRQRWUHSUHVHQWDVLJQLÀFDQWH[SHQGLWXUHRIIXQGVVLQFHIRUWKHPRVWSDUW they represent only marginal increases in the use of services already provided. The largest form of direct aid appears to be federal grants for French language instruction and these appear to total less than $1,000,000. Of far greater importance, it appears, is indirect aid in the form of 1) exemption from SURSHUW\WD[HVRQQRQSURÀWSULYDWHVFKRROV LQFRPHGHGXFWLRQVIRUWXLWLRQDWWULEXWable to religious instruction, and 3) income tax deductions for charitable purposes. The value of these indirect subsidies to private schools, excluding private Roman Catholic secondary schools, are estimated to be the following. Property Tax Exemption. If it is assumed that 1) the average property tax is equal to 1.5 percent of the market value for a property taxed at the residential rate, 2) that the current market value of private school properties is $6,393.45 per pupil (see Tables 2 and 12), and 3) that the total private school enrolment is 55,000 pupils, then the property tax forgone annually in Ontario is $6,393,45 x 55,000 x .015 = $5,275,000 or $96 per pupil. 7KLVVXEVLG\LVLQWKHÀUVWSODFHDVXEVLG\E\ORFDOSURSHUW\UDWHSD\HUVZKRLQHIIHFW must tax themselves at a higher rate than would otherwise be the case were private schools to pay property tax. In the second instance, since the school property is not UHÁHFWHGLQWKHDVVHVVPHQWRIWKHPXQLFLSDOLW\WKHSURYLQFHKHOSVWRSD\WKHVHIRUJRQH taxes by virtue of grants it gives to municipalities and school boards based on their assessment per capita or per pupil. The Blair Commission (Report of the Commission on the Reform of Property Taxation in Ontario) made a number of recommendations regarding the assessment of private schools. All would, in effect, have resulted in their being taxed at full market value, but with the Provincial government paying off-setting grants. One proposal

507

STATE SUPPORT FOR RELIGIOUS EDUCATION

would have recouped these grants (plus interest) if the schools were sold and the net proceeds not used for educational purposes.34 Deductions for Religious Tuition. If it is assumed 1) that private school students attend religious and non-sectarian or other schools in proportion to the representation of these types of schools; i.e., 62 percent are in religious schools (Table 5), 2) that average tuition collected at religious schools is the weighted average reported in the sample; i.e., $1671 (Tables 2 and 7), 3) that the average family income per pupil is $30,000 (see Table 15), implying a marginal tax rate of 25 percent for federal taxes and 12 percent for Ontario taxes 35, and 4) that, on average, 25 percent of the tuition goes toward religious instruction 36, then the indirect federal support for private religious schools is $1671 x .25 x 55,000 x .62 x .25 = $3,561,000 which is $65 per pupil overall (or $104 for each pupil in a religious school) and the average provincial indirect support is $1671 x .25 x 55,000 x .62 x .12 = $1,709,000 which is $31 per pupil overall (or $50 per pupil in a religious school). Income Tax Deductions for Charitable Purposes. If we assume 1) that two-thirds of the balance of the $2346 per pupil income of private schools not raised by tuition (or about 20 percent) comes in the form of charitable gifts either to the school or a charitable association associated with the school (see Table 4), and 2) that the donors are in the same tax brackets as the parents whose children are in the schools, then the indirect subsidy from the federal government is ($2346 – $1671) x .67 x 55,000 x .25 = $6,218,000 or $113 per student, and from the provincial government is ($2346 – $1671) x .67 x 55,000 x .12 = $2,985,000 or $54 per pupil. This last estimate is perhaps the least reliable of the group since charitable donors may well be wealthier or poorer than the parents with children in school, or they may be corporations (which would be subject to different tax rates) or estates (subject to no taxation). Total Current Support. Totalling the three sets of estimates derived above for indirect assistance to private schools in Ontario via the property tax exemption, religious tuition deduction, and charitable donations deductions indicate an estimate of $19,748,000, of which 27 percent is local (via the property tax exemptions, excluding the effect of provincial grants), 50 percent is federal (via the federal income tax), and 23 percent is provincial (via the provincial income tax). 'LUHFWDVVLVWDQFHDSSHDUVWREHYDOXHGDWOHVVWKDQWKHRQO\VSHFLÀF support whose cost estimated was that for federal language grants, which are probably between $400,000 and $800,000. Total direct and indirect assistance is therefore estimated to be valued at approximately $22,000,000 or $400 per pupil for the 55,000 private school students not enrolled

508

4. OFFICIAL REPORTS

in currently private Roman Catholic secondary schools. Since some of this subsidy is QRWUHÁHFWHGLQVFKRROH[SHQVHVHJIRUJRQHSURSHUW\WD[HV LWLVSHUKDSVDPELJXRXV to calculate the share of the cost of private school education now supported by public funds. Nevertheless, LWLVFOHDUWKLVÀJXUHRQDYHUDJHDPRXQWVWRDERXWRQHVL[WKRI the average total in cost per pupil enrolled in a private school.

7KH&RVWRI)XOO)XQGLQJ What if the government of Ontario wished to fully support private schools in Ontario; that is, how much would this cost, and what would the implications be for the publicly operated system? Several answers to these questions will be given, each making slightly different sets of assumptions. Again, it will be assumed that there are 55,000 private school pupils to be funded. Further, it is assumed (based on Ministry of Education statistics) that 36,000 of these are elementary pupils and the balance, 19,000, are secondary pupils. All estimated costs are in terms of 1984 dollars. Cost Estimate 1. If it is assumed that “full funding” means that government pays for the cost of tuition for private school students, then the total cost, based on the weighted average tuition collected of $1671 (derived from Tables 2 and 7), would be $1671 x 55,000 = $91,905,000 Cost Estimate 2. If it is assumed that “full funding” means that government funds all current expenditures, then the cost, as measured by the weighted average expenditure per pupil (derived from Tables 2 and 8), would be $2310 x 55,000 = $127,050,000 Cost Estimate 3. If it is assumed that “full funding” means that government provides all current revenue of private schools, then the cost, as measured by the weighted average revenue per pupil (derived from Tables and 7), is $2346 x 55,000 = $129,030,000 Cost Estimate 4. If one were to assume that “full funding” means 100 percent funding up to the (1984) elementary and secondary grant ceilings DQGDVGHÀQHGLQ the regulations for general legislative grants) for ordinary expenditures and 95 percent funding for extraordinary expenditures (i.e., debt, capital, and transportation costs per pupil from Tables 2 and 8), then the cost would be ($2297 x 36,000) + ($3140 x 19,000) + (.95) x ($236 x 55,000) = $154,683,000 Cost Estimate 5. If it is assumed that “full funding” is the funding of private school students at a rate equal to current weighted average cost per pupil of publicly operated schools of $3631 (see Chapter II-(3) Operating Costs), the total cost would be $3631 x 55,000 = $199,705,000 Cost Estimate 6. If it is assumed that “full funding” is the funding of private elementary school students at the current average cost per pupil of publicly operated elementary schools (or $3294) and equivalent costs for publicly operated secondary schools (or $4332), then the total cost would be ($3294 x 36,000) + ($4332 x 19,000) = $200,892,000 509

STATE SUPPORT FOR RELIGIOUS EDUCATION

The highest of these estimates is more than twice the lowest, raising the question as to which estimate is most valid. The position taken here is that they are all equally valid, given a particular objective or set of objectives and particular allocation system. At the same time, it is notable that in other provinces and countries that have made decisions to begin to fund private schools, either directly or indirectly, that the long term trend, often over several decades, has been for the funding of private schools to approach or equal the level of funding in publicly operated schools. Another variable comes into play once funding is extended to private schools; namely, the added attraction that private schools may have to parents of children now in publicly operated schools once the “price” of private schooling has been decreased by virtue of public subsidies. If funding of tuition alone was undertaken (Estimate 1), then there would actually be a net saving to the public purse equal to difference in per pupil costs between publicly operated and privately operated schools, discounting any adjustments made for declining enrolments. In 1984 dollars, this saving would be about $3631 – $1671 = $1960 per pupil. If the 12 percent per year average projected growth over the next three years estimate by the respondents is correct, implying an increase of 55,000 x .12 = 6600 pupils in WKHÀUVW\HDUWKHQJRYHUQPHQWPLJKWVDYH $1960 x 6600 = $12,936,000 by extending support for private school tuition!37 As suggested above, it is unlikely these savings would be retained in the long term. In all probability, the staff in private schools would feel that they should no longer offer, in effect, to subsidize their schools by accepting salaries one-third lower than those paid to teachers in publicly operated schools. Indeed, other analyses have suggested the possible “savings” to government depicted above would never materialize, but that school costs would increase once subsidies became available, that tuitions would not drop, and that higher demand would not materialize.38 It should also be noted that any form of full funding would “cost” the Ontario taxpayer the federal share of indirect aid provided via income tax deductions for religious tuition, and possibly, charitable deductions for educational purposes. Based on earlier estimates this would amount to between 3.5 million (tuition aid only) and 9.7 million (tuition and charitable aid together). Technically, these costs should be added to the cost estimates in this sub-section.

7KH&RVWRI'LIIHUHQW)RUPVRI$LG The schema for aid to schools outlined earlier in this paper is laid out in Table 17. It is not practical nor reasonable to cost out every alternative method of allocating funds; therefore, the costs of what seem to be nine of the more interesting or feasible choices are estimated here. Direct Payments to Parents. The government could provide to parents who wished to enrol their child or children in a private school a cash grant (or what is a close equivalent, a voucher to be redeemed by the school) to cover some portion of the cost of the child’s 510

4. OFFICIAL REPORTS

education. A voucher scheme might be preferred by the government since it could be certain the money was not spent on some other purpose, as might occur with a cash grant, with the child then being enrolled in a publicly operated school. If equity were an issue, this grant or voucher could be taxable; even a “clawback” might be used so that the grant or voucher value fell to zero for people with income at or above some threshold level. Table 17. Schema for Different Types of Aid to Private Schools Form of Aid

Recipients

Direct Payment

Provision of Goods & Services

Exemptions from Taxes

Tax Deductions

Tax Credits

Children Parents Benefactors Staff Systems

A major advantage of direct payments over indirect approaches is that the parent would have funds available when tuition was due, and not at the end of the tax year (as would be the case with tax credits and the like). The value of the grant or voucher might be uniform, keyed to the tuition of the school of choice, or related to the amount of property tax a person pays. In the last instance, there would be a de facto acceptance of the argument (valid or not) that people who send their children to private schools are double taxed. At very least, one could argue it was simply a circuitous route by which parents were allowed to target their property taxes to a private school; i.e., taxes are paid, parents who give the grant or voucher to the school for tuition purposes which, in the case of a voucher, is redeemed by the school. Precedents exist for direct payments to parents; e.g., the federal Family Allowance Payments and the provincial Property Tax Rebates to the elderly. Political questions might arise as to why just parents with children in private schools received grants or vouchers. The use of the rationale concerning property taxes might alleviate this concern. If not, one might make them available to all, with publicly operated schools competing with privately operated schools for funds. Assuming an average grant or voucher value of $500 and that the amount was not taxable, the cost of such a program directed to only private school pupils would cost. $500 x 55,000 = $27,500,000 A $500 grant or voucher would be equivalent, roughly, to the average property tax for education, or to 30 percent of the (weighted) average tuition payment.

511

STATE SUPPORT FOR RELIGIOUS EDUCATION

It would not make sense for a provincial grant to be taxed federally; therefore, if the grant was taxable, for the average private school parent who pays a 12 percent marginal provincial tax rate (see Deductions for Religious Tuition), the province would then recoup $3,300,000, reducing the cost to $24,200,000. It might be more equitable to XVHD´FODZEDFNµZLWKDÀJXUHWZLFHRUWKUHHWLPHVWKHJUDQWDGGHGWRLQFRPHIRUWKH SXUSRVHVRISURYLQFLDOWD[WRUHFRYHUPRUHRIWKHFRVWDQGHQVXUHWKDWPRVWRIWKHEHQHÀWV are retained by lower income individuals. Indeed, one might keep the total allocation the same, but increase the size of the grant. That is a $568 grant would cost $568 x 55,000 = $31,240,000 before taxes, but only $27,500,000 after the 12 percent marginal rate of provincial tax was applied. Direct Payments to Staff. It was noted in the analysis of data that, on average, private school teachers earn about one-third less than their peers in publicly operated schools. This difference, in fact seems to largely account for lower average per pupil expenditures in private schools. The government could make direct grants to private school teachers to equalize their salaries with those of the public sector. There are an estimated 3700 full-time equivalent teachers in private schools other than Roman Catholic secondary schools (by dividing 55,000 pupils by the 14.8 PTR for the sampled population as noted in Table 2) earning an average of $21,244 (Table 10). 7REULQJWKLVXSSHUFHQWWRDÀJXUHHTXDOWRWKHDYHUDJHSXEOLFHOHPHQWDU\WHDFKHU (see text between Tables 8 and 9) would cost about $10,622 per teacher, for a total of $10,622 x 3700 = $39,301,400 or about $715 per pupil. This would raise the expenditures per pupil in private schools from an average of $2310 to $3025, much nearer its level in public schools. Obviously, VXFKJUDQWVZRXOGUHÁHFWFRQFHUQDERXWWKHHTXLWDEOHWUHDWPHQWRIWHDFKHUVUDWKHUWKDQ say, the equitable treatment of parents). Although government does not make grants of this sort to equalize wages between salaries in other mixed sectors (e.g., checkout staff at the LCBO vs. checkout staff in milk stores), one could argue that any grants to private schools will end up in the teachers’ pockets in any case, and that this does LWGLUHFWO\ZLWKRXWORVLQJWKHSULYDWHFRQWULEXWLRQVDQGLQGLUHFWIHGHUDOWD[EHQHÀWV  associated with the current way in which private schools are funded. Direct Payments to Schools. Direct payment of government grants to private schools is perhaps the most obvious vehicle for extending support for private schools. Indeed, it would be possible to apply many sections of the current grant regulations to individual private schools; i.e., if a school is treated as a school board with no assessed valuation, then provincial grants could be calculated using the standard formula. The full cost of such an option appears in Estimate 4 above (i.e., $154,683,000), excluding the effect of weighting factors, French language instruction and Heritage Language programs. $OWHUQDWLYHO\RQHFRXOGPDNHJUDQWVHTXDOWRDÀ[HGSURSRUWLRQRIWKLVDPRXQWHJ XVLQJDÀJXUHRISHUFHQWRIWKHJUDQWFHLOLQJ RUDYDULDEOHSURSRUWLRQDFKLHYHGE\ a mechanism such as is used in Australia where schools are placed in three wealth categories. In such a case, low wealth schools might receive, say, 66 percent of the grant

512

4. OFFICIAL REPORTS

ceiling per pupil (plus 95 percent of transportation and capita costs); medium wealth, 50 percent of the grant ceiling; and high wealth schools, just 33 percent. Clearly, the choices are unlimited, and would probably be dedicated more by the issue of the funds DYDLODEOHWKDQDGHVLUHWRDFKLHYHDVSHFLÀFSHUFHQWDJHVXSSRUW Instead of full operating grants, one might make only categorical grants available to private schools, grants that would have to be used for stated purpose. Extension of Heritage Language Program funding or funding for ICON microcomputers would be two examples of current programs that operate on this basis; grants for French-asa-second-language is another. In practice, school boards are not strictly accountable for the use to which funds from programs such as these are put (the ICON program excepted since the grant is used to purchase the ICON). However, the Ministry tries to set grant levels for these programs at realistic levels – neither too “rich” nor too “poor” – and seems to succeed. Special education funding might be added to this list of categorical programs for private schools that wished to offer special education. However, the current method RIIXQGLQJVSHFLDOHGXFDWLRQLHDÁDWDPRXQWDSSOLHGWRDOOSXSLOV ZRXOGQRWEH suitable for most private schools since its equity depends on large numbers for the “law of averages” to work. That is, it is more reasonable to assume a uniform distribution of the incidence of special education students in large school boards where such students can be served by board-wide programs than it is in the case with small schools where even one hard to serve pupil might demand more resources than the grant system would provide. Cost estimates for extension of current categorical grants to private schools cannot be estimated since details on enrolments in special programs (or the extent to which these programs might be adopted) are not available. Direct Payments to School Systems. Most of the comments made concerning direct grants to schools apply here, the difference being that in cases where there are systems or federations of private schools, especially religious schools, it may be more sensible to give grants to the system for allocation to individual schools than to give them to LQGLYLGXDOVFKRROV6SHFLÀFRUJDQL]DWLRQVWRZKLFKVXFKDVWUDWHJ\PLJKWDSSO\LQFOXGH the Board of Jewish Education and the Ontario Alliance of Christian Schools. (Indeed, these organizations might even be given the option of organizing as school boards under the Education Act, in which case they would become publicly operated schools just as are Roman Catholic separate schools. One thinks, by analogy, of the organization of education in Newfoundland.) Grants to systems of private schools could clearly be determined by the grant regulations and adjusted for different levels of wealth possessed by individual schools in the system. Or, if they became publicly operated boards, the size of the grant could be reduced by the size of the levy on the assessment directed toward the board. There are several advantages to system funding, which would probably cost about the same as funding individual schools. First, it would be administratively simpler for government, since the task of allocating funds to schools would be delegated. Second, a system could better plan expansion, contraction, and the level of support needed

513

STATE SUPPORT FOR RELIGIOUS EDUCATION

within a given school. Finally, in the case of special services, these could be provided PRUHHIÀFLHQWO\ Provision of Goods and Services to Children. In the U.S., where the separation of FKXUFKDQGVWDWHKDVKLQGHUHGWKHH[SDQVLRQRIDLGWRSULYDWHVFKRROVWKH´FKLOGEHQHÀWµ WKHRU\KDVEHHQGHYHORSHGWRGHIHQGFHUWDLQW\SHVRIDLGZKLFKVHHPRIEHQHÀWWRWKH child (but not to the school or church). Common among these might be the provision of secular textbooks, transportation to school, and testing and evaluation. In a sense, Ontario already practices this theory to some degree by making SGIS available to private schools and by allowing the participation of private school students in the international student exchange program. ,WZRXOGDSSHDUWKDW2QWDULRPLJKWXVHWKHFKLOGEHQHÀWWKHRU\WRSURYLGHWH[WERRNV transportation, and province-wide testing (if it is introduced) for private school pupils. Indeed, it has already been noted that private school students living in areas with public transit enjoy transit subsidies not available to their peers in rural communities. Assuming an average of about $25 per pupil is spent on textbooks each year, extension of a book purchase plan to private schools would cost about $25 x 55,000 = $1,375,000 Assuming the cost of transporting private school students was the same as the weighted average cost for publicly operated school boards (i.e., $162 per pupil per year), then the total cost of providing transportation to all 55,000 private school pupils would be $162 x 55,000 = $8,910,000 An alternative estimate, based on the current levels of service as described in survey data collected for this study (Tables 2 and 8), suggests funding of transportation would cost about $108 per pupil, or in total $108 x 55,000 = $5,940,000 Provision of Goods and Services to Schools or School Systems. Again, the government already provides some goods and services to private schools in Ontario, some with a fee and some without. One possible extension of this suggested in the discussion of categorical grants above would be the provision of school equipment, such as microscopes, microcomputers, overhead projectors, and the like. No estimate of the cost of providing such goods was made since the cost would clearly depend on the goods being offered and the number of schools to which it applied. Exemption from Taxes. Overall, the idea of tax exemptions, beyond those already given to schools and charitable organizations, does not seem to be a particularly useful approach to aiding private schools. The idea suggested earlier that private school teachers be allowed to take part of their salary in a tax exempt form does not appear to be practicable given the involvement of both provincial and federal governments and the questionable idea of singling out one profession for special treatment. Income tax deductions or credits would seem to be a better mechanism than tax exemptions to provide assistance since the former two tend to vary from person to person whereas WKHODWWHUWHQGVWREHÀ[HGIRUDOO

514

4. OFFICIAL REPORTS

Tax Deductions to Parents. Probably the most obvious form of tax deductions for parents with children in private schools would be a tax deduction for the full amount of tuition paid. For such a deduction to apply to both federal and provincial income taxes, both OHYHOVRIJRYHUQPHQWZRXOGKDYHWRDJUHH6LQFHWKHEHQHÀWRIVXFKDGHGXFWLRQZRXOG clearly be regressive (i.e., of more value to higher income than lower income families), it would be incompatible with recent suggestions by the federal government that tax exemptions for children already make the present system less progressive than it ought to be. Therefore, only the cost to the provincial government is estimated. This amount would equal 12 percent (the marginal provincial tax rate for the average parent of a private school pupil) of the total tuition cost, estimated to be $91,905,000; i.e, the cost to the provincial government in forgone revenue would be about $91,905,000 x .12 = $11,028,600 If the deduction were limited to, say, $500 to make it less regressive, the cost would be about $500 x 37,000 x .12 = $2,220,000 An equivalent cost would probably apply if property taxes were made deductible for the purpose of provincial income taxes paid by the parents of private school students. Tax Credits to Parents.7D[FUHGLWVWRSDUHQWVSUREDEO\RIIHUWKHPRVWÁH[LEOHPHWKRG of giving aid to parents through the tax system since it is a technique consistent with current Ontario tax credits for property and sales taxes. In practice, parents with children in private schools would either add a proportion of the tuition paid, or more likely, be allowed to enter 1.5 times the amount of their property taxes paid in a given year (which would, in effect, allow them to count property taxes for education twice) as the amount of property taxes paid. This ultimately would result in an increased credit. For average parents with a child in a private school this approach would probably RIIHUOLWWOHRUQREHQHÀWVLQFHWKHLULQFRPHZRXOGEHDERYHWKHWKUHVKROGDWZKLFKD FUHGLWZRXOGEHHDUQHG+RZHYHULWZRXOGEHRIEHQHÀWWRORZHULQFRPHLQGLYLGXDOV For example, for a family of three that pays $100 in property tax and has one wage earner with taxable income of $15,000 (or net income of about $23,000), the value of the tax credit would increase by $50 from $61 to $111, or from 0.4 percent of taxable LQFRPHWRSHUFHQW7KHVPDOODPRXQWLQYROYHGUHÁHFWVWKH´ODFNRIJHQHURVLW\µRI the Ontario Tax Credit plan rather than the limits of this technique. This same family ZRXOGUHFHLYHDWD[EHQHÀWRIIURPWKHIHGHUDO&KLOG7D[&UHGLWSODQ,QERWK cases, it should be noted, the tax credits are “refundable”; that is, if a person has no taxable income, they would still receive a refund cheque from the government equal to the total amount of the credits.

75$16,7,21$/&26762)3529,',1*$,' Each of the programs suggested above involve transitional costs of three types: the cost of implementation and administration, the cost associated with the actions of privately and publicly operated schools in response to the funding programs, and the cost of future growth in the per pupil value of the aid program.

515

STATE SUPPORT FOR RELIGIOUS EDUCATION

Implementation and administrative costs for any form of private school funding would be directly related to the size and complexity of the technique being used to extend funding. Clearly, it would be less complex and expensive to deal with a dozen “school systems” than with 550 schools, but 550 schools would be more easily accommodated than 3700 teachers or the tens of thousands of parents whose 55,000 children are enrolled in private schools. Similarly, the adaptation of existing systems of allocation to the requirements brought about by an extension of funding is less expensive than creating new systems for the purpose. Thus, setting up a system of direct payments to parents for teachers would be more costly than using current grant formulas to make allocations to schools or school systems, or using the income tax system to provide indirect relief to parents for tuition or property taxes payments. One should, of course, take into account the cost of implementation and administration relative to the amount of funds being allocated. That is, it may be worthwhile to set up a new administrative system to forward grants to parents if these grants are equal in value to average tuition fees, but not if the grants have a value of only $50 per student. It would seem far better to allocate a relatively small amount via a tax credit on the income tax, whose forms must be redesigned and reprinted each year. The cost associated with the response of publicly and privately operated schools to the introduction of funding for private schools refers particularly to changes in the HIÀFLHQF\RIHDFK,IWKHUHLVDVPDOOVKLIWVD\IURPSXEOLFWRSULYDWHVFKRROVWKHHIÀFLHQF\RIWKHIRUPHUPD\GHFUHDVHZKLOHWKHHIÀFLHQF\RIWKHODWWHUPD\LQFUHDVHGXH WRWKHFKDQJHLQWKHUHODWLRQVKLSRIÀ[HGWRYDULDEOHFRVWVLQHDFK7KDWLVDVZHKDYH seen with enrolment declines in public schools particularly, costs per pupil tend to rise DVHQUROPHQWVGHFOLQHVLQFHÀ[HGRUVHPLÀ[HGFRVWVDUHVSUHDGRYHUIHZHUVWXGHQWV The converse will be true in private schools, which according to our survey data, have room for more pupils at their current sites. $WWKHVDPHWLPHDVZHQRWHGHDUOLHULWLVSRVVLEOHHYHQZLWKDORVVRIHIÀFLHQF\DV measured by per pupil costs) in public schools, that increases in private school enrolment may reduce the total cost of education to the public even if subsidies are given, as long as these subsidies plusWKHFRVWRIWKHORVWHIÀFLHQF\LQWKHSXEOLFO\RSHUDWHGV\VWHPDUH less than the current cost per pupil in the latter system. A large subsidy (approaching the current per pupil cost in publicly operated schools), however, would result in a higher RYHUDOOFRVWVLQFHWKHUHZRXOGEHDQRYHUDOOORVVLQHIÀFLHQF\ Finally, there are long term transitional costs related to the almost inevitable growth in any system of subsidy once it has begun. It would seem that calls for “parity” between privately and publicly operated schools would be as inevitable as the calls for “parity” between public and separate schools by supporters of the latter have been. Under some of the options suggested (e.g., allowing systems of private schools to become publicly operated boards under the Education Act), there would seem to be no reason not to grant parity. Under other options (e.g., full funding of tuition or supplements to teachers’ VDODULHV LWZRXOGFHUWDLQO\EHUHDVRQDEOHWRH[SHFWLQFUHDVHVUHODWHGWRHLWKHULQÁDWLRQ or increases in expenses in publicly operated schools, but less reasonable to expect full equal treatment. Nevertheless, even modest subsidies, whatever form, would probably EHORRNHGXSRQDVDÀUVWVWHSE\VRPHZLWKWKHH[SHFWDWLRQWKDWRWKHUIRUPVRIIXQGLQJ would follow. In particular, a community of interest would develop between private 516

4. OFFICIAL REPORTS

school and public school teachers that would see them unite to form a single lobby for at least some purposes, whether it be increased salaries or better working conditions. Some types of subsidies (e.g., direct grants to schools or teachers) would seem to favour the evolution of such a development. 1RVSHFLÀFHVWLPDWHVZHUHPDGHRIDQ\RIWKHWUDQVLWLRQFRVWVVLQFHWKHFRVWVVHHPHG to depend on too large a number of factors. Nevertheless, the principles enunciated in this section, if applied to any particular proposal, should serve as a guide to estimating its transition costs.

',6&866,21&21&/86,21$1'5(&200(1'$7,216 Earlier in this paper, the three economic functions of government were discussed; namely, allocation, stabilization, and redistribution. These concepts can now be used to evaluate the various proposals for funding private schools that have been discussed and to come to some conclusions as to which options are most viable within the Ontario context. The allocation function, it will be recalled, refers to the decisions by government as to what activities will receive public funds and, perhaps, operate within the public sector, and which will not. Extension of funding to private schools would imply a recognition that it is in the community’s interest to see private schools receive public funds beyond WKHVLJQLÀFDQWLQGLUHFWDVVLVWDQFHDOUHDG\SURYLGHGYLDSURSHUW\WD[H[HPSWLRQVDQG income tax deductions for religious tuition and charitable donations. An argument for making such a change, it would seem, must be defended in terms of the Government’s carrying out its other economic functions. In stabilizing the economy, government is concerned with the levels of unemployment, prices, and economic development. How would extending more support to private schools be evaluated in terms of its effect on these three variables? As far as unemployment is concerned, extending additional support to private schools would seem to guarantee greater job stability and perhaps higher salaries to teachers in these schools. This could be viewed both positively (reducing the teachers’ likelihood of unemployment) and negatively (effecting a price increase in the educational service being provided). If aid could be designed to accomplish the former (greater stability) DQG QRW WKH ODWWHU LQFUHDVHG FRVWV  VRFLHW\ ZRXOG VHHP WR EHQHÀW ,I VXEVLGLHV IRU privately operated schools resulted in a shift of students to private schools (due to the ORZHUIHHVEHLQJFKDUJHG WKHHFRQRP\DVDZKROHZRXOGEHPRUHHIÀFLHQWHYHQLI WKDWHIÀFLHQF\ZDVEURXJKWDWDSULFHRIMREVLQWKHSXEOLFVHFWRU The move toward “privatization” by the Ontario government in some areas (e.g., nursing homes) would seem to be based on a set of assumptions such as that just provided; i.e., the private sector can do it cheaper, even when the service is government subsidized. Yet, as least as far as education is concerned, such a policy is in direct contradiction to the Government’s decision to bring private Roman Catholic secondary schools into the public sector. As well, analysis of funding arrangements for private schools in other jurisdictions leads to the conclusion that long term cost savings are unlikely. Thus, neither reduction in unemployment nor achieving greater stability of educational costs would seem to justify further public funding of private schools.

517

STATE SUPPORT FOR RELIGIOUS EDUCATION

What of economic development? Two arguments might be made to support the further subsidization of private schools by government. First, if private schools are more effective than publicly operated schools in that their graduates make a greater contribution to the Ontario and Canadian economies than do the graduates of publicly operated schools, then they deserve the encouragement more funding would bring. At present, there is no evidence at hand to defend such an argument as this. Second, private schools, in attracting students from other countries who wish to prepare for university in Ontario, may contribute to the level of economic activity in Ontario. There is good evidence that this is the case, though reliable data on the numbers and trends in enrolment of “visa” students in Ontario’s private schools could not be obtained. It should be emphasized that foreign students who bring funds from home to pay fees and live in Canada can still make a net contribution to the economy even if their education is subsidized by virtue of the multiplier effect that new money has as it is cycled through the economy. Therefore, government ought not disallow subsidies WKDWEHQHÀWDYLVDVWXGHQWXQOHVVWKHVHVXEVLGLHVH[FHHGWKHQHWEHQHÀWWRWKHHFRQRP\ brought by the student’s presence. It also might be noted, as well, that senior level visa students are often enrolled in advanced level courses in small schools that could QRWRSHUDWHHIIHFWLYHO\ZLWKRXWWKHPLHWKHVHVWXGHQWVIDFLOLWDWHWKHPRUHHIÀFLHQW operation of many schools, both public and private. Thus, in terms of Government’s stabilization function, no strong argument can be found for extending funding to private schools, except in the case of foreign students. Government’s third economic function, redistribution, contributes stronger arguments for government aid. For example, one can ask whether it is fair that parents who wish for their children a different type of education than that provided by publicly operated schools receive so little aid from society at large in the education of these children. That these schools are in society’s interest is recognized by virtue of their right to operate and their being given, apparently without exception, charitable status when not operated as proprietary businesses. Ultimately, of course, it is not fairness to the parents but fairness to the children that one must consider. Government must ensure that the welfare of the child does not suffer unduly as a result of their parents’ decisions. As well, equality of educational opportunity (an ideal often cited by government) could be construed as requiring that opportunities to attend private schools should be extended to children of low income SDUHQWVVLQFHWKH\DUHDOUHDG\DYDLODEOHDOEHLWDWVRPHVDFULÀFHWRWKHFKLOGUHQRI parents of average and upper incomes. ,IWKHVHDUJXPHQWVDUHDFFHSWHGDVSURYLGLQJDIDLUUHÁHFWLRQRIWKHPHDQLQJRI equity as held by people and government of Ontario, then it would appear that there is room to increase public support for private schools without threatening the welfare of the public operated schools and their students. )LUVWXQGHUWKHFKLOGEHQHÀWWKHRU\LWZRXOGVHHPWKHSURYLVLRQRIIUHHWH[WERRNV and transportation to private school students would increase both the quality of their education and the equitability of arrangements for this education. Second, it is only a slight extension of this argument to support the provision to private schools of equipment

518

4. OFFICIAL REPORTS

which is made available to children in public schools, particularly when this equipment is funded under categorical grant programs. Third, it would seem that the precedence set in Ontario by which parents can direct the educational portion of their property taxes to the school system of their choice RXJKWWREHJHQHUDOL]HGVRWKDWSULYDWHVFKRROVHQMR\WKHEHQHÀWRIWKHWD[HVSDLGE\ the parents of their students. This option seems most equitable since this tax payment LV WDNHQ WR UHÁHFW WKH SURSHUW\ RZQHU·V FRQWULEXWLRQ WR JHQHUDO JRRG FUHDWHG E\ D universally educated populace. Thus, it would be fair recognition of the “spillover” effects provided by the private education of youth. How could this plan be carried out? First, to avoid undue administrative complexity, private schools could be responsible for providing data to the provincial government as to the amount of these taxes. Second, the provincial government could allocate grants to private schools based on the number of students enrolled at the elementary or secondary levels, the wealth of the schools as measured by the property taxes paid by their students’ parents, and the total value of the property taxes paid by the parents of all private school students. That is, the property taxes of all parents with children in private schools would, in effect, be pooled so that they could be fairly distributed among all private schools. In theory, one could have these property taxes paid to the provincial rather than local governments. However, this is needlessly complex, since having the taxes paid to the provincial government would simply reduce the assessment of the school board in question, a step that would set off an increase in the grant the board received from the government. Thus, the senior level of government would pay in any case.40 The cost of these three proposals would include about $1,375,000 for texts, an undetermined amount for equipment, between $6,000,000 and $9,000,000 for transportation, and $27,500,000 for the property tax reallocation. That is, the total would be about $35,000,000 or $636 per student, excluding funds for equipment. This amount ZRXOGVLJQLÀFDQWO\DLGSULYDWHVFKRROVLQFUHDVLQJWKHLUIXQGLQJOHYHOVQHDUWRWKDWLQ the publicly operated systems if no reduction in tuition were made. At the same time, since grants would be larger in the schools with least wealth, the funds would go where they were most needed. The amounts of all these grant programs, it will be noted, would be set without reference to private schools per se. That is, the funding for texts, equipment, and transportation could be tied to Ministry regulations of averages spent in public operated boards, and tax rates are set by local publicly operated boards. Thus, there would be few opportunities for private school supporters to lobby for “parity”. Notwithstanding the above suggestions, it seems that it would also be consistent with the assumptions about the meaning of equity in Ontario for other systems of education, in addition to the public, non-secular system and Roman Catholic separate system, to have an opportunity to become publicly operated boards under the Education Act if they so wished. Unlike the previous proposals, this would make the schools more an instrument of government, entitling them to full funding under the grant regulations. The cost of this, as previously estimated, would be about $200,000,000, excluding the loss RIIHGHUDOIXQGVWKDWFXUUHQWO\ÁRZWR2QWDULRYLDWKHPHFKDQLVPRIWD[GHGXFWLRQV

519

STATE SUPPORT FOR RELIGIOUS EDUCATION

It will be noted that options for assisting private schools such as direct payments to parents and income tax deductions or credits have been omitted from the suggestions above. This omission was based on the view that direct payments or deductions for the parents of children in private schools would be perceived as inequitable since they would seem to favour a small group of parents. As well, direct grants or tax credits for private school teachers were rejected for the same reason. Finally, it should be emphasized that the recommendations are based within a certain society’s desires or values as far as the education of all Ontario youth are concerned. Other assumptions, particularly those concerned with the social role of education in building a coherent society, could direct one to other conclusions if these values instead were held to be paramount. 41

ADDENDUM. JUNE 5, 1985 Re: Federal Budget Implications for Private Schools (Catch) The recently announced federal budget will eliminate one of the methods of reducing the cost of private schooling discussed on page 17 and 18 of my paper for the Commission. That option, often referred to as “income splitting” allowed parents to set up trusts for their children, and to use the income from the trusts (which were taxed in the child’s name) to pay for items such as private school tuition. For individuals in the 50% tax category, this option effectively reduced the cost of tuition by half. Under the budget, such trusts can no longer be set up: no additional contributions can be made to existing trusts, and existing trusts must be phased out by 1988. It is quite possible the elimination of income splitting will make some high-fee private schools change their opposition to additional assistance from government. It is my understanding that many of their clientele are now salaried professionals who do not have unlimited resources and for whom an effective doubling of the cost RISULYDWHVFKRROLQJIRUWKHLUFKLOGUHQZRXOGEHGLIÀFXOWWRDFFHSW7KLVDVVXPHVRI course, these individuals have made use of trusts to reduce the cost of private schooling). 7KLVJURXSZLOODOVREHKLWKDUGE\RWKHUWD[LQFUHDVHVLQWKHEXGJHWVXFKDVWKHGHÀFLW reduction surtax and the reduction in the child tax exemption. 7KXVLWDSSHDUVOLNHO\WKDWVRPHKLJKIHHSULYDWHVFKRROVPD\ÀQGDVLJQLÀFDQW decline in the number of parents able to pay for a private education, though the full impact of the tax measures will not be felt until 1989 and beyond.

)227127(6 1. Ministry of Education, Ontario. “Private School as of July 1, 1984”, Research and Information Branch, MOE: Toronto, July, 1984, Mimeographed. 2. Aaron Samuel Gurwitz, The Economics of Public School Finance. Ballenger Publishing Company: Campbridge, MA, 1982, pp. 25-28. In addition to the social welfare approach, Gurwitz describes “The local choice approach” which leaves the issue of educational quality up to small local school boards to decide in RUGHUWRUHÁHFWWKHWDVWHVRIWKHLUUHVLGHQWV 3. Richard A. Musgrave and Peggy B. Musgrave, Public Finance in Theory and Practice. 3rd ed. McGraw-Hill Book Company: New York, 1980. Chapter 1.

520

4. OFFICIAL REPORTS

4. Stephen B. Lawton and Theodore Tzalalis, “Is Ontario Under-Investing in Elementary Education?”, Report prepared for and funded by the Ontario Public School Teachers’ Federation, Toronto, June 1983. Revised December 1984, pp. 47-58. Mimeographed. 5. The policy regarding student visa fees, especially at the secondary level (i.e., payment of full fees), is inconsistent with other government policies that subsidize “export” industries that bring new funds into the Canadian economy, since it is recognized that new funds multiply themselves by a factor of 2½ to 3 times as they circulate through the economy. This question is of at least tangential relevance to the Commission on Private Schools in that a number of private “visa” schools (catering primarily to overseas students bound for Ontario universities) have been hard hit by the increase in student fees that have priced Ontario universities out of the international post-secondary education market. Other private schools that also used to admit such students for grades 11, 12 and /or 13, though serving primarily Ontario residents, have also experienced a loss of full tuition visa students who helped them to maintain not only their revenues but also larger enrolments in their more specialized university entrance science and math classes. (Source – personal discussion with private school personnel and visa students.) According to the federal Department of Manpower and Immigration, in 1983 a total of 17,574 student visas were issued for individuals applying to Ontario’s private, public and separate schools, including 2,715 elementary pupils and 14,859 secondary pupils (Phone query: January 28, 1985). In contrast, statistics not yet released from the Ministry of Education suggest visa student enrolment in public and separate schools may not exceed 2100 for 1984/85. 6. Ontario Teachers’ Federation, “Funding of Education”. In Fact (October 1984). 7. Ministry of Education, Ontario, “Enrolment Statistics from School September Report 1983”. MOE: Toronto, June 1984, Mimeographed. In fact, not all 30,485 Roman Catholic secondary schools will accept the government offer to funds. Prestigious St. Michael’s College School, one of the oldest schools in Ontario, has announced its intention to “return to independent status between 1985-86 and 1988-89”. This decision will reduce separate school enrolments by approximately 450 in grades 9 and 10, and an estimated 700 in grades 11 to 13, (Globe and Mail, January 11, 1985 and Directory of Education, Ontario, 1983-84). Henceforth, DÀJXUHRIVWXGHQWVZLOOEHXVHGWRUHÁHFWSULYDWHVFKRROHQUROPHQWVDIWHUH[WHQVLRQRIWKHVHSDUDWH school system, rather than the 53,158 used here, in order to account for decisions to reassume independent status by a small number of Roman Catholic secondary schools. 8. Joel D. Sherman, “Public Finance of Private Schools: Observations from Abroad”, Chapter 4 in Thomas James and Henry Levin, Public Dollars for Private Schools. Temple University Press: Philadelphia, 1983, pp. 71-83. 9. Otto F. Kraushaar, Private Schools: From Puritans to the Present. The Phi Delta Kappa Educational Foundation: Bloomington, Indiana, 1976. Bicentennial Series, Fastback 78. 10. Stephen B. Lawton, “Public Support for Catholic and Denominational Schools: An International Perspective”. Paper presented at the Annual Conference of the Ontario Association of Education Administrative 2IÀFLDOV7RURQWR2QWDULR2FWREHUWR1RYHPEHU 11. By Ministry of Education estimate, approximately 4500 visa students are enrolled in private schools. See also note 5. 0HPRUDQGXPIURP5-+XQWHU(GXFDWLRQDO2IÀFHU3ULYDWH6FKRROV2QWDULR0LQLVWU\RI(GXFDWLRQWR N. Emery, Executive Director, Commission on Private Schools in Ontario, dated September 11, 1984. 13. David W. Breneman, “Where Would Tuition Tax Credits Take Us? Should We Agree to Go?” Chapter 6 in Thomas James and Henry Levin, Public Dollars for Private Schools. Temple University Press: Philadelphia, 1983, p. 113. See also, Stephen B. Lawton, “The Public Funding of Roman Catholic Secondary Schools in Ontario: Implications for Educational Finance”. Paper presented at the OCLEA conference. The Funding of Roman Catholic Secondary Schools: Issues and Implications, Toronto, Ontario, November 8-10, 1984. 14. Joel D. Sherman, op. cit. pp. 79-80. 15. See, for example, John E. Coons, “Of Family Choice and ‘Public’ Education”, Phi Delta Kappan, September 1979, pp. 10-13. Donald A. Erickson. “Should All the Nation’s Schools Compete for Clients and Support?” Phi Delta Kappan, September 1979, pp. 14-17, 77. And E. G. West, “The Prospects for Education Vouchers: An Economic Analysis”, Chapter 10 in Robert B. Everhart (Ed.). The Public School Monopoly, Ballinger: Cambridge, MA, 1982, pp. 369-391.

521

STATE SUPPORT FOR RELIGIOUS EDUCATION

16. R. J. Hunter, op cit., p. 2. 17. Ibid. 18. Justice Francis C. Muldoon, “Between Lyle McBurney, plaintiff, and Her Majesty the Queen, defendant. Reason for Judgment”. St. Catharines, Ontario, Calvinist Contact, September 14, 1984. 19. Cathryn Motherwell, “Use of Children’s Trusts Grows among Middle-Income Families”. Globe and Mail, January 7, 1985. 20. Chris Burke, “Family Allowance Plan Paying More to the Rich than the Needy”. Globe and Mail, January 3, 1985 and “Reforms Urged for Income Aids”, Globe and Mail, January 4, 1985. 21. Ibid. 22. E. G. West, Nonpublic School Aid, Lexington Books, D. C. Health and Company; Lexington, MA, 1975. 23. The letters a, b, c and d used for the footnotes in Table 1 are used to indicate the cell location. 24. Government of Ontario, Education Act, Revised Statutes of Ontario, 1980, Chapter 129, 1(1) paragraph 40. 25. Ministry of Education, Research and Information Branch, “Private Schools in Ontario as of July 1, 1984”, MOE: Toronto, July 1, 1984. Mimeographed. 26. Ministry of Education, Research and Information Branch, “Table 9.20. Enrolment in Private Schools by Grade and Sex – September 30, 1983” and “Table 9.40, Private School Teaching Staff – September 30, 1983”, MOE: Toronto, no date. Computer output. 27. Marina Ballantyne, Jay G. Chambers and Susanne Lajoie, A Comparative Study of Public and Private Schools in the San Francisco Bay Area: A Descriptive Report. Institute for Research on Educational Finance and Governance (IFG), School of Education, Stanford University, November 1984. Project Report No. 84-A17. Mimeographed. Table 11.2, p. 17. 28. As of January 20, 1984, the maximum salaries in the A4 (top) grid position for 1984/85 salary settlements were as follows: public elementary (36 of 76 boards), $44,223; public secondary (40 of 76 boards). $44,516; and separate school boards (29 of 48 boards), $42,962, Source: Ontario Education Relations Commission (Phone call, January 29, 1985). 29. Ontario Ministry of Education, “1984 Weighting Factor Information”, MOE: Toronto, no date. Mimeographed, p. 14. 30. A recent study in California reported salaries were 25.6 percent lower among teachers in Roman Catholic parochial schools than those in the public schools; differences of 22.9 percent, 13.0 percent and 12.9 percent, were reported respectively for non-Catholic religious schools, non-sectarian private schools, and Roman Catholic schools operated by religious orders (as opposed to parishes or dioceses). In these analyses, the DXWKRUZDVDEOHWRFRQWUROIRUGLIIHUHQWOHYHOVRITXDOLÀFDWLRQVDQGH[SHULHQFHVRPHWKLQJWKDWZDVQRWGRQH in the present study. See Table 4 in Jay G. Chambers, Patterns of Compensation of Public and Private School Teachers. Institute for Research on Educational Finance and Governance (IFG), School of Education, Stanford University, Stanford, CA., August, 1984. Mimeographed, p. 25. 31. See note 7. 32. Ontario Ministry of Education, “Survey of School Board 1983 Financial Statements and Comparative per Pupil Costs by Expenditure Function”. MOE: Toronto, November 7, 1984. Mimeographed. 33. Statistics Canada, Census Divisions: Population, Occupied Private Dwellings, Private Households and Census and Economic Families in Private Households – Selected Social and Economic Characteristics (1981 Census). Minister of Supply and Services, Government of Canada: Ottawa, August 1983. Catalogue 9ROXPH3URÀOH6HULHV% 7DEOHSS 34. The Commission on the Reform of Property Taxation in Ontario, The Report of the Commission on the Reform of Property Tax in Ontario (The Blair Commission), Government of Ontario, Toronto, March 1977, pp. 76-80. The Commission did not estimate the value of the property of private schools, though it did FRPPHQW´,WZRXOGEHLOORJLFDOWRGLIIXVHWKHFDSDFLW\IRUÀQDQFLDOVXSSRUWRIWKHVHSXEOLFDQGVHSDUDWH 

522

4. OFFICIAL REPORTS

school systems by also supporting private institutions which, though devoted to education, restrict this by ZD\RIGLUHFWRULPSOLHGVWLSXODWLRQVDVWRÀQDQFLDOFDSDFLW\VRFLDOVWDQGLQJDQGVRIRUWKµ3 7KHLU system of grants was meant to offset the double taxation that would occur should parents with children in private schools be required to pay property tax on both their residences in support of education and the schools which their children attended. 35. See “Schedule 1, Detailed Tax Calculation”, for 1984 Income Tax Return, Revenue Canada Taxation, Ottawa, 1984. 36. This assumption is made noting that tuition represents 71 percent ($1671/$2346 x 100) of the revenue SHUSXSLODQGWKDWLQDUHOLJLRXVVFKRROLWZRXOGEHUHDVRQDEOHIRURQHÀIWK[  RIWKHFXUULFXOXP to be devoted to religious instruction. 37. The enrolment increases estimated by respondents are well above the 7.6 per annum increase experienced between 1973 and 1983 according to Ministry of Education statistics. See Education Statistics Ontario, 1983, MOE: Toronto, Table 9-21, p. 178. 38. David W. Breneman, op cit. 39. The $162 per pupil transportation cost is based on the data set referred to in note 32. 40. In fact, this would be true only for taxes paid toward a board’s contribution to the grant ceiling. Amounts raised to fund expenditures over the grant ceiling would not normally be made up by provincial grants. Therefore, this plan would indirectly tie the grant to private schools to actual school board expenditures rather than to the grant ceiling. 41. The author’s own views are given in S. B. Lawton, “The Public Funding of Roman Catholic Secondary Schools in Ontario: Implications for Educational Finance”. In effect, they can be summarized by the advice, “One step at a time.” A different emphasis is taken in the present paper in order to provide an assessment as to the viability of different funding options that would be consistent with the Government’s decision to H[WHQGWKHÀQDQFLQJRI5RPDQ&DWKROLFVFKRROVEH\RQGWKDWUHTXLUHGE\The Constitution Act.

%,%/,2*5$3+< 1. Ballantyne, Marina; Chambers, Jay G.; and Lajoie, Susanne, A Comparative Study of Public and Private Schools in the San Francisco Bay Area: A Descriptive Report. Institute for Research on Educational Finance and Governance (IFG), School of Education, Stanford University, November 1984, Project Report No. 84-A17. Mimeographed. 2. Brenenam, David W., “Where Would Tuition Tax Credits Take Us? Should We Agree to Go?”. Chapter 6 in Thomas James and Henry Levin, Public Dollars for Private Schools. Temple University Press: Philadelphia, 1983. 3. Burke, Chris, “Family Allowance Plan Paying More to the Rich than the Needy”, Globe and Mail, January 3, 1985 and “Reforms Urged for Income Aids”, Globe and Mail, 4, 1985. 4. Chambers, Jay G., Patterns of Compensation of Public and Private School Teachers. Institute for Research on Educational Finance and Governance (IFG), School of Education, Stanford University, Stanford, CA, August, 1984. Mimeographed. 5. Coons, John E., “Of Family Choice and ‘Public’ Education”, Phi Delta Kappan, September 1979. 6. Erickson, Donald A., “Should All the Nation’s Schools Compete for Clients and Support?” Phi Delta Kappan, September 1979, pp. 14-17, 77.

523

STATE SUPPORT FOR RELIGIOUS EDUCATION

7. Government of Ontario, Education Act, Revised Statutes of Ontario, 1980. Chapter 129, 1 (1) paragraph 40. 8. Gurwitz, Aaron Samuel, The Economics of Public School Finance, Ballenger Publishing Company: Cambridge, MA, 1982. +XQWHU5-(GXFDWLRQ2IÀFHU3ULYDWH6FKRROV2QWDULR0LQLVWU\RI(GXFDWLRQ Memorandum to N. Emery, Executive Director, Commission on Private Schools in Ontario, dated September 11, 1984. 10. Kraushaar, Otto F., Private Schools: From Puritans to the Present, The Phi Delta Kappa Educational Foundation: Bloomington, Indiana, 1976, Bicentennial Series, Fastback 78. 11. Lawton, Stephen B., “The Public Funding of Roman Catholic Secondary Schools in Ontario: Implications for Educational Finance”. Paper presented at the OCLEA Conference, The Funding of Roman Catholic Secondary Schools: Issues and Implications, Toronto, Ontario, November 8-10, 1984. 12. Lawton, Stephen B., “Public Support for Catholic and Denominational Schools: An International Perspective”. Paper presented at the Annual Conference of the Ontario $VVRFRI(GXFDWLRQ$GPLQLVWUDWLYH2IÀFLDOV7RURQWR2QWDULR2FWREHU1RYHPEHU 2, 1984. 13. Lawton, Stephen B., and Tzalalis, Theodore, “Is Ontario Under-Investing in Elementary Education?”. Report prepared for and funded by the Ontario Public School Teacher’ Federation, Toronto, June 1983, Revised December 1984. Mimeographed. 14. Ministry of Education, Ontario, “Enrolment Statistics from School September Report 1983”. MOE: Toronto, June 1984. Mimeographed. 15. Ministry of Education, Ontario, “Private Schools as of July 1, 1984”. Research and Information Branch. MOE: Toronto, July 1984. Mimeographed. 16. Ministry of Education, Research and Information, “Table 9.20 Enrolment in Private Schools by Grade and Sex – September 30, 1983” and “Table 9.40. Private School Teaching Staff – September 30, 1983”, MOE: Toronto, no date. Computer output. 17. Ministry of Education, Research and Information Branch, “Private Schools in Ontario as of July 1, 1984”, MOE: Toronto, July 1, 1984. Mimeographed. 18. Motherwell, Cathryn, “Use of Children’s Trusts Grows among Middle-Income Families”. Globe and Mail, January 7, 1985. 19. Muldoon, Justice Francis C., “Between Lyle McBurney, plaintiff, and Her Majesty the Queen, defendant. Reason for Judgment”, St. Catharines, Ontario, Calvinist Contact, September 14, 1984. 20. Musgrave, Richard A. and Musgrave, Peggy B., Public Finance in Theory and Practice, 3rd ed. McGraw-Hill Book Company: New York, 1980. 21. Ontario Ministry of Education, “1984 Weighting Factor Information”, MOE: Toronto, no date. Mimeographed.

524

4. OFFICIAL REPORTS

22. Ontario Ministry of Education. “Survey of School Board 1983 Financial Statements and Comparative per Pupil Costs by Expenditure Function”, MOE: Toronto, November 7, 1984. Mimeographed. 23. Ontario Teachers’ Federation, “Funding of Education”, In Fact (October 1984). 24. Salloum, K. and Robinson, N., “Public Education – Private Subsidy”, The B. C. Teacher, December/January, 1985. pp. 37-39. 25. Sherman, Joel D., “Public Finance of Private Schools: Observations from Abroad”. Chapter 4 in Thomas James and Henry Levin, Public Dollars for Private Schools. Temple University Press: Philadelphia, 1983, pp. 71-83. 26. Statistics Canada, Census Divisions: Population, Occupied Private Dwellings, Private Households and Census and Economic Families in Private Households – Selected Social and Economic Characteristics (1981 Census). Minister of Supply and Services, Government of Canada: Ottawa, August, 1983, Catalogue 95-942 (Volume 3URÀOH6HULHV%  27. The Commission on the Reform of Property Taxation in Ontario, The Report of the Commission on the Reform of Property Tax in Ontario (The Blair Commission). Government of Ontario: Toronto, March 1977. 28. West, E. G., “The Prospects for Education Vouchers: An Economic Analysis”. Chapter 10 in Robert B. Everhart (Ed.), The Public School Monopoly. Ballinger: Cambridge, MA, 1982. pp. 369-391. 29. West, E. G., Nonpublic School Aid. Lexington Books, D. C. Heath and Company: Lexington, MA, 1975.

$33(1',;$35,9$7(6&+22/),1$1&(48(67,211$,5( A. Description of School 1. Grades enrolled in school: __________ 2. Total enrolment (September 1984): __________ 3. Total full-time equivalent (FTE) teachers, including principal: __________ $IÀOLDWLRQRUW\SHRIVFKRRO Please indicate which category or categories apply to your school (Check all that apply); a. Roman Catholic b. Ontario Alliance of Christian Schools c. Jewish d. Amish/Mennonite e. Anglican f. Baptist g. Lutheran h. Canadian Reformed i. Presbyterian

525

STATE SUPPORT FOR RELIGIOUS EDUCATION

j. Seventh Day Adventist k. United Church l. Non-Sectarian m. Conference of Independent Schools n. Montessori o. Waldorf p. Special Education only q. French r. Bilingual s. Other: ________________________________________________ 5. In what region is your school located? (1) Western Ontario (2) Central Ontario (not Metro Toronto) (3) Metro Toronto (4) Eastern Ontario (5) Northern Ontario B. Revenue and Expenditures 5HYHQXHIRUODVWÀVFDO\HDU a. Tuition ……………………….. $_______ b. Income from endowment _______ c. Grants ………………………… _______ Sources: ______________________ _______________________ d. Gifts ………………………….. _______ e. Other: …………………….. _______ …………………….. _______ f. Total Revenue …………….. $ _______ ([SHQGLWXUHVIRUODVWÀVFDO\HDU a. Wages and salaries ………………… $ ____________  E(PSOR\HHEHQHÀWV««««««« BBBBBBBBBBBB c. Supplies and materials ……………. ____________ d. Maintenance & energy ……………. ____________ e. Transportation ……………………… ____________ f. Capital expenses excluding debt …… ____________ g. Debt ………………………………… ____________ h. Other: ………………………………. ____________ i. Total ………………………………….. $ ____________ C. Student Fees and Awards 8. Average annual tuition per pupil: $ ____________ 9. a. Does your school offer scholarships or other forms of student assistance, including sliding tuition scales, etc.? (1) No (2) Yes 526

4. OFFICIAL REPORTS

b. If yes, what is the total value of all such assistance in the current year? $ _________  D 'RHV DQ DIÀOLDWHG &KXUFK RIIHU VFKRODUVKLSV RU RWKHU IRUPV RI VWXGHQW assistance? (1) No (2) Yes b. If yes, what is the total value of such assistance? $ __________________ D. Teaching Staff Salaries 11. Please indicate the typical salary of a teacher in your school with the following TXDOLÀFDWLRQV D 8QLYHUVLW\ *UDGXDWH 2QWDULR 7HDFKLQJ &HUWLÀFDWH  \HDUV H[SHULHQFH $ ______________ E8QLYHUVLW\*UDGXDWHZLWK0DVWHU·V'HJUHH2QWDULR7HDFKLQJ&HUWLÀFDWH no years of experience $ ______________  F1R8QLYHUVLW\'HJUHH2QWDULR7HDFKLQJ&HUWLÀFDWH\HDUVH[SHULHQFH $ ______________ 12. What is the average salary of teachers in your school, including the principal? $ ______________ :KDWLVWKHSULQFLSDO·VH[SHULHQFHDFDGHPLFTXDOLÀFDWLRQVDQGVDODU\" a. Total experience as educator ______ yrs.  E$FDGHPLFTXDOLÀFDWLRQ  BBBBBBBBBBBBB c. Salary $ _____________ E. Facilities 14. What would you estimate is the current replacement cost of your school’s land and buildings? $ ________________ 15. Which of the following is available in your school? a. Gymnasium  E3OD\ÀHOGV c. Library d. Music room e. Swimming pool f. Other Facility: ___________________ 16. How many students can your present building accommodate? Number ________________ 17. How would you rate your school’s facilities compared to those of nearby public schools? (Check one.) (4) Better (3) Comparable (2) Slighter inferior (1) Very inferior 18. If your school facilities are inferior to nearby public schools, how much would you estimate it would cost to bring your school up to a comparable standard? $ ________________

527

STATE SUPPORT FOR RELIGIOUS EDUCATION

F. Transportation 19. What percentage of students use the following methods of transportation to school? a. Walk % b. Drive by parent/friend/self % c. Public transportation % d. Bus funded by your school % e. Other % Total 100% 20. What percentage of students are resident or travel the following distances to school on daily basis? a. Reside at school % b. Travel less than 1 mile (1.7 km) % c. Travel 1 to 2 miles (1.7 – 3-5 km) % d. Travel 2 to 5 miles (3.5 – 8 km) % e. Travel more than 5 miles (over 8 km) % Total 100 % G. Enrolment Projection 21. What do you believe would be the optimum enrolment in your school without regard to any limitations of the present facility? ________________ 22. What do you expect your school’s enrolment to be in each of the following years? a. 1985/86 _________ b. 1986/87 _________ c. 1987/88 _________ H. Income of Families 23. To assess the cost of certain funding choices, such as tax credits to parents of children attending private schools, it is necessary to have information on their families’ incomes. To the best of your knowledge, what percentage of the families with children in your school fall into each of the following income categories? a. Under $15,000 % b. $15,000 to $30,000 % c. $30,000 to $50,000 % d. Over $50,000 % Total 100 % 24. Is your school a registered charity? (1) No (2) Yes 25. Comments:

528

4. OFFICIAL REPORTS

Please forward the completed questionnaire to: Stephen B. Lawton Department of Educational Administration OISE 252 Bloor Street West Toronto, Ontario M5S 1V6

Thank you for your assistance. Stephen B. Lawton Associate Professor, OISE

Appendix G ´$+,6725<2)35,9$7(6&+22/6,1217$5,2µ Robert Stamp

December 31, 1984 This study was funded under contract by the Commission on Private Schools in 2QWDULR7KLVVWXG\UHÁHFWVWKHYLHZVRIWKHDXWKRUDQGQRWQHFHVVDULO\WKRVHRIWKH Commissioner.

CONTENTS I. 1780-1850: Schools of Necessity II. 1850-1900: Schools of Privilege III. 1900-1960: Schools of Innovation IV. 1960-1980: Schools of Protest V. Conclusion: Schools of Ontario Footnotes Bibliography

529

STATE SUPPORT FOR RELIGIOUS EDUCATION

,6&+22/62)1(&(66,7< 2QWDULR·VÀUVWSULYDWHVFKRROVZHUHQHLWKHUVFKRROVRIFODVVEDVHGSULYLOHJHQRUVFKRROV of religious protest. They were, quite simply, schools of necessity. At a time in the late eighteenth century when the state was not involved in education, families who desired schooling for their children had of necessity to turn to the private sector. The most common arrangement saw an individual school-master set up shop in his own home or in rented quarters, advertise his services and his rates, and begin instruction as soon as he had attracted enough children to make it a paying proposition. Sometimes the initiative for founding a school came from the parents themselves, occasionally from a religious or philanthropic group – but always from within the private sector. These private-venture schools began dotting the Upper Canada (Ontario) countryside during the decade of the 1780s as Loyalist and other American immigrant groups took up land in the region. The year 1786, for example, saw schools begin in Kingston, Fredericksburgh, Ernestown and Sandwich. Each subsequent year saw additional ventures in these and other communities. Some of these early efforts were short-lived while others survived for a number of years before they too succumbed to changing demands. But for every school that closed, two or more opened to meet the needs of a growing population. By 1816, rudimentary private schooling had become widespread throughout the province. One traveller reported twenty-three schools in Norfolk County alone; another estimate placed the total number of schools in operation throughout the province at close to 200.1 7KHÀUVWSURSRVDOWRLQMHFWSXEOLFPRQH\LQWRVFKRROÀQDQFLQJFDPHIURP-RKQ *UDYHV6LPFRHWKHÀUVWOLHXWHQDQWJRYHUQRURI8SSHU&DQDGDDIWHUWKHSURYLQFHZDV separated from Quebec in 1791. Simcoe advocated state subsidization of upper class schooling, while leaving the lower orders to fend for themselves. His attitude, supported by many in high positions both in Britain and the colony, favoured proper schooling for the select few – “the children of the principal people of the country” – who would eventually become the country’s leaders. For the rest, Simcoe held that “such education as may be necessary for people in the lower degrees of life … may at present be provided IRUWKHPE\WKHLUFRQQHFWLRQVDQGUHODWLRQVµ6LPFRHÀUPO\EHOLHYHGWKDWWKHOLPLWHG resources of the colony should be concentrated on the education of the few rather than spread thinly over the population as a whole.2 Simcoe’s ideas were put into practice a decade later through the District Public (or *UDPPDU 6FKRRO$FWRIWKHÀUVWSLHFHRIHGXFDWLRQDOOHJLVODWLRQHQDFWHGE\WKH parliament of Upper Canada. This act provided an annual grant of 100 pounds for one grammar school in each of the province’s eight administrative districts. The act was criticized for its concentration on schooling for gentlemen’s sons while neglecting common schooling for the masses. The schools themselves were criticized for the Church of England tone that permeated their teaching staffs and governing boards. Consequently there emerged an opposing network of private “academies” – Bath, Newcastle and Grantham, for example – that provided an alternative form of middle-class schooling. Compared with the grammar schools, the academies were considered somewhat more democratic in tone, more pluralistic in religious orientation, and more practical in their DLPV7KXVZHUHERUQ2QWDULR·VÀUVWSULYDWHVFKRROVRISURWHVW

530

4. OFFICIAL REPORTS

The founding of Upper Canada College in 1829 was consistent with the elitist DSSURDFKWRSXEOLFHGXFDWLRQÀUVWHQXQFLDWHGE\6LPFRH7KLVWLPHWKHLQLWLDWLYHFDPH from another lieutenant governor, John Colborne, who argued that, despite the efforts RIWKHVWDWHDLGHGGLVWULFWJUDPPDUVFKRROVWKHFRORQ\GHVSHUDWHO\QHHGHGDÀUVWFODVV preparatory school before any thought could be given to establishing a university. 6R 8SSHU &DQDGD &ROOHJH ÀUVW FDOOHG WKH 5R\DO *UDPPDU 6FKRRO  EHJDQ ZLWK LWV Church of England headmaster, its British-trained staff, its classical curriculum, and LWV´ELUFKURGµVW\OHRIGLVFLSOLQH$FFRUGLQJWR*RVVDJH´&ROERUQHZDVIXOÀOOLQJD desire to re-create in Upper Canada all that he considered worthwhile in the British public school system.”3$OOWKLVZDVÀQDQFHGWKURXJKJHQHURXVSXEOLFHQGRZPHQWVDQG grants, leaving the usually wealthy parents with relatively modest tuition fees. What later became the pre-eminent independent school in Canada, the school that more than any other was regarded as the archetypal private school, thus began as the most lavishly VWDWHDLGHGVFKRROLQWKHÀUVWKDOIFHQWXU\RI2QWDULR·VKLVWRU\ Opponents of the Government made Upper Canada College a target of attack, since it appeared to be an obvious creation of the colonial establishment or Family Compact, maintained for its own advantage by grants of Government land and money. William Lyon Mackenzie attacked both the class and religious biases of the new institution. “The College,” he claimed, “was never intended for the people, that all classes may apply to the Fountain of Knowledge.” Though technically non-denominational, Upper &DQDGDVHHPHGWRUHÁHFWDQGSHUSHWXDWH$QJOLFDQLQWHUHVWVFRQGXFWHG´RQDQDUURZ bigoted and sectarian plan.”4 MacKenzie thus bequeathed to later generations the two most frequently voiced criticisms of Ontario’s private schools – their class bias and their religious orientation. The Upper Canada legislature addressed the question of state aid for lower class education through the Common School Act of 1816. This provided an annual grant of XSWRWZHQW\ÀYHSRXQGVWRKHOSSD\DWHDFKHU·VVDODU\LQHDFKVFKRROZKHUHWZHQW\ or more pupils were in attendance, and where the doors were open for at least six months per year. Even those seemingly modest requirements prevented the majority of common schools from qualifying for the grant. Further problems lay in the manner in which the local District Board of Education divided the grant among the schools in LWVGLVWULFW6RPHERDUGVVLPSO\GLYLGHGWKHPRQH\HTXDOO\DPRQJDOOTXDOLÀHGVFKRROV in the area; others favoured supporting a few superior schools at the expense of the PDQ\DYHUDJHHIIRUWV&RQVHTXHQWO\WKHEHQHÀWVRIWKHOHJLVODWLRQZHUHVSUHDG unevenly throughout the province. Government statistics show that the total number of grant-aided schools increased from 173 in 1817, to 1,721 in 1842, and to 3,059 in 1850. Unfortunately there is no precise means of measuring the number of non-aided schools during this period. But on the basis of extensive research, Gidney concluded that “there is a substantial amount of evidence” to suggest that until the early 1840s, “the non-aided schools were as numerous, or nearly so, as those that received Government aid.”5 Toronto provides good examples of the number and longevity of these non-aided schools. Between 1815 and 1846 city newspapers and directories contained notices IRUÀIW\HLJKWRIWKHP$VODWHDV(JHUWRQ5\HUVRQFODLPHGWKDWRQO\KDOIWKH children attending day schools in the city were in Government-aided schools. Of the 531

STATE SUPPORT FOR RELIGIOUS EDUCATION

large number of non-aided schools, some were quite exclusive, catering to the elite of the city and the province at large. Others served the sons and daughters of the middle classes, charging fees about the same as those of the district grammar schools. But, concluded Gidney, most were inexpensive, with fees comparable to those charged in the rural common schools.6 Other cities and towns boasted their own profusions of private-venture schools. Gidney discovered evidence of forty-eight such schools in Kingston between 1815 and 1846, with eleven showing continuity over three years or more. Podmore found that at mid-century, when optional rate assessment was introduced to support “free” state schools, the proportion of children attending private rather than state-aided schools varied from 11 to 51 per cent of the urban population, reaching 43 per cent in Hamilton, 44 in Kingston and 51.5 in Dundas. Yet by the middle third of the nineteenth century voluntarist and private approaches to schooling came under sharp attack from a new generation of public school promoters. Educational reformers like Egerton Ryerson in Upper Canada, and his counterparts elsewhere in North America and Western Europe, began emphasizing public rather than private educational aims. They argued that the urbanizing and industrializing society of the day needed a more highly schooled citizenry in order to advance the public good. Schools should exist to serve the political, economic and social needs of the state and WKHVRFLHW\7KHVHVFKRROSURPRWHUVFDOOHGIRULQFUHDVHGSXEOLFÀQDQFLQJZKLFKZDV inevitably accompanied by increased state control. Within less than a generation, both the common schools and the grammar schools of Upper Canada were brought under full public control. Legislation of 1850 allowed local PXQLFLSDOLWLHVWRÀQDQFHFRPPRQVFKRROVWKURXJKDSURSHUW\DVVHVVPHQW6XIÀFLHQW funds could now be raised to assist all common schools in the community, thus ending the distinction between grant-aided and non-aided schools. Within two decades, 90 per cent of the province’s municipalities had chosen this approach; consequently when such assessment was made compulsory in 1871 there were no great storms of localist protest. To underline the new order, the 1871 act changed the name from “common” to “public” school. At the same time, the old grammar schools were also brought under IXOOSXEOLFÀQDQFLQJDQGFRQWURODVKLJKVFKRROVDQGFROOHJLDWHLQVWLWXWHV “The Ontario school system that took shape in the middle decades of the nineteenth FHQWXU\µ FRQFOXGHG *LGQH\ ´ÀUVW XQGHUPLQHG DQG WKHQ GHVWUR\HG WKH WUDGLWLRQDO character of Upper Canadian educational provision.”8 With larger Government grants and an improved administrative system, the number of non-aided schools that catered to the lower and middle classes declined sharply as these schools transformed themselves into grant-aided institutions. With public schools now readily available and accessible, the private school as a school of necessity waned and then died.

,,6&+22/62)35,9,/(*( Department of Education statistics for 1871 showed 285 private schools in Ontario, with a total enrolment of 6,511 pupils. Four years later (the last year private school ÀJXUHVZHUHJLYHQLQWKHDQQXDOUHSRUW WKHQXPEHURIVFKRROVKDGULVHQWRDQG the total enrolment to 7,982. Fragmentary evidence for the remainder of the nineteenth

532

4. OFFICIAL REPORTS

century suggests a steady decline in the actual number of private schools, with the smaller, weaker ones succumbing as they lost clientele to the free public schools. Total private school enrolment showed a modest growth, as the stronger schools established themselves in the educational marketplace. Given the even greater expansion of the public school sector, however, the actual share of the total enrolment held by the private schools slowly fell. As the umbrella of public education spread over Ontario, the very term “private schooling” began to take on a new meaning. No longer did it imply schools of necessity in a pre-1840 sense, or even a broad spectrum of alternatives as was the case from the 1840s through the 1860s. By the 1880s the term “private schooling” had assumed elitist connotations. This second half of the nineteenth century saw the founding of many of the great private boarding schools of Ontario, schools that joined Upper Canada College as the elite among the independent schools. The founders of these late nineteenth century private schools have been described by Purdy as being “stimulated by a variety of motives, not all of which were concerned with the academic needs of the province’s youth,” Religious idealism, sentimental attachment to old English institutions, patriotic and imperialistic notions, the desire to create a leadership class imbued with the ideas of Christian service – all were factors which led to the founding of these boarding schools. In turn, they were patronized by parents who sought for their children denominational education, superior or more VSHFLDOL]HGWHDFKLQJRUYDJXHO\GHÀQHGVRFLDODGYDQWDJHV²LQVKRUW´DGYDQWDJHVWKDW the emerging state schools did not or could not offer.”9 Religious initiatives led to the founding of many of these schools. Roman Catholic groups launched St. Michael’s College School (Toronto 1852), Assumption College School (Windsor 1857), Ursuline College (Chatham 1860) and Loretto Academy (Niagara Falls 1861). Initiatives from high Anglican groups within the Church of England led to Trinity College School (Weston 1862, then Port Hope 1868) and Bishop Strachan School (Toronto 1867). In response, the evangelical or low church Anglicans founded Bishop Ridley College (St. Catharines 1889) and Havergal College (Toronto 1894). Meanwhile the various non-Conformist denominations were also active; The Methodists with Albert College (Belleville 1857), Ontario Ladies’ College (Whitby 1874) and Alma George (St. Thomas 1877); the Baptists with the Canadian Literary Institute (Woodstock 1857) and Moulton Ladies’ College (Toronto 1888). These schools were products of three very different traditions in the history of Canadian education. Schools like St. Michael’s College stood squarely in the ageold Catholic tradition, which held that only church-control could guarantee proper emphasis on the fundamental Christian and Catholic purposes of schooling. Institutions like Trinity and Bishop Strachan were clearly in the Anglican tradition, which saw a close relationship between church and state; here the twin goals of loyalty to the crown and belief in Church of England doctrine were inseparable. Finally, there was the dissenting tradition, found in the Methodist and Baptist schools, and in the much older Pickering College of the Quakers, which stressed voluntarism in church-state educational relations. In more practical terms, this plethora of denominational schools might be viewed as a manifestation more of democratic protest than of social elitism. Religious feelings 533

STATE SUPPORT FOR RELIGIOUS EDUCATION

and inter-denominational rivalries permeated Ontario life during the nineteenth century. 6RPH3URWHVWDQWVFKDUJHGWKDWWKH5RPDQ&DWKROLF&KXUFKKDGWRRPXFKLQÁXHQFHRQ the public school system; many Catholics thought just the opposite. Some denominations seemed to be declaring their opposition to what they perceived as the watered-down Christianity or outright secularism of the emerging public system; others were in part protesting against the Anglican exclusivity that still lingered in Ontario’s upper class DQGRIÀFLDOFLUFOHV Each of the new denominational private schools was an attempt to provide sectarLDQEDVHGLQVWUXFWLRQWRWKHVRQVRUGDXJKWHUVRILWVRZQÁRFN7KHVHVFKRROVPRVWRI them residential in nature, provided a sheltered home-away-from-home, permeated by &KULVWLDQPRUDOLW\RIIHULQJDNLQGRIÀQLVKLQJVFKRROJORVVWR\RXQJVWHUVZKRZRXOG QRWSURFHHGWRXQLYHUVLW\DQGRIFRXUVHVHUYLQJDVXQRIÀFLDOUHFUXLWLQJDJHQFLHVIRU clerical and religious vocations. Yet as the years progressed, the religious-protest feature of most of these schools took second place to their social-elitist function. While there were notable exceptions like Pickering College and many of the Catholic schools, the majority of the strong and enduring private schools of late nineteenth century Ontario opted for the elitist English model of Upper Canada College. The result was a sustained attempt to import certain features of the English boarding school to the Ontario frontier: clerical headmasters; staffs with high proportions of British-trained teachers; strong emphases on sports and games accompanying the highly academic work of the classroom. All the schools advertised a well-rounded education within a Christian framework, hinting at leadership training for young men and social UHÀQHPHQWIRU\RXQJODGLHV$OOFKDUJHGIHHVWKDWVHHPHGUHODWLYHO\KLJKHUHDFK\HDUDV the public high schools gradually lowered and eventually abolished their more modest charges. By the end of the nineteenth century the private schools had become almost exclusively the schools of the privileged. The sexually-segregated private girls’ schools of this period illustrate another aspect of this drift towards an old-world elitist model. The girls’ schools of the mid-nineteenth century had been as much schools of necessity as schools of privilege, given the exclusion of female students (and female teachers) from the grammar schools. Not till the end of the 1860s were girls admitted on equal terms with boys to the classical course of the grammar schools, the course that was prerequisite into the universities and the professions. Even after that many parents probably chose the private girls’ schools out of a sincere belief that secondary level co-education was undesirable. By the end of the century, however, with girls in full attendance in the public high schools and storming the gates of the province’s universities, the surviving private girls’ schools, like their male counterparts, had become almost exclusively schools of privilege. The stereotyped view of the Ontario girls’ school comes from the later years of nineteenth century. With their sheltered, usually residential environments, and a curULFXOXPVWURQJRQODQJXDJHVDQGWKHDUWVWKH\RIIHUHGVRFLDODQGPRUDOUHÀQHPHQWV far beyond the range of the public high schools. In addition, there was the unspoken expectation of upward social mobility. Phillips has condemned these schools in most caustic terms:

534

4. OFFICIAL REPORTS

Small wonder that women of position or determination welcomed a type of education which would enable their daughters to escape the lot of ordinary women. Schools for young ladies carried their charges to the brink of matrimony with the attractions of unquestionable virtue, of an ingenuous manner complemented by adroit manners, and of purely social and ornamental accomplishments, with the further insurance against hard work of a seemingly delicate Constitution.10 At the apex of Ontario’s nineteenth century private school network stood Upper Canada College. High school inspector J. A. McLellan (a UCC old boy) was particularly FRPSOLPHQWDU\ LQ KLV HYDOXDWLRQ RI WKH VFKRRO LQ  ,I VXIÀFLHQW IXQGLQJ ZHUH IRUWKFRPLQJ WR SHUPLW WKH HPSOR\PHQW RI ÀUVWUDWH PDVWHUV GHFODUHG 0F/HOODQ ´KLJKHUUHVXOWVLQQDWLRQDOHGXFDWLRQZLOOEHZRQZLWKSURIRXQGHULQÁXHQFHVXSRQWKH moral, intellectual and industrial life of our community.” Education minister George Ross, in laying the cornerstone for Upper Canada’s new campus in 1891, praised the institution lavishly and virtually dedicated himself to its preservation. “Anything wrong that should happen to such a college, with such a career,” declared Ross, “would be nothing short of calamity.”11 Yet Upper Canada faced an increasing barrage of criticism during the latter years of the nineteenth century. “Now that our numerous collegiate institutes afford every IDFLOLW\IRUDÀUVWFODVVVHFRQGDU\HGXFDWLRQµREVHUYHG&KDUOHV0XOYDQH\LQ “it is thought by many that Upper Canada has survived its usefulness.” Financially pinched high schools looked with envy at the College’s generous state endowment and demanded a more equitable division of the available money. Reform politicians and labour groups regarded it – with good reason – as a privileged institution, designed for and patronized by the wealthier families of the province. “In these democratic times, OLWWOHLVYHQHUDWHGµFRPSODLQHG*0HUFHU$GDPLQKLVRIÀFLDOKLVWRU\RI8&& SXEOLVKHGMXVWEHIRUHWKHOLQNVEHWZHHQWKHVFKRRODQGWKH*RYHUQPHQWZHUHÀQDOO\ severed. 12 Adam was articulating what seemed plainly evident to all private schools by the end of the nineteenth century – a very minor role in the provincial scheme of education. With the steady improvement of public high schools and the democratic tendencies of 1RUWK$PHULFD2QWDULR·VSULYDWHVFKRROVFRXOGQHYHUÀOOWKHUROHWKDW(WRQ5XJE\DQG +DUURZKDGÀOOHGLQ(QJODQG7KHVH%ULWLVKWUDQVSODQWVGHFODUHG5LFKDUG+DUFRXUW Ross’s successor as education minister in 1899, were “of doubtful relevance for Ontario,” where social values called for free secondary education for all. 13 Purdy’s later assessment of these schools reinforces Harcourt’s contemporary views. 3XUG\VXPPHGXSWKHLULQÁXHQFHWKLVZD\ If the aim of Ontario boarding school founders in the nineteenth century was to produce leaders for the province and the nation and to infuse Canadian life with certain particular values and attitudes, then the attempt must be deemed a failure. The socio-economic milieu of the new environment rejected this transplant … These schools, by and large, were isolated, both geographically and socially, from the main trends of development in nineteenth century Ontario.14

535

STATE SUPPORT FOR RELIGIOUS EDUCATION

,,,6&+22/62),1129$7,21 By the end of the nineteenth century, independent entrepreneurs began to replace religious denominations as the initiators of new private schools. In a manner somewhat reminiscent of the earliest period in Upper Canada, these latest private schools usually began as one-man or one-woman institutions, shaped and dominated by their founders. 7KHVHYDULRXVIRXQGHUWHDFKHUVZHUHGLVVDWLVÀHGZLWKWKHTXDOLW\RIDYDLODEOHSXEOLF HGXFDWLRQLQ2QWDULR7KH\EHOLHYHGWKDWXQÀOOHGPRUDODQGDFDGHPLFDQGYRFDWLRQDO needs of youngsters could best be met in the private domain. A number of these newer independent ventures were quite experimental, challenging the older private schools and the public school system itself to become more innovative. The independent business college was one manifestation of the experimental private school that arose to challenge certain curricular and pedagogical assumptions of the public schools. The business colleges were extremely popular with both young men and women since they offered a type of training that the public high schools, due to their classical and grammar school origins, were slow to embrace; since they did not require any set level of educational attainment for admission; since they offered ÁH[LELOLW\ LQ WHUPV RI HQWU\ DQG H[LW SRLQWV RYHU D WZHOYHPRQWK VFKRRO \HDU DQG since they were strictly vocational, avoiding all theoretical or abstract instruction. The heyday of the private business college lasted from about 1880 to 1920; after that the public school system expanded its offerings in business and commercial education to meet consumer demand. In addition to these business colleges, there were a number of important private-venture academic schools founded in the late nineteenth and early twentieth centuries. The strongest of these endured and eventually joined the ranks of the province’s elite private schools. These included Ashbury College (Ottawa 1891), where founder-headmaster *HRUJH:RROOFRPEHUHPDLQHGRQWKHVFHQHIRUPRUHWKDQIRUW\\HDUV+LOOÀHOG&ROOHJH +DPLOWRQ ZKHUH(IÀH*RUGRQ:DXJKGDXJKWHURIRQHRIWKHIRXQGHUVWRRN over in 1917 and remained until 1960; Branksome Hall (Toronto 1903), where Edith MacGregor Read purchased the school’s assets in 1910 and ran the school for nearly ÀIW\ \HDUV DQG$SSOHE\ &ROOHJH 2DNYLOOH   RSHUDWHG E\ IRXQGHUKHDGPDVWHU John Guest for more than twenty years. These non-sectarian private schools differed from the previous generation of denominational schools in many ways beyond administrative control. These newer ventures included more urban-based day schools and fewer rural and small town boarding schools among their ranks. They seemed to speak to a new generation of rising urban professional and commercial families in early twentieth century Ontario. Finally, they H[KLELWHGDOLWWOHOHVVROGFRXQWU\LQÁXHQFHDQGPRUHDZDUHQHVVRIWKH1RUWK$PHULFDQ environment in which they were located. At Appleby College, John Guest envisaged a school “founded in the tradition of the Old Land – rich in heritage and experience, but adaptable to the needs of a new country and the ways of Canadian boys.”15 6WLPXODWHGE\WKHLQÁX[RIWKLVQHZEORRGPDQ\RI2QWDULR·VSULYDWHVFKRROVEHFDPH more innovative and experimental during these years. During the 1890s, for example, :RRGVWRFN&ROOHJHWKHIRUPHU&DQDGLDQ/LWHUDU\,QVWLWXWH EHFDPHWKHÀUVWVFKRROLQ the province to incorporate manual training (industrial arts) into its curriculum. At the

536

4. OFFICIAL REPORTS

same time Alma College in St. Thomas earned a reputation as one of Canada’s leading art schools, winning an impressive array of prizes at the 1893 Chicago World’s Fair. $IWHUWKHWXUQRIWKHFHQWXU\2YHQGHQ6FKRROLQ%DUULHEHFDPHWKHÀUVWLQWKHSURYLQFH to use aspects of the Montessori system. Then in 1910 the University of Toronto Schools was established as a laboratory school for that university’s education faculty. 7KHSURYLQFH·VSXEOLFVFKRROVZHUHIUHTXHQWEHQHÀFLDULHVRIWKHVHSULYDWHVFKRRO innovations. Certainly Woodstock College’s successful manual training classes helped break down public skepticism and opposition, and led to that subject’s inclusion in the curriculum of Ontario’s public elementary schools. And the University of Toronto Schools exposed generations of teachers-in-training to new pedagogical practices. %XWWKHPRVWLQQRYDWLYH2QWDULRSULYDWHVFKRROGXULQJWKHÀUVWKDOIRIWKHWZHQWLHWK century was undoubtedly Pickering College. Not by any means a new actor on the scene. Pickering had been founded by the Quakers in 1842 under the name of the Westlake Boarding School near Picton. After serving as a First World War military hospital, it reopened its doors in Newmarket in 1927 under the leadership of its progressive headmaster, Joseph McCulley. Pickering had always been more new world in orientation than most of the Ontario’s boarding schools. Now in the late 1920s and 1930s under McCulley and Taylor Statten, its director of character education, Pickering became the major Ontario laboratory for the testing of John Dewey’s progressivist educational theories and practices. Close harmony between democratic classroom and the larger democratic community were emphasized at Pickering during the McCulley years. A student-elected Committee worked with the staff on matters of mutual interest and concern. Dormitory regulations were few, and sprung from the principle that “all activities depend on the convenience and health of the greatest number.” Most important, a large proportion of the classroom ZRUNZDV´FRUHODWHGWRWKHORFDOFRPPXQLW\µWKURXJKÀHOGWULSVDQGSUDFWLFDOZRUN in the school’s craft shop and farm.16 Sensing success in his own environment. McCulley was anxious to spread progressivist doctrines beyond Pickering. During the 1930s he was one of the mainstays behind WKH7RURQWREUDQFKRIWKH1HZ(GXFDWLRQ)HOORZVKLSDVPDOOEXWLQÁXHQWLDOFLUFOHRI progressive educators who promoted Dewey’s ideas and helped persuade the Ontario Department of Education to implement progressivist curricular changes through the 1937 revised Program of Studies … for the Public and Separate Schools.17 Despite the contributions to public education made by a Pickering College or a University of Toronto Schools, however, the private schools as a group found themselves quite isolated from the Ontario educational mainstream on the eve of the Second World War. A good composite picture of the more elitist Protestant boy’s schools is presented in Private Schools of Canada, edited by A. G. A. Stephen and published by Clarke, Irwin in 1938. This was a survey, seemingly designed for recruiting and money-raising purposes, of those boys’ schools which were members of the Canadian Headmasters’ $VVRFLDWLRQ7KHUHZHUHHLJKWVXFKVFKRROVLQ2QWDULR$SSOHE\$VKEXU\+LOOÀHOG Ridley, St. Andrews, Trinity, Upper Canada, and the renegade Pickering. This survey reported on such practical details as annual fees ($195 to $270 for GD\SXSLOVWRIRUERDUGHUV DQGVWDIITXDOLÀFDWLRQSHUFHQWQRZKHOG Canadian university degrees). Each school proclaimed its devotion to the twin goals 537

STATE SUPPORT FOR RELIGIOUS EDUCATION

of academic excellence and character development through its close supervision of pupils both inside and outside of class. All this was co-ordinated by headmasters of impeccable character, each answering to a board of governors drawn almost exclusively IURPÀQHROG2QWDULR:$63IDPLOLHV Yet by the time of this publication, most of the traditional Ontario private schools had sunk into a kind of lethargy. Some found their socio-economic exclusivity now appealed to an ever declining constituency in a more egalitarian twentieth-century Canada. Others discovered that their religious emphases were less desired in an increasingly secular society. Many of the sexually segregated all-girls’ and all-boys’ schools lost potential pupils to the co-educational public school sector. Despite periodic curriculum innovations, the private schools could not hope to offer the more expensive technical and commercial education programs that drew increasing enrolments in the public high schools. What future awaited these schools in the years following the end of the Depression and the Second World War? Private schools were certainly not important to the Royal Commission on Education in Ontario, chaired by Justice J. A. Hope. The Hope Commission devoted just nine RIWKHSDJHVRILWVUHSRUWWRSULYDWHVFKRROV,WLGHQWLÀHG´DSSURYHGµ private schools in the province, schools that were duly registered with and authorized to offer instruction by the department of education. These schools in 1947-48 enrolled approximately 4,700 pupils in the elementary grades (about one per cent of the provincial total) and 13,500 in the secondary grades (about 10 per cent of the total). Some dated IURPWKHÀUVWKDOIRIWKHQLQHWHHQWKFHQWXU\ZKHUHDVPDQ\KDGEHHQIRXQGHGZLWKLQ the previous two or three decades. But they were to remain in the private domain; the Hope Commission recommended their continued exclusion from local tax monies and provincial grants. A distinctive pessimistic tone characterized published accounts of private schools during the 1950s, as their enrolment slipped below two per cent of the provincial total. Such Financial Post articles as “Will Costs Close Canada’s Private Schools? (July 12, 1952) and “There’s a Crisis in These Canadian School Yards” (January 21, 1956) conveyed an impression of expenses rising faster than revenues, higher tuition fees producing an even more restricted clientele and below-capacity enrolments, and schools searching desperately for alternative sources of funds. It is tempting to conclude that the Ontario private school was on its way out by 1960. Its old-world WASP ethos seemed out of place in an increasingly multicultural Ontario. How quaint, how archaic, how irrelevant were these private schools with WKHLUFKDSHOVHUYLFHVDQGSOD\LQJÀHOGVWKHLUPDVWHUVDQGKRXVHV\VWHPVWKHLU2OG Boys’ and Old Girls’ associations, their careful delineation of the separate roles that society wanted for men and women. They were cloistered, isolated and conservative, and they presented to the rest of the world a smug and self-congratulatory, snobbish and exclusive attitude. The general public seemed more indifferent than openly hostile, but it was almost a damning kind of indifference. “In the image of middle-class equality that Canadians have of their society,” wrote sociologist John Porter, “the private school does not belong. It is something associated with the aristocratic societies of Europe and is rarely thought RIDVEHLQJDVLJQLÀFDQWIHDWXUHRI&DQDGLDQOLIHµ18 538

4. OFFICIAL REPORTS

,96&+22/62)3527(67 7KHOHWKDUJ\SHVVLPLVPDQGDSSDUHQWGHFOLQLQJVLJQLÀFDQFHRISULYDWHVFKRROLQJLQPLG twentieth century Ontario, proved to be but a passing phase. The years following 1960 witnessed both a quantitative growth and an increasing diversity within the province’s private school sector not seen since the early years of the nineteenth century. )URPWKHSULYDWHVFKRROVLGHQWLÀHGE\WKH+RSH&RPPLVVLRQLQWKH number rose to 242 in 1969-70, 335 in 1977-79, and 551 by 1984. Ministry of Education statistics for September 1983 showed 83,463 pupils attending private schools. This was DOPRVWIRXUWLPHVWKHWRWDODQGPRUHVLJQLÀFDQWO\UHSUHVHQWHGDGRXEOLQJLQWKH proportion of pupils attending private schools from approximately two per cent to four SHUFHQWRIWKHSURYLQFLDOWRWDO7KHÀJXUHVDOVRVKRZHGDPRUHHYHQGLVWULEXWLRQ across the total grade structure than ever before, with 35,998 in elementary grades and 47,645 in secondary grades. Religious and philosophic diversity was also more evident than in previous periods, with 31,881 pupils in Roman Catholic private schools, 9,383 in schools belonging to the Ontario Alliance of Christian Schools, 7,599 in Jewish schools, 4,923 in Anglican schools, 2,612 in Mennonite schools, 8,700 in schools of other religious denominations, and 18,545 in non-sectarian private schools. Roman Catholic schools comprised the largest component with 37 per cent of 2QWDULR·V SULYDWH VFKRRO HQUROPHQW 6LQFH SXEOLF ÀQDQFLQJ IRU &DWKROLF VHSDUDWH VFKRROVHQGHGDW*UDGHSULYDWHÀQDQFLQJZDVPRELOL]HGWRHQVXUHWKHFRQWLQXDWLRQ RID&KULVWLDQDQG&DWKROLFDWPRVSKHUHWKURXJKWKHÀQDOWKUHH\HDUVRIKLJKVFKRRO The result was the twentieth century private Catholic high school usually located in a larger urban centre, where a sizeable Catholic population and a well-established separate school system could provide enough recruits for its Grade 11 beginning. Early examples included Cathedral High School (Hamilton 1912) and Notre Dame College School (Welland 1947) which soon joined ranks with much older Catholic schools founded in the nineteenth century. The foremost champion of the Catholic day high school was James Cardinal McGuigan, Archbishop of Toronto. In 1944 McGuigan launched a personal campaign to raise $1,000,000 for Catholic secondary schools within his diocese. “This is no mere collection of funds,” he announced. “It is a crusade in Catholic co-operation for RXUEHORYHG\RXWKµ7KHQHZVFKRROVZRXOGEHVWDIIHG´E\WKHÀQHVWWHDFKHUVµDQG ZRXOGEH´&DWKROLFWRWKHÀEUHRIWKHLUKHDUWVµ19 McGuigan’s own enthusiasm and zeal guaranteed that the objective would be achieved. By the late 1940s the money was in place and the planning underway to meet the challenge of post-war Catholic immigration into Metropolitan Toronto. Other factors assisted the spread of Catholic high schools into less urbanized regions of the province during the 1970s. First came the creation of county-sized boards of education. Now separate schools systems throughout Ontario had larger attendance areas and population bases upon which to construct Grades 9 and 10 classes that eventually fed into private Grades 11-13. Second, came the response to Premier William Davis’ 1971 decision not to extend public funding to Catholic schools beyond Grade 10. Initial Catholic disappointment was soon channelled into positive directions. Indeed, it proved an important spur to increase fund-raising efforts in the private sector. In

539

STATE SUPPORT FOR RELIGIOUS EDUCATION

Dufferin-Peel, for example, the number of Catholic high schools increased from zero to nine in a ten-year period. By the early 1970s, Jewish schools had joined Catholic schools as important players LQ2QWDULR·VSULYDWHVFKRROVWDJH7KHÀUVW-HZLVKYHQWXUHLQWRIXOOWLPHDOWHUQDWLYH education had been the Associated Hebrew Day School (Toronto 1942), where the regular Ontario curriculum was supplemented with studies in Judaic religion and culture, and with Hebrew as a living language. By 1983-84 enrolment had climbed to 2,885, making it the largest Jewish day school in the world. Jewish schools increased rapidly throughout Ontario in the 1960s and 1970s to accommodate Orthodox, Conservative and Reform diversity within the community. By September 1983 there were ten Jewish elementary schools and four secondary schools within Metropolitan Toronto, plus schools in Ottawa, Hamilton, London and Windsor for a total provincial enrolment of 7,599. The Jewish move into the private sector was not a protest against the pedagogic quality of the public schools, but rather a move against the perceived submergence of Jewish identity into a process of homogenization that Ontario’s post-war schools seemed to represent. The public school system offered few opportunities for transmitting a linguistic and cultural heritage so important to this minority. It did not “provide to them the ambit and scope of the education which they as parents deemed necessary for the EHQHÀFLDOGHYHORSPHQWRIWKHLUFKLOGUHQµ20 Driven by a desire to rebuild a new Jewish world out of the ashes of the Holocaust, replenished by successive waves of Jewish immigration, and assisted by funds raised through the United Jewish Appeal, Ontario’s Jewish communities were able to translate their protests into positive action. While the Jewish population rejected the Christian hue of the public schools, and Catholics revolted against a perceived Protestant bias, more fundamentalist Christian groups charged that the public school system had become too secular. They wanted VFKRROLQJIRUWKHLUFKLOGUHQÀUPO\JURXQGHGLQHYDQJHOLFDODQGIXQGDPHQWDOLVW&KULVWLDQ values. Prominent among this segment of the population were the Christian Reformed or Dutch Reformed immigrants who began arriving from the Netherlands in substantial numbers in the late 1940s and 1950s. Almost immediately their schools began appearing on the provincial scene; Eden Christian College (Niagara-on-the-Lake 1945), Jarvis District Christian School (1952). Here was an immigrant group whose communities DQGVFKRROVZHUHQRWFRQÀQHGWRPDMRUXUEDQFHQWUHV%\WKH2QWDULR$OOLDQFHRI Christian Schools enrolled 9,383 pupils, placing this group ahead of the Jews and behind the Catholics as the second largest component within the private school sector. Inspired by the success of the Christian Alliance Schools, and driven by many of the same religious and family beliefs, other fundamentalist and evangelical Christian groups increased their private school involvement. The Seventh Day Adventist Church (Simcoe SDA School 1965), the Pentecostal Assembly, and some Baptist congregations established their own private schools. Some were church-initiated, others parent-initiated; many were linked with similar denominationally-based educational movements in the United States; all were premised on the belief that a Christian atmosphere should permeate all aspects of schooling. Such schools included a large proportion of the 8,700 pupils counted by the Ministry of Education as enrolled in “schools of other religious denominations” in September 1983. 540

4. OFFICIAL REPORTS

The Old Order or Amish Mennonites also became active in the private school sector, as school consolidation swept through rural Ontario in the 1960s and 1970s. The Amish had throughout their history given high priority to passing on their cultural heritage through strong family bonds. As long as their children could attend small, FRPPXQLW\LQÁXHQFHGVFKRROVFORVHWRKRPHWKH$PLVKZHUHZLOOLQJWRDFFHSWSXEOLF schooling. But as soon as rural school consolidation brought busing of children out of the local community to larger, “mixed” schools, the Old Order Mennonites went private (Amish Parochial School #1, Millbank 1966). The local Amish groups often bought or rented the former one-room country schoolhouses that boards of education had declared redundant. By September 1983, some 2,612 children were enrolled in Mennonite private schools in Ontario. In addition to the increased number of religious schools, the private school sector in post-1960 Ontario education also witnessed a rapid rise of schools founded for non-religious, purely educational or philosophic reasons. Ministry of Education ÀJXUHVLQGLFWHGSXSLOVLQWKHVH´QRQVHFWDULDQµSULYDWHVFKRROVE\6HSWHPEHU 1983, some 22 per cent of the provincial private school total. Such schools began to proliferate in the mid-to-late 1950s, often as radical alternatives to the perceived LQÁH[LEOHDOOWRRVWUXFWXUHGQDWXUHRIWKHSXEOLFVFKRRO,QWLPHWKHPRUHUDGLFDORU “free” schools moderated or died, and were replaced by more middle-of-the-road and eventually right-wing alternatives. Their growth challenged the public school sector to confront the concept of secular or philosophic pluralism in addition to religious and cultural pluralism. In September 1966, on a farm near Hillsburgh in the Caledon Hills, seventeen WHHQDJHUVHQUROOHGDVWKHÀUVWVWXGHQWVDW(YHUGDOH3ODFHRQHRIWKHHDUOLHVWDQGPRVW famous of the “free schools” that dotted the North American educational landscape in the late 1960s and early 1970s. As a product of the counter-culture of the period, (YHUGDOHSURVSHUHGRQO\DVORQJDVWKDWDOWHUQDWLYHFXOWXUHÁRZHUHG
541

STATE SUPPORT FOR RELIGIOUS EDUCATION

Saturday Night magazine caught the spirit of the decade by headlining a May 1965 private school story: “If You Don’t Like Your Child’s School, Why Not Start Your Own?” It was soon evident that a whole new range of private schools had come into being – specializing in everything from religious education to language instruction to choral music to schools that emphasized roughing it out-of-doors. Diversity accelerated throughout the following decade of the 1970s. At Robert Land Academy in Wellandport, for example, students endured the strictest discipline in a quasi-militaristic environment, while at the Toronto French School students closely followed both France’s baccalaureat program and the English “A” level stream. At the same time the more traditionalist wing within the private school movement was also thriving. Here too, new schools appeared on the Ontario scene with increasing frequency – St. George’s College (Toronto 1960), Rosseau Lake School (Rosseau 1967), the Country Day School (King City 1972). The traditional school retained a certain popularity through their age-old emphasis on small classes and dedicated teachers, plus the implied social advantages of children rubbing shoulders with others from privileged backgrounds. They, too, were adapting to a new generation of pupils and SDUHQWV,Q+DPLOWRQIRUH[DPSOHWKHIRUPHUER\VRQO\+LOOÀHOG&ROOHJHDQGWKHJLUOV only Strathallan School amalgamated into a single co-educational entity. Curriculum innovation proceeded apace: Ashbury College with its International Baccalaureate program, Appleby College with its emphasis on environment studies. Given the diverse nature of both the new and the old private schools, it proved impossible to unite all of them under any one organization. The old-line schools had long had their national organizations, split along boys’ school and girls’ school lines, ZKLFKÀQDOO\XQLWHGLQDVWKH&DQDGLDQ$VVRFLDWLRQRI,QGHSHQGHQW6FKRROV7KH Roman Catholic, Jewish, Christian Alliance, Seventh Day Adventist and Mennonite schools each had its own set of religious, educational and political priorities, and each developed its own formal or informal provincial co-ordinating groups. By 1974, however, there was enough interest from some of the private schools to form the Ontario Alliance (later Association) of Alternative and Independent Schools. 7KURXJKRXWLWVÀUVWWHQ\HDUVRIH[LVWHQFHWKH2$$,6QHYHUHQUROOHGWKHPDMRULW\RI private schools in its ranks. Yet by acting as a political lobby group it performed an LPSRUWDQWUROHLQSUHVHQWLQJDFDVHIRUSULYDWHVFKRROVDQGSULYDWHVFKRROÀQDQFLQJWR the politicians and the electorate of Ontario.

9&21&/86,216&+22/62)217$5,2 Changing attitudes within the provincial education ministry provide part of the explanation for such rapid post-1960 growth in private schooling. Prior to the 1960s, the old Ontario Department of Education was noted for its commitment to conservatism and its extremely cautious approach to change and innovation. During that decade, however, the department underwent a radical transformation. Where new ideas had once seemed threatening, now they were welcomed.22 Greater toleration for experimentation and diversity within the public school system implied a greater range of choice in the private sector. By the end of the 1960s, private school founders and promoters found it relatively easy to obtain departmental approval for their educational plans, whatever

542

4. OFFICIAL REPORTS

those plans might include. “There is probably no place in the world,” declared the Free School Handbook in 1972, “where the Government provides fewer obstacles to the legal establishment of privately run schools than in Ontario.” 23 Post-war immigration is another general factor in explaining the increase in private school enrolment. Some immigrant groups came from countries – Britain, Hong Kong, parts of the West Indies, for example – where traditionally the private school had been upheld as vastly superior to the low-status public school system. Other immigrant groups – members of the Dutch Reformed Church or the Jewish religion – saw their own private schools as essential in preserving particular religious and cultural values in the midst of a multicultural North American milieu. Finally, a third group of immigrants – teenagers from Hong Kong and Taiwan, for example – utilized private schools in a very SUDJPDWLFZD\WKH\ÁRFNHGWRWKHVRFDOOHG´9LVDµVFKRROVZKHUH(QJOLVKLPPHUVLRQ classes helped prepare them for high school graduation and university entrance. But Government attitudes and immigration together cannot explain the attraction of private schools to an increasing percentage of the province’s population. According to Robert Routledge, president of the OAAIS in 1976, “the overriding concern of all parents who want their children to be privately educated seems to be the belief that the public education system lacks some kind of fundamental moral content.” 24 This moral content or commitment meant different things to different groups. Patrons of WKHPRUHWUDGLWLRQDOQLQHWHHQWKFHQWXU\ERDUGLQJVFKRROVFRXOGGHÀQHLWDVDOHDGHUVKLS ethos. For Catholics it was a faith commitment; for supporters of Jewish schools a total commitment to the Judaic cultural heritage. Everdale Place offered a radical critique of capitalist society, whereas the more structured private schools, in the words of one SULQFLSDORIIHUHG´DUHWXUQWRWKHEDVLFÀUPHUGLVFLSOLQHDQGWKHVHWWLQJRIPRUDOYDOXHVµ during a time of neo-conservatism.25 ,QWKHÀQDODQDO\VLVWZRIRUFHVKDGFRPELQHGWRSURGXFHWKLVSULYDWHVFKRROH[SORsion. First, multiculturalism. The increasing ethnic and religious diversity of Ontario’s SRVWZDUSRSXODWLRQZDVQRORQJHUFRQWHQWDQGFRPIRUWDEOHZLWKLQWKHFRQÀQHVRID public school system that was seen as serving the cultural needs of only the traditional WASP mainstream. The valiant efforts of the public schools to incorporate multicultural diversity within curriculum offerings and classroom practices were rejected as insubstantial by those ethnic and religious groups whose cultural cohesion gave them the strength to seek educational solutions outside the public school mainstream. The Jewish schools, for example, saw themselves as important players within a larger society whose Government seemed to be increasingly recognizing Ontario as a multi-religious, multi-ethnic province. At the end of the 1960s the Ontario Committee for Government Aid to Jewish Day Schools called on the Government to “ensure and encourage the development of the varied colour and fabric which constitutes the LQKDELWDQWVRIRXU3URYLQFHµE\SURYLGLQJÀQDQFLDODVVLVWDQFH26 When provincial aid proved not forthcoming, the Jewish schools in North York proposed that they become alternative schools within the local public school system. In such an arrangement the VWDWHZRXOGÀQDQFHWKHUHJXODUFXUULFXOXPZLWKSULYDWHIXQGLQJIRUWKHVSHFLDO-XGDLF studies programs. Again, the public response was negative. But the Jewish efforts had raised a fundamental question: How could the delicate balance between cultural

543

STATE SUPPORT FOR RELIGIOUS EDUCATION

retention and cultural assimilation best be maintained – through public schools or private schools? :KLOH WKH -HZLVK VFKRROV FKDOOHQJHG SXEOLF DXWKRULWLHV WR GHÀQH WKH OLPLWV RI PXOWLFXOWXUDOLVPWKH&KULVWLDQ$OOLDQFHVFKRROVFKDOOHQJHGWKHYHU\GHÀQLWLRQRISULYDWH VFKRROV7KRXJKÀUPO\URRWHGLQWKH&DOYLQLVWWUDGLWLRQDQGGUDZLQJFOLHQWHOHODUJHO\ from Reformed backgrounds, the Alliance schools argued that they were public, not private, in that they were open to all children. Thus in 1970 position paper, “A Place to Stand; A Case for Public Funds for All Public Schools,” they presented their case for provincial grants and a share of local school taxes. Democracy, pluralism, freedom of choice, parental rights, the importance of competition – all were invoked to gain public support. 27 But Premier William Davis’ 1971 answer to the Christian Alliance schools was the same as his response that year to Catholic high schools and Jewish schools: No. If cultural pluralism was one underlying force that produced the private school explosion, the secular pluralism was the second basic factor. A wave of secular pluralism had swept through Ontario society, producing a philosophic or ideological diversity that was at least partially responsible for sending 18,545 students to non-sectarian private VFKRROVE\$JDLQGHVSLWHLPDJLQDWLYHGLYHUVLÀFDWLRQZLWKLQWKHSXEOLFVFKRRO sector, growing numbers of parents sought alternatives in private schools that offered different philosophical or pedagogical approaches. Unlike the church groups, their motives were not religious; unlike the clientele of more traditional private schools, they were not seeking social exclusivity. They had educational goals for their children that VHHPHGUHDOL]DEOHRQO\LQWKHQHZFRQÀJXUDWLRQRIQRQVHFWDULDQSULYDWHVFKRROV :KDWHYHUWKHPRWLYHVLQWKHLUIRXQGLQJZKDWHYHULQÁXHQFHVWKH\KDGRQSXEOLF HGXFDWLRQ2QWDULR·VSULYDWHVFKRROVKDGDVVXPHGDVLJQLÀFDQFHLQWKHHDUO\VWKDW FRXOGQRWKDYHEHHQSUHGLFWHGDJHQHUDWLRQHDUOLHU7KHLUUHOLJLRXVGLYHUVLW\UHÁHFWHG the multicultural nature of the province; their philosophic diversity mirrored Ontario’s secular pluralism. Proponents of public education had long hoped to accommodate such diversity within the state-supported school system. But an increasing minority of students and parents had chosen the private sector. By this time the private schools of 2QWDULRFRXOGQRORQJHUEHFODVVLÀHGH[FOXVLYHO\DVVFKRROVRIQHFHVVLW\RUVFKRROVRI privilege, or schools of protest. Like their public school counterparts, they had become schools of diversity. Like their public school counterparts, they had become schools of Ontario.

)227127(6 1. J. Donald Wilson, et al., eds., Canadian Education: A History (Scarborough: Prentice Hall, 1970), p. 199. 2. Ibid., p. 193. 3. Carolyn Gossage, A Question of Privilege: Canada’s Independent Schools (Toronto: Peter Martin, 1977), p. 41. 4. Ibid.; and Charles Phillips, The Development of Education in Canada (Toronto: W. J. Gage, 1957), p. 110.

544

4. OFFICIAL REPORTS

5. R. D. Gidney, “Elementary Education in Upper Canada: A Reassessment,” Ontario History, LXV (3), September 1973, p. 171. 6. Ibid., pp. 172-4. 7. Ibid., p. 174; and Christopher John Podmore, “Private Schooling in English Canada.” (McMaster University, unpublished Ph. D. thesis, 1965), pp. 195-6. 8. Gidney “Elementary Education in Upper Canada”, p. 184. 9. J. D. Purdy, “The English Public School Tradition in Nineteenth Century Ontario”, in F. H. Armstrong, et al., eds., Aspects of Nineteenth Century Ontario (Toronto: University of Toronto Press, 1974), p. 239. 10. Phillips, Development of Education in Canada, p. 377. 11. Robert M. Stamp, The Schools of Ontario 1876-1976 (Toronto: University of Toronto Press. 1982), p. 41; and Gossage, A Question of Privilege, p. 43. 12. G. Dickson and G. M. Adams, eds., A History of Upper Canada College, 1829-1892 (Toronto: Rowsell and Hutchison, 1893), p. 156. 13. Stamp, The Schools of Ontario, p. 42. 14. Purdy, “The English Public School Tradition”, pp. 248-9. 15. Gossage, A Question of Privilege, p. 277. 16. A. G. A. Stephen, ed., Private Schools in Canada (Toronto: Clarke, Irwin, 1938) pp. 56-7. 17. Stamp, The Schools of Ontario, pp. 164-77. 18. John Porter, The Vertical Mosaic: An Analysis of Social Class and Power in Canada (Toronto: University of Toronto Press, 1965), pp. 284-5. 19. Claude Laing Fisher, James Cardinal McGuigan, Archbishop of Toronto (Toronto: McClelland & Stewart, 1948), p. 47. 20. Hugh A. Stevenson, et al., eds., The Best of Times/The Worst of Times: Contemporary Issues in Canadian Education (Toronto: Holt, Rinehart and Winston, 1972), p. 200. 21. Ontario Department of Education, Living and Learning; The Report of the Provincial Committee on Aims and Objectives in the Schools of Ontario (Toronto: 1968), pp. 49, 54, 67, 96, 147, 169, 180-1. 22. Stamp, The Schools of Ontario, pp. 203-24. 23. Free School Handbook (Toronto: Mother School, n.d., c1972), unpaginated. 24. Anthony Whittingham, “Blazer Power Lives On – With a Little Less Starch,” Financial Post, October 16, 1976, p. 15. 25. Diane Francis, “A Discredit Course in Public Education”, Maclean’s, November 13, 1978, p. T5. 26. Stevenson, The Best of Times, pp. 201-2. 27. Ibid., pp. 203-9.

%,%/,2*5$3+< Fleming, W. G. Ontario’s Educative Society, III: Schools, Pupils, and Teachers, Toronto: University of Toronto Press, 1971. Gidney, R. D. “Elementary Education in Upper Canada: A Reassessment”, Ontario History, LXV (3), September 1973, 169-85. Giles, Harry, “The Independent Schools,” in Hugh Oliver, et al, eds., The House that Ryerson Built; Essays in Education to Mark Ontario’s Bicentennial, Toronto: OISE Press, 1984, pp. 65-83.

545

STATE SUPPORT FOR RELIGIOUS EDUCATION

Gossage, Carolyn, A Question of Privilege: Canada’s Independent Schools. Toronto: Peter Martin Associates, 1977. Ontario, Report of the Royal Commission on Education in Ontario, 1950, Toronto: 1950. Phillips, Charles, The Development of Education in Canada, Toronto: W. J. Gage, 1957. Podmore, Christopher John, “Private Schooling in English Canada.” McMaster University: Unpublished Ph.D. thesis, 1976. Porter, John, The Vertical Mosaic: An Analysis of Social Class and Power in Canada, Toronto: University of Toronto Press, 1965. Prentice, Alison, The School Promoters: Education and Social Class in Mid-Nineteenth Century Upper Canada. Toronto: McClelland and Stewart, 1977. Purdy, J. D. “The English Public School Tradition in Nineteenth-Century Ontario”, in F. H. Armstrong, et al, eds., Aspects of Nineteenth-Century Ontario. Toronto: University of Toronto Press, 1974, pp. 237-52. Stamp, Robert M. The Schools of Ontario 1876-1976. Toronto: University of Toronto Press, 1982. Stephen, A. G. A., ed. Private Schools in Canada. Toronto: Clarke, Irwin, 1938. Stevenson, Hugh A., et al., eds. The Best of Times/The Worst of Times: Contemporary Issues in Canadian Education. Toronto: Holt, Rinehart and Winston, 1972. Wilson, J. Donald, et al., Canadian Education: A History, Scarborough: Prentice-Hall, 1970.

546

3ULYDWH5HSRUWV #26 Canadian Education Association, ,QIRUPDWLRQ 1RWH 7KH Public Funding of Private Schools in Canada)HEUXDU\ The 1992 information note was written by the Canadian Education Association in February 1992. The CEA is a non-governmental organization with the following Mission Statement: “The Canadian Education Association pursues the improvement of education and serves the education community by providing opportunities to study issues of common interest; to share ideas, experiences and information; to establish and maintain linkages with government bodies, non-government agencies and individuals; to analyze trends and directions through research; and to participate in learning activities.” This information note details the legal status of private schools in each province or territory of Canada and the different public funding arrangements of private schools (if any) in each jurisdiction.

&($,1)250$7,21127( A Tradition of Excellence 7KH3XEOLF)XQGLQJRI3ULYDWH6FKRROVLQ&DQDGD February 1992 Contents Introduction Legislation and Regulations Newfoundland Prince Edward Island New Brunswick Nova Scotia Quebec Ontario Manitoba Saskatchewan Alberta British Columbia Northwest Territories Yukon Territory

547

STATE SUPPORT FOR RELIGIOUS EDUCATION

,1752'8&7,21 The funding of private (or independent) schools in Canada has generated much debate in educational circles. Supporters of private education believe that private schools offer JUHDWHUGLYHUVLW\LQHGXFDWLRQDOSURJUDPVDQGJLYHSDUHQWVWKHÁH[LELOLW\WRFKRRVHWKH curriculum appropriate for their child. On the one hand, British Columbia’s Federation of Independent School Associations believes that independent schools are an alternative that “provides enrichment that enhances the education enterprise.” Because independent schools provide a service that “serves the public purpose,” they ought to receive “an equitable share of taxes collected for the provision of such services.”1 On the other hand, advocates of a stronger public education system argue that increased public funding of private schools would lead to the creation of schools segregated along lines of religion, ethnicity or class, which would deny students the advantages of a shared acculturation experience. They also fear that support of SULYDWHVFKRROVZRXOGHURGHWKHSXEOLF·VÀQDQFLDODQGLGHRORJLFDOVXSSRUWIRUSXEOLF schooling.2 Opponents of private school funding argue that parents who send their children to private schools should not expect the tuition fees to be subsidized by the JRYHUQPHQW$QHGLWRULDOE\'DYLG&ODQGÀHOGLQOur Schools/Our Selves argues that “Public funding is not supposed to turn private schools into free public schools, but RQO\WRWDNHVRPHRIWKHÀQDQFLDOSUHVVXUHRII>WKHSULYDWHVFKRROV@$Q\VHUYLFHWKDW has to be paid for is more accessible to the wealthy members of our society than to the less wealthy.”3 Although traditional “English-style” private schools have usually been the domain of the children of the well-to-do, private schools now offer a wide range of elementary and secondary programs. There are several reasons why parents choose to send their children to a private rather than to a public school. In many cases, they want their children to have a strong religious component in their education (e.g., many private schools offer religious education to Roman Catholic, Jewish, Mennonite people or a Seventh Day Adventist program). Some parents, prefer their children to be taught according to a particular methodology such as that offered in the Montessori and Waldorf schools, while others send them to schools with French or other second-language immersion programs. In large urban centres, many parents opt for private education because they do not believe that the public school system is providing the quality of education or the individual attention their children require. Finally, many private schools offer special education or programs for gifted students, and the so-called “visa” schools prepare foreign students for admission to North American universities. Enrolment in private schools in Canada has increased steadily during the past two decades. In 1970-71, 142,601 students were enrolled in private schools (2.4% of the

1 Federation of Independent School Associations, Brief Submitted to the British Columbia Royal Commission on Education, March 1, 1988. 2 Bernard J. Shapiro, Report of the Commission on Private Schools in Ontario (Toronto: The Commission on Private Schools in Ontario, October 1985), p. 20.  'DYLG&ODQGÀHOG´3ULYDWH6FKRRO)XQGLQJ0DQ\&DPHOV%XW+RZ0DQ\7HQWV"µOur Schools/Our Selves, vol. 2 no. 1 (December 1989), p. 7.

548

5. PRIVATE REPORTS

national total). In 1989-90, some 233,873 (4.6% of students) were enrolled in private schools. Although total public school enrolment has decreased by about 15% since 1970-71, private school enrolment has grown by 64% over the same period. Statistics Canada has reported that most of Canada’s private school students are enrolled in Quebec (43%) and in Ontario (27%). The majority of Canadian private-school students (55.6%) are enrolled in secondary schools and 35.9% are in elementary schools.4 In recent years, private school enrolment has experienced the highest growth in Western Canada. In the four Western provinces, private school enrolment increased by 2.5% in 1989-90 to 66,851 (compared with 65,242 in 1988-89). In the four Atlantic provinces, private school enrolments dropped by almost 1% in 1989-90 (3,210) compared with the previous year’s total (3,240). Quebec showed a 0.5% increase (99,696 in 1989-90 compared with 99,191 in 1988-89). In Ontario, where 3.3% of that province’s VWXGHQWVDUHLQSULYDWHVFKRROVWKHUHZDVDVLJQLÀFDQWGURSLQSULYDWHVFKRRO enrolment after the provincial government began full funding for Roman Catholic secondary schools (grades 11 to 13). In 1985-86, some 76,312 Ontario students were enrolled in private schools, but 64,116 were enrolled in 1989-90.5 (The number of students in private schools has dropped in Ontario because students in publicly funded Catholic high schools are no longer counted in private school statistics.) In 1989-90, private schools accounted for 4.6% of total elementary-secondary enrolment in Canada, up from 3.8% in 1979-80. Total elementary-secondary enrolment in 1989-90 was 5,083,933. Of this total, 4,797,450 students were enrolled in public schools, 233, 873 in private schools, 46,438 in federal schools and 2,450 in schools for the blind and deaf and 3,722 in Department of National Defence (overseas) schools. The elementary-secondary enrolment in private schools as a percentage of total enrolment was highest in Quebec (8.7%) followed by British Columbia (6.9%), and lowest in Saskatchewan, the Atlantic provinces and the territories.6 Five provinces now provide some public funding for private schools: British Columbia, Alberta, Saskatchewan, Manitoba and Quebec. In 1988-89, an average of 30% of the total revenue of private schools in Canada came from provincial funding. The largest proportion of provincial funding was in Quebec, where private schools receive 48% of their revenue ($236 million in 1988-89) from provincial funding. Statistics Canada reported that individuals paid approximately one-half of the revenue of private elementary and secondary schools in Canada. In Ontario and the Atlantic provinces, where private schools receive virtually no grants, fees paid by individuals account for close to 70% of private school revenue. In the other provinces some 38% to 45% of private school revenue is accounted for by tuition fees.7

4 Statistics Canada, Elementary-Secondary School Enrolment, 1989-90, Cat. 81-210 (Ottawa: Minister of Industry, Science and Technology, December 1991). 5

Ibid.

6

Ibid.

7 Statistics Canada, “Financial Statistics of Private Elementary and Secondary Schools, 1985-86 to 1988-89,” Education Statistics Bulletin, vol. 13, no. 2, July 1991.

549

STATE SUPPORT FOR RELIGIOUS EDUCATION

7KH2IÀFLDO/DQJXDJHVLQ(GXFDWLRQ6HFWRURIWKH'HSDUWPHQWRIWKH6HFUHWDU\RI State provides grants to help defray private schools which offer programs in English or French as a second language. In 1990, contributions were made to schools in Nova Scotia, Ontario, Manitoba, Alberta and British Columbia. The program contributed WRSULYDWHVFKRROVLQÀYHSURYLQFHV8 In recent years, the expansion of private school funding in British Columbia, Alberta, Saskatchewan and Manitoba, has coincided with increased government regulation and supervision of private schools. Bill 141 (Loi sur l’enseignement privé) is expected to give the Quebec government more power over the licensing and regulation of the private schools in that province. 7KHÀYHSURYLQFHVWKDWSURYLGHIXQGLQJIRUSULYDWHVFKRROVUHTXLUHWKDWWKH\PXVW follow the provincial curriculum and educational programs. For example, independent VFKRROVLQ0DQLWREDPXVWRSHUDWHXQGHUWKHVDPHÀQDQFLDODGPLQLVWUDWLYHDQGSURJUDP accountability criteria as public schools. Before, the only criteria independent schools KDGWRPHHWWRREWDLQIXQGLQJZDVWRWHDFKDVXIÀFLHQWQXPEHURIFRXUVHVHTXLYDOHQW to the standards in public schools and to ensure that the courses were taught by teachHUVKROGLQJDYDOLG0DQLWREDWHDFKLQJFHUWLÀFDWH1RZLQGHSHQGHQWVFKRROVWKURXJK Manitoba must conform to established programming and reporting procedures in the same manner as any publicly funded school in the province, thereby making them accountable to the Department of Education and the taxpayers.9 Although 3.3% of Ontario’s elementary and secondary school students are enrolled in independent schools, Ontario is refusing (pending the outcome of a legal challenge) to contribute public funds for private schools. In 1985, Ontario’s current Deputy Minister of Colleges and Universities, Bernard J. Shapiro, then a member of a provincial commission, recommended that any denominational school in Ontario which met Ministry of Education standards should be eligible for public funding. However, the Report of the Commission on Private Schools in Ontario has been shelved. In the fall of 1991, the Canadian Jewish Congress and the Ontario Alliance of Christian Schools launched a legal challenge, arguing that the province’s refusal to extend public funding to Jewish day schools and other religious private schools contravened the Charter of Rights and Freedoms. However, owing to declining provincial revenues, it may be some years before Ontario thinks about adopting the recommendations of its 1985 Commission on Private Schools. The increasing number of students enrolled in private schools across Canada shows WKDWPDQ\SDUHQWVÀQGWKDWWKH\DUHDFUHGLEOHDOWHUQDWLYHWRSXEOLFHGXFDWLRQ

 2IÀFLDO/DQJXDJHVLQ(GXFDWLRQ6HFWRU'HSDUWPHQWRIWKH6HFUHWDU\RI6WDWH 9 “New Accountability Criteria for Independent Schools,” Manitoba Government, News Release, March 7, 1990.

550

5. PRIVATE REPORTS

Number of Students in Independent (Private) Schools as a Percentage of Total Provincial Enrolments (initial statistics fall 1991) No. of schools

No. of students

% of total prov. enrol.

British Columbia Alberta Saskatchewan Manitoba Ontario Quebec* New Brunswick Nova Scotia Prince Edward Island Newfoundland Yukon** NWT

287 145 48 82 496 285 30 29 2 3 2 0

43,714 16,259 3,100 10,555 67,440 100,742 1,038 1,890 111 427 16 0

7.1 3.0 0.7 5.0 3.7 8.8 0.7 1.1 0.5 0.3 0.1 0.0

TOTAL

1409

245,292

7KHHQUROPHQWÀJXUHVIRU4XHEHFZHUHWDEXODWHGLQWKHVFKRRO\HDU7KHÀJXUHIRUWKHQXPEHU of private schools in Quebec is based on the number of administrative units under the authority of a director/principal, not on the number of buildings in which a school operates.

(VWLPDWHGHQUROPHQWÀJXUHVSURYLGHGE\<XNRQ'HSDUWPHQWRI(GXFDWLRQ Source: Federation of Independent Schools in Canada; Gouvernement du Quebec, Ministere de l’Education.

Robert Albota &RPPXQLFDWLRQV2IÀFHU January 1992

/(*,6/$7,21$1'5(*8/$7,216 Newfoundland 3ULYDWHVFKRROVZLWKRQHH[FHSWLRQUHFHLYHQRÀQDQFLDODVVLVWDQFHIURPWKHSURYLQFH The exception is when transportation to a public school in the community or in a neighbouring community is not possible. In such a case, the private school would receive a per pupil grant equal to that given to public schools. Under Newfoundland’s Schools (Amendment) Act, 1974, a “private school” means an “establishment for the instruction of pupils (including nursery and other pre-kindergarten groups) which is not (i) a public school or a college (ii) a Sunday School or similar institution or (iii) authorized to be operated, and operating, under any other Act of the legislature.” Section 68(1) states: The Minister of Education’s prior written permission is required to operate a private school in Newfoundland. Before a private school is opened, the following 551

STATE SUPPORT FOR RELIGIOUS EDUCATION

information must be provided to the Minister: (a) the names of the persons who will own and operate the proposed school; (b) the purpose for which the school is to be established; (c) the classes [and educational programs] to be taught in the proposed [private] school; (d) and such additional information as may be requested by the Minister. Section 69 states: Before permission to operate a private school is given, the applicant must satisfy the Minister that (a) the buildings or premises to be used by the private school are adequate; (b) the courses of instruction offered in the private school will follow the courses prescribed by the Minister (unless the Minister otherwise approves in writing); and (c) the teachers to be employed in the private school hold valid WHDFKLQJFHUWLÀFDWHV>FHUWLÀFDWHVRIJUDGH@ 6HFWLRQDQGVWLSXODWHWKDWSULYDWHVFKRROVDUHVXEMHFWWRLQVSHFWLRQE\RIÀFLDOV of the Department of Education. The Minister may revoke or suspend permission given by him with respect to a private school if, in the Minister’s opinion, standards of attainment at the private school are lower than those expected in a public school or if the private school does not comply with any provisions of the Act or of any order made under the Act applicable to private schools. Newfoundland has a public system of education in which denominational districts are established for a religious denomination or group of religious denominations. There are Roman Catholic School Boards, Integrated School Boards (which include major Protestant groups), a Seventh-Day Adventist Church School Board and a Pentecostal Assemblies School Board. They receive nearly 95% of their funding from the province. Reference: The Schools Act (An Act Respecting the Operation of Schools and Colleges in the Province), Revised Statutes of Newfoundland, 1970. Chapter 346. (Note: A new Schools Act is expected to be introduced in the Newfoundland legislature in early 1992. If approved by the legislature the bill will provide a slightly UHYLVHGGHÀQLWLRQRISULYDWHVFKRROV

Prince Edward Island 7KHSURYLQFLDOJRYHUQPHQWGRHVQRWSURYLGHÀQDQFLDODVVLVWDQFHWRSULYDWHVFKRROVLQ Prince Edward Island. The only reference to private schools in the School Act is subsection 46(2) which states that “every child shall attend school in the school selected by the regional school board in that regional administrative unit” provided for in section 44 or sub-section 44(2) except as referenced in sub-section 46(3)(a) which states “where LQWKHRSLQLRQRIWKHPLQLVWHUDFKLOGLVXQGHUHIÀFLHQWLQVWUXFWLRQHOVHZKHUHµ There are no regulations governing the establishment and operation of private schools in the province, but private schools that follow the provincially approved curriculum receive free textbooks. Prince Edward Island has a non-sectarian publicly funded education system.

552

5. PRIVATE REPORTS

New Brunswick 7KHSURYLQFLDOJRYHUQPHQWGRHVQRWSURYLGHÀQDQFLDODVVLVWDQFHWRLQGHSHQGHQWSULYDWH  schools in New Brunswick. The only references to private schools are in section 57 of the Schools Act. It states that 57(2)…every child shall attend school in the school selected by the school board in the school district. Where  D LQWKHRSLQLRQRIWKHPLQLVWHUDFKLOGLVXQGHUHIÀFLHQWLQVWUXFWLRQHOVHZKHUH the child shall not be required to attend school. Students attending independent schools must apply annually to the minister to be exempted from attending public school. The minister sends out inspectors to examine the facilities of the independent schools as well as their curriculum. New Brunswick has a non-sectarian publicly funded education system. Reference: Schools Act/Loi socolaire, chapter S-5.1 (1990).

Nova Scotia 3ULYDWHVFKRROVLQ1RYD6FRWLDGRQRWUHFHLYHÀQDQFLDODVVLVWDQFHIURPWKH'HSDUWPHQW of Education. References to private schools are in section 63 and 64 of the Regulations Under The Education Act, which states: (63) A child shall not be required to attend school (public) and the parent is not liable to a penalty under the Act, if …  I  DQ LQVSHFWRU DQGRU VXSHULQWHQGHQW RI VFKRROV FHUWLÀHV WKDW WKH FKLOG LV receiving training and instruction in a private school, at home or elsewhere equivalent to that which [he/she] would be receiving if [he/she] were in regular attendance in a school serving the section in which [he/she] resides, DQGDWHDFKHUFHUWLÀHVWKDWWKHFKLOGKDVSDVVHGDVDWLVIDFWRU\H[DPLQDWLRQ in a grade of work suitable to the child’s age and previous opportunities for receiving an education. 64(1) In these regulations “private school” means a school established by an Act of the Legislature, or incorporated under the Societies Act or the Companies Act to provide educational services to persons over the age of six years and under the age of 16 years. 64(2) Where a child is enrolled in a private school [he/she] is required, by the rules and regulations of the school, to attend it. Private schools that follow the provincial curriculum receive a provincial grant to purchase approved textbooks from the Nova Scotia School Book Bureau. The grant is provided in the form of a credit at the Bureau. For 1991-92, the per pupil credit allocation is $37.91, the same amount given to public schools.

553

STATE SUPPORT FOR RELIGIOUS EDUCATION

Nova Scotia has a non-sectarian publicly funded education system. Reference: Province of Nova Scotia, Regulations Under The Education Act (as amended up to January 13, 1987).

4XHEHF The Act respecting private education (Loi sur l’enseignement privé) distinguishes among three types of educational institutions: (vi) private schools holding a teaching permit; (vii) “institutions declared of public interest”; (viii) “institutions recognized for purposes of grants.”

Private schools holding a teaching permit In Quebec, private schools must obtain a teaching permit from the Minister of Education or the Minister of Higher Education and Science. Private schools that provide self-improvement education (culture personnelle) are exempt from this regulation and are not required to hold a permit. In some cases, persons or organizations are excluded from the regulations under the Act respecting private education. Ministerial permits are granted to private schools that provide the necessary information and that conform to establish criteria for curriculum, instructors, advertising, student enrolment, budgetary estimates and tuition fees. The permit also describes the type of teaching offered by the school: general (pre-elementary, elementary, secondary, or college courses), professional instruction, special education, self-improvement or correspondence courses. Private schools holding a teaching permit only are not eligible to receive funding from the provincial government.

,QVWLWXWLRQVGHFODUHGRISXEOLFLQWHUHVW Under Chapter III(9) of An act respecting private education, the Ministers of Education or of Advanced Education and Science may declare to be “of public interest” an institution which, according to the criteria determined by regulation, “ensures services of quality and contributes to the advancement of education in Quebec, by reason of the characteristics of the education which it provides, the competence of its staff and the pedagogical methods which it employs.”

,QVWLWXWLRQVUHFRJQL]HGIRUSXUSRVHVRIJUDQWV The minister may recognize “for purposes of grants” an institution which has not been declared to be “of public interest” but which meets the requirements of the regulation. An institution holding only a permit to provide self-improvement education will not be recognized for purposes of grants.

Funding of private schools Private schools that receive provincial government funding are those that the Minister declares to be “of public interest” or institutions that are “recognized for purposes of

554

5. PRIVATE REPORTS

grants.” An institution declared to be “of public interest” will receive more substantial funding that an institution that is only “recognized for purposes of grants.” The payment of grants provided to institutions that are “declared of public interest” and to institutions that are “recognized for purposes of grants” is determined by the Act respecting private education enacted in June 1981 (Loi 11) and its subsequent amendments. This law gave a base amount for each pupil registered full time in a regular program on 30 September of the school year. It varies according to the clasVLÀFDWLRQW\SHDQGWKHOHYHORIHGXFDWLRQ6LQFHWKHODZZDVHQDFWHGWKHEDVHDPRXQW of funding to private schools has varied according to the size of the provincial grants to the public school system. For the school year 1991-92, the per student grants allocated to private schools were the following: Schools declared of public interest

Schools recognized for purposes of grants

Kindergarten

$1,391

$1,016

Elementary

2,044

1,501

Secondary

2,919

2,153

College (general education)

3,635

2,728

biology technology

6,161

4,621

physics technology

4,579

3,435

humanities technology

4,335

3,252

management technology

3,928

2,946

4,928

3,694

Vocational Program

Arts

Furthermore, at the discretion of the Ministers of Education or of Higher Education and Science, private schools have, since 1971, received an amount equivalent to the rental value of the buildings where they provided instruction. This amount varies according to the teaching level, that is, $157 per pre-school and elementary student, and $232 per secondary student. In 1990-91, some 100,742 Quebec students were registered in independent elementary and secondary schools (8.8% of the total student enrolment in the province). Most private schools in Quebec have a religious orientation or are boarding schools. The majority of private schools offer educational programs in French only. Quebec has a publicly funded dual denominational education system (Roman Catholic and Protestant schools) at both the elementary and secondary levels. Reference: An Act respecting private education, Revised Statutes of Quebec, chapter E-9, updated 1985. Note: On May 15, 1991, the Quebec government tabled legislation (projet de loi 141: Loi sur l’enseignement prive) which is expected to make major changes to the law governing the regulation and public funding of private schools in Quebec. At the time of

555

STATE SUPPORT FOR RELIGIOUS EDUCATION

writing, Bill 141 had been debated by a committee of the National Assembly. Once the bill is passed (expected in the spring of 1992), the CEA will prepare an insert updating Quebec’s policy and regulations on the public funding of private schools.

Ontario Under section 1(1)(40) of Ontario’s Education Act´SULYDWHVFKRROµLVGHÀQHGDV´DQ institution at which instruction is provided at any time between the hours of 9 a.m. and SPRQDQ\VFKRROGD\IRUÀYHRUPRUHSXSLOVZKRDUHRIRURYHUFRPSXOVRU\VFKRRO age in any of the subjects of the elementary or secondary school courses of study.” Private schools do not include those schools in public school boards, Roman Catholic separate school boards or Protestant separate school boards. According to section 15 of the Act, private schools must submit annually to the Ministry of Education (on or before 1 September) a notice of intention to operate a private school and must provide statistical information on enrolment, staff, courses of study and any other information required by the ministry. The minister may direct RQHRUPRUHVXSHUYLVRU\RIÀFHUVWRLQVSHFWDSULYDWHVFKRRODQGSULYDWHVHFRQGDU\ schools that wish to award the Ontario secondary school graduation diploma or the Ontario secondary school honour graduation diploma may ask to have their standards of instruction inspected. These private schools must follow the course credit system. $WHDFKLQJFHUWLÀFDWHLVQRWUHTXLUHGIRUWHDFKLQJLQ2QWDULRSULYDWHVFKRROV 3ULYDWH VFKRROV LQ 2QWDULR GR QRW UHFHLYH GLUHFW ÀQDQFLDO DVVLVWDQFH IURP WKH government. In the fall of 1991, 67,440 Ontario students were enrolled in private schools (3.7% of the total provincial enrolment). Most private schools in Ontario are religious, ethnic-religious (i.e., Jewish, Seventh Day Adventist, Ontario Alliance of Christian Schools, Conference of Independent Schools), special education schools (learning disabled), college preparatory, residential schools, and special methodologies (e.g., Waldorf, Montessori). Ontario has a publicly funded public and separate school system. Prior to 1985, Roman Catholic separate schools received grants only up to the end of grade 10. Beginning in September 1985, the provincial government extended funding to Roman Catholic high schools for grades 11 to 13. Reference: Education Act, Revised Statutes of Ontario, 1980. Chapter 129.

Manitoba Under the Education Administration Act 'HÀQLWLRQV VHFWLRQ   ´SULYDWH VFKRROµ means “any school, other than a public school, which provides a curriculum and a standard of education equivalent to that provided by the public schools, but does not include any home or place to which clause 262 (b) of The Public Schools Act applies” (i.e., home schooling). Direct grants are available to private schools for the following in 1991-92: 1) Instruction and services 2) Special needs 3) Curricular materials

556

5. PRIVATE REPORTS

Section 60(5) of The Public Schools Act states the Minister of Education may make grants to a private school in respect of instruction and services offered by the private school to children enrolled therein, where WKHPLQLVWHULVVDWLVÀHGWKDW 

D WKHSULYDWHVFKRROWHDFKHVDVXIÀFLHQWQXPEHURIFRXUVHVDSSURYHGXQGHUThe Education Administration Act to ensure that children enrolled in the private school receive an education of a standard equivalent to that received by children in public schools; (b) the teachers teaching the approved courses to children enrolled in the private VFKRROKROGYDOLGDQGVXEVLVWLQJWHDFKLQJFHUWLÀFDWHVLVVXHGXQGHUWKH(GXFDtion Administration Act; (c) the Department of Education has approved the core curriculum of the school; (d) the private school has a legally incorporated Board of Directors; (e) the private school has an elected advisory board that (i) includes at least three persons who are parents or guardians of children enrolled in the private school, (ii) reports on the private school on a regular basis during the school year, and not less often than once in each school term, to the parents and guardians of students enrolled in the private school; (f) not yet proclaimed; (g) the private school is in compliance with such other requirements as may be prescribed by regulation; and the minister may make regulations respecting the making of grants under this subsection and prescribing requirements for the purposes of clause (g).

In addition, Manitoba Regulation 150/90 requires that in order to be eligible for support, the private school must (a) have been in operation with pupils in attendance during the 1989-90 school year and received a grant in all or a portion of that school year; (b) comply with the necessary sections of the Administrative Handbook for Manitoba SchoolsXQOHVVPRGLÀFDWLRQVUHÁHFWLQJUHOLJLRXVSHUVSHFWLYHVFXOWXUDOREMHFtives, or values of the school have been approved by the minister); (c) appoint an auditor annually;  G  VXEPLWDUHFRUGRIÀQDODFDGHPLFVWDQGLQJDFKLHYHGE\HDFKVWXGHQWLQJUDGHV 10, 11 and 12.

,QVWUXFWLRQDQG6HUYLFHV An Instruction and Services grant of $2,015 per eligible pupil is available in 1991-92. This is the estimated amount which is determined based on 59% of the average per

557

STATE SUPPORT FOR RELIGIOUS EDUCATION

SXSLO JUDQW LQ SXEOLF VFKRROV 2QFH IXQGLQJ IRU SXEOLF VFKRROV LV ÀQDOL]HG WKURXJK WKHSUHSDUDWLRQRIWKHDQQXDOUHSRUWDÀQDOUDWHLVGHWHUPLQHGDQGWKHSULYDWHVFKRRO support is adjusted accordingly. In 1990, the government of Manitoba agreed to increase incrementally, over a period of eight years, the level of support to private schools. Effective 1 July 1991, private schools receive 59% of the per pupil grant paid to public schools. In 1992 and 1993, respectively, private schools will receive 63.5% and 68% of the per pupil grant paid to public schools. From 1994 to 1997, there will be an annual increase of 3%. By the 1997-98 school year, private schools will receive 80% of the funding provided to the public school system. This funding is for operational support only. No capital support is given.

Special Needs Special needs support is paid as follows to pupils approved by the department: Category

)XQGLQJ



&ULWHULD

Level I

$3,300

trainable mentally handicapped, moderately multi-handicapped, severely physically handicapped, severely hearing impaired, severely visually impaired, very severely learning disabled, very severely emotionally disturbed.

Level II

$7,100

severely multi-handicapped, severely psychotic, autistic, profoundly deaf.

Level III

$15,800

profoundly multi-handicapped

Curricular materials A curricular material grant of $40 per pupil is provided for print and non-print instructional material purchased through the Manitoba textbook bureau. In addition, indirect grants are available where public school divisions and private schools enter into shared service agreements. These agreements fall into three categories: 1) Transportation A grant of $410 (rural pupils) or $150 (urban K-3 pupils) is paid to the public school division where transportation is provided to private school pupils on a regular public school bus route. 2) Clinician Services Where a public school division agrees to provide clinical services to private school pupils, a grant is paid to the public school division on behalf of the private school. The grant is equivalent to the grant paid for public school pupils.

558

5. PRIVATE REPORTS

3) Facilities and Resources If pupils from the private school attend a public school for home economics, industrial arts or other life-skill courses not otherwise available in the private school, a grant is paid to the public school on behalf of the private school pupil. The grant is equivalent to the grant paid for public school pupils. Manitoba has a non-sectarian, publicly funded school system. In the fall of 1991, an estimated 10,555 Manitoba students (5% of the total provincial enrolment) were registered in independent schools. Most Manitoba private schools are co-educational day schools with a religious orientation. Many of the private schools are members of the Manitoba Federation of Independent Schools, Manitoba Catholic Schools, and the Winnipeg Board of Jewish Education. Reference: The Education Administration Act, Revised Statutes of Manitoba, 1987, chapter E10. The Public Schools Act, Revised Statutes of Manitoba, 1987, chapter P250.

Saskatchewan The Education ActGHÀQHVDQLQGHSHQGHQWVFKRROSULYDWHVFKRRO DVDQLQVWLWXWLRQLQ which instruction is provided to pupils of compulsory school age and which is “owned, controlled and administered by a person that is not a public authority.” Part VII, section 36 (1) of the Act states that the governing body of every private school or other educational institution which provides educational services to pupils in courses of instruction prescribed under this Act shall, when required by the Minister, furnish information to the department in such form as [the Minister] may prescribe with respect to the pupils, teachers, curriculum of studies, facilities and equipment of that school or other educational institution. In October 1990, the Minister’s Advisory Board on Independent Schools (chaired by Alec Postnikoff), composed of all the major education groups in Saskatchewan, recommended that there should be four categories of independent schools: – registered independent schools; – accredited independent schools; – historical high schools; and – alternative schools. The Minister of Education accepted the advisory board’s recommendations and adopted the four categories of independent schools. The Postnikoff report recognized that most, although not all, independent schools are religiously based (one high school offers a curriculum in French). In establishing a legal framework for independent schools in Saskatchewan, the government stated that it was not interested in regulating these institutions as such, but in regulating education.

Funding Only the historical high schools and alternative schools receive public funding.

559

STATE SUPPORT FOR RELIGIOUS EDUCATION

Historical high schools Eight “historical high schools” were established in Saskatchewan in the early 1900s DV´VFKRROVRIQHFHVVLW\µ7KHVHVFKRROVZHUHDPRQJWKHÀUVWKLJKVFKRROVHVWDEOLVKHG in their respective parts of the province at a time when public high schools were not available. Historical high schools are currently funded at the rate of $1,925 per grade 9-12 student enrolled. Historical high schools must merit the following criteria: 1. They subscribe to the goals of education for Saskatchewan.   7KH\HPSOR\WHDFKHUVZKRKROGYDOLG6DVNDWFKHZDQWHDFKHU·VFHUWLÀFDWHV 3. They conform to provincial curriculum policy in required areas of study; common essential learnings; locally determined options; adaptive dimensions; and time and credit allocations. 4. They enrol no fewer than 60 pupils in grades 9, 10, 11 and 12. 5. They are supervised by the Saskatchewan Department of Education or by a person ZLWKWKHTXDOLÀFDWLRQVRIDGLUHFWRURUVXSHULQWHQGHQWRIHGXFDWLRQDSSURYHGE\ the Saskatchewan Department of Education.

Alternative schools All alternative school provides an educational program to students with special needs who require a qualitatively different education experience which cannot be met through the adaptive dimension of the core curriculum. Alternative schools are funded by the Department of Education and, in some instances, by other departments such as Social Services at a rate dependent upon the severity of the special-needs students enrolled. Saskatchewan has a publicly funded education system that consists of public and separate school divisions. Both receive equal provincial grants. In the fall of 1991, approximately 3,100 Saskatchewan students (0.7% of the total provincial enrolment) were enrolled in independent school programs from kindergarten to grade 12. Over 2,500 students attend Independent High Schools, Independent Church Schools, and Seventh Day Adventist Schools. Reference: The Education Act, Statutes of Saskatchewan, 1978 chapter 17.

Alberta Under Alberta’s School Act, there are private schools and accredited private schools.

Private Schools Under section 22(1), a school is entitled to be registered as a private school if the operator DSSOLHVWRWKH0LQLVWHURI(GXFDWLRQDQGWKHPLQLVWHULVVDWLVÀHGWKDW (a) the school will provide a program of studies that complies with any orders make under section 25(1)(d); (b) the school will meet the standards of student achievement and achievement testing acceptable to the minister; (c) the operator agrees to regular evaluation and monitoring by the minister; and

560

5. PRIVATE REPORTS

(d) the school meets and will continue to meet all local and provincial health, safety and building standards. Under section 25(1), the minister may (a) prescribe courses of study, including the amount of instruction time, and authorize education programs and instructional materials for use in schools; (b) approve any course, education program or instructional material that may be submitted to the minister by a board of another operator of a school for use in schools; (c)… prohibit the use of a course, education program or instruction materials in schools; (d) adopt or approve goals and standards applicable to the provision of education in Alberta. Registered private schools do not receive public funding.

Accredited Private Schools Under section 22(2) a private school is entitled to be accredited as an “accredited private school” if D WKHPLQLVWHUDSSURYHVWKHHGXFDWLRQSURJUDPDQGDQ\PRGLÀFDWLRQRILWRIIHUHG at the school, and



E WKHPLQLVWHULVVDWLVÀHGWKDW (i) the operator of the private school continues to meet the requirements under subsection (1) of section 22, (ii) seven or more students from two or more families are enrolled and continue to be enrolled in the school; and LLL  LQGLYLGXDOVZKRVHTXDOLÀFDWLRQVDUHDSSURYHGE\WKHPLQLVWHUDUHHPSOR\HG to teach at the school.

For funding purposes, a “funded private school” means an accredited private school that receives a grant under the School Grants Regulations (Alberta Regulation 171/176). New private schools must obtain accreditation through approval of the Deputy Minister of Education. Newly qualifying private schools will indicate that the school is RSHUDWHGRQDQRQSURÀWEDVLVDQGLVLQFRUSRUDWHGXQGHUWKHSocieties Act or registered under the Companies Act or Special Act of the Legislature.

Funding of Accredited Private Schools Accredited private schools receive up to 75% of the regular per-pupil grant paid to public and separate school systems in Alberta from the School Foundation Program Fund (75% of the SFPF equals about 35% of the cost of education). The provincial government contributes to a School Foundation Program Fund out of its general revenue, and school districts pay into the fund according to the value of the property in the jurisdiction. Funds are distributed to the school jurisdiction through per-pupil

561

STATE SUPPORT FOR RELIGIOUS EDUCATION

instructional grants which vary according to the level of the students. In 1991-92, the per pupil operating grants are $2,098 per elementary student, $2,256 per junior high student (grades 7-9), and $2,433 per senior high student (grades 10-12). Grants to accredited private schools are also paid in the following instances: (i) a per pupil grant for schools offering a French-language program; (ii) a dollar amount per enrolment course hour for schools offering an extension program; and (iii) a secondary education per student grant for learning resources and teacher in-service. Alberta has a publicly funded education system consisting of public and separate schools (both Roman Catholic and Protestant separate schools). In 1991, 16,259 (3% of the total provincial enrolment) Alberta students were enrolled in private elementary and secondary schools. Most of Alberta’s private schools are co-educational day schools associated with the Seventh Day Adventists, the Association of Christian Schools International, and the Association of Independent Church Schools. Montessori, Waldorf and other non-religious schools (including seven special education schools for learning disabled students and a visa school for foreign students) make up about 15% of the private schools. Reference: School Act, 1988, Province of Alberta, chapter S-3.1.

British Columbia Independent schools in British Columbia are governed by the Independent School Act (1989). $VGHÀQHGLQSDUW RIWKH$FWDQ´LQGHSHQGHQWVFKRROµPHDQVDVFKRRO that is maintained and operated in British Columbia by an authority (i.e., a society incorporated under the Society Act, a corporation incorporated under the Company Act or a person designated, by regulation, as an authority) and offers an education program to ten or more school age students, but does not include: (a) a public school or provincial school, or (b) a school that (i) solely offers religious instruction, (ii) solely offers language instruction, (iii) solely offers a program of social or cultural activities (iv) solely offers a program of recreational or athletic activities, (v) is so designated by the inspector.

&ODVVLÀFDWLRQRI,QGHSHQGHQW6FKRROV $OOLQGHSHQGHQWVFKRROVPXVWEHFODVVLÀHGE\WKHLQVSHFWRURILQGHSHQGHQWVFKRROV who may authorize a person to inspect and evaluate independent schools, teachers, the operations of an authority, educational programs provided by independent schools and educational resource materials, school buildings and other buildings used in conjunction with the school. Independent VFKRROV PD\ QRW RSHUDWH ZLWKRXW D PDQGDWRU\ FHUWLÀFDWH RI JURXS FODVVLÀFDWLRQDQGPXVWPHHWPXQLFLSDO]RQLQJKHDOWKDQGVDIHW\FRGHV7KHFHUWLÀFDWH RIJURXSFODVVLÀFDWLRQPD\EHFRQWDLQHGIROORZLQJDQHYDOXDWLRQFRQGXFWHGE\WKH Independent Schools Branch of the British Columbia Ministry of Education. Each 562

5. PRIVATE REPORTS

VFKRRO·VFODVVLÀFDWLRQGHWHUPLQHVWKHGHJUHHRIJRYHUQPHQWLQYROYHPHQWDQGIXQGLQJ if any, available from the province. 7KHIROORZLQJVXPPDUL]HVWKHSURYLVLRQVIRUFHUWLÀFDWLRQRIJURXSFODVVLÀFDWLRQ as outlined in sections 1 and 2 of the Independent School Act Schedule: Section 1 %HIRUHLVVXLQJDFHUWLÀFDWHRIJURXSFODVVLÀFDWLRQWRDQ\VFKRROWKHLQVSHFWRUPXVW EHVDWLVÀHGWKDW (a) no program is in existence or is proposed at the independent school that would in theory or in practice, promote or foster doctrines of (i) racial or ethnic superiority or persecution, (ii) religious intolerance or persecution, (iii) social change through violent action, or (iv) sedition. (b) the independent school facilities comply with the enactments of British Columbia and the municipality or regional district in which the facilities are located [for zoning, health and safety], and (c) the authority complies with this Act and the regulations. Section 2 7RREWDLQSURYLQFLDOIXQGLQJVFKRROVZLWKJURXSDQGFODVVLÀFDWLRQVPXVWEH RSHUDWHGE\DQRQSURÀWDXWKRULW\$WOHDVWRIWKHVWXGHQWVHQUROOHGLQWKHLQGHSHQGHQWVFKRROPXVWEHIXOO\RUSDUWLDOO\TXDOLÀHGWKHVFKRROVKRXOGKDYHRSHUDWHGDWOHDVW RQH\HDUEHIRUHDFKLHYLQJIXQGHGFODVVLÀFDWLRQDQGWKHIDFLOLWLHVPXVWEHDGHTXDWH for instructional purposes.

)XQGLQJ$FFRUGLQJWR*URXS&ODVVLÀFDWLRQV The Independent School Act provides for funded (groups 1, 2 and 3), and non-funded JURXSVDQG JURXSFODVVLÀFDWLRQVZKLFKDUHVXPPDUL]HGDVIROORZV Group 1 Group 1 schools offer programs consistent with the goals of the British Columbia curULFXOXPHPSOR\FHUWLÀHGWHDFKHUVPDLQWDLQDGHTXDWHHGXFDWLRQDOIDFLOLWLHVDQGPHHW municipal codes. They receive per student grants of 50% of the per student operating cost in the public school district in which they are located. 0RVWRIWKHVFKRROVFODVVLÀHGDVJURXSDUH&DWKROLFSXEOLFVFKRROVWKHODUJHVW category of independent schools in British Columbia. For the 1991-92 school year the weighted average grant is $2668.50 per qualifying student. Group 2 Group 2 schools meet the same requirements as group 1 schools. They receive per student grants of 35% of the per student operating cost of the local public school district. The grant for group 2 schools is lower than for that group 1 schools (because the per

563

STATE SUPPORT FOR RELIGIOUS EDUCATION

student costs of group 2 schools exceed those of the local public school district). Group 2 schools include special education schools, small schools with a low pupil-teacher ratio, and the traditional English-style private schools that cater to children from upper-income households. The weighted average grant for this group is $1867.95 per qualifying student. 6FKRROVZLWKJURXSDQGFODVVLÀFDWLRQVUHFHLYHDQLQLWLDOH[WHUQDOHYDOXDWLRQE\ the inspector of independent schools, an external evaluation every four years and an inspection every two years. The school-based evaluation must demonstrate the student’s progress in achieving human, intellectual, social and career development. In addition, group 1 and 2 schools have access to limited additional funding for approved special education programs, learning resources, and auditory training equipment. Group 3 In addition to the requirements under sections 1 and 2 (above) schools with a group  FODVVLÀFDWLRQ PXVW PDLQWDLQ DGHTXDWH HGXFDWLRQDO IDFLOLWLHV DQG PHHW PXQLFLSDO codes. These schools receive per student grants of 10% of the per student operating cost in the public school district in which they are located. These schools do not have WRPHHWWKH0LQLVWU\·VFXUULFXOXPDQGWHDFKHUFHUWLÀFDWLRQUHTXLUHPHQWV7KH\UHFHLYH an initial evaluation and, every two years, must undergo an external evaluation that is satisfactory to the inspector. The weighted average grant is $533.70 per qualifying student. Group 4 ,QGHSHQGHQWVFKRROVZLWKDJURXSFODVVLÀFDWLRQDUHQRWHOLJLEOHWRUHFHLYHSURYLQFLDO grants. Group 4 schools cater mainly to foreign and out-of-province students. They meet the same curricular requirements as group 1, and 80% of their teachers must be FHUWLÀHG*URXSVFKRROVPXVWFRPSO\ZLWKLQVWUXFWLRQDOWLPHUHTXLUHPHQWVGHWHUPLQHG by the minister and, like group 1 and 2 schools, the evaluation must demonstrate the student’s progress in achieving human, intellectual, social and career development, include provincial assessment and examination programs and undergo an annual external evaluation satisfactory to the inspector. Groups 4 schools must be bonded and have school facilities that are adequate for instructional purposes. The independent schools’ educational program, fees, accommodation and policy pertaining to the refund of school fees or other costs must be consistent with any promotional material or other information published or supplied E\ WKH DXWKRULW\ ,QGHSHQGHQW VFKRROV ZLWK D JURXS  FODVVLÀFDWLRQ GR QRW UHFHLYH provincial grants. Group 5 ,QGHSHQGHQW VFKRROV ZLWK D JURXS  FODVVLÀFDWLRQ GR QRW UHFHLYH SURYLQFLDO JUDQWV 0DQ\JURXSVFKRROVDUHDIÀOLDWHGWRPLQRULW\UHOLJLRXVRUJDQL]DWLRQV7KH\PXVW maintain adequate facilities and meet municipal codes. In addition to the requirements LQVHFWLRQWKHLQVSHFWRUPXVWEHVDWLVÀHGWKDWDWOHDVWRIVWXGHQWVHQUROOHGLQ

564

5. PRIVATE REPORTS

WKHLQGHSHQGHQWVFKRRODUHTXDOLÀHGDQGWKDWWKHVFKRROZLOOXQGHUJRDQHYDOXDWLRQ satisfactory to the inspector. 'XULQJWKHLUÀUVW\HDURIRSHUDWLRQQHZSULYDWHVFKRROVDUHFODVVLÀHGDVHLWKHUJURXS 4 or group 5 schools and do not receive provincial funding. Group 5 schools may apply IRUDIXQGHGFODVVLÀFDWLRQIROORZLQJWKHÀUVW\HDURIRSHUDWLRQ

,QGHSHQGHQWVFKRROHQUROPHQWLQ%& British Columbia has a non-sectarian, publicly funded education system. In the fall of 1991, 43,714 (or 7.1%) of all school-age students were enrolled in independent schools in British Columbia. According to 1990-91 statistics provided by the B.C. Ministry of Education’s Independent Schools Branch: – 40% of students attending private schools in B.C. are enrolled in Roman Catholic institutions; – 20% of students are enrolled in schools belonging to the Society of Christian 6FKRROVLQ%ULWLVK&ROXPELDDQDVVRFLDWLRQRISDUHQWFRQWUROOHGVFKRROVUHÁHFWing Protestant Christian beliefs; – 14% of students are enrolled in traditional English-style “public schools” which are members of the Independent Schools Association; – 20% of students are enrolled in non-aligned independent schools offering a religious-philosophical emphasis (private Catholic, independent Protestant, Jewish, Sikh, Muslim and Native Indian Band schools); a unique methodological approach such as Montessori and Waldorf schools; or special education for VWXGHQWVZLWKVSHFLÀFOHDUQLQJGLVDELOLWLHVRUODQJXDJHGLIÀFXOWLHV,QFOXGHGDUH the group 4 schools for foreign and out-of-province students. – 3% of the schools belong to the Association of Independent Church Schools, an DIÀOLDWLRQRI&KULVWLDQVFKRROVWKDWRSHUDWHSULPDULO\LQFKXUFKHVPDQ\RIZKLFK use the Accelerated Christian Education Curriculum and program materials. – 3% are Seventh Day Adventist Schools, whose members seek to teach their students according to their denominational perspective. In addition nine schools serve mainly foreign students who hold Canadian visas. The Federation of Independent School Association is an umbrella association for independent school groups and individual schools in British Columbia. The FISA represents approximately 85% of independent school enrolments in the province. Reference: Independent School Act, Chapter 51 of the Statutes of British Columbia, 1989.

Northwest Territories There are no private schools in the Northwest Territories, nor is there a legislative basis upon which to fund such schools should they arise. This situation may change in the near future because a commitment has been made to redraft the present Education Act. The current Education Act, 1988 does have a section on private schools. Section GHÀQHVD´SULYDWHVFKRROµDVDVFKRRORWKHUWKDQDVFKRRORSHUDWHGE\WKH0LQLVWHU [of Education], a local education authority, a Divisional Board of Education or a Board of Secondary Education, where instruction in any of the subjects of the elementary or 565

STATE SUPPORT FOR RELIGIOUS EDUCATION

secondary school education program is provided for ten or more students between the ages of six and 15 years at any time between the hours of 9 a.m. and 4 p.m. on days other than school holidays. Section 116 states that no private school shall operate in the Northwest Territories without ministerial authorization. Where such a school is authorized, the minister is empowered to: (a) require that the principal or person in charge of the private school report to the deputy minister on enrolment, staff courses of study, and other matters in respect of the school; (b) direct that an employee of the Department of Education inspect the school premises and all books and documents related to the school at all reasonable hours; and (c) require that the deputy minister have the work of every teacher inspected in order to ensure that a satisfactory standard of instruction is maintained. The Northwest Territories has a system of public and separate education (both Protestant and Roman Catholic separate schools) which is publicly funded. Reference: Education Act, Registered Statutes of the Northwest Territories, 1988.

Yukon Territory The new Education Act (1990) allows for private schools to be registered or accredited LIWKHPLQLVWHULVVDWLVÀHGWKDWWKHSULYDWHVFKRROPHHWVFHUWDLQVWDQGDUGUHTXLUHPHQWV 6HFWLRQ GHÀQHVDSULYDWHVFKRRODV´DVFKRROLQFOXGLQJDVFKRRORSHUDWHGE\D religious denomination, other than a school operated by the minister or a school board, that offers educational programs during school days to school-age children.” Section 29(2) states that a school is entitled to be registered or accredited as a private school if the operator of the school (a) provides courses of study that meet goals and objectives established by the guidelines for private schools, (b) employs (in the case of an accredited private school) persons who meet the TXDOLÀFDWLRQVUHTXLUHGE\WKHUHJXODWLRQV (c) agrees to regular evaluation and monitoring; (d) meets all local and territorial heath, safety and building standards, (e) meets standards of student achievement comparable to schools operated by the minister or a school board. There are now three private schools whose registrations have been accepted by the minister. The Calvary Baptist School and the Whitehorse Seventh Day Adventist Elementary School are now in operation. (A third private school is pending.) No private schools have been accredited as yet. The Education Act explicitly prohibits grants or contributions from the minister, Cabinet, a school board or a school council to a private school. Separate schools (i.e., Roman Catholic schools) are recognized under the federal Yukon Act. Two Roman Catholic schools in the Yukon are therefore publicly funded.

566

5. PRIVATE REPORTS

Yukon has a system of public and Roman Catholic education which is publicly funded. Reference: Education Act, Statutes of The Yukon, 1990.

Acknowledgements We would like to thank the deputy ministers and staff of the twelve provincial and territorial Departments/Ministries of Education for providing information on private (independent) school funding in their jurisdictions. Gary Duthler, executive director, Federation of Independent Schools in Canada, and Fred Herfst, executive director, British Columbia’s Federation of Independent School Association also provided information for this CEA Information Note.

567

)HGHUDWLRQRI,QGHSHQGHQW6FKRROVLQ&DQDGDAn Overview RI,QGHSHQGHQW(GXFDWLRQLQ&DQDGD, 2000 In 2000 the Federation of Independent Schools in Canada produced an overview of independent education in Canada in which they analyzed both enrollment patterns, historic and current, and differential funding patterns across the country. For further information see the website of the Federation of Independent Schools in Canada at: www.independentschools.ca

$Q2YHUYLHZRI,QGHSHQGHQW(GXFDWLRQLQ&DQDGD )('(5$7,212),1'(3(1'(176&+22/6,1&$1$'$ 7$%/(2)&217(176 Introduction Independent School Enrolments Historical Enrolment Comparison Provincial Associations and Federations Funding of Independent Schools across the Provinces 7HDFKHU&HUWLÀFDWLRQDQG4XDOLÀFDWLRQ National Contact List Provincial Government Contact List

,1752'8&7,21 The Federation of Independent Schools in Canada, founded in 1980, represents regional and national independent school associations across Canada. These associations collectively represent the parents of more than 280,000 students enrolled in nearly 1,700 independent schools. 7KHUHDUHPDQ\GLIIHUHQWDQGFRPSHWLQJGHÀQLWLRQVRIWKHQDWXUHRITXDOLW\HGXFDtion. Independent schools respond to parental concerns by offering a wide variety of philosophical, denominational and developmental approaches for the education of children. Included in the FISC membership are schools with different religious emphases; schools for the learning disabled or the emotionally disturbed, for the intellectually gifted, and for the musically or artistically endowed; schools using distinct pedagogues such as Waldorf or Montessori schools; and schools employing one or ERWKRIÀFLDOODQJXDJHVIRULQVWUXFWLRQ:KLOHPRVWRIWKHVHVFKRROVDUHFRHGXFDWLRQDO RWKHUVVHUYHWKHVSHFLÀFHGXFDWLRQDOQHHGVRIHLWKHUER\VRUJLUOV The Federation represents a microcosm of Canada in all its diversity. Each member association represents unique characteristics based on educational expressions of belief

569

STATE SUPPORT FOR RELIGIOUS EDUCATION

and practice and on differences in provincial education law and policy. The Federation respects and encourages this diversity and represents the whole range of independent education by pursuing the following objects: – To support and encourage continuing high standards in the independent schools in Canada. – To make known to the public the rightful place and responsibility of the independent schools within a democratic and diverse society. – To strengthen understanding and cooperation between the independent schools and other educational organizations and between the independent schools and governments in Canada. – To pursue the interests of independent schools in federal jurisdictions of Canada.

,1'(3(1'(176&+22/(152/0(176 %<3529,1&($1'$6$3(5&(17$*( 2)727$/6&+22/(152//0(176 6WDWLVWLFVVXSSOLHGE\3URYLQFLDO*RYHUQPHQWVIRUXQOHVVRWKHUZLVHVSHFLÀHG

# of schools

# of students

% of total enrolments

British Columbia

356

59,458

8.52

Alberta

191

25,410

4.45

Saskatchewan

49

3,810

1.98

Manitoba

95

14,230

7.14

Ontario

722

102,893

4.61

Quebec

286

103,255

9.12

New Brunswick

23

904

0.71

Nova Scotia

31

2,664

1.66

PEI

3

212

0.87

Newfoundland

8

723

0.76

1,735

313,729

5.76

CANADA

570

5. PRIVATE REPORTS

$1+,6725,&$/&203$5,621,1'(3(1'(176&+22/ (19,5210(176$6$2)727$/ 10 9 8

% of total enrolments

7

1990 - 91 1995 - 96 1997 - 98 1998 - 99 1999 - 00

6 5 4 3 2 1

TOTAL

Newfoundland

PEI

Nova Scotia

New Brunswick

Quebec

Ontario

Manitoba

Saskatchewan

Alberta

BC

0

$1+,6725,&$/&203$5,621,1'(3(1'(176&+22/ (152/0(176$6$3(5&(17$*(2)727$/(152/0(176 1990 – 91

1995 – 96

Public Private % of total Public Private % of total Enrolment Enrolment enrolments Enrolment Enrolment enrolments BC

–

43,714

7.1

594,773

54,207

8.35

Alberta

–

16,259

3

523,403

19,714

3.63

Saskatchewan

–

3,100

0.7

194,562

3,050

1.54

Manitoba

–

10,555

5

192,023

13,116

6.39

Ontario

–

67,440

3.7

2,116,444

80,000

3.64

Quebec

–

88,877

10

1,172,963

103,675

8.12

New Brunswick

–

1,038

0.7

135,058

993

0.73

Nova Scotia

–

1,890

1.1

164,020

900

0.55

Prince Edward Island

–

111

0.5

24,422

253

1.03

Newfoundland

–

427

0.3

110,456

340

0.31

CANADA

–

233,411

4.5

5,228,124

276,248

5.02

571

STATE SUPPORT FOR RELIGIOUS EDUCATION

1997 – 98

1998 – 99

Public Private % of total Public Private % of total Enrolment Enrolment enrolments Enrolment Enrolment enrolments BC

615,980

58,768

8.71

614,458

59,089

8.77

Alberta

533,546

25,322

4.53

544,004

25,546

4.49

Saskatchewan

192,508

3,533

1.80

190,899

3,567

1.83

Manitoba

191,856

14,063

6.83

192,204

14,100

6.83

Ontario

2,103,586

92,110

4.20

2,119,841

90,600

4.10

Quebec

1,126,630

133,671

9.16

1,010,199

102,844

9.24

New Brunswick

131,586

925

0.70

129,131

,943

0.72

Nova Scotia

162,359

784

0.48

160,011

1,200

0.74

Prince Edward Island

24,397

216

0.88

24,100

215

0.88

Newfoundland

101,608

699

0.68

97,401

710

0.72

5,184,056

330,091

5.99

5,082,248

298,814

5.55

CANADA

3529,1&,$/$662&,$7,216$1')('(5$7,216 * Marked statistics may include home schooled students. Statistics in italics are estimated. %5,7,6+&2/80%,$

6WXGHQWV 6FKRROV

School groups and associations in British Columbia Umbrella Association: Federation of Independent School Associations (FISA)

54,037

249

Other Associations: (schools or associations may also be part of FISA) Associated Member Group 16,346 Association of Christian Schools International 5,928 BC Accelerated Christian Education Association * 607 Catholic Independent Schools 21,314 Independent Schools Association 8,056 Seventh-day Adventist 1,374 Society of Christian Schools 8,321

111 32 14 77 20 24 41

572

5. PRIVATE REPORTS

$/%(57$

6WXGHQWV 6FKRROV

School groups and associations in Alberta Umbrella Association: Association of Independent Schools and Colleges in Alberta (AISCA)

15,712

124

Other Associations: (schools or associations may also be a part of AISCA) Alberta Provincial Accelerated Christian Education Ass’n* 504 Association of Christian Schools International* 6,469 Christian Schools International (District 11) 4,466 Seventh-day Adventist 823

9 31 19 12

SASKATCHEWAN

3,810 Students

49 Schools

School groups and associations in Saskatchewan Provincial Associations: Association of Christian Schools International Christian Schools International (District 11) Saskatchewan Association of Historical High Schools Saskatchewan Association of Independent Church Schools Seventh-day Adventist Mennonite Day Schools

MANITOBA

525 125 1,708 560 36 203

5 1 8 13 4 6

14,230 Students

95 Schools

School groups and associations in Manitoba Umbrella Association: Manitoba Federation of Independent Schools (MFIS)

12,235

52

Other Associations: (schools or associations may also be a part of MFIS) Association of Christian Schools International 1,755 Christian Schools International (District 11) 390 Catholic Schools in the Winnipeg Archdiocese 2,868 Catholic Schools in the St. Boniface Archdiocese 1,741 Manitoba Accelerated Christian Education Association * 209 Winnipeg Board of Jewish Education 623 Seventh-day Adventist 88

10 1 9 9 13 3 1

573

STATE SUPPORT FOR RELIGIOUS EDUCATION

217$5,2

6WXGHQWV 722 Schools

School groups and associations in Ontario Umbrella Associations: Independent School Associations in Ontario (ISAO) Ontario Federation of Independent Schools (OFIS)*

41,400 7,000

Other Associations: (schools or associations may also be part of FISA-O or OFIS) Association of Christian Schools International 100 Canadian Council of Montessori School Admin. 5,000 Conference of Independent Schools (CIS) 15,000 Jewish Board of Education 10,000 League of Canadian Reformed School Societies 1,723 Ontario Accelerated Christian Education Association * 4,000 Ontario Alliance of Christian Schools 11,461 Rehoboth Christian School Society 850 Seventh-day Adventist 1,071 Waldorf 1,000

48e%(&

235 114

69 45 32 21 13 80 73 3 13 6

6WXGHQWV 6FKRROV

6FKRROJURXSVDQGDVVRFLDWLRQVLQ4XpEHF Umbrella Associations: Fédération des associations de l’enseignement privé (FAEP) 74,644 – Ass’n Quebecoise des Ecoles Secondaires Privées (AQESP) 60,531 – Association de institutions de niveaux préscolaire et élémentaire du Québec (AIPEQ) 14,113 Other Associations: Ass’n des Écoles Juives / Association of Jewish Day Schools Ass’n des Eglises Écoles Evangelique du Québec (AEEEQ) Quebec Association of Independent Schools Seventh-day Adventist

1(:)281'/$1'

157 109 48

7,106 613 8,712 294

21 24 24 1

6WXGHQWV

6FKRROV

School groups and associations in Newfoundland Seventh-day Adventist

1(:%5816:,&.

35

1

6WXGHQWV

6FKRROV

Schools groups and associations in New Brunswick Provincial Associations: Association of Christian Schools International Atlantic Accelerated Christian Education Association * Seventh-day Adventist

574

295 434 27

3 16 3

5. PRIVATE REPORTS

NOVA SCOTIA

2,664 Students

31 Schools

Schools groups and associations in Nova Scotia Provincial Associations: Association of Christian Schools International Atlantic Accelerated Christian Education Association* Seventh-day Adventist

35,1&((':$5',6/$1'

580 114 66

5 3 2

6WXGHQWV

6FKRROV

School groups and associations in Prince Edward Island Provincial Associations: Association of Christian Schools International Atlantic Accelerated Christian Education Association* Christian Schools International (District 10) Seventh-day Adventist

176 20 63 7

1 2 1 1

3529,1&,$/)81',1*2),1'(3(1'(176&+22/6 British Columbia – Group 1: 50% of adjusted per-pupil operating costs of the local public school district. – Provincial Average: $2,849 (1999-2000) – Group 2: 35% of adjusted per-pupil operating costs of the local public school district. – Provincial Average: $1,944 (1999-2000) – Groups 3 and 4: no funding. – Average per-pupil operating costs in the public school: $5,992 (1999-2000). – Application for special education funds may be made from a $3-million funding block. Alberta – Accredited private schools receive a basic instructional grant of $2,458 per funded student as of September 2000. The government plans to increase this amount to $2,532 in September 2001, and $2,608 in September 2002. This amount is equivalent to 60% of the basic instructional grant given to public schools. – Students with severe Physical/Mental disabilities, including severe Autism, receive $11,948 per eligible funded student. Severe Behaviour disabled students receive $9,177. These amounts are equivalent to that of the public system. – Early Childhood Services programs receive $1,306 per funded student, plus additional funding for special needs children. This will increase to $1,345.25 in September 2001, and $1,386 in September 2002. – Registered private schools do not receive funding.

575

STATE SUPPORT FOR RELIGIOUS EDUCATION

– Average per-pupil operating costs in the public school: $5,600.

Saskatchewan – Aside from the exceptions noted below, independent schools are not eligible to receive provincial funding. – Eight historical high schools receive funding; 4 of them now receive full funding, two as associate schools and two through special arrangements, the other 4 receive approx. 40% of the provincial grant. – Four associate schools, who have agreements with school divisions, receive full per-pupil funding. – Three alternate schools receive per-pupil and special education funding. – Average per-pupil operating costs in the public school: $4,266 / secondary student. Manitoba – The per-pupil grant is 50% of the net operating expenditures for public schools two years previously. For the 2000 – 2001 school year this amounts to $2,981 per student. – The grant for special needs students who qualify for Low Incidence Funding is paid at the same rate as that earned by the public schools. The grant for Low Incidence Level II students is $8,565, and for Low Incidence Level III students is $19,055. – The Textbook Grant is $50 per student (100% of public school grant). – Independent schools may enter into Shared Services Agreements with local school divisions for transportation, clinician services and for their students to pursue home economics and industrial arts courses for which they do not have the resources in their own schools. The costs are paid to the school division by the government. – Average per-pupil operating costs in the public school: $5,962. Ontario – No direct grant support. – Average per-pupil operating costs in the public school: $7,105 for 1997-1998. 4XpEHF – Schools with agreements received in 1999-2000: – Preschool $2,504 – Primary school $2,306 – Secondary school $3,210 – Average per pupil operating costs in the public schools in 1997-1998: – Preschool $4,876 – Primary $4,363 – Secondary $5,472 New Brunswick – Per Pupil Cost of Primary/Secondary Education: $6,544 for 1998-99. 576

5. PRIVATE REPORTS

Other Provinces – No direct grant support. 7($&+(5&(57,),&$7,21$1'48$/,),&$7,21 British Columbia A minimum of 4 years post secondary education including one year of teachers training is required to teach in an independent school. However, a vast majority have 4 or 5 years of post-secondary education resulting in a degree, and one year of teacher training UHVXOWLQJLQDWHDFKLQJFHUWLÀFDWH7HDFKHUVPXVWREWDLQFHUWLÀFDWLRQWKURXJKWKH%& &ROOHJHRI7HDFKHUVUHFRPPHQGHGURXWH RUWKURXJKWKHRIÀFHRIWKH,QVSHFWRURI Independent Schools.

Alberta A teacher in an Accredited independent school must hold either 1. a Permanent TeachLQJ&HUWLÀFDWHDQ,QWHULP7HDFKLQJ&HUWLÀFDWHRUD/HWWHURI$XWKRULW\ZKLFK PD\VXEVWLWXWHDVDWHPSRUDU\FHUWLÀFDWHIRURXWRISURYLQFHWHDFKHUVDQGWKRVHZKR DUHDOPRVWÀQLVKHGWKHLUGHJUHHV7HDFKHUVLQ5HJLVWHUHGLQGHSHQGHQWVFKRROVGRQRW UHTXLUHFHUWLÀFDWLRQ

Manitoba 7HDFKHUVPXVWKDYHDSURYLQFLDOFHUWLÀFDWH$PLQLPXPRIKRXUVLQHGXFDWLRQLV UHTXLUHGIRUFHUWLÀFDWLRQ3URYLVLRQDOFHUWLÀFDWHVDUHJUDQWHGDQGDQXPEHURI\HDUV DUHDOORZHGWRPDNHXSWKHSHUPDQHQWFHUWLÀFDWLRQUHTXLUHPHQWV

Saskatchewan 7HDFKHUVPXVWKROGD6DVNDWFKHZDQ7HDFKHU·VFHUWLÀFDWHZKLFKPD\LQFOXGHD/HWWHU RI(OLJLELOLW\RUD3UREDWLRQDU\&HUWLÀFDWH

Ontario :KLOHPDQ\VFKRROVKDYHFHUWLÀFDWHGWHDFKHUVSULYDWHVFKRROVDUHQRWUHTXLUHGWRKLUH FHUWLÀFDWHGWHDFKHUV1RFHUWLÀFDWLRQLVUHTXLUHGIRUWHDFKHUVLQLQGHSHQGHQWHOHPHQWDU\ schools. For independent secondary schools, which want provincial ministry inspections, teachers must obtain at least one of the following: 2QWDULR7HDFKHU&HUWLÀFDWH 2. Bachelor of Education 3. Teacher Education Program qualifying for Letter of Standing

Other Provinces Information not available.

577

6. Canadian Judicial Decisions #28 Re Board of Education for the Borough of North York and Ministry of Education 25G +&- 2QWDULR +LJK&RXUWRI-XVWLFH $SULODIÀUPHG$SULO2QW C.A.) 7KLVZDVWKHÀUVWPDMRUFDVHLQ2QWDULRWRDGGUHVVWKHLVVXHRIUHOLJLRXVLQVWUXFWLRQ in the context of the public education system. In 1978 a group of applicants sought WRLQWHJUDWH+HEUHZVFKRROVLQWRWKHSXEOLFRUSXEOLFDOO\ÀQDQFHGVFKRROV\VWHP The applicants applied for a declaration concerning a proposal put forth by a local school board to integrate Hebrew schools into the public school system. This proposal would have had the effect of establishing a school, or schools, within the school district in which religious courses would be mandatory. Mr. Justice Holland stated: “As the legislation presently stands the question propounded must be answered in the negative. While a pupil may not have a right to attend a particular school within a school district as found in Crawford, there is a clear right in each and every student in each and every school within the district, to claim exemption from any religious studies. To say that this could be overcome by grouping students who are prepared to accept instruction in a particular religion in one school within a school district is illusory… No school board has the power under the present legislation, in my opinion, to establish a mandatory course of religious instruction in any school within the school district under the board’s jurisdiction.” Although this decision was rendered before the Canadian Charter of Rights and Freedoms entered into force, subsequent decisions reached the same result. Other litigants who attempted to draw minority religious education into the public school structure also failed. Reproduced here is the decision of the Ontario High Court of Justice.

5H%RDUGRI(GXFDWLRQIRUWKH%RURXJKRI1RUWK
579

STATE SUPPORT FOR RELIGIOUS EDUCATION

The notice of motion set out the question for determination as follows: Is it proper exercise of the jurisdiction of the Board of Education for the Borough of North York under The Education Act to establish and maintain schools whereby pupils are required to read or study in or from a religious book or to attend in an exercise of devotion or religion on an optional basis in schools within its jurisdiction, but not necessarily within each school within its jurisdiction. The application was vigorously opposed by counsel for the Minister of Education. It was, however, conceded that the facts were undisputed. These facts are as follows. Since on or about August, 1974, meetings and discussions have taken place between the board, the Ministry and Associated Hebrew Schools of Toronto, the purpose of these discussions being to determine whether or not grades 7, 8, and 9 of the Associated Hebrew Schools could be integrated into the North York Public School System. The applicant board by resolution dated July 19, 1976, provided as follows: Trustee Bradley, seconded by Trustee Cowan, moved: (a) That this Board proceed on the basis of a two-year pilot project to integrate grades 7, 8, and 9 of the Associated Hebrew Schools, involving approximately 400 students, into the North York Public School System; (b) That, under the pilot project, the present academic instruction of approximately 5.4 hours be maintained, including the 40-minute per day Hebraic studies for all grades. It should be noted that at the grade 9 level, these studies already have received Ministerial approval as an experimental course; (c) That all students be required to take religious studies; that no fees be charged IRUWKHVHFODVVHVDQGWKDWWKHVHVWXGLHVEHLGHQWLÀHGDVDGLVWLQFWVHSDUDWH addition to the regular academic program; (d) That the credentials of academic staff teaching grades 7, 8 and 9 classes at WKH$VVRFLDWHG+HEUHZ6FKRROVEHHYDOXDWHGIRU&HUWLÀFDWLRQDQG/HWWHUVRI Standing; and that those teachers given Letters of Standing be required to IXOÀOOWKHUHTXLUHPHQWVOHDGLQJWRIXOO&HUWLÀFDWLRQZLWKLQDQDSSURSULDWHWLPH limit; (e) That the pilot project and all members of staff involved in it be under the direct authority of the North York Board of Education in every respect; (f) That permission to commence this pilot project be granted as of 1 September 1976; that this permission be effected not later than 1 January 1977; and that the cessation of the pilot project should take place at the end of the academic year, even if the length of the project should exceed the two-year term; (g) That the pilot project classes remain in the space now occupied by the Associated Hebrew Schools, 3630 Bathurst Street; and that matters pertaining

580

6. CANADIAN JUDICIAL DECISIONS

to rental and maintenance be subject to the approval of the Minister of Education; (h) That the Minister of Education be requested to acknowledge formally his approval of this form of implementation. Trustee Grant, seconded by Trustee Treasure, moved in amendment “That the following words be added to clause (c) after the words ‘that no fee be charged for WKHVHFODVVHV·¶DQGWKDWWKHÀQDQFLDOFRVWEHERUQHRXWRIWKHJHQHUDOIXQGVUDLVHG for education by the United Jewish Welfare Fund’”. The amendment was carried. On being put to the vote, the motion, as amended, was carried. By letter dated August 17, 1976, the Minister responded indicating his concurrence with the proposed integration, subject to conditions set out in this letter, which reads as follows: Dear Mr. Shipman: I have your letter of July 29th, 1976, regarding a proposed pilot project which would bring Grades 7, 8 and 9 of the Associated Hebrew Schools, involving approximately 400 students, under the jurisdiction of the North York Board of Education. I concur with the two year pilot project which would enable the Board to examine under operating conditions the feasibility of the possible integration, under the Acts and Regulations of Ontario, of certain schools into the North York system. This concurrence is based on a consideration of the Board’s resolution of July 19th and is subject to the following conditions: 1. That public funds are not used to pay for the religious program; 2. That there are no religious or ethno-cultural requirements for admission to the school; 3. That a student of the school, or parent of such a student, has the right to claim exemption from the religious studies program consistent with the intent of Section 48 (2) of The Education Act and Sections 41 and 42 of Regulation 191, R.R.O., 1970; 4. That the proposed religious studies program is distinct and separate from the regular school program; 5. That an application for experimental course approval for Hebraic studies for Grades 7 and 8, for 40 minutes per day, to be given on an optional basis and during the 5.4 hour school day, is forwarded to the Ministry through the regular channels and is found acceptable; 6. That the Board obtains the concurrence of the Ontario Teachers’ Federation or LWV$IÀOLDWHVUHJDUGLQJDQ\SURSRVHG/HWWHUVRI3HUPLVVLRQWKDWDUHQHFHVVDU\

581

STATE SUPPORT FOR RELIGIOUS EDUCATION

It is understood that any such Letters of Permission would expire upon the conclusion of the proposed pilot project; 7. That matters pertaining to the rental and maintenance of accommodation are subject to the policies of the North York Board of Education and the Metropolitan Toronto School Board; no legislative grants are payable in respect of this accommodation. 8. That the pilot project and all members of staff involved in the program are under the direct authority of the North York Board of Education in every respect; 9. That if the project starts during the calendar year 1977, it shall terminate June 30th, 1979. I should like to emphasize that this concurrence and these conditions apply to this project only and is based on a study and review of facts as they are known to me as of this date. I would ask that you conduct comprehensive evaluations and submit to me full reports on the project on April 1st, 1978 and January 31st, 1979. In addition I shall KDYH0LQLVWU\RI(GXFDWLRQRIÀFLDOVPRQLWRUWKHSURMHFWRQDFRQWLQXLQJEDVLVDQG keep me informed. I trust that these conditions will be acceptable to you and your colleagues. In conclusion, I should like to congratulate the North York Board of Education for its imagination in working through these arrangements with the Associated Hebrew Schools in order to make it possible to undertake this important project which will further strengthen the public school system.Kindest regards, Cordially, Thomas L. Wells, Minister. Mr. M. I. Shipman, Chairman, The North York Board of Education 5050 Yonge Street, Willowdale, Ontario, M2N 5N8. The Associated Hebrew Schools of Toronto had been carrying on discussions with the applicant board. By letter dated December 15, 1976, the Associated Hebrew Schools of Toronto, under the signature of Louis Weisfeld, chairman of the board, wrote to the North York Board of Education as follows: At a meeting of our Board of Directors held on December 14th, 1976, the following resolution was adopted:

582

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WHEREAS this Board has indicated its willingness to discuss the integration of this School into the North York system, and WHEREAS this Board has repeatedly stated its preconditions for such integration,





%HLWUHVROYHGWKDWWKLV%RDUGUHDIÀUPVLWVZLOOLQJQHVVWRLQWHJUDWHWKH-XQLRU High School into the North York system subject to the following conditions: (a) that the entire school programme, including all of the Jewish studies, be mandatory for all students in this School. (b) that the school day remain at approximately the same number of hours as currently prevail. That this School determine the timetable to ensure that all of the staff in both the Jewish and General Studies areas are properly deployed, F  WKDWWKHVFKRROFDOHQGDUEHVRÀ[HGDVWRHQVXUHWKDWWKH-HZLVKKROLGD\V are observed, (d) that the time devoted to Jewish studies remain at the level currently prevailing in this School, H  WKDWWKLV6FKRROPDLQWDLQDVLJQLÀFDQWYRLFHLQWKHFXUULFXOXPDQGVWDIÀQJ decisions of this School through an advisory committee recognized by the North York Board on the model of the French schools in the North York system. (f) that this School be permitted to insist that staff and students deport themselves in a manner consistent with the philosophy of this School. This shall include our right to maintain Jewish symbols in the classrooms, to insist on appropriate standards of dress for students, to enforce rules specifying that only kosher food may be consumed in the building and so on. Be it further resolved that this resolution be transmitted to the North York Board LPPHGLDWHO\DQGWKDWWKH$VVRFLDWHGQHJRWLDWLQJFRPPLWWHHPHHWZLWKRIÀFLDOV of the North York Board as soon as possible with a view to concluding these discussions. Be it further resolved that this resolution be transmitted to the parents of all children currently in the School so that they may be kept informed of the developments in this important area. The Minister of Education generally agreed with the proposal for this which was to be a pilot project subject to the following conditions: 1. That public funds were not to be used to pay for the religious programmes; 2. that there would be no religious or ethno-cultural requirements for admission to the school; 3. that a student of the school, or parent of such a student, has the right to claim exemption from the religious studies programme consistent with the intent of s. 48(2) of the Education Act and ss. 41 and 42 of R.R.O. 1970, Reg. 191;

583

STATE SUPPORT FOR RELIGIOUS EDUCATION

4. that the proposed religious studies programme would be distinct and separate from the regular school programme. Section 48 of the Education Act, 1974 (Ont.), c. 109, as amended, reads as follows: Religious Instruction 48(1) Subject to the regulations, a pupil shall be allowed to receive such religious instruction as his parent or guardian desires or, where the pupil is an adult, as he desires. (2) No pupil in a public school shall be required to read or study in or from a religious book, or to join in an exercise of devotion or religion, objected to by his parent or guardian, or by the pupil, where he is an adult. This section is contained in Part III of the statute which Part, by its heading, applies to public and secondary schools. Revised Regulations of Ontario 1970, Reg. 191, passed under the Department of Education Act, R.S.O. 1970, c. 111, provides, in part, as follows: RELIGIOUS EXERCISES AND RELIGIOUS EDUCATION IN THE PUBLIC SCHOOLS 41(1) A public school shall be opened or closed each school day with religious exercises consisting of the reading of the Scriptures and the repeating of the Lord’s Prayer or other prayers approved for use in schools. (2) The Scripture passages, forming a part of the religious exercises referred to in subsection 1, shall be read daily and systematically at the opening or closing of every public school and may be chosen from any list of selections adopted by the Department for use in public schools, or from any other public school list approved by the Minister, as the public school board by resolution directs. … (5) Two periods per week of one-half hour each, in addition to the time assigned to religious exercises at the opening or closing of public school, shall be devoted to religious education. … (11) No pupil shall be required to take part in any religious exercises or be subject to any instruction in religious education where his parent applies to the principal of the school for exemption of the pupil from religious instruction. (12) In the public schools without suitable waiting rooms or other similar accommodation, if the parent of a pupil applies to the principal for the exemption of the pupil from attendance while religious exercises are being held or religious education given, such request shall be granted.

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6. CANADIAN JUDICIAL DECISIONS

… (14) If, because of his right to be absent from religious exercises or instruction in religious education, any pupil is not present in the classroom during the periods VSHFLÀHGIRUUHOLJLRXVH[HUFLVHVRULQVWUXFWLRQLQUHOLJLRXVHGXFDWLRQKLVDEVHQFH shall not be considered a contravention of the rules of the school. RELIGIOUS EXERCISES AND RELIGIOUS EDUCATION IN THE SECONDARY SCHOOLS 42(1) A secondary school shall be opened or closed each school day with religious exercises consisting of the systematic reading of the Scriptures and the repeating of the Lord’s Prayer. (2) A board may by resolution direct the principal to choose the Scripture passages from the Bible or from Bible Readings for Schools, issued by the Department. (3) Where the board does not pass a resolution, the principal shall, after notifying the board, select the Scripture passages from the Bible or from Bible Readings for Schools, issued by the Department. (4) The Scripture passages selected by the principal may be changed by resolution of the board for other passages from the Bible or from Bible Readings for Schools, issued by the Department. (5) As part of the religious exercises the board may direct, (a) the teacher and the pupils to read Scripture passages at the close of the school day; and (b) the principal to suggest Bible passages to be memorized by the pupils. (6) A clergyman or any person selected by him may be authorized by resolution of the board to give religious instruction to pupils of his own denomination at a time during the school day allotted by the principal, but the time so allotted by the principal shall not exceed one hour a week for any one class. (7) The clergymen of a number of denominations may be authorized by resolution of the board to select a lay person to give religious instruction to the pupils of those denominations at such times during the school day as are allotted by the principal, but the times so allotted by the principal shall not exceed one hour a week for any one class. (8) Where, (a) more than one clergyman obtains the board’s permission to give religious instruction; and

585

STATE SUPPORT FOR RELIGIOUS EDUCATION



E WKHVFKRRODFFRPPRGDWLRQLVLQVXIÀFLHQWIRUWKHLQVWUXFWLRQWREHJLYHQ at the same time, the board shall by resolution determine the day of the week that accommodation will be available for each denomination. (9) Religious instruction in a secondary school shall be given in the school building. (10) Where a parent of a pupil objects to the pupil’s taking part in religious exercises or being subject to instruction in religious education, the pupil may leave the classroom during the exercises or instruction or remain in the classroom, whichever the parent directs. (11) Before the teacher, clergyman or lay person selected by the clergyman commences a religious exercise, a pupil on whose behalf objection has been made shall be allowed to leave the classroom. (12) A teacher, claiming exemption from the teaching of religious education as prescribed by this section, shall notify the board to that effect in writing and the board shall make such other provision as is necessary to implement this section with respect to the teaching of religious education. (13) No religious emblem of a denominational nature shall be exhibited in a secondary school during school hours, except during the time allotted by the principal to religious instruction.

Since the proposal is to integrate grades 7, 8 and 9, then grades 7 and 8 would be governed by s. 41 and grade 9 would be governed by s. 42 of the Regulations. 7KH SDUWLHV KDYH UHVROYHG DOPRVW DOO SUREOHPV LQFOXGLQJ TXDOLÀFDWLRQ RI WHDFKHUV DQGDFWXDOÀQDQFLDOPDWWHUVGHDOLQJZLWKWKHSLORWSURMHFW$JUHHPHQWFRXOGQRWEH reached, however, on the condition that Hebrew religious education be mandatory in the integrated school. As appears from a reading of art. 48(1) of the Act and ss. 41 and 42 of the Regulations, while religious instruction is provided for, both in public and in secondary schools, there is a clear right given, exercisable by the parent or student as the case may be, pursuant to which the pupil is not obliged to participate in or be present at any such religious instruction. I point out that s. 41 of the Regulation commences with the words “A public school”. Section 42 of the Regulation, s-s. (1) commences with the words “A secondary school”. This makes it clear to me that all the subsections following refer to rights and duties in each school building. 7RRYHUFRPHWKHGLIÀFXOW\DULVLQJRXWRIFRPSXOVRU\DWWHQGDQFHDW+HEUHZUHOLJLRXV LQVWUXFWLRQRIDOOVWXGHQWVDWWKHLQWHJUDWHGVFKRRODFRQGLWLRQUHTXLUHGWREHVDWLVÀHG by the Associated Hebrew Schools and acceptable to the applicant board) it has been proposed by the applicant board that this problem can be resolved consistent with the intention of the Act and the Regulations by proceeding as follows:

586

6. CANADIAN JUDICIAL DECISIONS

1. That the integrated school or schools teach a mandatory course of Hebrew studies being so authorized by the applicant Board. The time involved in such course of religious study would be during the time set out in the Act and Regulations and such other further time as the North York Board determines. The cost attached to this course in so far as it exceeded the time for religious studies already provided for in the Act and Regulations, namely, one hour per week, would be borne by the Jewish Community. 2. A distinction be made between a school and a school district with respect to the teaching of this religious course. 3. Prior to the opening of the school in any school year the students and parents would be polled with respect to whether or not a student in the area ordinarily covered by the school wished to participate in this course of religious study or wished to be exempt therefrom as provided for in the Act and Regulations. 4. That where it was so indicated that a student not attend or participate in the mandatory course of religious studies at the school to which this student would ordinarily be assigned, the student would be assigned to another school within the same school district. In putting forward this proposal the applicant Board stresses that pursuant to the statute and the Regulations the right to give religious instruction and the contents of that instruction is given to the Board. It is acknowledged that, the right on the part of the parent of a pupil or pupil not to participate is likewise established but that this in no way should be construed as limiting the right to teach the course. This proposal would have the effect of establishing a school or schools within the school district in which school or schools denominational religion courses would be taught and which courses would be mandatory for all students attending that school. It is the position of the board, that no pupil has a right to attend a particular school, although a pupil has a right to attend a school within his school district. The board asserts that it may comply with its obligations by assigning any objecting student to another school within the district where Hebrew religious instruction is not taught. It is the position of the Minister that the statute and the Regulations apply to each and every school building under the jurisdiction of the board and that no school can be conducted so as to eliminate the right of the parent or student to claim exemption from the mandatory course of Hebrew religious instruction. Counsel for the board strongly argues that no student has a right to attend any particular school. He places his client’s position as either succeeding or failing depending upon the determination by this Court on that issue. Mr. Laidlaw, for the board, says: If it can be said on a proper construction of The Education Act that a student has a right to attend a particular school then the submission on behalf of the Board of North York falls. It follows, he argues, if a student does not have that right and the board has a right to assign students to any school in a district, then any religious course should be looked upon as just another course. 587

STATE SUPPORT FOR RELIGIOUS EDUCATION

Section 146, paras. 6 and 9 of the Education Act requires every board to 6. provide instruction and adequate accommodation during each school year for the pupils who have a right to attend a school under the jurisdiction of the board; … 9. ensure that every school under its charge is conducted in accordance with this Act and the regulations; In support of its submission relating to whether or not a pupil has a right to attend a particular school the applicant board relied upon the decision of Crawford et al. v. Ottawa Board of Education, [1971] 1 O.R. 267, 15 D.L.R. (3d) 141, and upon the decision of the Ontario Court of Appeal in the same action reported at [1971] 2 O.R. 179, 17 D.L.R. (3d) 271. The Crawford case was an application for an injunction restraining the defendant board from converting Champlain High School in Ottawa into a Frenchlanguage school, or taking any steps in denegation of the rights of English-speaking pupils pending the determination of the action. At the hearing of the motion before Stewart, J., on consent of all parties, the motion was turned into a motion for judgment for injunctive relief. The action was brought by members of the Ottawa English Speaking Ratepayers Association as a class action, they having pupils or prospective pupils in the area who desired to be taught in the English language. The power of the defendant board at that time to change an existing high school from English to French, or to establish it as a French school, and thus eliminate English as a basis for education at that school, was said to have been established by the Secondary Schools and Boards of Education Act, R.S.O. 1960, c. 362, as amended, and particularly s. 113 thereof [enacted 1968, c. 122, s. 10]. Section 113 reads as follows: 113(1) A board may establish and maintain secondary schools or classes in secondary schools for the purpose of providing for the use of the French language in instruction …  :KHUHIRUVHFRQGDU\VFKRROSXUSRVHVLQDVFKRROGLYLVLRQDVXIÀFLHQWQXPEHU of pupils who elect to be taught in the French language can be assembled for this purpose in classes or groups of twenty or more in each programme or branch, the board shall provide for the use of the French language in instruction in such classes or groups, and where, in the opinion of the board, the number of such pupils so warrants, the board shall provide for the use of the French language in instruction in a composite school. Stewart, J., in dealing with the suggestion by counsel for the applicant that “school” meant the building in which teaching was given said, on p. 270: This word has been used in many senses being applied to a schoolhouse, a building of an academic complex, the totality of students, the members of the staff as a class,

588

6. CANADIAN JUDICIAL DECISIONS

the habit of thought common to the teaching proffered and so on. In Bradbury et al. Y/RQGRQ%RURXJKRI(QÀHOG>@$OO(5DWSLWZDVVDLGWKDW “… ‘school’ is an institution which exists independently of the buildings in which it is housed for the time being. Many a school retained its identity during the war even though it was evacuated to a place two hundred miles away. …” It was pointed out that in the Schools Administration Act, R.S.O. 1960, c. 361, s. 34, the word “school” had been used in a variety of senses. At p. 272 the judgment continues: ,WLVIXUWKHUVDLGWKDWXQOHVVDVSHFLÀFSRZHULVJLYHQWRDOWHUDVFKRRORUIRUWKDW matter, to eliminate it, there is no power to do so. It is suggested that the pupils have vested rights in relation to Champlain School. With this I cannot agree. There is only one school division for Ottawa and its environs, and the Board of Education must supply some school to which students may go within this area. This is the only vested interest that they have. No pupil has any vested interest in any single school. The word “establish” must be given its widest meaning and there is no reason, in my view, why the defendant Board cannot establish a French-speaking school to be held in the buildings now occupied by and known as the Champlain High School. (Emphasis added.) And further: It is said in argument that “this form of dislocation for the purpose of segregating the English and French speaking students is contrary to the terms of the Act and the spirit of bi-cultural education envisaged by it. I can see nothing in the Act which renders the decisions of the Board contrary to its terms and, although local English-speaking students who wish to be educated in English must now pursue learning in other high schools throughout Ottawa, presumably this dispersal, although uncomfortable and disturbing, is to facilitate the teaching in French of French-speaking students, and to say that this is against the current principles of bi-culturalism is highly questionable. The application, therefore, was dismissed as was the action. The decision of the Court of Appeal dismissing the Appeal was given by Kelly, J.A. In this judgment considerable attention was given to substantial amendments which had been effected to the Secondary Schools and Boards of Education Act, by the amending statute 1968 (Ont.), c. 122, which gave wide powers to the Board (not previously held) for the establishment and maintenance of secondary schools or classes in secondary schools for the purpose of providing for the use of French language in instruction. At pp. 182-3, the judgment of the Court reads: According to a statement released by the predecessor board, several months after Part VIII came into force, the predecessor board integrated with the public educational system seven French-language schools which had formerly been operated by religious orders; the Board also established the Grade XIII Pavilion, a small school offering senior matriculation in the French language for students from all

589

STATE SUPPORT FOR RELIGIOUS EDUCATION

parts of Ottawa; all the French-language high school buildings were leased from their owners on a contract basis; the increase in the number of French-language students and the anticipated unavailability after June, 1970, of one of the leased buildings which had accommodated 400 students required the predecessor board to choose one of two courses of action -- the building of a new school in which instruction would be in French or the better use, by a redistribution of students, of existing facilities continuing to be available. Choosing the latter course in the interests of economy, the predecessor board had, on November 19, 1969, decided in favour of instituting Grade IX French-language classes in one of the schools at which the English language only had been the language of instruction, choosing Champlain High School for the reasons set out in the statement. At p. 185 in the decision of the Court of Appeal the following appears: It is to be assumed that, if the Board has authority to do what it has decided to do, it will implement its decision by means which are within the scope of its authority. The mere possibility that the Board might proceed by an unlawful means is not ground for declaring null and void a resolution, if that resolution be one a board might lawfully adopt. The Court is not asked to interfere quia timet, but on the sole ground that the resolution is not one which the Board had authority to adopt. And again at p. 186: In this Province, subject to compliance with the general statutory provisions and regulations directed towards the observance of minimum standards in the quality of educational facilities and instruction, a local school board, be it public, separate, high school or a board of education, is an autonomous body locally constituted and primarily responsible to the ratepayers supporting it for the provision of the educational needs of the pupils of that area. In dealing with the obligation of the Board, the Court set out the following, at pp. 187-8: The obligation of the Board, shortly stated, is to provide for the pupils, for whom LWLVUHVSRQVLEOHDGHTXDWHDFFRPPRGDWLRQDQGDQDGHTXDWHQXPEHURITXDOLÀHG teachers. In the discharge of these duties it is required to establish and maintain at least one high or vocational school. It has authority but is not required to establish and maintain additional schools. By virtue of its general powers of management, the Board may erect or rent buildings, may contract with another board for the use by its pupils of the facilities of the other board, may determine the particular type of instruction which will be given in any building from time to time, discontinue the use of any building for any one or more purposes and in general make such use of its physical facilities and the persons it employs in whatsoever manner as will, in LWVMXGJPHQWEHVWIXOÀOLWVRYHUULGLQJREOLJDWLRQWRDFFRPPRGDWHDQGWHDFKDOORI its pupils. It is apparent from the provisions of s. 68 (2) [rep. & sub. 1964, c. 106, s. 15; am. 1967, c. 91, s. 13] of the Secondary Schools and Boards of Education Act that the Legislature does not contemplate that in every school building will be offered instruction in the complete range of secondary school subjects. School

590

6. CANADIAN JUDICIAL DECISIONS

authorities have always been left a large measure of self-determination in assessing the educational needs of their constituencies and in deciding how they shall conduct their affairs to meet and provide for such needs. [Emphasis added.] At p. 190 the Court deals with the right conferred upon a pupil by the relevant statute. Kelly, J.A., goes on to say: I turn now to consider whether the rights conferred on pupils impose upon the Board any obligation which would be prejudicially affected by the passage of the resolution in question. The only basic right of the pupil which could result in any obligation on the Board is that set out in s. 68 of the Secondary Schools and Boards of Education Act, a right of the pupil resident in the school division to attend a secondary school in his school district, in this case the school division. Since the adoption of the resolution and even its implementation, whatever might be the result with respect to Champlain High School, would not interfere with any pupil’s right, provided that the Board is prepared to admit him to and accommodate him in a school wherein the use of the English language in instruction prevails in the classes in which he is being instructed, I fail to see how the resolution of itself constitutes an action which would deny, infringe upon or adversely affect the pupil’s rights. … What the Board has done in deciding to establish classes for the use of the French language in instruction and ultimately to maintain Champlain High School as a secondary school for the purpose of providing for the use of the French language in instruction is precisely what s. 113 contemplates it shall have power to do. The discontinuance of classes for the use of the English language in instruction, in my view, then becomes no different than the discontinuance of, say, vocational subjects and the accommodation of vocational pupils in other schools under the jurisdiction of the Board. There may be some rights of some pupils to continue in Champlain High School for a limited period of time as is contemplated by s. 97, which I have quoted, but it is to be assumed that the Board’s purpose can and will be accomplished without doing violence to any of the rights created thereby. [Emphasis added.] I have quoted at length from this case because it was the only case cited to me by counsel on the issue and because counsel for the applicant placed substantial reliance on this case as authority for the proposition that a student has no right to insist upon attending a particular school within his school district as long as the board is prepared to admit him to and accommodate him in a school within his school district. Counsel for the applicant board has made a powerful and logical argument to support his client’s contention. There are, however, in the application before me, substantial differences between the problem faced in the Crawford case and that encountered in the present application. The right of the board to provide for French language teaching in Crawford was clearly established by relevant legislation. The method for the implementation appears to have

591

STATE SUPPORT FOR RELIGIOUS EDUCATION

been clearly set out in s. 113 of the statute. The fundamental issue in that application appeared to be whether the board could change a school which had been conducted as a school in which English language instruction was given to one which eliminated the English language instruction and in place thereof provided for French language LQVWUXFWLRQ7KHGHFLVLRQRIWKH&RXUWZDVWKDWWKHERDUGZDVVSHFLÀFDOO\HPSRZHUHG to do this. In the present case while general authority is given to provide for the contents of courses of instruction including that of religious studies, this is subject to the following: 1. In the case of a public school, s-s. 41(2) would appear to give the Department and the Minister some overriding authority with respect to scripture passages forming part of religious exercises which are to be used. 2. Subsection (7) requires that instruction in religious education shall be given by the teacher in accordance with the course of study authorized for that purpose by the Department and issues of controversial or sectarian nature shall be avoided. 3. In the case of a secondary school s. 42(13) provides that no religious emblem of a denominational nature shall be exhibited in a secondary school during school hours except during the time allotted by the principal for religious instruction. 4. In the case of both public and separate schools the right exists exercisable by or on behalf of any pupil in each school within the jurisdiction of the board to claim exemption from and the right not to attend to any religious instruction provided at each school within the Board’s jurisdiction. In my opinion, the proposal put forward would offend against the clear intention of the Legislature as found in the plain and ordinary meaning of the Act and Regulations and, in particular, s. 48(1) of the Act and ss. 41 and 42 of the Regulations from which I have quoted. That intention is that (a) no school is to be permitted which is denominational, (b) all controversial or sectarian religious studies are to be avoided, and (c) there are not to be any mandatory courses of religious instruction in any school. While the term “school” may have been interpreted in other statutes in various ways to include a physical building, or a course of instruction or a group of pupils, it is my view that in s. 48(1) of the Act and ss. 41 and 42 of the Regulations the meaning to be given therein to the word “school’’ is “the actual physical building” in which a pupil is attending classes. As the legislation presently stands the question propounded must be answered in the negative. While a pupil may not have a right to attend a particular school within a school district as found in Crawford, there is a clear right in each and every student in each and every school within the district, to claim exemption from any religious studies. To say that this could be overcome by grouping students who are prepared to accept instruction in a particular religion in one school within a school district is illusory. Students or parents on behalf of students may elect to opt out of any religious instruction at any time and not merely prior to the commencement of a school year when under the proposal put forward the applicant board could assign students to another school. If the applicant board was correct in its proposal to overcome the problem which I have been 592

6. CANADIAN JUDICIAL DECISIONS

called upon to consider, we could be faced with the situation where, within any school GLVWULFWRQHFRXOGÀQGGHQRPLQDWLRQDOVFKRROVHDFKWHDFKLQJLWVRZQVSHFLDOPDQGDWRU\ course in religion. This would be a clear departure from the intention of the Legislature in my opinion. Counsel for the applicant, when this question was posed during the course of argument, stated that this was conceivable under the current legislation and that the school board would be required, if necessary, to build additional schools to so accommodate the pupils in the different groups. I am unable to accept that submission as having any persuasive force. No school board has the power under the present legislation, in my opinion, to establish a mandatory course of religious instruction in any school within the school district under the board’s jurisdiction. The question propounded is answered in the negative. Before leaving this interesting problem perhaps I may be permitted to make the comment that courses in religious instruction of all denominations would appear to have merit from an educational view-point. To accomplish this within the present publicly supported school systems would, however, require substantial and I suspect highly controversial amendments to the present Act and its philosophy. In the circumstances, because of the novel nature of this application, I do not consider it to be a case for costs. Order accordingly.

593

#29 Reference re an Act to Amend the Education Act (Ontario)  '/5WK 6&& The Bill 30 Case), 25 June 1987 (Supreme Court of Canada) In 1984 the government of Ontario introduced legislation, subsequently known as the Education Amendment Act, 1986 (Bill 30), that would extend public funding of Roman Catholic separate schools to the end of Grade 13. Previously, Catholic VHSDUDWHVFKRROHGXFDWLRQZDVSXEOLFO\ÀQDQFHGRQO\WRWKHHQGRI*UDGH,Q order to avoid any future questions on the constitutional legality of such legislation, the government of Ontario referred the following question to the Ontario Court of Appeal: “Is Bill 30, An Act to Amend the Education Act inconsistent with the provisions of the Constitution of Canada including the Canadian Charter of Rights and Freedoms and, if so, in what particular or particulars and in what respect?” On 18 February 1986 a majority of the Ontario Court of Appeal answered the question in the negative. The appellants appealed to the Supreme Court of Canada and on 25 June 1987 the Supreme Court dismissed the appeal. The central issue decided was the effect of the Canadian Charter of Rights and Freedoms RQ RWKHU SDUWV RI WKH FRQVWLWXWLRQ RI &DQDGD VSHFLÀFDOO\ V 7KH question concerned the resolution of the incompatibility of section 93 with its special protection of Roman Catholics in Ontario, and the equality rights and the freedom of religion provisions of the Charter. The Supreme Court held that at the time of Confederation, 1867, Roman Catholic separate school supporters were guaranteed by law the right to have their children receive an appropriate education and that this guarantee could include instruction at the secondary school level. The majority held that section 93 and all the rights and privileges it afforded were immune from Charter scrutiny on the grounds that no provision of the constitution was intended to invalidate or have paramountcy over any other provision of the constitution of Canada. Justice Wilson, writing for the majority, stated: “The Charter cannot be applied so as to abrogate or derogate from rights or privileges guaranteed by or under the Constitution….It was never intended, in my opinion, that the Charter could be used to invalidate other provisions of the constitution, particularly a provision such as s.93 which represented a fundamental part of the Confederation compromise.” Section 29 of the Charter, which provides that “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”, was not LQYRNHGLQMXVWLÀFDWLRQRIWKHPDMRULW\·VDUJXPHQW At the same time, however, Justice Wilson acknowledged that the result “sits uncomfortably with the concept of equality embodied in the Charter.” In her words,

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“I believe it [section 29] was put there simply to emphasize the special treatment guaranteed by the constitution to denominational, separate or dissentient schools, even if it sits uncomfortably with the concept of equality embodied in the Charter.” Similarly, in a concurring opinion Justice Estey conceded that the funding of only Roman Catholic religious schools was discriminatory: “It is axiomatic (and many counsel before this court conceded the point) that if the Charter has any application to Bill 30, this Bill would be found discriminatory and in violation of ss. 2(a) and 15 of the Charter of Rights.” The Bill 30 case therefore found that the exclusive funding of Roman Catholic schools was shielded from Charter scrutiny by virtue of the historical inequities of 1867 embedded elsewhere in the constitution. The original, historical compromise RIWRRNSULRULW\RYHUWKHHTXDOLW\ULJKWVDIÀUPHGLQWKHPRGHUQFRQVWLWXWLRQDO text of 1982. Reproduced here is the decision of the Supreme Court of Canada.

5HIHUHQFH5H$Q$FWWR$PHQGWKH(GXFDWLRQ$FW2QWDULR -XQH 1987 The judgment of Dickson C.J. and McIntyre, Wilson, and La Forest JJ. was delivered by WILSON J.: This is an appeal from the decision of the Court of Appeal for Ontario on a question referred for its consideration by the Lieutenant-Governor in Council (by Order in Council 1774/85, dated July 3, 1985) pursuant to the Courts of Justice Act, 1984 (Ont.), c. 11, s. 19. The question reads as follows: Is Bill 30, An Act to Amend the Education Act inconsistent with the provisions of the Constitution of Canada including the Canadian Charter of Rights and Freedoms and, if so, in what particular or particulars and in what respect? By order of the Chief Justice of Ontario dated July 4, 1985, the Attorney-General for the Province of Ontario was given carriage of the reference and notice of the reference was duly published. A number of parties were given leave by the Court of Appeal to intervene in the hearings before that court. On February 18, 1986 a majority of the Court of Appeal (Zuber, Cory and Tarnopolsky JJ.A) answered the reference question in the negative: see Reference re An Act to Amend the Education Act (1986), 25 D.L.R. (4th) 1, 53 O.R. (2d) 513, 23 C.R.R. 193. The Chief Justice of Ontario and Robins J.A. dissented. The Appellants have appealed to this court pursuant to s. 37 of the Supreme Court Act, R.S.C. 1970, c. S-19, as amended, and s. 19(7) of the Courts of Justice Act, 1984. Leave to intervene was granted by this court to the Quebec Association of Protestant 6FKRRO%RDUGV1RWLFHRILQWHQWLRQWRLQWHUYHQHLQWKLVFRXUWZHUHGXO\ÀOHGE\WKH Attorney-General for the Province of Alberta and the Attorney-General for the Province of Quebec.

596

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1. BILL 30 The preamble to Bill 30 [now 1986 (Ont.), c. 21, infra] indicates that its purpose is to LPSOHPHQWDSROLF\RIIXOOÀQGLQJIRU5RPDQ&DWKROLFVHSDUDWHKLJKVFKRROVLQ2QWDULR The preamble reads as follows: Whereas section 93 of the Constitution Act, 1867 embodies one of the essential conditions which facilitated the creation of a united Canada in 1867 by guaranteeing to Roman Catholics in Ontario certain rights and privileges with respect to denominational schools; and whereas the Roman Catholic separate schools have EHFRPHDVLJQLÀFDQWSDUWRIWKHVFKRROV\VWHPLQ2QWDULRDQGZKHUHDVLWKDVEHHQ public policy in Ontario since 1899 to provide for public funds to support education in the Roman Catholic separate schools to the end of Grade 10; and whereas it is recognized that today a basic education requires a secondary as well as an elementary education; and whereas it is just and proper and in accordance with the spirit of the guarantees given in 1867 to bring the provisions of law respecting Roman Catholic separate schools into harmony with the provisions of the law respecting public elementary and secondary schools, by providing legislative recognition of and funding for secondary education by Roman Catholic separate schools … The Bill permits a separate school board to elect by by-law to perform the duties of a secondary school board with the approval of the Minister (s. 136a). Once such an election has been made and approved by the Minister, the separate school board becomes a “Roman Catholic school board” (s. 1(1), para. 46a) and , according to s. 136e(1), becomes “entitled to share in the legislative grants for secondary school purposes”. Section 136j exempts separate school supporters within the jurisdiction of a Roman Catholic school board from the payment of rates or taxes for secondary school purposes. But, by section 136k, “[t]he provisions [of the Education Act, R.S.O. 1980, c. 129] … that apply to … the levying and collection of rates or taxes for separate school purposes DSSO\ZLWKQHFHVVDU\PRGLÀFDWLRQVIRUVHFRQGDU\VFKRROSXUSRVHVLQUHVSHFWRID5Rman Catholic school board”. Every public board of education is required by s. 136-l to prepare a list of teaching and non-teaching staff whose services will not be required because of an election by a Roman Catholic school board to perform the duties of a secondary school board. During the ten years following its election the Roman Catholic VFKRROERDUGPXVWÀOOSRVLWLRQVRQLWVWHDFKLQJVWDIIE\RIIHULQJHPSOR\PHQWWRWKRVH RQWKDWOLVWZKRSRVVHVVSURSHUTXDOLÀFDWLRQV7KHUHDUHRWKHUSURYLVLRQVFRQFHUQLQJ the functions of the Planning and Implementation Commission established in the Bill and transfers of use or ownership of real and personal property between public school boards and Roman Catholic school boards which are not central to the constitutional issues in this appeal. The Ontario Court of Appeal, quite properly, considered the constitutional validity of Bill 30 as it stood at the date of the reference. At that time Bill 30 had already been JLYHQÀUVWUHDGLQJLQWKH2QWDULR/HJLVODWXUH6XEVHTXHQWWRWKHGHFLVLRQRIWKH&RXUW of Appeal Bill 30 was passed into law as “An Act to amend the Education Act”, 1986 (Ont.), c. 21 [the Education Amendment Act, 1985]. This Act contains a number of sections which were not present in Bill 30 at the time of the reference. In particular,

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s. 136-la dealing with the hiring and promotion of teachers was not in the Bill. These changes prompted an application for directions to this court on October 8, 1986. The question posed was as follows: Whether this Court, on the appeal, should consider the constitutionality of Bill 30 in the form in which it appeared in the reference to the Court of Appeal for Ontario and not any question arising from a subsequent enactment not before that Court? Assuming without deciding that it had jurisdiction pursuant to ss. 37 and 50 of the Supreme Court Act to render an opinion upon issues that were not before the Court of Appeal, this court ruled that since the sections which were added to Bill 30 after the reference to the Court of Appeal were complex and important, it was “not disposed to DGMXGLFDWHXSRQWKHFRQVWLWXWLRQDOYDOLGLW\RIDODZRI2QWDULRZLWKRXWEHQHÀWRIWKH wisdom of the Court of Appeal of that Province”. I want to emphasize, therefore, that in this case the court is determining the constitutionality of Bill 30 in the form referred to the Ontario Court of Appeal and not the constitutionality of the Act currently in force in Ontario.

7+(&28572)$33($/ The majority of the Court of Appeal (Zuber, Cory and Tarnopolsky JJ.A.) held that Bill 30 was intra vires the Ontario Legislature under s. 93 of the Constitution Act, 1867. Section 93 reads as follows: 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: (2) All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen’s Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen’s Protestant and Roman Catholic subjects in Quebec: (3) Where in any Province a System of Separate or Dissentient Schools exist by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen’s Subjects in relation to Education: (4) In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due

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Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section. The majority, before addressing the issue whether the Legislature could validly enact Bill 30, emphasized the pivotal role which s. 93 had played in the negotiations leading up to Confederation and concluded (at pp. 55-6 D.L.R., pp. 567-8 O.R.) that “provision for the rights of Protestants and Roman Catholics to separate schools [i.e., s. 93] became part of ‘a small bill of rights’ as a basic compact of Confederation”. It is unclear, however, from the reasoning of the majority, if I may say so with the greatest of respect, whether it upheld Bill 30 under the plenary power conferred on the province in relation to education by the opening words of s. 93 or because the legislature returned to separate school supporters right and privileges constitutionally guaranteed to them by s. 93(1). There are passages in the reasons of the majority which would support either basis of decision. For example, the following passage (at p. 57 D.L.R., S25 ZRXOGVHHPWRPHWRVXSSRUWWKHÀUVWEDVLV By the opening paragraph of s. 93, the provincial legislatures were granted plenary powers over education, subject only to the legal restrictions of head (1) and to the possibility, never realized, of being overridden by action of the Governor-General in Council and the Parliament of Canada, under heads (3) and (4). Therefore, at least at any time prior to the coming in force of the Charter and of s. 15 thereof, there was nothing in s. 93 that would have prevented the provincial Legislature from providing for full funding of Roman Catholic separate high schools, unless it could be shown that such law would “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”. It may be that it was the majority’s reliance on this reasoning which caused it earlier in its reasons (at p. 53 D.L.R., p. 565 O.R.) to comment that it was not necessary to express an opinion as to the continuing validity of the Privy Council’s decision in Tiny Separate School Trustees v. The King, [1928] 3 D.L.R. 753, [1928] A.C. 363 sub nom. Roman Catholic Separate School Trustees for Tiny v. The King, [1928] 2 W.W.R. 641. That case, which reviewed the rights and privileges referred to in s. 93(1), i.e., those held by separate school supporters in Ontario by law at the time of Confederation, is primarily relevant to the alternate basis on which the majority may have reached its decision. And there is some reason to believe that the alternate basis was the real basis of the decision. For the majority went on to say (at p. 58 D.L.R., p. 570 O.R.) that even if they were to ignore the Tiny decision and base their decision on an examination of the legislation in force – the Common Schools Act, C.S.U.C. 1859, c. 64; the Separate Schools Act, 1863 (U.C.), c. 5 (“Scott Act”), and the Grammar Schools Act, 1865 (U.C.) c. 23 – they would have to conclude (at p. 59 D.L.R., pp. 570-71 O.R.) that: … secondary school education up to the pre-university level was being given in separate schools, that the textbooks used were not disapproved, and that full and equal funding for such pupils and such grades was being provided by the province …

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STATE SUPPORT FOR RELIGIOUS EDUCATION

Therefore … it seems clear that by s. 93 the province can now decide to return to separate schools the rights they exercised in 1867 to provide secondary school education and to receive equal proportionate funding for such education, unless there is something in the Charter to preclude it. Given that the Bill could be validly enacted pursuant to s. 93 of the Constitution Act, 1867, it then fell to the majority to consider whether any other provisions of the Constitution rendered the Bill ultra vires. Section 15 (equality) and s. 2(a) (freedom of conscience and religion) of the Canadian Charter of Rights and Freedoms had been advanced by those opposing the constitutionality of the Bill. The majority held that no part of the Constitution could be paramount over any other part. Thus, in its view, none of the provisions of the Charter could operate so as to render invalid any of the provisions of the Constitution Act, 1867. This conclusion was supported in the case of separate schools, the majority found, by s. 29 of the Charter which provides: 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. According to the majority of the Court of Appeal this section was intended to include not only constitutional guarantees of rights or privileges in respect of denominational, separate or dissentient schools but also “rights or privileges granted by laws enacted under the authority of the Constitution” (at p. 60 D.L.R., p. 572 O.R.). In arriving at this interpretation of s. 29 of the Charter the majority relied heavily on the intention of the framers of the Charter as disclosed in the Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 1980-1981. The majority concluded that nothing in the Charter could abrogate or derogate from the rights guaranteed by s. 93 or conferred by the province under legislation enacted by the province pursuant to its plenary power in relation to education. They said at pp. 63-4 D.L.R., pp. 575-6 O.R.: [Section] 29 was intended to protect only “any rights or privileges guaranteed by … the Constitution of Canada”, such as those in s. 93 of the Constitution Act, 1867 … but also “any rights or privileges guaranteed … under the Constitution of Canada, such as those contained within provincial statutes enacted pursuant to the plenary power over education in the opening paragraph of s. 93. Bill 30, if enacted, would be one such statute and so must, at least in its basic purpose and over-all thrust, receive the protection of s. 29 from any abrogation or derogation because of any of the rights or freedoms set out in the Charter, including ss. 2(a) and 15. … 7KHVHHGXFDWLRQDOULJKWVJUDQWHGVSHFLÀFDOO\WRWKH3URWHVWDQWVLQ4XHEHFDQGWKH Roman Catholics in Ontario, make it impossible to treat all Canadians equally. The country was founded upon the recognition of special or unequal educational rights IRUVSHFLÀFUHOLJLRXVJURXSVLQ2QWDULRDQG4XHEHF7KHLQFRUSRUDWLRQRIWKH&KDUWHU into the Constitution Act, 1982 does not change the original Confederation bargain. $VSHFLÀFFRQVWLWXWLRQDODPHQGPHQWZRXOGEHUHTXLUHGWRDFFRPSOLVKWKDW6HFWLRQ 600

6. CANADIAN JUDICIAL DECISIONS

29 of the Charter makes it clear that the minority education rights (an essential condition of Confederation) are not to be abrogated by ss. 2(a) or 15. The majority added by way of caveat that its decision in this case did not mean that separate schools were completely immune from scrutiny under the Charter. Not at all. They were shielded from review only in their essential Catholicism. The majority stated at p. 64 D.L.R. , p. 576 O.R.: Laws and the Constitution, particularly the Charter, are excluded from application to separate schools only to the extent they derogate from such schools as Catholic (or in Quebec, Protestant) institutions. It is this essential Catholic nature which is preserved and protected by s. 93 of the Constitution Act, 1867 and s. 29 of the Charter. The courts must strike a balance, on a case-by-case basis, between conduct essential to the proper functioning of a Catholic school and conduct which contravenes such Charter rights as those of equality in s. 15 or of conscience and religion in s. 2(a). Thus the right of a Catholic school board to dismiss Catholic members of its teaching staff for marrying in a civil ceremony, or for marrying divorced persons, has been upheld as permissible conduct for a separate school board, but would the same protection be afforded a board which refused to hire women or discriminate on the basis of race, national or ethnic origin, age or disability? Howland C.J.O. and Robins J.A. dissented. While conceding that s. 93(1) represents a basic compact of Confederation, they held that the rights and privileges of Roman Catholics guaranteed under s. 93(1) at the time of Confederation were limited to the provision and funding of an elementary education and did not extend to the provision and funding of an education at the secondary or high school level. For that conclusion the minority relied on Tiny which it considered to be binding upon it. The minority added at p. 30 D.L.R., p. 542 O.R., that “[s]ection 93(3) does not expand the rights and privileges protected by s. 93(1)”. 7KHPLQRULW\GLGQRWDFFHSWWKHSURSRVLWLRQWKDWDQ\EHQHÀWJLYHQWRVHSDUDWHVFKRROV in Ontario by post-Confederation legislation enacted after the Charter came into effect was shielded from scrutiny under the Charter. Section 29 of the Charter, they found, only applies to rights and privileges in respect of separate schools that are constitutionally guaranteed. Bill 30 does not confer any guaranteed rights or privileges. The minority added at pp. 38-9 D.L.R. , p. 550 O.R.: In our opinion, s. 29 does not authorize the creation of new rights nor does it elevate provincial statutes creating such rights to constitutional status. If that had been the intent of the Charter, a clear and explicit form of words could readily have been devised to make that result manifest. As it is, the section ensures that those rights guaranteed by s. 93(1) and those rights guaranteed under the various Acts subsequent to 1867, which now by s. 52(2) have come to form part of the “Constitution of Canada”, are not abrogated or derogated from by the Charter. The words used, given their plain and ordinary meaning, cannot be read so as to embrace rights created by post-Charter provincial enactments. Furthermore, to accept that s. 29 renders a statute immune from the Charter solely because it was enacted within the authority of the Legislature is to interpret the section in a manner directly contrary 601

STATE SUPPORT FOR RELIGIOUS EDUCATION

to s. 32(1)(b) of the Charter which makes it abundantly clear that the Charter applies “to all matters within the authority of the legislature of each province”. The minority found Bill 30 to be inconsistent with s. 15 of the Charter. In its view “[i]f the Charter’s right to equality without discrimination on religious grounds is to mean anything, it must mean at least that the followers of one religion are not to be the VXEMHFWVRIJUHDWHUEXUGHQVRUWKHEHQHÀFLDULHVRIJUHDWHUEHQHÀWVLPSRVHGRUSURYLGHG by law than the followers of other religions” (at p. 43 D.L.R., p. 555 O.R.). Bill 30, by SURYLGLQJEHQHÀWVRQWKHEDVLVRIUHOLJLRQWRRQHUHOLJLRXVJURXSRQO\ZDVKHOGWREHLQ FRQÁLFWZLWKWKHHTXDOLW\JXDUDQWHHLQV7KHPLQRULW\RIWKH&RXUWRI$SSHDODGGHG WKDWWKHYLRODWLRQRIVRIWKH&KDUWHUE\%LOOFRXOGQRWEHMXVWLÀHGXQGHUVRI the Charter given the multicultural and pluralistic society existing in Ontario today.

7+(68%0,66,2162)7+(3$57,(6 In the hearing of this appeal the court was greatly assisted by detailed and clear submissions from all counsel appearing before it. The large number of appellants, respondents DQGLQWHUYHQHUVPDNHVLWGLIÀFXOWWRVXPPDUL]HLQGHWDLODOOWKHVXEPLVVLRQVWKDWZHUH PDGH1HYHUWKHOHVVWKHGLVWLQFWSRVLWLRQVRIDSSHOODQWDQGUHVSRQGHQWPD\EHEULHÁ\ summarized. The position advanced by many of the appellants was that the minority of the Court of Appeal was correct in law and that Bill 30 was therefore ultra vires. By providing 5RPDQ&DWKROLFVDQG5RPDQ&DWKROLFVVFKRROVZLWKÀQDQFLDOEHQHÀWVQRWPDGHHTXDOO\ available to other taxpayers and other religious schools, Bill 30 violated the equality guarantee in s. 15(1) of the Charter. The public funding of denominational schools, they submitted, also violated freedom of religion as guaranteed by s. 2(a). The Bill FRXOGQRWEHMXVWLÀHGDVDUHDVRQDEOHOLPLWXQGHUV The appellants also agreed with the view of the minority of the Ontario Court of Appeal that Bill 30 is not shielded from scrutiny by s. 29 of the Charter because s. 29 applies only to rights or privileges guaranteed by or under the Constitution itself. The rights and privileges contained in Bill 30 are, they submitted, not “guaranteed by or under the Constitution itself”. The Privy Council had held in Tiny that Roman Catholic schools had no right in 1867 to public funding for grades 11, 12, and 13. They, therefore, have no constitutionally guaranteed right to such funding under s. 93 of the Constitution Act, 1867. The Tiny case was correctly decided and, having been accepted and relied upon for over sixty years, should be viewed as determinative on this issue. The respondents submitted that Bill 30 is intra vires under a combination of two parts of s. 93 of the Constitution Act, 1867. They argued that under a combination of the opening words of s. 93 and s. 93(3) a provincial legislature is perfectly free, after Confederation, to enact legislation which augments the educational rights and privileges of denominational schools. If this submission is accepted, then the province is free to enact or repeal legislation such as Bill 30 – it stands in the same position as any other validly enacted provincial legislation – subject only to a right of appeal to the Governor General in Council under s. 93(3) in the case of a repeal.

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The respondents also made an alternative submission, namely, that the legislation is intra vires because it returns to Roman Catholic separate school supporters in Ontario the rights and privileges they held in law in Ontario at the time of Union. These rights and privileges were constitutionally guaranteed under s. 93(1). They urged this court WRÀQGWKDWTiny was wrongly decided and to overrule it. On the Charter aspect the respondents argued that the Charter cannot apply to abrogate or derogate from rights acquired under s. 93 of the Constitution Act, 1867. Some respondents submitted, in the alternative, that Bill 30 did not violate s. 2(a) or s. 15 of the Charter and others that, in light of the purposes of Bill 30, any violation of &KDUWHUULJKWVZDVGHPRQVWUDEO\MXVWLÀHGLQDIUHHDQGGHPRFUDWLFVRFLHW\

4. THE ISSUE Before considering the merits of the appeal I want to stress, as did the Chief Justice of Ontario in the court below, that it is not the role of the court to determine whether as a policy matter a publicly funded Roman Catholic school system is or is not desirable. That is for the Legislature. The sole issue before us is whether Bill 30 is consistent with the Constitution of Canada. It is apparent from the reasons for judgment in the court below and from the submissions of the parties that there are three distinct questions which must be addressed on the reference. First, is Bill 30 a valid exercise of the provincial power in relation to education under the opening words of s. 93 and s. 93(3) of the Constitution Act, 1867? Second, is Bill 30 a valid exercise of provincial power because it returns to Roman Catholic separate school supporters rights which were constitutionally guaranteed to them by s. 93(1) of the Constitution Act, 1867? We are urged to decide this question UHJDUGOHVVRIRXUDQVZHUWRWKHÀUVWTXHVWLRQLQRUGHUWRREYLDWHDQ\IXUWKHUFRQWURYHUV\ concerning the rights and privileges of Roman Catholic separate school supporters in WKH3URYLQFHRI2QWDULR7KHÀQDOTXHVWLRQZKLFKPXVWEHH[DPLQHGLIDQDIÀUPDWLYH answer is given to either or both of the above questions is whether the Constitution Act, 1982 and, in particular, the Canadian Charter of Rights and Freedoms is applicable to Bill 30 and, if so, to what extent and with what effect. I shall examine these issues in turn.

(a) The opening words of s. 93 and s. 93(3) of the Constitution Act, 1867 The provisions of the Constitution Act, 1867ZKLFKDUHHVSHFLDOO\UHOHYDQWWRWKHÀUVW question are as follows: 93. In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions: – … (3) Where in any Province a System of Separate or Dissentient Schools exist by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen’s Subjects in relation to Education: 603

STATE SUPPORT FOR RELIGIOUS EDUCATION

On their face these provisions would appear to support the view that Bill 30 is a valid exercise of legislative power by the provincial Legislature. The opening words of s. 93 vest an exclusive plenary power over education in the province “subject and according to” the provisions that follow. Section 93(3) does not appear to derogate in any way from that power. It seems rather to contemplate its exercise where a province has a separate or dissentient school system by law at the time of Union or establishes one at any time after Union. In either of these circumstances it provides that “any Act or Decision of any Provincial Authority” affecting the rights or privileges of the province’s Protestant or Roman Catholic minority shall be subject to appeal to the Governor General in Council. The enactment of legislation would seem to be an “Act or Decision” and “Provincial Authority” has been interpreted by the Privy Council as including a provincial legislature: see Brophy v. A.-G. Man., [1895] A.C. 202 at pp. 220-21, and see also the Privy Council’s judgment in Tiny pp. 757-8 D.L.R., p. 371 A.C. Section 93(3) would appear, therefore, to provide in express terms for an appeal to the Governor General in Council from legislation passed by a provincial legislature which affects the rights and privileges of denominational minorities. Counsel for the appellants submitted that s. 93 should be interpreted along the following lines. Section 93(1) permits a legal recourse if rights or privileges at law are prejudicially affected. For provinces where a denominational school system exists s. 93(3) adds a political recourse if rights or privileges not at law are prejudicially affected. So, the appellants submit, s. 93(3) has a different and more limited purpose than that contended for by the respondents; it provides a remedy for acts or decisions DIIHFWLQJULJKWVRUSULYLOHJHVQRWDWODZ,GRQRWÀQGWKLVDQDO\VLVRIVSHUVXDVLYH If the expression “by law” as used in s. 93(1) has the broad meaning adopted by Anglin C.J.C. in Tiny [[1927] 4 D.L.R. 857, [1927] S.C.R. 637], i.e. as tantamount to “permitted by law”, then it is hard to think of any right or privilege not “by law” in that sense. If the appellants’ submissions were accepted s. 93(3) would effectively become RWLRVH,WLVDOVRGLIÀFXOWWRLPDJLQHZK\DFRQVWLWXWLRQDOULJKWRIDSSHDOZRXOGKDYH been conferred from the removal of a right or privilege which was never formally and legally granted by the legislature. In my view, s. 93(3) in no way limits the exercise of the provinces’s plenary power. Rather, it expressly contemplates that after Confederation a provincial legislature may, pursuant to its plenary power, pass legislation which augments the rights or privileges of denominational school supporters. It would be strange, indeed, if the system of separate schools in existence at Confederation were intended to be frozen in an 1867 mold. Prior authority would seem to support this view of s. 93. In City of Winnipeg v. Barrett, [1892] A.C. 445 (P.C.), the constitutionality of the Manitoba Public Schools Act, 1890 (Man), c. 38, was in issue. It was argued that the Manitoba statute was invalid as contravening s. 22 of the Manitoba Act, 1870 (Can.), c. 3, which forbade the provincial legislature from “prejudicially affect[ing] any right or privilege with respect to denominational schools which any class of persons have, by law or practice in the province, at the Union”. It is apparent that this provision differs from s. 93(1) of the Constitution Act, 1867 in only one respect – it extends constitutional protection not only to rights and privileges held by law but also to those held “by practice”. The parties in Barrett accepted that there was such a practice existing at the time of 604

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Union. Denominational schools could be set up at supporters’ own expense and could be maintained by voluntary contributions or school fees. The schools could also be conducted in accordance with the supporters’ own religious tenets. These “practices” were guaranteed by s. 22 of the Manitoba Act, 1870. The Privy Council ultimately held in Barrett that the 1890 legislation did not prejudicially affect those rights. But what was never questioned, either in argument or by their Lordships, was that the provincial Legislature could after the Union validly pass legislation which augmented minority educational rights. Having failed to establish that the provincial legislation prejudicially affected any right or privilege with respect to denominational schools that was held at the time of Union, the Roman Catholic school supporters in Manitoba sought to appeal pursuant to s. 22(2) of the Manitoba Act, 1870. That section, substantially similar to s. 93(3) of the Constitution Act, 1867, conferred a right of appeal from an act or decision by a provincial authority affecting rights or privileges of the Roman Catholic minority in relation to education. It fell to the Privy Council in Brophy, supra, to decide whether the right of denominational minorities in Manitoba to appeal to the Governor General in Council under s. 22(2) of the Manitoba Act applied where legislation (the Manitoba Public Schools Act) was passed affecting rights and privileges which had been granted by post-Confederation legislation. The rights and privileges which were granted to the Roman Catholic minority by this post-Confederation legislation were summarized by Lord Halsbury L.C. in Brophy at p. 227. … there existed denominational schools, of which the control and management were in the hands of Roman Catholics, who could select the books to be used and determine the character of the religious teaching. These schools received their proportionate share of the money contributed for school purposes out of the general taxation of the province, and the money raised for these purposes by local assessment was, so far as it fell upon Catholics, applied only towards the support of Catholic schools. The Privy Council held that the right of appeal did apply in respect of rights and privileges originally granted by post-Confederation legislation. What was again never questioned by the Privy Council was the ability of the Manitoba Legislature to add to WKHHGXFDWLRQDOULJKWVDQGSULYLOHJHVRIGHQRPLQDWLRQDOVFKRROVXSSRUWHUVLILWVDZÀW to do so. The Lord Chancellor stated at p. 219: The question then arises, does the sub-section extend to rights and privileges acquired by legislation subsequent to the Union? It extends in terms to “any” right or privilege of the minority affected by an Act passed by the Legislature, and would therefore seem to embrace all rights and privileges existing at the time when VXFK$FWZDVSDVVHG7KHLU/RUGVKLSVVHHQRMXVWLÀFDWLRQIRUSXWWLQJDOLPLWDWLRQ on language thus unlimited. There is nothing in the surrounding circumstances or in the apparent intention of the Legislature, to warrant any such limitation. Quite the contrary. The Lord Chancellor later in his judgment considered s. 93 of the Constitution Act, 1867. He commented at p. 220: 605

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Their Lordships being of opinion that the enactment which governs the present case in the 22nd section of the Manitoba Act, is unnecessary to refer at any length to the arguments derived from the provisions of sect. 93 of the British North America Act. But in so far as they throw light on the matter they do not, in their Lordships’ opinion weaken, but rather strengthen the views derived from a study of the later enactment. It is submitted that the 3rd and 4th subsections of sect. 93 (the latter of which is, as has been observed, identical with sub-sect. 3 of sect. 22 of the Manitoba Act) were not intended to have effect merely when a provincial Legislature had exceeded the limit imposed on its powers by sub-sect. 1, for sub-sect. 3 gives an appeal to the Governor-General, not only where a system of separate or dissentient schools existed in a province at the time of the Union, but also where in any province such a system was “thereafter established by the Legislature of the province”. It is manifest that this relates to a state of things created by post-Union legislation. The decisions of the Privy Council in Barrett and Brophy clearly indicate, although admittedly by way of obiter, that it is intra vires a province to pass denominational schools legislation after Union, the repeal of which may be subject to an appeal to the Governor General in Council. In my view, subject to the comments I shall make concerning s. 93(1) of the Constitution Act, 1867 and the Charter of Rights, Bill 30 stands in precisely the same constitutional position as the various Acts of the Manitoba Legislature prior to 1890 which augmented the educational rights and privileges of the Roman Catholic minority in that province. The purpose and history of s. 93 would seem to support this interpretation. The protection of minority religious rights was a major preoccupation during the negotiations leading to Confederation because of the perceived danger of leaving the religious minorities in both Canada East and Canada West at the mercy of overwhelming majorities. Given the importance of denominational educational rights at the time of Confederation, it seems unbelievable that the draftsmen of the section would not have made provision for future legislation conferring rights and privileges on religious minorities in response to new conditions. In his address to the British Parliament in which he proposed second reading of the British North America Act, 1867, see U.K., H.L. Parliamentary Debates, 3rd, ser., vol. 185, col. 557, at p. 565, February 19, 1867, Lord Carnarvon explained the purpose of s. 93 in terms of guarantee of equality: [T]he object of the clause [s. 93] is to secure to the religious minority of one province the same rights, privileges and protection which the religious minority of another Province may enjoy. The Roman Catholic minority of Upper Canada, the Protestant minority of Lower Canada and the Roman Catholic minority of the Maritime Provinces, will thus stand on a footing of entire equality. Some time after Confederation in the debate re 2nd reading of Bill No. 58, The Remedial Act (Manitoba), in Debates of the House of Commons, 6th Sess., 7th Parliament, 59 9LFFRODWS0DUFK6LU&KDUOHV7XSSHUFRQÀUPHGWKDWV 93 was part of a solemn pact resulting from the bargaining which made Confederation possible:

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… 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 … ,VD\WKHUHIRUHLWLVLPSRUWDQWLWLVVLJQLÀFDQWWKDWZLWKRXWWKLVFODXVHZLWKRXWWKLV guarantee for the rights of minorities being embodied in that new constitution, we should have been unable to obtain any confederation whatever. That is my reason for drawing attention to it at present. -XGLFLDODXWKRULW\DIÀUPVWKDWUHOLJLRQZDVRIIXQGDPHQWDOLPSRUWDQFH$VWKH3ULY\ Council stated in Brophy, supra, at p. 214: There can be no doubt that the views of the Roman Catholic inhabitants of Quebec and Ontario with regard to education were shared by the members of the same communion in the territory which afterwards became the Province of Manitoba. They regarded it as essential that the education of their children should be in accordance with the teachings of their Church, and considered that such an education could not be obtained in public schools designed for all the members of the community alike, whatever their creed, but could only be secured in schools conducted under WKHLQÁXHQFHDQGJXLGDQFHRIWKHDXWKRULWLHVRIWKHLU&KXUFK (Emphasis added.) The compromise or, as Duff C.J.C. in the Reference re Adoption Act, etc., [1938] 3 D.L.R. 497 at p. 498, [1938] S.C.R. 398 at p. 402, 71 C.C.C. 75 termed it, “the basic compact of Confederation”, was that rights and privileges already acquired by law at the time of Confederation would be preserved and provincial legislatures could bestow additional new rights and privileges in response to changing conditions. As was said by Meredith C.J.C.P. in Ottawa Separate School Trustees v. City of Ottawa '/5DWSS2/5DWS>DIÀUPHG 30 D.L.R. 770, 36 O.L.R. 485 (C.A.)], it was not intended that separate schools should be “left forever in the educational wilderness of the enactments in force in 1867”. Instead, he said, “[t]he machinery may be altered, the educational methods may be changed, from time to time, to keep pace with advanced educational systems”. While these new rights and privileges could be legally repealed by the Legislature at a future date, a safeguard against their repeal as a result of local pressure insensitive to minority rights was provided by the inclusion of a right of appeal to the Governor General in Council under s. 93(3). This would appear to have also been the view of the Lord Chancellor in Brophy. He clearly believed that the purpose of s. 93(3) was to protect minorities in both Ontario and Quebec against the subsequent repeal of rights created after Confederation. He said at p. 223: Bearing in mind the circumstances which existed in 1870, it does not appear to their Lordships an extravagant notion that in creating a Legislature for the province with limited powers it should have been thought expedient, in case either Catholics or Protestants became preponderant, and rights which had come into existence under different circumstances were interfered with, to give the Dominion Parliament 607

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power to legislate upon matters of education so far as was necessary to protect the Protestant or Catholic minority as the case might be. I do not believe that the comments made by Beetz J. (for the majority) in Société des Acadiens du Nouveau-Brunswick Inc. v. Ass’n of Parents for Fairness in Education, Grand Falls Dist. 50 Branch (1986), 27 D.L.R. (4th) 406, [1986] 1 S.C.R. 549, 69 N.B.R. (2d) 271, foreclose a purposive approach to s. 93. In that case, Beetz J. (Estey, Chouinard, Lamer and LeDain JJ. concurring) stated at p. 425 D.L.R., p. 578 S.C.R.: Unlike language rights which are based on political compromise, legal rights tend to be seminal in nature because they are rooted in principle. Some of them, such as the one expressed in s. 7 of the Charter, are so broad as to call for frequent judicial determination. Language rights, on the other hand, although some of them have been enlarged and incorporated into the Charter, remain none the less founded on political compromise. This essential difference between the two types of rights dictates a distinct judicial approach with respect to each. More particularly, the courts should pause before they decide to act as instruments of change with respect to language rights. This is not to say that language rights provisions are cast in stone and should remain immune altogether from judicial interpretation. But in my opinion, the courts should approach them with more restraint than they would in construing legal rights. :KLOHGXHUHJDUGPXVWEHSDLGQRWWRJLYHDSURYLVLRQZKLFKUHÁHFWVDSROLWLFDOFRPpromise too wide an interpretation, it must still be open to the court to breathe life into a compromise that is clearly expressed. The contextual background of s. 93 is being reviewed in these reasons not for the purpose of enlarging upon the compromise but LQRUGHUWRFRQÀUPLWVSUHFLVHFRQWHQW7KHFRQWH[WXDOEDFNJURXQGVXJJHVWVWKDWSDUW of the compromise was that future legislation on the part of the province with respect to separate denominational schools was permissible. The province was to be able to grant new rights and privileges to denominational schools after Union in response to new conditions but that subsequent repeal of those post-Union rights or privileges would be subject to an appeal to the Governor-General in Council. This is apparent from the very text of s. 93. I would therefore conclude, subject to the comments that follow concerning the applicability of the Charter of Rights to Bill 30, that Bill 30 is a valid exercise of the provincial power to add to the rights and privileges of Roman Catholic Separate school supporters under the combined effect of the opening words of s. 93 and s. 93(3) of the Constitution Act, 1867.

(b) Section 93(1) of the Constitution Act, 1867 While, strictly speaking, it may be unnecessary in light of the above to consider whether the Roman Catholic separate schools in Ontario have a constitutionally guaranteed right to full funding by virtue of s. 93(1) of the Constitution Act, 1867, I shall address the issue since full argument was made on it during the lengthy hearing before the

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court. It also has relevance to the submissions made by parties on the applicability of the Charter. Section 93(1) of the Constitution Act, 1867 provides: 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 and Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union. It is immediately apparent that the scope of the rights and privileges protected under the section must be determined by ascertaining the rights and privileges in existence at the time of the Union. Was there any right or privilege entitling denominational secondary schools to full funding by law at the time of Confederation? To answer this it is necessary to consider the history of pre-Confederation legislation pertaining to education in Upper Canada. It is also necessary to consider the decision of the Privy Council in Tiny in which the effect of such legislation was reviewed. (1) The situation prior to Confederation Prior to Confederation there were three main classes of schools in Upper Canada – common schools, grammar schools and separate schools. There was no counterpart of today’s secondary school. In fact the evidence discloses that the word “secondary” was not used to describe any portion of the school system in Ontario until the end of the nineteenth century. Terms such as “high school” and “superior education” were XVHGIURPWLPHWRWLPHEXWDV3URIHVVRU*LGQH\DKLVWRULDQZKRWHVWLÀHGRQEHKDOI RI WKH UHVSRQGHQWV VWDWHV LQ KLV DIÀGDYLW ´DPELJXLWLHV DQG FRQWUDGLFWLRQV LQ WKH phraseology used to identify educational institutions and their relationship to each RWKHUµDSSHDUWREHFRPPRQ*LYHQWKHGLIÀFXOW\RIWHUPLQRORJ\3URIHVVRU*LGQH\ FRQFOXGHGLQKLVDIÀGDYLWWKDW´ZHDUHOHIWZLWKWKHWDVNRILQWHUSUHWLQJFRQWHPSRUDULHV· usage as sensitively as possible in order to elucidate their intentions and their shared understandings of things”. It must be remembered, however, that s. 93(1) only protects rights and privileges guaranteed by law. Our task therefore is to examine the laws in force prior to Confederation to see what rights or privileges they gave. Whether various ERGLHVRURIÀFLDOVZHUHLQIDFWH[HUFLVLQJWKHSRZHUVVWDWXWRULO\FRQIHUUHGXSRQWKHP is irrelevant to our inquiry. 7KH ÀUVW 8SSHU &DQDGD OHJLVODWLRQ GHDOLQJ ZLWK SXEOLF VFKRROV ZDV WKH Public Schools Act, 1807 (U.C.), c. 6. That Act made provision for the establishment of “one public school in each and every district of this province” (s. 2) and the appointment of trustees to manage the schools (s. 4) and “make such rules and regulations for the good government and management of the said public schools” (s. 5). By virtue of the Common Schools Act, 1816 (U.C.), c. 36, these schools were renamed “common schools”; provision was made for the establishment of more schools (ss. 1-3); trustees were given the express power to remove teachers (s. 5) and to “make rules and regulations for the good government of the … common schools” (s. 6). Certain duties were imposed upon the trustees to report to boards of education on such matters as the books

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STATE SUPPORT FOR RELIGIOUS EDUCATION

used in the schools (s. 8) and boards of education were given the power to apportion moneys granted by Legislature for the common schools (s. 13). The schools were named “common schools” because their function was to provide an education for the common or average person. An “Act to Provide for the advancement of Education in this Province”, 1839 (U.C.), c. 10, put the various “grammar schools” which had developed in Upper Canada on a statutory footing. A board of trustees for each school was established which would superintend these schools and receive money authorized to be paid under the Act. As the title of the Act suggests, the purpose of the grammar school system was to provide an advanced form of education. That meant, at the time, providing the students with an opportunity to study the languages and literatures of Greece and Rome. This was FRQÀUPHG LQ  E\ WKH Grammar Schools Act, 1853 (U.C.), c. 186, s. 5 which expressly provided that instruction was to extend to natural philosophy, mechanics, mathematics, Greek and Latin “so far as to prepare students for University College or DQ\&ROOHJHDIÀOLDWHGWRWKH8QLYHUVLW\RI7RURQWRµ It does not follow, however, that because the grammar schools were “higher” they were necessarily the forerunners to today’s secondary schools. As Professor Gidney VWDWHVLQKLVDIÀGDYLW We now take it for granted that schools will be organized primarily by age and OHYHORIVXEMHFWGLIÀFXOW\HOHPHQWDU\VFKRROVGHDOZLWK\RXQJHUFKLOGUHQDQG´WKH basics” or “3Rs”; secondary schools deal with teenagers, with more advanced levels of English and mathematics and with elementary levels of more esoteric subjects such as biology or physics. The two-stage structure, with high or secondary built atop elementary or public schools, was created in the latter decades of the nineteenth century. But it was not the primary way in which education was organized at or just before Confederation. Rather, the grammar and common schools were designed to overlap each other in their curriculum and the ages of their pupils. One did not complete an elementary education and then move on to such subjects as Latin or Greek or French. The grammar school was designed to take pupils soon after they had begun learning the 3Rs and provide them with both an English and a classical education at the same time … My own analysis of a sample of the grammar school registers in the 1850’s and 1860’s tells me that it was common for pupils to begin grammar school at ages ten or eleven, and in some cases at eight or nine, while over half the students were under fourteen (which is now the typical age for beginning high school). The grammar school, in other words, was intended as a parallel institution that overlapped the common school curriculum and that existed to serve the specialized purpose of educating those students who sought a combined Classical and English education. Or to put it another way, the two sorts of schools were distinguished by their purposes or function rather than by the ages of their pupils or the level of instruction. The distinction in law between common schools and grammar schools may well have been even smaller than that suggested by Professor Gidney. Section 11(4) of the 1853 Act permitted the uniting of common schools with grammar schools. This underlies the fact that, subject to regulation, there was at this time no statutory restriction as to 610

6. CANADIAN JUDICIAL DECISIONS

what could be taught in a common school. It could extend to the same subjects as were taught in a grammar school. And the Common Schools Act, C.S.U.C. 1859, c. 64, the Act respecting common schools which was in force at Confederation, still provided in VV DQG IRUVXFKXQLÀFDWLRQ 7KHÀUVWSURYLVLRQIRUVHSDUDWHVFKRROVDSSHDUHGLQWKHCommon Schools Act, 1841 (U.C.), c. 18, s. 11 which provided: 11. Provided always, and be it enacted, that whenever any number of the Inhabitants of any Township or Parish professing a religious faith different from that of the majority of the Inhabitants of such Township or parish, shall dissent from the regulations, arrangements, or proceedings of the Common School Commissioners, with reference to any Common School in such Township or Parish, it shall be lawful for the Inhabitants so dissenting, collectively, to signify such dissent in writing to the Clerk of the District Council, with the name or names of one or more persons elected by them as their Trustee or Trustees, for the purposes of this Act; and the said 'LVWULFW&OHUNVKDOOIRUWKZLWKIXUQLVKDFHUWLÀHGFRS\WKHUHRIWRWKH'LVWULFW7UHDVXUHU and it shall be lawful for such dissenting Inhabitants, by and through such Trustee or Trustees, who for that purpose shall hold and exercise all the rights, powers and authorities, and be subject to the obligations and liabilities, hereinbefore assigned to and imposed upon the Common School Commissioners, to establish and maintain one or more Common Schools in the manner, and subject to the visitation, conditions, rules and obligations, in this Act provided with reference to other Common Schools, and to receive from the District Treasurer their due proportion, according to their number, of the monies appropriated by Law, and raised by assessment for the support of Common Schools, in the School District or Districts in which the said Inhabitants reside, in the same manner as if the Common Schools so to be established and maintained under such Trustee or Trustees, were established and maintained under the said Common School Commissioners, such monies to be paid by the District Treasurer upon the warrant of the said Trustee or Trustees. This Act sets out the rights, powers and authorities of Common School Commissioners (trustees) and provided that separate school trustees were to have the same rights, powers and authorities. Among these powers was the expressed power under s. 7(4) to “regulate for each School, respectively, the course of study to be followed in such School, and the Books to be used therein, and to establish general rules for the conduct of the Schools, and communicate them in writing to the respective Teachers”. The trustees had the same power over the courses of study and books in the Common School Act, 1843 (U.C.), FEXWLQWKHODWHU$FWVWKHLUSRZHUVZHUHGHÀQHGLQWHUPVRIWKHDSSRLQWPHQWRI TXDOLÀHGWHDFKHUVDQGWKHFKRLFHRIWH[WERRNV7KHWHDFKHUVZHUHKRZHYHUUHTXLUHG to teach the branches of education according to the terms of their engagements with the trustees who were under a duty to report to the District Superintendent of Common Schools the branches of education being taught, the number of pupils in each branch, DQGWKHWH[WERRNVEHLQJXVHG1RRWKHURIÀFLDORUERG\ZDVLQWKHODWHU$FWVJLYHQDQ express power to regulate the courses of study to be followed in the schools. So by 1843 this tripartite system of education, consisting of common schools, JUDPPDUVFKRROVDQGVHSDUDWHVFKRROVZDVÀUPO\LQSODFH$QXPEHURIDPHQGLQJ 611

STATE SUPPORT FOR RELIGIOUS EDUCATION

Acts which affected all three branches of the educational system were passed from 1843 on. But none of these statutes bears directly on the interpretation of s. 93(1) of the Constitution Act, 1867. The legislation which was in effect at the time of Union and which is therefore crucial to the proper interpretation of s. 93(1) of the Constitution Act, 1867 is found in four statutes: the Common Schools Act, C.S.U.C. 1859, c. 64; the Separate Schools Act, C.S.U.C. 1859, c. 65; the Separate Schools Act, 1863 (U.C.), c. 5 (Scott Act); and the Grammar Schools Act, 1865 (U.C.), c. 23. The Common Schools Act, C.S.U.C. 1859, c. 64, passed in 1859 consolidated many of the provisions relating to common schools which had been in the earlier Acts. If (sic) is of particular interest for two reasons: (1) it was the legislation which governed common schools at the time of Confederation, and (2) the Separate Schools Act, C.S.U.C. 1859, c. 65, and later the Separate Schools Act (the Scott Act), made the main provisions of the Common Schools Act of 1859 applicable to the separate schools. It is therefore necessary to examine the provisions of this Act quite closely. Section 27 of the 1859 Common Schools Act provided for the establishment of rural school sections. Subsection 16 of that section then provided: 27. It shall be the duty of the Trustees of each school section, and they are hereby empowered: … 7RSHUPLWDOOUHVLGHQWVLQVXFKVHFWLRQEHWZHHQWKHDJHVRIÀYHDQGWZHQW\RQH years, to attend the school … but such permission shall not extend to the children of persons in whose behalf a separate school has been established, according to the Act respecting the establishment of separate Schools; The proviso in s. 27(16) meant that common school trustees in rural school sections were not obliged to permit children who were eligible to attend a separate school to attend the common school. This section was made applicable to urban school sections by s. 79(18). The Common Schools Act of 1859 does not confer on common school trustees, as did s. 7(4) of the 1841 Act, an express power to prescribe the courses to be taught. Nevertheless, I believe that such a power in the trustees was implicit in the scheme of the legislation. Section 79(8), applicable to urban boards of school trustees, gave these trustees the power to employ teachers and also to determine “the terms of employing them; the amount of their remuneration, and the duties which they are to perform”. The duties presumably included the teaching of subjects prescribed by the trustees since s. 82(1) provided that it was the duty of every teacher of a common school “[t]o teach diligently and faithfully all the branches required to be taught in the school according to the terms of his engagement with the Trustees and according to the provisions of this Act”. There were no provisions in the Common Schools Act of 1859 limiting common school teachers to teaching only certain branches. Section 27(8), applicable to rural school sections, did not expressly confer power on the rural school trustees to determine the duties of teachers but I think it is probably implicit in their power “to contract with and employ Teachers for such School section” especially in light of the fact that s. 82(1) was equally applicable to teachers in rural school sections. 612

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While the 1859 Act (as some of the earlier Acts referred to) imposed a duty on trustees to report to the local superintendent “the branches of education taught in the school” (s. 27(23), subpara. (4) and s. 79(17) for urban boards of school trustees), there was no express and exclusive power in the Council of Public Instruction to set down the branches of education to be taught. There was a power in the Council for Public Instruction to “make … regulations … for the organization, government and discipline of Common Schools … ” (s. 119(4)) and to “to examine … recommend or disapprove of textbooks for the use of schools … ”(s. 119(5)). As well, there was a corresponding duty imposed on the trustees “[t]o see that no unauthorized books are used in the school, and that the pupils are duly supplied with a uniform series of authorized textbooks, sanctioned and recommended by the Council of Public Instruction” (s. 27(18) and s. 79(15)). But the exact content of a particular school’s curriculum would seem, in the DEVHQFHRIVSHFLÀFUHJXODWLRQE\WKH&RXQFLOIRU3XEOLF,QVWUXFWLRQWREHE\ODZOHIW to the discretion of the trustees. No regulations pertaining to courses of instruction were produced by counsel. Indeed, the evidence before the court suggested that the interpretation I have put upon the legislation was acted upon by the common school trustees. In Tiny Separate School Trustees v. The King, [1927] 4 D.L.R. 857 at p. 869, [1927] S.C.R. 637 at p. 665, Anglin C.J.C. stated: The provisions of the Common School Act were generally understood to contemplate that, at all events in cities, towns, and villages, and in rural districts where s. 32 of the Act of 1859 applied, the trustees should determine, according to their conception of local educational requirements, the subjects to be taught and the scope of the education to be imparted in the school or schools under their charge and would appear to confer upon them the legal right to do so. It was a statutory duty in 1867 to provide in all common schools education suitable for pupils ranging from 5 to 21 years of age and of both sexes. With the law in the state thus indicated it is not surprising that in many of the larger centres, where higher educational standards were necessary to meet local requirements, common schools, at and prior to Confederation, were carrying on, with the approval and encouragement of the Provincial educational authorities, courses in practically all the branches of learning now included in the curricula of high schools as well as public schools and were imparting to their pupils the education requisite to enable them to matriculate into the University, to enter the Normal School, and to take up the studies prescribed for the “learned professions”. I would conclude, therefore, that the trustees of the common schools had by law the power, subject to regulation, to prescribe what branches of education were to be taught in a particular school and could, by law, prescribe any level of instruction which, in their view, the needs of the particular community warranted. This would include instruction at the secondary school level. Sections 120-125 of the Common Schools Act of 1859 set out the manner in which the annual grant for common schools was calculated. The key sections are ss. 120 and 121. Section 120 provided:

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120. Out of the share of the Legislative School Grant coming to Upper Canada, and the additional sums of money from time to time granted in aid of Common Schools or in aid of Common and Grammar Schools in Upper Canada, and not otherwise expressly appropriated by law, the Governor in Council may authorize the expenditure of the following sums annually … 7KHUHWKHQIROORZHGDQHQXPHUDWLRQRIDQXPEHURIÀ[HGVXPVIRUYDULRXVSXUSRVHV Section 121 provided: 121. The whole of the remainder of the grants in the one hundred and twentieth Section mentioned and not exclusively appropriated, in the foregoing sub-sections, shall be expended in aid of the Common Schools according to the provisions of this Act. The provisions of the 1859 Common Schools Act were generally made applicable to separate school by the Separate Schools Act of 1859. Section 24 of this Act provided: 24. The Trustees of such Separate Schools forming a body Corporate under this Act, shall have the same power to impose, levy and collect School rates or subscriptions, upon and from persons sending children to, or subscribing towards the support of such Schools, and all other powers in respect of Separate Schools, as the Trustees of Common Schools have and possess under the provisions of the Act relating to Common Schools. Section 33 provided: 33. Every such Separate School shall be entitled to a share in the fund annually granted by the Legislature of this Province for the support of Common Schools, according to the average number of pupils attending such School during the twelve next preceding months, or during the number of months which may have elapsed from the establishment of a new Separate School, as compared with the whole average number of pupils attending School in the same City, Town, Village or Township … The Separate Schools Act (the Scott Act) was the last statute pertaining to separate schools enacted prior to Confederation. It is entitled “An Act to restore to Roman Catholics in Upper Canada certain rights in respect to Separate Schools”. Its preamble reads: WHEREAS it is just and proper to restore to Roman Catholics in Upper Canada certain rights which they formerly enjoyed in respect to Separate Schools, and to bring the provisions of the Law respecting Separate Schools more in harmony with the provisions of the Law respecting Common Schools … It repealed ss. 18 to 36 of the Separate Schools Act of 1859. It authorized Roman Catholics to establish separate schools and elect trustees “for the management” of each school (ss. 2-6). The trustees were vested with “all the powers in respect of separate schools, that the Trustees of Common Schools have and possess under the provisions of the Act relating to Common Schools [C.S.U.C. 1859, c. 64]” (s. 7) and all “the same duties … 614

6. CANADIAN JUDICIAL DECISIONS

as Trustees of the Common Schools” (s. 9). This meant that separate school trustees, OLNHFRPPRQVFKRROWUXVWHHVKDGDGXW\WRSHUPLWUHVLGHQWVEHWZHHQÀYHDQG\HDUV of age to attend school and a power, subject to regulation, to determine the subjects to be taught and the level of instruction. Separate school supporters were exempted from payment of municipal rates for common schools (s. 14) but were subject to pay school rates levied by the separate school trustees (s. 7). By virtue of s. 20 separate school supporters were also entitled to a share, proportionate to the number of pupils, in the fund annually granted by the Legislature for the support of common schools: 20. Every Separate School shall be entitled to a share in the fund annually granted by the Legislature of this Province for the support of Common Schools, and shall be entitled also to a share in all other public grants, investments and allotments for Common School purposes now made or hereafter to be made by the Province or the Municipal authorities, according to the average number of pupils attending such school during the twelve next preceding months, or during the number of months which may have elapsed from the establishment of a new Separate School, as compared with the whole average number of pupils attending School in the same City, Town, Village or Township. Finally, separate schools were subject to inspection by the chief superintendent and were subject to “such regulations, as may be imposed from time to time, by the Council of Public Instruction for Upper Canada” (s. 26). Interestingly, the council’s control over the separate school curriculum was arguably weaker than that over common schools as the Separate Schools Act contained no provision similar to s. 119(5) of the Common Schools Act giving the Council supervision over textbooks used in the schools. I turn now to a consideration of the Tiny Separate School Trustees v. The King (1926), 2/5DIÀUPHG>@'/52/5&$ DIÀUPHG>@ '/5>@6&5DIÀUPHG>@'/5>@$&VXE nom. Roman Catholic Separate School Trustees for Tiny v. The King, [1928] 2 W.W.R. 641, in which the effect of these various pre-Confederation statutes was reviewed. (ii) The Tiny case In Tiny the board of trustees of the separate school in the Township of Tiny, on behalf of themselves and all other separate school trustees in the province, brought a petition of right challenging the validity of certain provincial legislation prohibiting the teaching of and funding for secondary school subjects in separate schools. The challenged legislation also denied separate school supporters exemption from the rates levied in support of public secondary schools. The trustees submitted that this legislation offended s. 93(1) of the British North America Act, 1867 because it prejudicially affected a right or privilege with respect to denominational education possessed by Roman Catholics at the date of Confederation. They also sought a proportionate share of public moneys granted by the Legislature “for common school purposes” computed in accordance with their statutory rights at the date of Confederation. The plaintiffs failed at trial. Rose J. held that because the rights and privileges of the separate schools at Confederation concerning money grants depended upon legislation of the former Province of Canada and were expressly described as grants “of this province”, 615

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the Province of Ontario was unaffected by any such obligation (p. 150). Accordingly separate school supporters had no legal right to share in any appropriations. He was upheld on this issue by the Court of Appeal. The effect of such an interpretation is that s. 93(1) which protects all rights and privileges which any class of persons had by law at the time of Union is an empty shell in Ontario because all rights and privileges were granted by the law of the Province of Canada. Such an interpretation seems patently unsound. I would adopt the views of Anglin C.J.C. in the Supreme Court of Canada on this point. In rejecting the position taken by Rose J. and the Ontario Court of Appeal on this issued he stated at pp. 861-2 D.L.R., p. 657 S.C.R: This view is utterly at variance with the spirit and intent of s. 93(1) of the B.N.A. Act. Unless the legislatures of Ontario and Quebec are debarred from prejudicially affecting the rights and privileges of the respective religious minorities in regard to maintenance and support, which their denominational schools enjoyed at Confederation under legislation of the former Province of Canada, the protection of such rights and privileges afforded by s. 93(1) becomes illusory and the purpose of the Imperial legislation is subverted. The Judicial Committee of the Privy Council agreed with Anglin C.J.C.: see pp. 759-60 D.L.R., pp. 373-4 A.C. Rose J. also held that pursuant to the Common Schools Act of 1859 the common schools and thus the separate schools were to be subject to such regulations as might be imposed from time to time by the Council of Public Instruction. As this was the relevant legislation in force at the time of Confederation Rose J. held that the right preserved by s. 93(1) of the Constitution Act, 1867 was merely the right to maintain separate schools subject to regulation by the council. Rose J. also held in the alternative that even “if … the class of persons represented by the petitioners had by law at the 8QLRQDULJKWWRDVKDUHDVFHUWDLQDEOHLQDZD\À[HGE\VWDWXWHLQVXFKPRQH\VDV might be granted by the Ontario Legislature for common school purposes”, there was “no proof that the legislation and regulations affect that right prejudicially” (p. 152). This was because in his view those rights had always been subject to a broad power of regulation in favour of the Council. The Ontario Court of Appeal unanimously dismissed the appeal: [1927] 1 D.L.R. 913, 60 O.L.R. 15. A further appeal to the Supreme Court of Canada was dismissed because the justices were evenly divided: [1927] 4 D.L.R. 857, [1927] S.C.R. 637. Anglin C.J.C., with whom Rinfret J. concurred, Mignault J. concurring in separate reasons, would have allowed the appeal. Duff and Lamont JJ., Newcombe J. concurring in separate reasons, dismissed the appeal. Those justices who would have dismissed the DSSHDOKHOGWKDWWKHUHJXODWRU\SRZHURIWKH&RXQFLORI3XEOLF,QVWUXFWLRQZDVVXIÀFLHQWO\ broad to have enabled it, had it so chosen, to prohibit secondary level instruction. The H[LVWHQFHRIVXFKDEURDGSRZHUZDVVXIÀFLHQWWRGHQ\V SURWHFWLRQ The appeal was also dismissed by the Privy Council: [1928] 3 D.L.R. 753 [1928] A.C. 363, [1928] 2 W.W.R. 641, The Privy Council shared the view that the broad power of regulation vested in the Council of Public Instruction, including the power WR GHWHUPLQH ZKDW FRXUVHV RI VWXG\ FRXOG EH RIIHUHG ZDV VXIÀFLHQW WR SUHYHQW WKH separate schools from providing secondary school education. Even though the broad 616

6. CANADIAN JUDICIAL DECISIONS

power of regulation had never been used by the council prior to Confederation, its very existence meant that separate secondary school education fell outside the protection of s. 93(1). On the funding issue the Privy Council was required to interpret s. 120 of the Common Schools Act of 1859. This is the section which provided that out of the sum granted for common schools “and not otherwise expressly appropriated by law” the Governor in Council could authorize certain expenditures set out in the section in aid of the common schools. Section 20 of the Scott Act provided that separate schools were entitled “to a share in the fund annually granted by the Legislature … for the support of Common Schools”. But since there was no limit on the sums that could be “otherwise appropriated” for the common schools, the Privy Council held that there was no guaranteed right in the separate schools to funding. Viscount Haldane held pp. 771-2 D.L.R. pp. 388-9 A.C.: … the question really turns on whether the authorities of the Province had power to make apportionments and payments out of the funds granted before the balance was arrived at which should be available for common school purposes. In their Lordships’ opinion it is clear that there was such power … In their Lordships’ view in the face of the provisions referred to, it is impossible to contend successfully that it was ultra vires after Confederation to make new appropriations out of the grants which would diminish what would otherwise have come to the appellants. Whether the case is looked at from the point of view of regulation, or whether it is regarded from that of discretion in power of appropriation, the result is the same. The appellants rely on Tiny and submit that at the date of Confederation separate school supporters, together with all other common school supporters, had the right to public funding of elementary school education for their children but no right to such funding for secondary school education. The appellants also submit that, since Tiny had stood for almost sixty years as an authoritative decision on this issue, it should not now be disturbed. The Attorney-General of Ontario, in asking this court to review the Privy Council’s decision in Tiny, submitted that the courts in Tiny were asked the wrong question. All of the judgments concentrated on the question whether the separate schools had an unfettered discretion to operate their schools free from any regulatory interference. The Attorney-General submits that the real question, unsatisfactorily addressed by the various courts in Tiny, was what level of instruction were separate schools permitted by law to provide in 1867. I would agree with this submission. When the correct question is asked it is seen that every judge who participated in the Tiny decisions, with the exception of Duff J. in this court, held that separate schools were permitted by law to offer any level of courses at the time of Confederation. For example, in the Privy Council Viscount Haldane stated at p. 761 D.L.R., p. 376 A.C., that “[b]efore Confederation the common schools and with them the separate schools were left free, by statute … to educate pupils up to the age of 21, and some of them were in the habit of giving to the ROGHUSXSLOVDGYDQFHGWHDFKLQJVXFKDVZRXOGÀWWKHPWRHQWHUWKH8QLYHUVLW\µ

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The essence of the various Tiny decisions was that the presence in the statute of an apparently unfettered power of regulation in the council made it impossible for the separate schools to have any rights or privileges by law capable of being protected by the guarantee in s. 93(1). Any “rights” they might otherwise have had were totally defeasible because they were subject to a statutory power of regulation “in the full sense”: per Viscount Haldane at p. 770 D.L.R., p. 386 A.C. It is, however, well established today that a statutory power to make regulations is not unfettered. It is constrained by the policies and objectives inherent in the enabling statute. A power to regulate is not a power to prohibit. It cannot be used to frustrate the very legislative scheme under which the power is conferred. This principle was cogently expressed in 3DGÀHOGY0LQLVWHURI$JULFXOWXUH)LVKHULHVDQG Food, [1968] A.C. 997, and was recently approved by this Court in Oakwood Development Ltd. v. Rur. Mpty of St. Francois Xavier (1985), 20 D.L.R. (4th) 641, [1985] 2 S.C.R. 164, [1984] 6 W.W.R. 147. The roots of this principle stretch back beyond the date of Confederation. In considering the exercise of a power of expropriation or compulsory acquisition of property statutorily granted to a company Lord Cranworth L.C. in Galloway v. Mayor and Commonalty of London (1866), L.R. 1 H.L. 34, stated at p. 43: The principle is this, that when persons embarking on great undertakings, for the accomplishment of which those engaged in them have received authority from the Legislature to take compulsory the lands of others, making to the latter proper compensation, the persons so authorized cannot be allowed to exercise the powers conferred on them for any collateral object; that is, for any purposes except those for which the Legislature has invested them with extraordinary powers. The power of the Council of Public Instruction was to make regulations for explicitly stated purposes – “for the organization, government and discipline of common schools, IRUWKHFODVVLÀFDWLRQRIVFKRROVDQGWHDFKHUVDQGIRUVFKRROOLEUDULHVWKURXJKRXW8SSHU Canada”. Its power did not extend to prohibiting a secondary level of instruction if such was deemed necessary by the trustees in order to meet local educational needs. I would adopt what Mignault J. said in this court in Tiny (at pp. 906-7 D.L.R., p. 707 S.C.R.) with respect to the scope of the council’s regulatory power: It seems to me inconceivable that when it granted to the Roman Catholics of Upper Canada the privilege of having their own separate schools, the Legislature could have intended to render this privilege valueless by allowing the Council of Public Instruction of that Province to restrict, by regulations, the scope of the education to be given in these schools. I would also adopt the following comments of Anglin C.J.C. at pp. 874-5 D.L.R., p. 671 S.C.R.: The statutes which entitled pupils up to the age of 21 years to attend the common and separate schools were certainly not designed to enable the Council of Public Instruction, under the guise of regulation, so to restrict the courses of studies for which the trustees might provide that they would be suitable only for pupils up to the age of, say, 12 or even 16 years.

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As was forcibly pointed out during the argument, that would be to prohibit, not to regulate … If the power of regulation of the Council of Public Instruction could be VRH[HUFLVHGWKHZRUNRIWKHVFKRROVFRXOGEHLQGHÀQLWHO\FXWGRZQ«%XWWKDW an emasculation of the courses of study which Catholic separate school trustees were at the Union entitled to provide in their denominational schools for pupils up to 21 years of age would prejudicially affect a right or privilege with respect to such schools legally enjoyed by them is indisputable … Legislation purporting to authorize such an injustice would contravene s. 93(1) of the B.N.A. Act and it is obvious that what the legislature cannot do by direct action its creature may not do by regulation. In the Privy council Viscount Haldane noted (without any elaboration) at p. 772 D.L.R., p. 389 A.C., that “[i]t is indeed true that power to regulate does not imply a power to abolish”. But he did not go on to point out that a right subject to a power of regulation is nevertheless a right and that the power must be exercised in conformity with the objectives of the Act. He simply concluded that the existence of the regulatory power at the date of Confederation, even although it had never been exercised up to the time of Confederation, prevented the separate schools at the time of Confederation from having the right to provide a secondary level of education for their pupils. For the reasons I have expressed above, this conclusion does not appear to me to be sound. The Privy Council’s disposition of the funding issue is, in my respectful view, equally unsatisfactory. The Privy Council seems not to have fully appreciated the purpose of s. 20 of the Scott Act and its relationship to s. 120 of the Common Schools Act. The whole purpose of these two sections was to preserve the separate school system. The security afforded the Roman Catholic minority through the tying of funding for its schools to a proportion of the funding for the common schools was in the certainty that the Legislature would never cut off funding for the common schools. There would, therefore, always be a grant in which the separate schools would be entitled to share. However, by interpreting “otherwise appropriated by law” as permitting appropriations to schools other than “common schools” serving the majority, the Privy Council created a result quite contrary to the one which seems to have been intended by the draftsmen of the Scott Act. It created a situation where the schools of the majority could be fully funded by the Legislature but the separate schools’ funding was dependent upon the grace, generosity and good will of the Legislature. This hardly seems consonant with the purpose of the Scott Act, which, as stated in its preamble, was to: … restore to Roman Catholics in Upper Canada certain rights which they formerly enjoyed in respect to Separate Schools and to bring the provisions of the Law respecting Separate Schools more in harmony with the provisions of the Law respecting Common Schools. The view expressed by Anglin C.J.C. in this court’s decision in Tiny at pp. 881-2 D.L.R., pp. 678-9 S.C.R., seems apposite: 7RH[FOXGHIURPWKHDGGLWLRQDOPRQHWDU\EHQHÀWVLQZKLFKWKHULJKWWR´DVKDUHµZDV conferred on the separate schools in 1863 grants “for a common school purpose” … would defeat the apparent intention of the Legislature in 1863 to put separate 619

STATE SUPPORT FOR RELIGIOUS EDUCATION

schools on a footing of absolute equality with common schools in regard to all grants, municipal or legislative, of public moneys. … If, therefore, a grant of public moneys is made by the Legislature or by a municipal authority to aid or assist in the carrying out of what would in 1867 have been deemed a common school purpose, either it must be so made that it is apportionable between the common schools (or their present day successors) and the separate schools, or compensation to the latter for their proportion of such grant must be provided for. A further reason why the rights of separate school supporters to a secondary level of instruction should not be dismissed as non-rights and why the phrase “otherwise appropriated by law” in s. 120 of the Common Schools Act of 1859 should not be interpreted so broadly as to allow the Legislature to impair the funding of separate schools, is that s. 93(1) of the Constitution Act, 1867 was intended to give constitutional value to the rights and privileges conferred in the Scott Act and the Common Schools Act of 1859. Section 93(1) should, in my view, be interpreted in a way which implements its clear SXUSRVHZKLFKZDVWRSURYLGHDÀUPSURWHFWLRQIRU5RPDQ&DWKROLFHGXFDWLRQLQWKH Province of Ontario and Protestant education in the Province of Quebec. To interpret the provisions of the Scott Act and the Common Schools Act in the way in which the Privy Council interpreted them in Tiny is to render this constitutionalized protection illusory and wholly undermine this historically important compromise. I would therefore conclude that Roman Catholic separate school supporters had at Confederation a right or privilege, by law, to have their children receive an appropriate education which could include instruction at the secondary school level and that such right or privilege is therefore constitutionally guaranteed under s. 93(1) of the Constitution Act, 1867.0\UHDVRQVLQVXSSRUWRIWKLVFRQFOXVLRQPD\EHEULHÁ\VXPPDUL]HG%\ s. 7 of the Scott Act separate school trustees were given the same powers and duties as common school trustees. They were subject to a duty to allow pupils between the ages RIÀYHDQGWRDWWHQGWKHLUVFKRROVDQGWRSURYLGHWKHPZLWKDVXLWDEOHHGXFDWLRQ As in the case of the common school trustees the separate school trustees had, by law, a right to manage and control their schools. They also had a broad power, subject to regulation by the Council of Public Instruction, to determine the courses to be taught and to prescribe the level of education required to meet the needs of the local community. As Anglin C.J.C pointed out in Tiny this was not a mere practice tolerated by the educational authorities but was permitted by law. I believe the Privy Council was in error in holding that the existence of the council’s general regulatory power (which, in my view, had to be exercised in conformity with the provisions of the enabling statute) QXOOLÀHGWKHWUXVWHHV·SRZHUWRSURYLGHDVHFRQGDU\OHYHORILQVWUXFWLRQLQWKHLUVFKRROV if they deemed it appropriate. It is clear that if the foregoing right was to be meaningful an adequate level of funding was required to support it. This court held unanimously in A.-G. Que. v. Greater Hull School Board (1984), 15 D.L.R. (4th) 651, [1984] 2 S.C.R. 575, 28 M.P.L.R. 146, that the right of dissentient schools in Quebec to a proportionate share of government

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funding was a right protected by s. 93 of the Constitution Act, 1867. Likewise, in my view, the right of separate schools in Ontario. They were entitled to the proportionate funding provided for in s. 20 of the Scott Act. This conclusion, it seems to me, is fully consistent with the clear purpose of s. 93, namely that the denominational minority’s interest in a separate but suitable education for its children be protected into the future. I would therefore conclude (subject to the comments that follow on the applicability of the Charter of Rights) that Bill 30, which returns rights constitutionally guaranteed to separate schools by s. 93(1) of the Constitution Act, 1867, is intra vires the provincial Legislature.

(c) The applicability of the Charter of Rights The appellants urged upon the court that Bill 30 contravened s. 15 and s. 2(a) of the Charter in that it provided full funding for Roman Catholic secondary schools but not for other secondary schools, denominational or non-denominational, in the province. The respondents submit that s. 29 of the Charter is a complete answer to this allegation. Section 29 provides: 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. This section, the respondents argued, makes Bill 30 immune from Charter review because Bill 30 deals with “rights or privileges guaranteed … under the Constitution of Canada”. The respondents are no doubt correct if Bill 30 is supported under s. 93(1) of the Constitution Act, 1867. It would then fall fairly and squarely within the language of s. 29. The Charter cannot be applied so as to abrogate from rights or privileges guaranteed by or under the Constitution. But does s. 29 provide immunity from Charter review if the Bill is supportable only under the plenary power and s. 93(3)? The respondents submitted that post-Confederation legislation enacted under the Legislature’s plenary power in relation to education and s. 93(3), while it may not be guaranteed by the Constitution, is guaranteed under the Constitution and is therefore LPPXQHIURP&KDUWHUUHYLHZXQGHUV,KDYHVRPHGLIÀFXOW\ZLWKWKLVVXEPLVVLRQ if what the respondents are saying is that rights or privileges acquired under legislation enacted by a province pursuant to its plenary power in relation to education in the opening words of s. 93 have the same protection as the rights and privileges protected by s. 93(1). This cannot be so. It is clear from the wording of s. 93(3) that post-Confederation legislation referred to in that subsection may be subsequently amended or repealed by the Legislature which passed it in a way which affects rights or privileges initially granted by it. The only recourse if such occurs is an appeal to the Governor General in Council. It cannot be concluded, therefore, that rights and privileges conferred by post-Confederation legislation under s. 93(3) are “guaranteed” within the meaning of s. 29 in the same way as rights or privileges under s. 93(1). This does not mean, however, that such rights or privileges are vulnerable to attack under ss. 2(a) and 15 of the Charter. I have indicated that the rights or privileges protected by s. 93(1) are immune from Charter review under s. 29 of the Charter. I think this is clear. What is less clear is whether s. 29 of the Charter was required in order to achieve 621

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that result. In my view, it was not. I believe it was put there simply to emphasize that the special treatment guaranteed by the constitution to denominational, separate or dissentient schools, even if it sits uncomfortably with the concept of equality embodied in the Charter because not available to other schools, is nevertheless not impaired by the Charter. It was never intended, in my opinion, that the Charter could be used to invalidate other provisions of the Constitution, particularly a provision such as s. 93 which represented a fundamental part of the Confederation compromise. Section 29, in my view, is present in the Charter only for greater certainty, at least in so far as the Province of Ontario is concerned. To put it another way, s. 29 is there to render immune from Charter review rights or privileges which would otherwise, i.e., but for s. 29 be subject to such review. The question then becomes: does s. 29 protect rights or privileges conferred by legislation passed under the province’s plenary power in relation to education under the opening words of s. 93? In my view, it does although again I do not believe it is required for this purpose. The Confederation compromise in relation to education is found in the whole of s. 93, not in its individual parts. The s. 93(3) rights and privileges are not guaranteed in the sense that the s. 93(3) rights and privileges are guaranteed, i.e., in the sense that the legislature which gave them cannot later pass laws which prejudicially affect them. But they are insulated from Charter attack as legislation enacted pursuant to the plenary power in relation to education granted to the provincial legislatures as part of the Confederation compromise. Their protection from Charter review lies not in the guaranteed nature of the rights and privileges conferred by the legislation but in the guaranteed nature of the province’s plenary power to enact that legislation. What the province gives pursuant to its plenary power the province can take away, subject only to the right of appeal to the Governor General in Council. But the province is master of its own house when it legislates under its plenary power in relation to denominational, separate or dissentient schools. This was the agreement at Confederation and, in my view, it was not displaced by the enactment of the Constitution Act, 1982. As the majority of the Court of Appeal concluded at p. 64 D.L.R., pp. 575-6 O.R. 7KHVHHGXFDWLRQDOULJKWVJUDQWHGVSHFLÀFDOO\WRWKH3URWHVWDQWVLQ4XHEHFDQGWKH Roman Catholics in Ontario, make it impossible to treat all Canadians equally. The country was founded upon the recognition of special or unequal educational rights IRUVSHFLÀFUHOLJLRXVJURXSVLQ2QWDULRDQG4XHEHF7KHLQFRUSRUDWLRQRIWKH&KDUWHU into the Constitution Act, 1982, does not change the original Confederation bargain. $VSHFLÀFFRQVWLWXWLRQDODPHQGPHQWZRXOGEHUHTXLUHGWRDFFRPSOLVKWKDW I would conclude, therefore, that even if Bill 30 is supportable only under the province’s plenary power and s. 93(3), it is insulated from Charter review.

5. DISPOSITION I would dismiss the appeal but in the circumstances without costs. I would answer the reference question as follows:

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Question: Is Bill 30, An Act to Amend the Education Act inconsistent with the provisions of the Constitution of Canada including the Canadian Charter of Rights and Freedoms and, if so, in what particulars and in what respect? Answer: No. The reasons of Beetz and Estey JJ. were delivered by (67(<-²,KDYHKDGWKHEHQHÀWRIUHDGLQJWKHUHDVRQVIRUMXGJHPHQWRIP\ colleague Wilson J. and, with respect, I reach the same conclusion but by a different and shorter route. In the result, I conclude that Bill 30, the Education Amendment Act, 1986 (Ont.), c. 21, is not inconsistent with the provisions of the Constitution of Canada. Because Madame Justice Wilson has fully set out and reviewed the Bill which gave rise to these proceedings, the circumstances which led up to the appeal to this court, and the judgments in the Court of Appeal [25 D.L.R. (4th) 1, 53 O.R. (2d) 513, 23 C.R.R. 193], it is possible to proceed directly to the issue required to be settled in the disposition of this appeal. 7KHÀUVWTXHVWLRQWKDWPXVWEHDGGUHVVHGLQWKLVDSSHDOLVZKHWKHU%LOOLVDYDOLG exercise of the provincial power in relation to education under the opening words of s. 93 and s. 93(3) of the Constitution Act, 1867. Like my colleague Wilson J., I conclude that Bill 30 is a valid exercise of this provincial power. The only remaining question is whether the exercise of this valid provincial power can be limited, or in this case entirely truncated, by the operation of the Canadian Charter of Rights and Freedoms. This judgment concludes that the Charter cannot operate to erase this provincial power under the Constitution. Bill 30 is therefore upheld. Unlike my colleague Wilson J., I conclude with respect that it is therefore unnecessary to consider the operation of s. 93(1) of the Constitution Act, 1867, to re-examine the scope of the rights guaranteed to Roman Catholics by the Constitution Act, 1867, or to reconsider the decision of the Privy Council on that issue in Tiny Separate School Trustees v. The King, [1928] 3 D.L.R. 753, [1928] A.C. 363 sub nom. Roman Catholic Separate School Trustees for Tiny v. The King, [1928] 2 W.W.R. 641. This judgment of the Privy Council supports and indeed relies upon the factual conclusions reached in all the courts below except the Supreme Court. It would be most inappropriate and indeed dangerous for this court RYHUKDOIDFHQWXU\ODWHUWRUHYLHZDQGWKHQUHYHUVHRUUHYLVHÀQGLQJVRIIDFWPDGHDW WULDOE\5RVH->2/5@FRQÀUPHGE\DXQDQLPRXV&RXUWRI$SSHDO>>@ D.L.R. 913, 60 O.L.R. 15] and undisturbed by the even division of this court [[1927] 4 D.L.R. 857, [1927] S.C.R. 637]. At the Supreme Court, Duff J., who had been both a student and a teacher in the school systems of Ontario there under examination, agreed ZLWKWKHIDFWXDOÀQGLQJVRIWKHFRXUWVEHORZ:KHUHLWLVQRWHVVHQWLDOWRWKHGLVSRVLWLRQ of the issue here, it would be imprudent for an appellate court sitting almost 60 years distant from the scene to reassess a factual situation peculiarly within the experience of the members of the lower courts who were called upon to make their judgment of then recent history. For all these reasons, in my view, Tiny should not now be reopened. The state of separate school education in 1867 in Ontario is, in my view, therefore wholly irrelevant to the measurement of the constitutionality of Bill 30 in this appeal.

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Before one can discuss the main point around which this appeal turns it is necessary to clear away some underbrush which, though argued at length, in truth only conceals the main point. I.

The opening words of s. 93 and s. 93(3) of the Constitution Act, 1867

The provisions of the Constitution Act, 1867 which are relevant to this appeal are as follows: 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: … (3) Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, and Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen’s Subjects in relation to Education: (4) In case any such Provincial Law as from Time to Time seems to the GovernorGeneral in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor in Council under this Section. The opening words of s. 93 are a clear grant of legislative power to the province, providing the province with the authority to make laws in relation to education. As such, the opening words of s. 93 are similar to the various grants of provincial power found in s. 92 of the Constitutional Act, 1867 and might well have been included in s. 92 along with the related federal responsibility under s. 93(3). This would have resulted in a subsection of s. 92 in a form very similar to that of 92(10) (local works and undertakings) which also acknowledges a related federal authority. Section 93(3) provides for an appeal to the Governor General in Council when “any Act or Decision of any Provincial Authority” affects any right or privilege “of the Protestant or Roman Catholic Minority” that existed either: (a) at the time of Confederation, or (b) was “thereafter established by the Legislature”. Subsection (3) thus contemplates that after Confederation the Legislature may establish a new system of separate schools or may enlarge an existing system of separate schools. Should this system of schools be later repealed or otherwise affected by the Legislature, an appeal to the Governor-General in Council would lie, in addition to any right to appeal to

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the courts challenging legislative action prejudicially affecting the rights guaranteed under s. 93(1). When read with the opening words of s. 93, which provide the province with a general plenary power to “exclusively make Laws in relation to Education”, it is clear that the province can make any laws with respect to education subject only to two limitations. First, any such laws may not violate the minimum constitutional guarantees found in s. 93(1), and second, the exercise of this provincial power may also face federal intervention under s. 93(4). Support for this general proposition can be found in both Brophy v. A.-G. Man., [1985] A. C. 202, and Tiny Separate School Trustees v. The King, supra. With respect to the operation s. 93(3), Lord Halsbury L.C., speaking for the Privy Council in Brophy, stated at p. 220: It is admitted that the 3rd and 4th sub-sections of sect. 93 (the latter of which is, as has been observed, identical with sub-sect. 3 of sect. 22 of the Manitoba Act) were not intended to have effect merely when a provincial Legislature had exceeded the limit imposed on its powers by sub-sect. 1, for sub-sect. 3 gives an appeal to the Governor-General, not only where a system of separate or dissentient schools existed in a province at the time of the Union, but also where in any province such a system was “thereafter established by the Legislature of the province”. It is manifest that this relates to a state of things created by post-Union legislation. The Privy Council in Tiny, supra, returned to the analysis of s. 93(3), when Viscount Haldane stated at p. 756 D. L.R., pp. 369-70 A.C.: Subsection 3 contemplates that within the powers of the provincial legislature Acts might be passed which did affect rights and privileges of religious minorities in relation to education, and gives a different kind of remedy, which appears, as has already been pointed out, to have been devised subsequently to the Quebec resolutions of 1864, and before the bill of 1867 was agreed on. Whenever an Act or decision of a provincial authority affecting any right or privilege of the minority, Protestant or Roman Catholic, in relation to education is challenged, an appeal is to lie to the Governor-General in Council, as distinguished from the Courts of law. No doubt if what is challenged is challenged on the ground of its being ultra vires, the right of appeal to a Court of Law remains for both parties unimpaired. But there is a further right not based on the principle of ultra vires. That this is so is shown by the extension of the power to challenge to any system of separate or dissentient schools established by law after Confederation, and which accordingly FRXOGQRWEHFRQÀQHGWRULJKWVRUSULYLOHJHVDWWKHWLPHRI&RQIHGHUDWLRQ The following conclusions can be drawn from the above analysis. The appeal process established by s. 93(3) is primarily a political appeal; it is not the legal right to challenge constitutionality that is found in s. 93(1). It is clear that no right of appeal lies under s. 93(3) unless there has been an “Act or Decision of any Provincial Authority” which affects rights or privileges. Rights or privileges granted after Confederation can be protected by the political appeal process in s. 93(3); rights or privileges in place at the

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time of Confederation can be protected by either the political appeal process in s. 93(3) or a legal challenge in the courts pursuant to s. 93(1). It is therefore a basic premise or a binding assumption on the part of the authors of s. 93(3) that for a right of appeal to arise under s. 93(3), the province has by legislation established or enlarged, after Confederation, a separate school system and has thereafter abolished or affected the rights granted to the minority under that legislation. The ultimate question posed in this appeal is whether Bill 30, which extends full funding for secondary education to separate schools already in existence, falls within the provincial power contemplated in s. 93(3). The dissent in the Court of Appeal was of the opinion that s. 93(3) did not expand the rights or privileges protected by s. 93(1) and that the reference to “thereafter established” in s. 93(3) “… would apply to a province such as Manitoba or Newfoundland which established a system of separate schools after Confederation”. If this were so, these key words would have no application to Ontario. With all respect, I cannot accept the reasoning of the minority. It would, in my view, be quite incorrect to conclude that the words “thereafter established” in s. 93(3), and the appeal process found therein, only apply to provinces which at the time of union had no publicly funded separate school system. There is no compelling reason to interpret so restrictively the words in s. 93(3). In my respectful view, the plain meaning of the words “thereafter established” necessarily includes additional rights or privileges, such as full funding for secondary education in Ontario, that have been granted subsequent to Confederation and in addition to the minimum rights and privileges guaranteed in s. 93(1). I conclude therefore that this post-Confederation legislative power of the province to legislate with respect to education includes the establishment of separate schools providing education at the secondary school level. Without this post-Confederation legislative sovereignty in the province, the right of appeal which is granted under s. 93(3) would be illusory and completely without any future use. It is also important to note that s. 93(4) provides for an extraordinary federal jurisdiction over education in the event that an appeal under s. 93(3) meets with the favour of the Governor-General in Council. The Parliament of Canada may make any such remedial laws as are necessary for the implementation of any decision by the Governor-General in Council in response to an appeal under s. 93(3). Indeed, the federal power to enact remedial laws under s. 93(4) does not appear to be limited only to situations where there has been an appeal to the Governor General in Council. The opening words of s.93(4) contemplate that whenever it appears to the Governor-General in Council that a provincial law is “requisite for the due execution of the provisions” of s. 93, Parliament may enact remedial legislation. It would appear, although it is not necessary to decide, that the remedial power of Parliament can be exercised either in the event of an appeal to the Governor-General in Council or upon the initiative of the Governor-General in Council should it be deemed necessary. Some counsel suggested that s. 93(4) has been effectively removed from the Constitution because it has never been used. While it is not necessary to decide whether the lack of exercise of this federal power under s. 93(4) has rendered this power obsolete or atrophic, the removal of the federal power in this matter would not reduce but could indeed strengthen the freedom of the province to exercise its unfettered power, apart from s. 93(1) which is not here applicable, under 626

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the opening part of s. 93. In any event, it should be observed that s. 93(4) is a key provision in the delicate balance of interests found in s. 93, and it is a grant of federal power as vital as any found in s. 91 of the Constitution Act, 1867. Consequently it is GLIÀFXOWWRXQGHUVWDQGKRZODFNRIH[HUFLVHFDQRSHUDWHDVDUHSHDO As a result, in order that life may be given to s. 93(3) and (4) it is fundamental that the province enjoy the power to create or add to a separate school system. The next question that must therefore be addressed is the application of the Charter to the exercise of this provincial power. II. Application of the Charter of Rights The appellants have argued that Bill 30 violates ss. 2(a) and 15 of the Charter in that Bill 30 provides full funding for Roman Catholic secondary schools but not for other secondary schools, denominational or non-denominational, in the province. Section 2(a) and s. 15 of the Charter provide as follows: 2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; … 15(1) Every individual is equal before and under the law and has the right to the HTXDOSURWHFWLRQDQGHTXDOEHQHÀWRIWKHODZZLWKRXWGLVFULPLQDWLRQDQGLQSDUWLFXODU without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. It is axiomatic (and many counsel before this court conceded the point) that if the Charter has any application to Bill 30, this Bill would be found discriminatory and in violation of ss. 2(a) and 15 of the Charter of Rights. Notwithstanding this conclusion, the real contest in this appeal is clearly between the operation of the Charter in its entirety and the integrity of s. 93. By s. 52 of the Constitution Act, 1982, s. 93 is a part of the Constitution of Canada. Section 93 is a fundamental constitutional provision because it is a part of the pattern of the sharing of sovereign power between the two plenary authorities created at Confederation. The importance of this provision is underlined by its separate existence outside the catalogue of powers in ss. 91 and 92. Once s. 93 is examined as a grant of power to the province, similar to the heads of power found in s. 92, it is apparent that the purpose of this grant of power is to provide the province with the jurisdiction to legislate in a prima facie selective and distinguishing manner with respect to education whether or not some segments of the community might consider the result to be discriminatory. In this sense, s. 93 is a provincial counterpart of s. 91(24) (Indians and Indian land) which authorizes the Parliament of Canada to OHJLVODWHIRUWKHEHQHÀWRIWKH,QGLDQSRSXODWLRQLQDSUHIHUHQWLDOGLVFULPLQDWRU\RU distinctive fashion vis-à-vis others. The role of the Charter is not envisaged in our jurisprudence as providing for the automatic repeal of any provisions of the Constitution of Canada which includes all of the documents enumerated in s. 52 of the Constitution Act, 1982. Action taken under the Constitution Act, 1867 is of course subject to Charter review. That is far different

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WKLQJIURPVD\LQJWKDWDVSHFLÀFSRZHUWROHJLVODWHDVH[LVWLQJSULRUWR$SULOKDV been entirely removed by the simple advent of the Charter. It is one thing to supervise and on a proper occasion curtail the exercise of a power to legislate; it is quite another thing to say that an entire power to legislate has been removed from the Constitution by the introduction of this judicial power of supervision. The power to establish or add to a system of Roman Catholic separate schools found in s. 93(3) expressly contemplates that the province may legislate with respect to a religiously-based school system funded from the public treasury. Although the Charter is intended to constrain the exercise of legislative power conferred under the Constitution Act, 1867 where the delineated rights of individual members of the community are adversely affected, it cannot be interpreted as rendering unconstitutional distinctions that are expressly permitted by the Constitution Act, 1867. I therefore would conclude that s. 93(3) does indeed introduce a recognition of a legislative power granted in the opening words of s. 93 and surviving the operations of s. 93(1). This legislative power in the province is not subject to regulation by other parts of the Constitution in any way which would be tantamount to its repeal. The Charter would not be available to disallow the implementation of s.93(1), or legislation for the protection of the rights embedded by s. 93(1), or legislation contemplated in s. 93(3). 7KLVFRQFOXVLRQWKDW%LOOÀQGVLWVYDOLGLW\LQWKHH[HUFLVHRISURYLQFLDOSRZHU under s. 93 and that the exercise of this power cannot be abolished or truncated by the &KDUWHULVVXIÀFLHQWWRGLVSRVHRIWKLVDSSHDO+RZHYHUDVWKHUHZDVPXFKGLVFXVVLRQ before the court regarding the operation of s. 29 of the Charter, it may be useful to make some comments in response to those arguments. The interpretation of s. 29 was DOVRFULWLFDOWRWKHÀQGLQJE\WKHPDMRULW\LQWKH2QWDULR&RXUWRI$SSHDOWKDW%LOO was not subject to review by the Charter. Section 29 provides as follows: 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. It was argued by the respondents that the “rights or privileges” which are protected from Charter review by s. 29 include the rights and privileges that have been granted by the passage of Bill 30 itself. Section 29 is thereby interpreted as applying to postConfederation legislation because that legislation is considered by the terms of s. 29 to be a guarantee “by or under the Constitution” protecting rights or privileges of separate schools. There are several approaches one could take when examining the ambiguous wording in s. 29. The majority below chose to focus on the words “or under” found in s. 29 and they concluded that these words were intended to cover guarantees in DGGLWLRQWRWKRVHJUDQWHGVSHFLÀFDOO\E\WKH&RQVWLWXWLRQLWVHOI7KHZRUGV´XQGHUWKH Constitution” it was said should include rights or privileges granted by laws enacted under the authority of the Constitution. The majority held that this interpretation was supported by the French version of s. 29 which employs the single phrase “en vertu de” in the place of “by or under”. Further, the respondent in this appeal argued that an interpretation of s. 29 which restricted the protection it provided to only those rights VSHFLÀFDOO\JXDUDQWHHGE\WKH&RQVWLWXWLRQZRXOGUHQGHUVUHGXQGDQWDVWKH&KDUWHU 628

6. CANADIAN JUDICIAL DECISIONS

FDQQRWSRVVLEO\RSHUDWHVRDVWRRYHUUXOHDQ\ULJKWVVSHFLÀFDOO\JUDQWHGLQRWKHUSDUWV of the Constitution. The minority of the Court of Appeal was not persuaded by this interpretation of s. 29 and chose instead to focus on the operation of the word “guaranteed” in s. 29. To be protected by s. 29, the rights referred to therein must be constitutionally guaranteed and a constitutional guarantee does not attach to rights or privileges conferred by an ordinary provincial statute. The minority also expressed concern that to interpret s. 29 as protecting all statutory enactments with respect to separate schools from Charter review would additionally have the effect of transforming these additional privileges granted to separate schools into guarantees under the Constitution and thus forever immune from legislative repeal or amendment. I have concluded, with respect to those who have concluded otherwise, that it is unnecessary to resolve the meaning of “by” or “under” because the dominant word in s. 29 is “guaranteed”. Statutes cannot by their very nature guarantee anything, susceptible as they are to legislative repeal. As the rights granted by Bill 30 are not “guaranteed” under the Constitution Act, 1867 (Tiny, supra, at pp. 770-71 D.L.R., p. 387 A.C), s. 29 cannot operate so as to protect these rights. I would therefore adopt the reasoning of the minority at the Court of Appeal with respect to the interpretation to be given to s. 29 of the Charter. I repeat, however, that Bill 30 cannot be struck down by the Charter EHFDXVH%LOOLVDYDOLGH[HUFLVHRIDVSHFLÀFSRZHUWROHJLVODWHJUDQWHGXQGHUV Bill 30 does not require the protection of s. 93 in order to be upheld.

Conclusion I would dismiss the appeal and answer the reference question in the negative. The following are the reasons delivered by /$0(5-²,KDYHKDGWKHEHQHÀWRIUHDGLQJWKHUHDVRQVIRUMXGJPHQWSUHSDUHGLQ this appeal by my colleagues, Wilson and Estey JJ. I agree with them that this appeal should be dismissed. However, I would dismiss the appeal only on the basis of the opening words of s. 93 and s. 93(3) of the Constitution Act, 1867, for the reasons given by Wilson J. I also agree with Wilson J. as to the effect of the Canadian Charter of Rights and Freedoms on s. 93 of the Constitution Act, 1867. *LYHQ P\ GHFLVLRQ RQ WKLV ÀUVW SRLQW LW LV XQQHFHVVDU\ IRU PH WR GHDO ZLWK WKH interpretation of s. 93(1) of the Constitution Act, 1867 and Tiny Separate School Trustees v. The King, [1928] 3 D.L.R. 753, [1928] A.C. 363 sub nom. Roman Catholic Separate School Trustees for Tiny v. The King, [1928] 2 W.W.R. 641. I would therefore dismiss the appeal and answer the reference question in the negative. Appeal dismissed.

629

#30 Re Zylberberg v. Sudbury Board of Education (Director)    25 G    '/5  &$   6HSWHPEHU 1988 (Ontario Court of Appeal) In this case the Ontario Court of Appeal established that religious instruction of particular faiths in the public schools was not permitted. A group of parents of children enrolled in elementary public schools of the Sudbury Board of Education challenged an Ontario law which required a public school to open or close each school day with religious exercises consisting of the reading of the Scriptures and the reciting of the Lord’s Prayer. The schools under the jurisdiction of the Sudbury Board of Education did open with the national anthem, the Lord’s Prayer and, in some schools, readings from the Scriptures. The Court decided that the recitation of the Lord’s Prayer, which is a Christian prayer, and the reading of the Scriptures from the Christian Bible violated the freedom of conscience and religion guaranteed by s. 2(a) of the Canadian Charter of Rights and Freedoms. Provisions for exempting minority students from these exercises did not save the regulation from violating the Charter. The Court held that this provision imposed on religious minorities a compulsion to conform to the religious practices of the majority. They found that the exemption provisions, in effect, discriminated against religious minorities by “imposing a penalty on pupils from religious minorities who utilize it by stigmatizing them as non-conformists and setting them apart from their fellow students who are members of the dominant religion”. Reproduced here is the decision of the Ontario Court of Appeal.

5H=\OEHUEHUJHWDODQG'LUHFWRURI(GXFDWLRQRI6XGEXU\%RDUGRI Education, September 23, 1988 %522.(%/$,5*22'0$1$1'52%,16--$ – The issue in this appeal is whether religious exercises, prescribed for the opening or closing of each school day in the public schools of this province, infringe the freedom of religion and conscience guaranteed by s. 2(a) of the Canadian Charter of Rights and Freedoms. This is an appeal from a decision of the Divisional Court, now reported at 55 O.R. (2d) 749, 29 D.L.R. (4th) 709, 25 C.R.R. 193, which by a majority held that they did not.

1. Statutes and regulations The statutory authority for religious exercises in public schools is found in s. 50 of the Education Act, R.S.O. 1980, c. 129 (the Act), which reads as follows: Religious Instruction 50(1) Subject to the regulations, a pupil shall be allowed to receive such religious instruction as his parent or guardian desires or, where the pupil is an adult, as he desires.

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STATE SUPPORT FOR RELIGIOUS EDUCATION

(2) No pupil in a public school shall be required to read or study in or from a religious book, or to join in an exercise of devotion or religion, objected to by his parent or guardian, or by the pupil, where he is an adult. Only s-s. (2) which deals with religious exercises is relevant to this appeal. The provisions regarding religious instruction in s. 50 and the regulations made thereunder were held not to infringe the Charter by the Divisional Court in a split decision released after the hearing of this appeal: Corporation of the Canadian Civil Liberties Assn. v. Ontario (Minister of Education) released March 28, 1988, unreported (the Elgin County case). [Now reported 64 O.R. (2d) 577, 50 D.L.R. (4th) 193.] It is not necessary for the purpose of our decision to refer to the Elgin County case. We consider any discussion of it here to be inappropriate because it is under appeal to this court. Power to make regulations under s. 50 is conferred by s. 10(1), para. 18 which reads: 10(1) Subject to the approval of the Lieutenant Governor in Council, the Minister may make regulations in respect of schools or classes established under this Act, or any predecessor of this Act, and with respect to all other schools supported in whole or in part by public money, … 18. governing the provisions of religious exercises and religious education in public and secondary schools and providing for the exemption of pupils from participating in such exercises and education and of a teacher from teaching, and a public school board or a secondary school board from providing, religious education in any school or class; Religious exercises in public schools are governed by s. 28 of R.R.O. 1980, Reg. 262 (the Regulations), made pursuant to s. 10(1), the relevant parts of which provide: RELIGIOUS EXERCISES AND RELIGIOUS EDUCATION IN THE PUBLIC SCHOOLS 28(1) A public school shall be opened or closed each school day with religious exercises consisting of the reading of the Scriptures or other suitable readings and the repeating of the Lord’s Prayer or other suitable prayers. (2) The readings and prayers that form part of the religious exercises referred to in subsection (1) shall be chosen from a list of selections approved for such purposes by the board that operates the school where the board approves such a list and, where the board does not approve such a list, the principal of the school shall select the readings and prayers after notifying the board of his intention to do so, but his selection is subject to revision by the board at any time. (3) The religious exercises under subsection (1) may include the singing of one or more hymns. …

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(10) No pupil shall be required to take part in any religious exercises or be subject to any instructions in religious education where his parent or, where the pupil is an adult, the pupil applies to the principal of the school that the pupil attends for exemption of the pupil therefrom. (11) In public schools without suitable waiting rooms or other similar accommodation, if the parent of a pupil or, where the pupil is an adult, the pupil applies to the principal of the school for the exemption of the pupil from attendance while religious exercises are being held or religious education given, such request shall be granted. (12) Where a parent of a pupil, or a pupil who is an adult, objects to the pupil’s taking part in religious exercises or being subject to instruction in religious education, but requests that the pupil remain in the classroom during the time devoted to religious exercises or instruction in religious education, the principal of the school that pupil attends shall permit the pupil to do so, if he maintains decorous behaviour. (Emphasis added.) Subsections (4) to (9) deal with religious education and are not relevant to this appeal. The appellants seek a declaration that s. 28(1) of the Regulations is of no force or effect because it interferes with the appellants’ freedom under s. 2(a) of the Charter which declares: 2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; This necessarily would include s. 28(2) and (3). The appellants refrain from asking for any declaration with respect to 28(10), (11) and (12) or s. 50 of the Act because they do not wish to impair the rights to exemption from religious exercises or instruction which are contained in them. It should be noted that the right of Ontario Roman Catholics to religious education in separate schools is guaranteed by s. 93 of the Constitution Act, 1867, and is not an issue in this appeal.

2. The factual background 7KLVDSSOLFDWLRQZDVRULJLQDOO\PDGHE\ÀYHSDUHQWVRIFKLOGUHQDWWHQGLQJHOHPHQWDU\ public schools within the jurisdiction of the respondent school board in Sudbury (the Board). Two of the applicants have since moved out of the Board’s district and seek to discontinue their appeal. The three remaining appellants were supported in argument by the three interveners. The Board’s evidence was that the daily opening exercises in all its schools are brief and include the singing of O Canada and the saying of the Lord’s Prayer. The prayer is either led by the class-room teacher or recited over the school’s public address system. In some schools, Scripture passages are also read. At the request of a parent, a child is excused from the class-room during the exercises or, if he or she remains in the room, is not required to participate. Arrangements are made in every school for the care of children while they are excused from the class-room. If 633

STATE SUPPORT FOR RELIGIOUS EDUCATION

they remain in the class-room, the Board’s evidence is that they normally stand with other students during the exercises but are not required to do so nor are they required to bow their heads. The decision as to how best to accommodate a child excused from participation in the religious exercises is made in consultation with the parents. The Board also permits students from different religious faiths to be absent from school at their parents’ request in order to observe religious holidays. Of the three remaining appellants one is of the Jewish religion and another is a Moslem. The third practises no religion but his wife is Roman Catholic and their children attend that church a few times a year. They decided to send their children to a public rather than a separate school in order to give them a secular education. One appellant made his objections to compulsory religious exercises known by letter to the Board but did not request an exemption from the exercises for his children although invited to do so. The other two appellants did not object before commencing these proceedings and did not request an exemption. The three appellants stated that they had not requested an exemption for their children because they did not want them singled out from their peers because of their religious beliefs. There was a difference of expert opinion about the effect of religious exercises on QRQ&KULVWLDQRUQRQSDUWLFLSDWLQJFKLOGUHQ$QDIÀGDYLWRIDSV\FKRORJLVWÀOHGE\WKH appellants, expressed the view that such children would be placed under pressure to conform which, if resisted, would result in their being alienated from their peers. The DIÀGDYLWVRIWZRSV\FKRORJLVWVÀOHGE\WKH%RDUGDVVHUWHGWKDWFKLOGUHQIURPPLQRULW\ religions were not harmed by the policy. They stated that pupils were routinely excused from other subjects and activities. They also claimed that religious exercises resulted in minority children “confronting the fact of their difference from the majority”. This was said to be a normal and healthy part of growing up which would contribute to the development of religious tolerance and understanding which is important in view of the multicultural heritage of Canadians. In the Divisional Court, O’Leary J. held that the religious exercises prescribed by s. 28(1) did not infringe the guarantee of freedom of conscience and religion provided by s. 2(a) of the Charter. Alternatively, he held that, if the Charter freedom was infringed, WKHLQIULQJHPHQWZDVMXVWLÀDEOHXQGHUVRIWKH&KDUWHUZKLFKSURYLGHV 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 GHPRQVWUDEO\MXVWLÀHGLQDIUHHDQGGHPRFUDWLFVRFLHW\ He was of the view that the inculcation of morality was a proper educational object and that morality and religion were intertwined. If this resulted in any infringement on minority religious beliefs, it was not substantial. He pointed out that the religious exercises did not have to be Christian and, except in the case of non-believers, could be consistent with the Charter which, in its preamble, recognizes “the supremacy of God and the rule of law”. Anderson J. concurred with O’Leary J. for reasons which he described as “somewhat narrower”. In his view, the Charter freedom under s. 2(a) would be infringed only if there was “coercion” on children to participate in the religious exercises. He held that

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coercion was negatived by the provision for exemption and stated at p. 780 O.R., p. 740 D.L.R.: The applicants and supporting interveners argue, as indeed they must, having no alternative, that the right to abstain from the exercises or be absent from them, far from saving the regulation in fact condemns it; that the mere provision of this right implies that the exercises may be offensive to some, and that the need to have recourse to the right of abstention or absence is in itself constraint, compulsion or coercion, or at least a major inducement. Thus baldly stated, the argument, in my view, offends logic and common sense. It is tantamount to saying that a right to refuse is a compulsion to accept. Choice is of the essence of freedom and the GHFLVLRQDVWRZKDWFKRLFHLVDSSURSULDWHLVRIWHQGLIÀFXOW7KHGLIÀFXOW\LVSDUWRI the price of freedom. Reid J., in dissent, held that the position of religious minorities had to be appreciated and that it was no answer to their concerns to say that they should not be upset and that the religious exercises might be good for them. The effect of s. 28 was, in his view, to make one group, the religious majority, more equal than others, the religious minorities. He stated at p. 771 O.R., p. 731 D.L.R.: I have no doubt about the pressing need to encourage morality, but that religious exercises are necessary for its teaching is, in my opinion, a questionable proposition. I accept that they may be helpful, but necessity I cannot accept. He found that the effect of the Act and the Regulations was to interfere with the Charter freedoms of conscience and religion of members of religious minorities and that it FRXOGQRWEHMXVWLÀHGXQGHUVRIWKH&KDUWHU+HVDLGDWS25S'/5 that he did “not think” that s. 1 … was intended to be applied so as to justify an interference with the religious freedom of some but not of others. That would make the Charter contradict itself. ,IDQ\LQWHUIHUHQFHPD\EHMXVWLÀHGE\UHDVRQRIVLWVHHPVWRPHLWPXVWEHDQ interference not with the right of some to religious freedom, but with the right of all. In the result, I do not think the regulation can be defended upon s. 1.

3. Historical background The place of religion in the public schools of Ontario has been a matter of concern and, sometimes, dispute throughout their history. It has two aspects: religious education and opening or closing religious exercises. Although almost all supporters of the public school system were Christian during the 19th century and most of this century, sectarian differences between Protestant denominations made it impossible to provide for religious instruction until 1944 when the present system was adopted. It was approved by the “Royal Commission on Education in Ontario’’, 1950 (the Hope Commission), but its discontinuance was recommended by the “Report of the Committee on Religious Education in the Public Schools of the Province of Ontario”, 1969 (the Mackay Report). This recommendation was not adopted by the Government of Ontario.

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This case is concerned with the other aspect of religion in public schools: opening or closing religious exercises. Such exercises were suggested as early as 1816 when it was recommended that “the labours of the day commence with prayer” and that “they conclude with reading publicly and solemnly a few verses of the New Testament”. It appears that the recommendation was not universally followed. In 1855, a minute of the Council of Public Instruction recommended such opening and closing exercises ZLWKWKHVLJQLÀFDQWDGGLWLRQWKDW´QRSXSLOVKRXOGEHFRPSHOOHGWREHSUHVHQWDWWKHVH exercises against the wish of his parents or guardian, expressed in writing to the Master of the School”. In 1884, the opening of the school day with prayer and authorized scripture selections, read without comment or explanation, was made mandatory but children could be exempted if their parents wished. The regulations of 1944 provided that the singing of God Save the King or O Canada, or both, should be part of the daily opening or closing exercises. The continuance of such exercises was recommended both by the Hope Commission and the Mackay Committee. The latter Committee found that the opening exercises were more widely acceptable and less controversial than religious education. The Mackay Committee’s Report states that it “sought to evaluate ‘opening exercises’… particularly in relation to our conclusion that there should be no religious indoctrination in the public school system” (p. 35). The Report then states: We were impressed by the fact, which we have noted was mentioned in several briefs, that many public functions in the province of Ontario, such as convocations, opening of the Legislature, and public meetings, are begun with the singing of the National Anthem and the reciting of a prayer. At gatherings such as these, people who object to the prayer usually stand in respectful silence without taking part. In the Committee’s opinion, such opening ceremonies are indeed intrinsic in the culture of the province of Ontario. At school the child is being prepared for life in this society and accordingly participation in opening exercises at the beginning of each school day in the elementary grades is helpful in rounding out his education. It was also brought forcibly to the Committee’s attention, as previously noted, that to eliminate opening exercises would suggest that religion is not an integral part of the life of the people of this province. It is the Committee’s view that religion does indeed play a vital part in our life and that the holding of opening exercises therefore exposes the child to a valuable learning experience in relation to the whole community in which he lives. The opening exercises recommended by the Committee consisted of the “singing of the National Anthem and a prayer, either of universal character appealing to God for help in the day’s activities, or the Lord’s Prayer”. The Committee felt that opening exercises in the hands of a sensitive and intelligent teacher could be expanded to ´UHFRJQL]H QDWLRQDO GD\V VXFK DV 5HPHPEUDQFH 'D\ DQG VLJQLÀFDQW UHOLJLRXV GD\V of all faiths such as Easter, Hanukkah, Christmas, or the Passover”. The Committee recommended the cessation of Bible readings as part of the opening exercises, noting that the reading of the Bible had been criticized in numerous briefs for a variety of reasons. The Report emphasized that:

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The intention of the recommended opening exercises should be inspirational and dedicational rather than confessional. The above distinction is essential in order to permit participation by all students. Throughout its Report, the Mackay Committee demonstrated sensitivity to the change in the composition of the population of the province in post-war years and the present pluralistic nature of Ontario’s society. It commented at pp. 36-7: The pluralistic nature of Ontario’s society has been recognized by the Committee. 7KH UHFRPPHQGHG RSHQLQJ H[HUFLVHV KDYH UHOLJLRXV VLJQLÀFDQFH IRU PDQ\ DQG FXOWXUDOVLJQLÀFDQFHIRUDOO:HDUHDZDUHRIWKHULJKWVRIPLQRULWLHVDVZHOODVWKH rights of the majority, and we have attempted to recognize the rights of both. What ZHKDYHUHFRPPHQGHGLVLQWHQGHGWRIXOÀODXVHIXOOHDUQLQJSXUSRVHDQGVKRXOG not be objectionable to most reasonable persons. Certainly, the opening exercises need provide no opportunity for indoctrination on the one hand or for watering down of individual belief on the other. We hope that all students will feel free to attend them in good heart. Recognizing that the recommendation might not be universally approved, the Committee concluded: [T]he Committee is of the opinion that the opening exercises which we now recommend should be found acceptable to almost all reasonable persons. Isolated requests for exemption, on the basis of individual religious implications, may have to be dealt with on their merits as they arise. We would regret such necessity, but for democratic reasons must admit the possibility. It was not until 1978, nine years after the Mackay Committee Report, that the regulations governing opening religious exercises were changed by O.Reg. 704/78. The previous regulation, O.Reg. 30/44 [Religious Exercises and Religious Education in the Public Schools] said: 13(1)(a) Every public school shall be opened each school day with religious exercises consisting of the reading of the Scriptures and the repeating of the Lord’s Prayer or other prayers approved for use in schools. The revised regulation, which is now s. 28(1) of Reg. 262, is repeated for convenience: 28(1) A public school shall be opened or closed each school day with religious exercises consisting of the reading of the Scriptures or other suitable readings and the repeating of the Lord’s Prayer or other suitable prayers. (Emphasis added.) The revised regulations confer greater discretion on local school boards. While Bible readings are not terminated as recommended by the Mackay Report, they may now be replaced by “other suitable readings”. As to prayers, the alternative to the Lord’s Prayer becomes “other suitable prayers” and is not limited to “approved” prayers as before. Since World War II, Ontario has changed from a population composed almost entirely of Christians to an ethnically diverse, multi religious and multicultural society. 637

STATE SUPPORT FOR RELIGIOUS EDUCATION

The Attorney-General submitted that, whereas 19th century requirements for religious exercises recognized differences among Christian denominations, today’s requirements must recognize both interdenominational differences and those between Christians and non-Christians. 7KLVLWZDVVDLGZDVH[HPSOLÀHGE\WKHH[SHULHQFHRIWKH&LW\RI7RURQWRSXEOLF schools. As early as 1975, before the new regulations took effect in 1978, the Toronto Board of Education undertook a re-examination of religious exercises. This led, in 1979, to the formation of an interdenominational committee to recommend suitable prayers and religious readings. In 1980, the committee published a book of prayers and readings which was revised in 1981 and again in 1984. The readings and prayers in the book are drawn from a number of sources including Baha’ism, Buddhism, Christianity, Confucianism, Hinduism, Islam, Jainism, Judaism, People of Native Ancestry, Secular Humanism, Sikhism, and Zoroastrianism. The book has been used in Toronto public schools for opening exercises since 1980. The exercises now consist of the singing of O Canada, the reading of one or more selections from the book, followed by a moment of silent meditation and sometimes by comments by the teacher or principal, on the origins of the selections used. The Toronto programme appears to have met with general acceptance but we share the doubt, expressed by Reid J. at p. 773 O.R., pp. 733-4 D.L.R., whether it complies with s. 28(1) which requires both prayers and readings. It is against this background of legislation, fact and opinion that we now must consider whether s. 28(1) of the Regulations infringes the Charter freedom of conscience and religion. The approach to be taken in such an inquiry is now well HVWDEOLVKHGE\MXGLFLDOGHFLVLRQV7KHÀUVWVWHSLVWRGHWHUPLQHZKHWKHUWKHOHJLVODWLRQ in question prima facie interferes with a Charter right or freedom. If such interference LVHVWDEOLVKHGWKHVHFRQGVWHSLVWRGHWHUPLQHZKHWKHULWLVMXVWLÀHGXQGHUVRIWKH Charter: see R. v. Oakes (1986), 26 D.L.R. (4th) 200, 24 C.C.C. (3d) 321, [1986] 1 S.C.R. 103 (S.C.C.).

4. Does s. 28(1) of the regulations infringe Charter freedoms under s. 2(a)? (a) The nature of freedom of conscience and religion The nature of the Charter freedom of conscience and religion was examined by the Supreme Court of Canada in R. v. Big M Drug Mart (1985), 18 D.L.R. (4th) 321, 18 C.C.C. (3d) 385, [1985] 1 S.C.R. 295. In that case, the Supreme Court held that the Lord’s Day Act, R.S.C. 1970, c. L-13, which required uniform observance of the Christian Sabbath, was inconsistent with s. 2(a) of the Charter and for that reason was of no force or effect under s. 52(1) of the Constitution Act, 1982, which provides: 52(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. Chief Justice Dickson (then Dickson J.), speaking for the court, eloquently described the meaning of the words “freedom of conscience and religion”. In its most traditional

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sense, freedom of religion means the unimpeded freedom to hold, profess and manifest religious beliefs, as he said at p. 353 D.L.R., p. 336 S.C.R.: 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. He continued by saying that “the concept means more than that” and stated that the freedom can “be characterized by the absence of coercion or restraint”. He went on to say at p. 354 D.L.R., p. 336 S.C.R.: Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Another aspect of the Charter freedom of conscience and religion, which is of particular VLJQLÀFDQFHLQWKLVFDVHLVIUHHGRPIURPFRQIRUPLW\7KHSUDFWLFHVRIDPDMRULWDULDQ religion cannot be imposed on religious minorities. The minorities should not be subject to the “tyranny of the majority”, as Chief Justice Dickson said at p. 354 D.L.R., p. 337 S.C.R.: What may appear good and true to a majoritarian religious group, or the State acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view. The Charter safeguards religious minorities from the threat of “the tyranny of the majority”. Chief Justice Dickson also emphasized, in a passage of importance in this case, that s. 2(a), by its very wording, protects the freedom of non-believers to abstain from participation in any religious practices. He said at p. 362 D.L.R., p. 347 S.C.R.: Equally protected, and for the same reasons, are expressions and manifestations of religious non-belief and refusals to participate in religious practice. It may perhaps be that freedom of conscience and religion extends beyond these principles to prohibit other sorts of governmental involvement in matters having to do with religion. The only limitation upon an individual’s freedom of conscience or religion recognized by the Supreme Court of Canada is that its manifestation must not injure others or interfere with their right to manifest their own beliefs and opinions. Dickson J. said at p. 361 D.L.R., p. 346 S.C.R.: 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, 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.

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In Big M, Dickson C.J.C. declared at p. 359 D.L.R., p. 343 S.C.R., that s. 2(a) of the Charter proclaimed freedom of conscience and religion in “ringing terms” and applied the purposive approach enunciated in Hunter v. Southam Inc. (1984), 11 D.L.R. (4th) 641, 14 C.C.C. (3d) 97, 2 C.P.R. (3d) 1, [1984] 2 S.C.R. 145 (S.C.C.), in interpreting the Charter at p. 360 D.L.R., p. 344 S.C.R.: The interpretation should be, as the judgment in Southam emphasizes, a generous UDWKHUWKDQDOHJDOLVWLFRQHDLPHGDWIXOÀOOLQJWKHSXUSRVHRIWKHJXDUDQWHHDQG VHFXULQJIRULQGLYLGXDOVWKHIXOOEHQHÀWRIWKH&KDUWHU·VSURWHFWLRQ This approach compels the re-evaluation of opening religious exercises in public schools. It can no longer be assumed that Christian practices are acceptable to the whole community. The extent of this change was emphasized by the Supreme Court of Canada in Big M, where Dickson C.J.C. said at p. 365 D.L.R., p. 351 S.C.R.: In an earlier time, when people believed in the collective responsibility of the community toward some deity, the enforcement of religious conformity may have been a legitimate object of government, but since the Charter, it is no longer legitimate. With the Charter, it has become the right of every Canadian to work out for himself or herself what his or her religious obligations, if any, should be and it is not for the State to dictate otherwise. The State shall not use the criminal sanctions at its disposal to achieve a religious purpose, namely, the uniform observance of the day chosen by the Christian religion as its day of rest. (b) Does s. 28(1) infringe the Charter freedom of conscience and religion? In Sudbury, the Board’s application of s. 28(1) of the Regulations imposes Christian religious exercises in the schools. The Board has not exercised the option open to it under s. 28(1) of providing non-Christian prayers and non-Biblical readings. The possibility that the Board might exercise this option does not, however, affect the outcome in this case. The substantive issue here is whether s. 28(1), which makes it possible for the Board to prescribe Christian religious exercises, violates s. 2(a) of the Charter. On its face, s. 28(1) infringes the freedom of conscience and religion guaranteed by s. 2(a) of the Charter. This was conceded by the respondents. Section 28(1) is antithetical to the Charter objective of promoting freedom of conscience and religion. The recitation of the Lord’s Prayer, which is a Christian prayer, and the reading of Scriptures from the Christian Bible impose Christian observances upon non-Christian pupils and religious observances on non-believers. The respondents, however, take the position that s. 28 viewed as a whole did not violate the freedoms of conscience and religion guaranteed by s. 2(a) of the Charter. They contend that the right to claim exemption from Christian religious exercises, conferred by s. 28(10), (11) and (12), eliminates any suggestion of pressure or compulsion on non-Christian pupils to participate in those exercises. Anderson J., as noted above, found it offensive to “logic and common sense” that the necessity of requesting an exemption was a form of “constraint, compulsion or coercion”. At most, the Attorney-General submitted, the necessity of requesting an exemption might be an “embarrassment” but was not coercive in its effect.

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From the majoritarian standpoint, the respondent’s argument is understandable EXWLQRXURSLQLRQLWGRHVQRWUHÁHFWWKHUHDOLW\RIWKHVLWXDWLRQIDFHGE\PHPEHUVRI religious minorities. Whether or not there is pressure or compulsion must be assessed from their standpoint and, in particular, from the standpoint of pupils in the sensitive setting of a public school. In saying this, we approve the analysis of Reid J. in the Divisional Court at p. 769 O.R., p. 729 D.L.R. where he said: It may be that a control or limitation indirectly imposed is not readily appreciable WRWKRVHZKRDUHQRWDIIHFWHGE\LW,WPD\EHGLIÀFXOWIRUPHPEHUVRIDPDMRULWDULDQ religious group, as I am, to appreciate the feelings of members of what, in our VRFLHW\DUHPLQRULW\UHOLJLRQV,WPD\EHGLIÀFXOWIRUUHOLJLRXVSHRSOHWRDSSUHFLDWH the feelings of agnostics and atheists. Yet nevertheless those feelings exist. No one has suggested that the feelings expressed by applicants are not real, or that they do not run deep. Later on the same page, he refers to the pressure operating on members of religious minorities in deciding whether to participate in or seek exemption from religious exercises: [I]f most of the pupils willingly conform, might not a few whose family faith is Moslem, or Hebraic or Buddhist, feel awkward about seeking exemption? Peer pressures, and the desire to conform, are notoriously effective with children. Does common experience not tell us that these things are so, and that such feelings might easily, and reasonably, lead some not to seek exemption, and unwillingly conform, or others to seek it, and be forced to suffer the consequences to their feelings and convictions? While the majoritarian view may be that s. 28 confers freedom of choice on the minority, the reality is that it imposes on religious minorities a compulsion to conform to the religious practices of the majority. The evidence in this case supports this view. The three appellants chose not to seek an exemption from religious exercises because of their concern about differentiating their children from other pupils. The peer pressure and the class-room norms to which children are acutely sensitive, in our opinion, are real and pervasive and operate to compel members of religious minorities to conform with majority religious practices. We adopt the view on this issue expressed by Brennan J. in Abington School District v. Schempp, 374 U.S. 203 at p. 288 (1963), where he said: [B]y requiring what is tantamount in the eyes of teachers and schoolmates to a profession of disbelief, or at least of nonconformity, the procedure may well deter those children who do not wish to participate for any reason based upon the dictates of conscience from exercising an indisputably constitutional right to be excused. Thus the excusal provision in its operation subjects them to a cruel dilemma. In consequence, even devout children may well avoid claiming their right and simply continue to participate in exercises distasteful to them because of an understandable reluctance to be stigmatized as atheists or nonconformists simply on the basis of their request.

641

STATE SUPPORT FOR RELIGIOUS EDUCATION

Such reluctance to seek exemption seems all the more likely in view of the fact WKDWFKLOGUHQDUHGLVLQFOLQHGDWWKLVDJHWRVWHSRXWRIOLQHRUWRÁRXW´SHHUJURXS norms”. We consider that s. 28(1) also infringes freedom of conscience and religion in a broader sense. The requirement that pupils attend religious exercises, unless exempt, compels students and parents to make a religious statement. We agree with the Mackay Committee that the effect of the exemption provisions is to discriminate against religious minorities. It said at p. 24 of its Report: It has been suggested to the committee by several briefs that although the present course of study may appear to leave children open to Protestant religious indoctrination, the provisions for exemption of those whose parents object to the teaching offset the exposure. It is our view… that this special treatment is in itself discriminatory and should as far as possible be eliminated from the public school system. …It is important to see clearly where the responsibility in this situation lies: contrary to popular belief, discrimination is not the problem of those who are discriminated against but of the “smug majority” who permit the practice, and who alone have the power to end it. The public schools must surely be kept free of prejudice if society as a whole is to advance towards their elimination. Every course or program in the public school should be designed to be acceptable to all reasonable persons and, FRQVHTXHQWO\OHDYHQRMXVWLÀFDWLRQIRUUHTXLULQJGLVFULPLQDWRU\H[HPSWLRQV Although this statement was made by the Committee with reference to religious education, we think it applies equally to religious exercises. This conclusion of the Mackay Committee supports the appellants’ argument, with which we agree, that the right to be excused from class, or to be exempted from participating, does not overcome the infringement of the Charter freedom of conscience and religion by the mandated religious exercises. On the contrary, the exemption provision imposes a penalty on pupils from religious minorities who utilize it by stigmatizing them as non-conformists and setting them apart from their fellow students who are members of the dominant religion. In our opinion, the conclusion is inescapable that the exemption provision fails to mitigate the infringement of freedom of conscience and religion by s. 28(1). Other arguments were made for denying the applicability of s. 2(a) of the Charter to religious exercises. It was contended that they did no harm to pupils of minority religions. This assertion is not proven because, as earlier indicated, there was a difference of expert opinion on whether or not minority pupils were harmed. In any event, in our opinion, harm to individual pupils need not be proved by those who object to s. 28(1). It is irrelevant to the real issue which is whether the Charter freedom of conscience and religion is infringed. There is no burden on those objecting to s. 28(1) on this ground to prove, in addition, that it causes actual harm to individual pupils. The effect of religious exercises cannot be glossed over with the comment that the exercises may be “good” for minority pupils. This view was expressed, as we indicated above, by a psychologist in supporting the Board’s case who said that it was salutary for minority pupils to confront “the fact of their difference from the majority”. This

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insensitive approach, in our opinion, not only depreciates the position of religious minorities but also fails to take into account the feelings of young children. It is also inconsistent with the multicultural nature of our society as recognized by s. 27 of the Charter which declares: 27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians. It was also argued that any infringement by s. 28(1) of the Charter freedom of conscience and religion was so trivial and insubstantial that it was not worthy of Charter protection. We reject this argument and, with respect, cannot agree with O’Leary J. that it applies in this case. In our opinion, judged on a purely factual basis, the denigration of the minorities’ freedom of conscience and religion by the operation of s. 28(1) constitutes an infringement of s. 2(a) of the Charter which is not “insubstantial or trivial”: see Jones v. The Queen (1986), 31 D.L.R. (4th) 569 at p. 570, 28 C.C.C. (3d) 513, [1986] 2 S.C.R. 284 at p. 314 (S.C.C.), per Wilson J., and Edwards Books & Art Ltd. v. The Queen (1986), 35 D.L.R. (4th) 1 at pp. 34-5, 30 C.C.C. (3d) 385, [1986] 2 S.C.R. 713 at pp. 759-60 (S.C.C.), per Dickson C.J.C. Counsel for the board submitted that s. 28(1) of the Regulations was consistent with the preamble of the Charter which declares: … Canada is founded upon principles that recognize the supremacy of God and the rule of law. It is a basic principle in the construction of statutes that a preamble is rarely referred to and, even then, is usually employed only to clarify operative provisions which are ambiguous. The same rule, in our view, extends to constitutional instruments. There is no ambiguity in the meaning of s. 2(a) of the Charter or doubt about its application in this case. Whatever meaning may be ascribed to the reference in the preamble to the “supremacy of God”, it cannot detract from the freedom of conscience and religion guaranteed by s. 2(a) which is, it should be noted, a “rule of law” also recognized by the preamble. Both the appellants and the respondents referred to two leading decisions of the United States Supreme Court on state legislation which mandated opening prayers and devotional bible readings in public schools but permitted pupils to be excused if requested by their parents: Engel v. Vitale, 370 U.S. 421 (1962), and Abington School District v. Schempp, supra. The legislation in both cases was declared unconstitutional because it violated the First Amendment of the Constitution of the United States, the relevant part of which reads: Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. 7KHÀUVWSDUWRIWKH)LUVW$PHQGPHQWLVUHIHUUHGWRLQ8QLWHG6WDWHVFRQVWLWXWLRQDOODZ as the “establishment clause” and the second as the “free exercise clause”. In both cases, the court held the legislation to be invalid because it violated the establishment clause.

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The respondents argued that, because the Charter contained no establishment clause, s. 28(1) could not be invalidated. A similar argument was made in Big M, supra, but was rejected by Dickson C.J.C. who said at p. 356 D.L.R., p. 339 S.C.R.: In my view, this recourse to categories from the American jurisprudence is not SDUWLFXODUO\KHOSIXOLQGHÀQLQJWKHPHDQLQJRIIUHHGRPRIFRQVFLHQFHDQGUHOLJLRQ under the Charter. The adoption in the United States of the categories “establishment” and “free exercise” is perhaps an inevitable consequence of the wording of WKHÀUVW$PHQGPHQW7KHFDVHVLOOXVWUDWHKRZHYHUWKDWWKHVHDUHQRWWZRWRWDOO\ separate and distinct categories, but rather, as the Supreme Court of the United States KDVIUHTXHQWO\UHFRJQL]HGLQVSHFLÀFLQVWDQFHV´WKHWZRFODXVHVPD\RYHUODSµ He concluded that American decisions on freedom of religion must be applied with care by Canadian courts and said at p. 357 D.L.R., p. 341 S.C.R.: In my view the applicability of the Charter guarantee of freedom of conscience and religion does not depend on the presence or absence of an “anti-establishment principle” in the Canadian Constitution, a principle which can only further obfuscate DQDOUHDG\GLIÀFXOWDUHDRIWKHODZ 7KH8QLWHG6WDWHV6XSUHPH&RXUWKDGQRGLIÀFXOW\LQVWULNLQJGRZQWKHOHJLVODWLRQLQ the Engel and Abington cases under the establishment clause. The justices, however, in obiter differed on whether the legislation also offended the free exercise clause. In Engel, the justices were of the view that mandatory school prayer with an exemption provision did not appear to be coercive enough to constitute a free exercise clause violation. Their opinions echoed that of Mr. Justice Jackson in McCollum v. Board of Education, 333 U.S. 203 at p. 232 (1948), that the risk of embarrassment of non-conforming students seeking exemption from religious instruction did not amount to coercion. While the majority judgment in Abington struck down the legislation on the basis of the establishment clause, Mr. Justice Brennan, in a concurring opinion, held that it also violated the free exercise clause. He said at p. 288: 7KHPRUHGLIÀFXOWTXHVWLRQKRZHYHULVZKHWKHUWKHDYDLODELOLW\RIH[FXVDOIRUWKH dissenting child serves to refute challenges to these practices under the Free Exercise Clause. While it is enough to decide these cases to dispose of the establishment questions, questions of free exercise are so inextricably interwoven into the history and present status of these practices as to justify disposition of this second aspect of the excusal issue. The answer is that the excusal procedure itself necessarily operates in such a way as to infringe the rights of free exercise of those children who wish to be excused. We have held … that a State may require neither public school VWXGHQWVQRUFDQGLGDWHVIRUDQRIÀFHRISXEOLFWUXVWWRSURIHVVEHOLHIVRIIHQVLYHWR religious principles. By the same token the State could not constitutionally require a student to profess publicly his disbelief as the prerequisite to the exercise of his constitutional right of abstention. (Emphasis added.) As indicated above, we adopt his view that the excusal clause did not preclude DÀQGLQJRIFRHUFLRQEHFDXVHSXSLOVXQGHUSHHUSUHVVXUHZRXOGEHUHOXFWDQWWRFDOO

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attention to their differences by taking advantage of it. Like Brennan J. we are also of the opinion that the exemption procedure has the chilling effect of discouraging the free exercise of the freedom of conscience and religion. He said at p. 288: Moreover, the excusal procedure seems to me to operate in such a way as to discourage the free exercise of religion on the part of those who might wish to utilize it, thereby rendering it unconstitutional in an additional and quite distinct respect. 7ZRFRQFOXVLRQVFDQEHGUDZQIURPWKH$PHULFDQGHFLVLRQV7KHÀUVWLVWKDWWKHDEVHQFH of an establishment clause in s. 2(a) does not limit the protection it gives to freedom of conscience and religion. The second is that support can be found in Abington, the most recent major decision on school prayer, for our conclusion that the compulsion on students to conform and not exercise the right of exemption is a real restraint on the freedom of conscience and religion guaranteed by the Charter. (c) Can s. 1 be invoked to justify the Charter infringement? It follows from our analysis that s. 28(1) of the Regulations constitutes a prima facie infringement of the appellants’ rights under s. 2(a) of the Charter. In a usual Charter case, the burden passes at this stage to the parties upholding the Charter infringement WRVKRZRQDEDODQFHRISUREDELOLWLHVWKDWLWLVMXVWLÀDEOHXQGHUVRIWKH&KDUWHU5 v. Oakes, supra. In this case, however, the appellants contended that, since the very purpose of s. 28 of the Regulations violated s. 2(a) of the Charter, it was incapable of MXVWLÀFDWLRQXQGHUV In making this argument, the appellants relied on Big M, supra, where the Supreme Court found that the true purpose of the Lord’s Day Act was to “compel the observance of the Christian Sabbath”. Dickson C.J.C. said at p. 367 D.L.R., p. 353 S.C.R.: The characterization of the purpose of the Act as one which compels religious observance renders it unnecessary to decide the question of whether s. 1 could validate such legislation whose purpose was otherwise or whether the evidence ZRXOGEHVXIÀFLHQWWRGLVFKDUJHWKHRQXVXSRQWKHDSSHOODQWWRGHPRQVWUDWHWKH MXVWLÀFDWLRQDGYDQFHG He rejected the argument that the Act might be validated under s. 1 because it accomplished an important secular objective in providing for a weekly day of rest from work. On this point, he said at p. 366 D.L.R., p. 353 S.C.R.: It seems disingenuous to say that the legislation is valid criminal law and offends s. 2(a) because it compels the observance of a Christian religious duty, yet is still a UHDVRQDEOHOLPLWGHPRQVWUDEO\MXVWLÀDEOHEHFDXVHLWDFKLHYHVWKHVHFXODUREMHFWLYH the legislators did not primarily intend. The appellant can no more assert under s. 1 a secular objective to validate legislation which in pith and substance involves a religious matter than it could assert a secular objective as the basis for the argument that the legislation does not offend s. 2(a). He also emphasized that it was the initial purpose of the legislation which determined its true character and that this was not changed by any alteration in its effects as a result of changing times and circumstances. He said at p. 353 D.L.R., p. 336 S.C.R.:

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While the effect of such legislation as the Lord’s Day Act may be more secular WRGD\WKDQLWZDVLQRUVXFKDÀQGLQJFDQQRWMXVWLI\DFRQFOXVLRQWKDW its purpose has similarly changed. In result, therefore, the Lord’s Day Act must be characterized as it has always been, a law the primary purpose of which is the compulsion of sabbatical observance. In contrast, the Supreme Court’s decision in Edwards Books, supra, held that the Retail Business Holidays Act, R.S.O. 1980, c. 453, which prescribed Sunday as a holiday for retail stores, was not religiously motivated but was enacted for the secular purpose of providing uniform holidays for retail workers. Although it infringed the religious freedoms of members of minority religions whose Sabbath was on a day other than 6XQGD\LWZDVKHOGWREHMXVWLÀDEOHXQGHUVDQGLWVYDOLGLW\XQGHUWKH&KDUWHUZDV upheld. The appellants contended that there was no saving secular purpose in s. 28(1). Its wording and, in the appellant’s submission, its legislative background going back to the earliest times indicated that its purpose was religious and that, like the Lord’s Day $FWLQ%LJ0LWZDVLQFDSDEOHRIMXVWLÀFDWLRQXQGHUV7KH$WWRUQH\*HQHUDODQG the Board, on the other hand, asserted that s. 28(1) had paramount secular objectives, both educational and moral, and that the religious exercises served those purposes. In support of their arguments, counsel on both sides referred us to the reports of the Hope Commission, the Mackay Committee, and other historical materials. After a careful consideration of the Act, the Regulations, and other materials placed before us, we have concluded that the purpose of s. 28(1) is religious and that the exercises mandated by the Regulation were intended to be religious exercises. This is the only conclusion which can be drawn from the wording of the Act and the 5HJXODWLRQV7KLVYLHZLVFRQÀUPHGE\WKHVSHFLÀFSURYLVLRQIRUH[HPSWLRQFRQWDLQHG in s. 50(2) of the Act which for illustrative purposes we repeat: 50(2) No pupil in a public school shall be required to read or study in or from a religious book, or to join in an exercise of devotion or religion, objected to by his parent or guardian, or by the pupil, where he is an adult. It is clear that the exemption provision is included in the Act because the exercises were intended to serve religious and not secular purposes. At their inception in 1816, there is no doubt that the opening and closing religious exercises were intended to serve the purpose of imbuing education with Christian principles. Later in the nineteenth century, when the exercises were made mandatory, there was again no doubt as to their religious purpose. Dr. Egerton Ryerson, the founder of Ontario’s public school system, stated in his “Report on a System of Public Elementary Education of Upper Canada” that “as Christianity is the basis of our whole system of elementary education, that principle should pervade throughout”. The objective of the religious exercises mandated in the 19th century was not changed in this century. :KHQWKH5HJXODWLRQVZHUHODVWDPHQGHGLQLWFDQEHWDNHQWKDWWKH\UHÁHFWHG the conclusions of the Mackay Committee of 1969, quoted above, that the exercises were intended to continue to serve a religious purpose. The Mackay Committee at p. 34 accepted the view that:

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[t]he absence of opening exercises would indicate that religion was not an integral part of life and make the school wholly secular. Opening exercises, reverently conducted, could set the tone for the day and give strength and peace of mind. Learning to worship at the beginning of each day may initiate in the child a habit which will govern his attitudes and conduct. In this case it cannot be argued, as it was in Big M, supra, that over time the purpose of the impugned regulation had shifted from religious to secular objectives. Its religious character was reinforced by the Mackay Report. The opening exercises may have secular moral and educational effects but these are, in our opinion, merely derivative from their religious objective. It is the purpose and not the impact of legislation which is determinative for constitutional purposes. Dickson J. said in Big M, at p. 350 D.L.R., p. 331 S.C.R.: Moreover, consideration of the object of legislation is vital if rights are to be fully protected. The assessment by the courts of legislative purpose focuses scrutiny upon the aims and objectives of the Legislature and ensures they are consonant with the guarantees enshrined in the Charter. The declaration that certain objects OLHRXWVLGHWKH/HJLVODWXUH·VSRZHUFKHFNVJRYHUQPHQWDODFWLRQDWWKHÀUVWVWDJHRI unconstitutional conduct. Further, it will provide more ready and more vigorous protection of constitutional rights by obviating the individual litigant’s need to prove effects violative of Charter rights. It will also allow courts to dispose of cases where the object is clearly improper, without inquiring into the legislation’s actual impact. Chief Justice Dickson then referred with approval to A.-G. Que. v. Quebec Ass’n of Protestant School Boards (1984), 10 D.L.R. (4th) 321, [1984] 2 S.C.R. 66, 9 C.R.R. 133 (S.C.C.), at p. 351 D.L.R., p. 332 S.C.R.: I would note that this approach would seem to have been taken by this court, in its unanimous decision in A.-G. Que. v. Quebec Ass’n of Protestant School Boards et al. … When the court looked for an obvious example of legislation that constituted a total negation of a right guaranteed by the Charter, and therefore one to which the limitation in s. 1 of the Charter could not apply, it recited the following hypothetical at p. 338 D.L.R., p. 88 S.C.R.: “An Act of Parliament or of a legislature which, for example, purported to impose WKHEHOLHIVRID6WDWHUHOLJLRQZRXOGEHLQGLUHFWFRQÁLFWZLWKVD RIWKH&KDUWHU which guarantees freedom of conscience and religion, and would have to be ruled of no force or effect without the necessity of even considering whether such legislation could be legitimized by s. 1.”

&RXOGV KDYHEHHQMXVWLÀHGXQGHUVRIWKH&KDUWHU" $OWKRXJKZHKDYHFRQFOXGHGWKDWWKLV&KDUWHULQIULQJHPHQWLVLQFDSDEOHRIMXVWLÀFDWLRQ under s. 1, we think it proper to state that the result would be the same if s. 1 applied. For convenience, we repeat the section which reads as follows:

647

STATE SUPPORT FOR RELIGIOUS EDUCATION

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 GHPRQVWUDEO\MXVWLÀHGLQDIUHHDQGGHPRFUDWLFVRFLHW\ In R. v. Oakes, supra, at pp. 226-8 D.L.R., pp. 138-40 S.C.R., the Supreme Court of Canada laid down the procedure which must be followed in deciding whether legislation LQIULQJLQJ&KDUWHUULJKWVFDQEHMXVWLÀHGXQGHUV)LUVWLWPXVWEHGHWHUPLQHGZKHWKHU WKHOHJLVODWLYHREMHFWLYHLVVXIÀFLHQWO\LPSRUWDQWWRZDUUDQWRYHUULGLQJWKH&KDUWHUULJKW or freedom. If it is, then the party invoking s. 1 must show that the means chosen are UHDVRQDEOHDQGGHPRQVWUDEO\MXVWLÀHG7KLVLQWXUQUHTXLUHVWKHDSSOLFDWLRQRIWKHWKUHH components of what the Supreme Court of Canada called the “proportionality test”, ZKLFKUHTXLUHVDEDODQFLQJRIWKHREMHFWLYHRIWKHOHJLVODWLRQZLWKLWVHIIHFWV7KHÀUVW question to be asked is whether the legislation is rationally connected to the objective. The second is whether the means chosen impair the Charter right or freedom as little as possible. The third is whether there is proportionality between the objective and the effects of the measures in limiting Charter rights or freedoms. It is not necessary, in this case, to conduct a ritualistic step-by-step inquiry under each of the four elements of the Oakes test. If the respondent fails under one element RI WKH WHVW WKH &KDUWHU LQIULQJHPHQW FDQQRW EH MXVWLÀHG :H SURSRVH WKHUHIRUH WR consider the most vulnerable element of the test from the respondent’s standpoint which is whether s. 28(1) impairs the appellants’ freedoms under s. 2(a) “as little as possible”. For the purposes of this inquiry we will assume, without deciding, that s.  FRXOGKDYHEHHQMXVWLÀHGXQGHUWKHÀUVWWZRHOHPHQWVRIWKHWHVWDVKDYLQJDQ REMHFWLYHVXIÀFLHQWO\LPSRUWDQWWRZDUUDQWRYHUULGLQJWKH&KDUWHUIUHHGRPXQGHUVD  and as being rationally connected to the attainment of that objective. The experience of the Toronto Board of Education convincingly demonstrates that there are less intrusive ways of imparting educational and moral values than those provided in s. 28. The Toronto experience, which was fully described above and need not be repeated here, shows that it is not necessary to give primacy to the Christian religion in school opening exercises and that they can be more appropriately founded upon the multicultural traditions of our society. In saying this we are not to be taken as passing a constitutional judgment on the opening exercises used in Toronto public schools. They were not in issue before us and we express no opinion as to whether they might give rise to Charter scrutiny.

6. Conclusion Since s. 28(1) infringes the appellants’ Charter freedoms and could not, in any event, KDYHEHHQMXVWLÀHGXQGHUVWKHDSSHOODQWVDUHHQWLWOHGWRWKHGHFODUDWLRQWKH\VHHN under s. 52 of the Constitution Act, 1982 that s. 28(1) of the Regulations is of no force and effect. The appellants also appeal against the Divisional Court’s dismissal of their application for a declaration that s. 50 of the Education Act and s. 28 of the Regulations violate s. 15(1) of the Charter, the Religious Freedom Act, R.S.O. 1980, c. 447, and the Ontario Human Rights Code, 1981, S.O. 1981, c. 53. In view of our decision on the application of the Charter in this case, it is unnecessary to address these issues. 648

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In the result we allow the appeal, set aside the order of the Divisional Court and, in its place, direct that a declaratory judgment in the terms set out above be entered for the appellants. The appellants shall have their costs in this court as well as in the Divisional Court but there will be no costs for the interveners. /$&285&,(5(-$ (dissenting):– I have had the advantage of reading the reasons for judgment prepared by my colleagues. They canvass the factual and historical backgrounds and it is unnecessary for me to repeat what has been comprehensively reviewed by them. With respect, I am unable to agree that s. 50 of the Education Act, R.S.O. 1980, c. 129, and s. 28(1) of R.R.O. 1980, Reg. 262, infringe the freedom of conscience and religion guaranteed by s. 2(a) of the Canadian Charter of Rights and Freedoms. I am further of the opinion that while s. 28 does not infringe the equality rights guaranteed by s. 15 of the Charter, the prevailing practice of the Sudbury Board of Education at the relevant time constituted a violation of that section. I agree with the conclusion of the Divisional Court on the main ground of appeal, basically for the reasons given by the majority, but I would like to state my own reasons for the GLVSRVLWLRQRIWKHDSSHDOZKLFK,SURSRVH,ZLOOGHDOÀUVWZLWKWKHDUJXPHQWEDVHGRQ s. 2(a) of the Charter, considering separately the purpose and effect of the impugned regulation, before considering s. 15.

I :+(7+(56(&7,212)7+(5(*8/$7,21,6$1 ,1)5,1*(0(172)6(&7,21$ 2)7+(&+$57(5 A. The purpose of s. 28 The initial test of the constitutional validity of legislation requires an examination of its purpose. In R. v. Big M Drug Mart Ltd. (1985), 18 D.L.R. (4th) 321 at p. 350, 18 C.C.C. (3d) 385, [1985] 1 S.C.R. 295 at p. 331 (S.C.C.), Chief Justice Dickson (then Dickson J.) said: In my view, both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. And at pp. 351-2 D.L.R., p. 334 S.C.R. he said: [T]he legislation’s purpose is the initial test of constitutional validity and its effects are to be considered when the law under review has passed or, at least, has purportedly passed the purpose test. In my opinion, s. 28(1) has a secular educational purpose with a religious component. For convenience, I have set out s. 50 of the Education Act and s. 28(1) and (10) of Reg. 262: 50(1) Subject to the regulations, a pupil shall be allowed to receive such religious instruction as his parent or guardian desires or, where a pupil is an adult, as he desires.

649

STATE SUPPORT FOR RELIGIOUS EDUCATION

(2) No pupil in a public school shall be required to read or study in or from a religious book, or to join in an exercise of devotion or religion, objected to by his parent or guardian, or by the pupil, where he is an adult. … 28(1) A public school shall be opened or closed each school day with religious exercises consisting of the reading of the Scriptures or other suitable readings and the repeating of the Lord’s Prayer or other suitable prayers. … (10) No pupil shall be required to take part in any religious exercises or be subject to any instruction in religious education where his parent or, where the pupil is an adult, the pupil applies to the principal of the school that the pupil attends for exemption of the pupil therefrom. It should be noted at the outset that s. 50 of the Education Act and the regulations thereunder have never been constitutionally challenged as being ultra vires the provincial legislature on the basis that they are legislation in relation to religion and violate religious freedom. It is clear that the regulation is ultra vires the Education Act and that, on its face, the Act contemplates religious exercises as an aspect of the public school system. The absence of a constitutional challenge against this legislation or its predecessors during a period of 120 years can be interpreted as a tacit acknowledgment that it is, in pith and substance, legislation with an educational purpose within the competence of the provincial legislature and that it is not in pith and substance legislation in relation to religion or legislation with an underlying purpose to compel religious practice. In seeking to determine the purpose of the impugned legislation, the inquiry should QRWEHFRQÀQHGWRWKHWKFHQWXU\DSSURDFKWRUHOLJLRXVH[HUFLVHVLQVFKRROVDWDWLPH when Ontario society was almost entirely Christian. The only relevance of the earlier approach is to provide an historical background. The 1978 amendment [O. Reg. 704/78] to what is presently s. 28 of Reg. 262, which allows other suitable readings and the UHSHDWLQJRIRWKHUVXLWDEOHSUD\HUVUHÁHFWVWKHFRQWLQXLQJHYROXWLRQRI2QWDULRVRFLHW\ E\UHDVRQRIWKHÁRZRILPPLJUDQWVZLWKGLYHUVHFXOWXUDODQGUHOLJLRXVEDFNJURXQGV The amendment allowed the development of the book of readings and prayers by the Toronto Board of Education, which draws on a wide range of religious traditions and RQ VHFXODU KXPDQLVP WKHUHE\ SURSHUO\ UHÁHFWLQJ DQG UHVSHFWLQJ PXOWLFXOWXUDO DQG multi religious differences and diversities. I disagree with the statement in the majority judgment that the regulation retained a “religious objective” with a derivative secular, moral and educational effect. The crucial 1978 amendment reinforces my opinion that the regulation always had an educational objective, while attempting to accommodate a society with increasingly diverse religions. If the regulation itself had a religious purpose, such purpose would be defeated by provisions in s. 28, one of which allows any suitable reading and prayer in the opening exercises and another which allows an exemption from these exercises. I agree with the argument of the respondent board that exercises with a religious component which are aimed at fostering moral principles encouraging honesty, integrity and good

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citizenship constitute a worthy educational goal, a view which was emphasized by the report of the Hope Commission [Royal Commission on Education in Ontario, 1950] in the following words: There are few educators who would not agree that the schools should be concerned, above everything else, with the kind of person they are helping to produce. We VKRXOGQHYHUIRUJHWWKDWWKHYHUE´WRHGXFDWHµDVGHÀQHGLQWKH&RQFLVH2[IRUG Dictionary, means “to give intellectual and moral training”. It is the duty of the school to aid its pupils to develop strength of character… It is important, in my opinion, for the educational system to instil personal values in its pupils so that they may be prepared for the challenges of life. I agree with what was said by Audrey S. Brent in an article, “The Right to Religious Education and the Constitutional Status of Denominational Schools” (1975-76), 40 Sask. L. Rev. 239, where she said at p. 243: Thus, one thing is noticeable about the philosophies of state and religion: there is no consensus. Why must there be any consensus? The educational system can and should accommodate all groups – not by driving any religious element out, but by allowing groups with similar goals and objectives, or similar views of society or with similar beliefs to transmit these values to their children through the educational system. After all, that is the purpose of the educational system and as long as no one group can prove their values to be superior to another group’s values, there is QRMXVWLÀFDWLRQIRUVHHNLQJWRHUDGLFDWHWKHP Therefore, while the purpose and the ultimate goal of the section are educational in the broad sense of the word, one must recognize that the prescribed exercises have a UHOLJLRXVFRPSRQHQWZKLFKJLYHVULVHWRWKHXQTXDOLÀHGULJKWRIWKHSXSLORUWKHSDUHQW to require an exemption. The regulation is not “purely religious in purpose”. Given the religious component of the prescribed exercise and even if it is granted that the appellants were correct in asserting that these exercises evince a religious purpose, it does not necessarily follow that s. 28 violates s. 2(a) of the Charter. The Lord’s Day Act, R.S.C. 1970, c. L-13, was held to violate the Charter in R. v. Big M Drug Mart Ltd., supra, not because it was aimed at facilitating or encouraging sabbatical observance, but by reason of the criminal sanction which creates the elements of compulsion, coercion or constraint for sabbatical observance on a day preferred by the Christian religion: Chief Justice Dickson at pp. 349, 350-1 and 353 D.L.R., at pp. 330, 333 and 336 S.C.R. At p. 354 D.L.R., pp. 336-7 S.C.R. he said: 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. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to 651

STATE SUPPORT FOR RELIGIOUS EDUCATION

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 to be forced to act in a way contrary to his beliefs or his conscience. What may appear good and true to a majoritarian religious group, or to the State acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view. The Charter safeguards religious minorities from the threat of “the tyranny of the majority”. Similarly, in Edwards Books & Art Ltd. v. The Queen (1986), 35 D.L.R. (4th) 1, 30 C.C.C. (3d) 385, [1986] 2 S.C.R. 713 (S.C.C.), the Sunday closing legislation was found to have a secular purpose which was not offensive to the Charter guarantee because it did not compel religious observance. Dickson C.J.C., in referring to Big M, said at pp. 33-4 D.L.R., pp. 758-9 S.C.R.: The court was concerned in that case with a direct command, on pain of sanction, to conform to a particular religious precept. The appeals with which we are now concerned are alleged to involve two forms of coercion. First, it is argued that the Retail Business Holidays Act makes it more expensive for retailers and consumers who observe a weekly day of rest other than Sunday to practise their religious tenets. In this manner, it is said, the Act indirectly coerces these persons to forego the practice of a religious belief. Secondly, it is submitted that the Act has the direct effect of compelling non-believers to conform to majoritarian religious dogma, by requiring retailers to close their stores on Sunday. … This does not mean, however, that every burden on religious practices is offensive to the constitutional guarantee of freedom of religion. It means only that indirect or unintentional burdens will not be held to be outside the scope of Charter protection on that account alone. Section 2(a) does not require the Legislatures to eliminate every minuscule state-imposed cost associated with the practice of religion. Section 28 of the regulation is expressed in mandatory terms subject to the provision of individual exemptions. In contrast to the legislation impugned in Big M, it is clear that s. 28 does not seek to compel participation in exercises with a religious component by all public school children. I agree that indirect forms of coercion may result in a Charter violation, but whatever may be the indirect effect of the regulation, it cannot reasonably be suggested that its purpose is to compel participation in these exercises when the exemption is cast in such broad terms. If the purpose of the impugned regulation is therefore to encourage or support religion, without compelling religious observance, is it nevertheless violative of the Charter? An issue which was left open in Big M and Edwards Books, supra, is whether s. 2(a) of the Charter prohibits all governmental aid to or advancement of religion per se. The heart of the s. 2(a) challenge to s. 28 of Reg. 262 comes from those who would demand the abolition of all religious exercises in schools. Even if s. 28 showed no favouritism between religions and provided for all equally, all of the appellants would 652

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still want it struck down because, as it became clear during the course of their argument, they are opposed to religion generally in schools. The issue is essentially a matter of freedom of conscience: is the state-created opportunity to participate in or facilitation of any religious activity an unconstitutional purpose? Traditional American constitutional law doctrine holds that any state aid to religion violates the “establishment clause” of the First Amendment, although there continues to be considerable debate on the issue. The relevant part of the First Amendment reads: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; The two “religion clauses” of the First Amendment quoted above have been applied to the states by virtue of the Fourteenth Amendment: Cantwell v. Connecticut, 310 U.S. 296 (1940). A leading case on the establishment clause, Everson v. Board of Education of Ewing TP 330 U.S. 1 (1947), contains the following passage (at pp. 15-16): The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. 1HLWKHU FDQ IRUFH QRU LQÁXHQFH D SHUVRQ WR JR RU WR UHPDLQ DZD\ IURP FKXUFK against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the word of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between church and State”. (Emphasis added). The modern American approach to establishment clause analysis has been governed by the three-part test developed in Lemon v. Kurtzman 403 U.S. 602 at pp. 612-13 (1971). The case involved the validity of a Rhode Island statute which authorized the payment of a salary supplement to teachers of secular subjects in non-public elementary schools, and of a Pennsylvania statute which authorized the purchase of certain secular educational services from non-public, church-related schools. Both statutes were held unconstitutional. In order to pass establishment clause scrutiny, a challenged statute must (1) have a secular purpose, (2) have a primary effect that neither advances nor inhibits religion, and (3) not foster excessive government entanglement with religion. Generally, then, the establishment clause prohibits government action that aids or inhibits religion, either on purpose or in its primary effect. In applying this principle to the issue of school prayer and Bible reading, the U.S. Supreme Court has consistently found that such practices are a violation of the First Amendment. In Engel v. Vitale, 370 U.S. 421 (1962), the court, with Stewart J. dissentLQJKHOGWKDWVWDWHRIÀFLDOVPD\QRWUHTXLUHWKDWDGHQRPLQDWLRQDOO\QHXWUDOSUD\HUEH recited in the public schools of the State of New York, even though the students could 653

STATE SUPPORT FOR RELIGIOUS EDUCATION

remain silent or be excused from the class-room during the prayer. In Abington School District v. Schempp, 374 U.S. 203, (1963), it was decided that no state law or school board could require Bible readings or the recitation of the Lord’s Prayer for opening exercises, even if individual students were allowed to be excused. Stone v. Graham, 449 U.S. 39 (1980), is a per curiam judgment of the Supreme Court (Rehnquist J., as he then was, dissenting) holding that a State of Kentucky statute requiring a posting of a copy of the Ten Commandments on the wall of each public school class-room had a pre-eminent religious purpose which violated the establishment clause of the First Amendment. In Engel, supra, Mr. Justice Black, delivering the opinion of the court, said at p. 430: The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment RIODZVZKLFKHVWDEOLVKDQRIÀFLDOUHOLJLRQZKHWKHUWKRVHODZVRSHUDWHGLUHFWO\WR coerce nonobserving individuals or not… Mr. Justice Black’s statement that coercion is not an element of establishment clause analysis has been criticized: McConnell, “Coercion: The Lost Element of Establishment” (1986), 27 Wm. & Mary L. Rev. 933. McConnell’s view is that the courts should be more hospitable to liberty – enhancing accommodations of religion, and he argues for a model of “religious pluralism” rather than “strict neutrality” or “strict separation”: McConnell, “Accommodation of Religion”, [1985] Sup. Ct. Rev. 1. Some support for this view may be found in Stewart J.’s dissent in Abington, supra, where he said at p. 316: In the absence of coercion upon those who do not wish to participate – because they hold less strong beliefs, other beliefs, or no beliefs at all – such provisions cannot, in my view, be held to represent the type of support of religion barred by the Establishment Clause… Nevertheless, the weight of U.S. authority favours the position that, as a general principle, state support for religion, even in the absence of any element of compulsion, violates the establishment clause of the First Amendment. Accommodation of religion is an issue in U.S. cases because a rigid application of the Lemon test regarding the establishment clause can have the effect of infringing on the “free exercise” of religion, which is also protected by the First Amendment. In Walz v. Tax Com’n of City of New York, 397 U.S. 664 (1970), property tax exemptions for religious organizations were challenged as violating the establishment clause. In upholding the constitutionality of the statute, the court commented on the “sweeping utterances” in Engel and Everson, supra, and noted at pp. 668-9: 7KH&RXUWKDVVWUXJJOHGWRÀQGDQHXWUDOFRXUVHEHWZHHQWKHWZR5HOLJLRQ&ODXVHV both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other… … The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established 654

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religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference. (Emphasis added.) The court concluded, with respect to the tax exemption, at pp. 672-3: The legislative purpose of the property tax exemption is neither the advancement nor the inhibition of religion; it is neither sponsorship nor hostility. … We cannot read New York’s statute as attempting to establish religion; it is simply sparing the exercise of religion from the burden of property taxation levied on private property institutions. Walz, supra, was decided before Lemon, supra, but it is relevant to the analysis of those cases that fall in the area between state concessions to religion required by the “free exercise clause” and those prohibited by the establishment clause. Thus, for example, in Lynch v. Donnelly, 465 U.S. 668 (1984), the display of a creche or Nativity scene in a private park in the City of Pawtucket, R.I., was challenged on the ground that it violated the First Amendment. The court found no violation. Chief Justice Burger, delivering the opinion of the court, noted that while the description of the religion clauses as erecting D´ZDOORIVHSDUDWLRQµEHWZHHQFKXUFKDQGVWDWHLVDXVHIXOÀJXUHRIVSHHFKLWLVQRW a wholly accurate description of the practical aspects of the relationship that in fact exists between church and state. He further stated at p. 673: 1RVLJQLÀFDQWVHJPHQWRIRXUVRFLHW\DQGQRLQVWLWXWLRQZLWKLQLWFDQH[LVWLQD vacuum or in total or absolute isolation from all the other parts, much less from government. … Nor does the Constitution require complete separation of church DQGVWDWHLWDIÀUPDWLYHO\PDQGDWHVDFFRPPRGDWLRQQRWPHUHO\WROHUDQFHRIDOO religions, and forbids hostility toward any. Later Burger C.J. said at p. 674: 7KHUHLVDQXQEURNHQKLVWRU\RIRIÀFLDODFNQRZOHGJPHQWE\DOOWKUHHEUDQFKHVRI government of the role of religion in American life from at least 1789… He then quoted a short passage from Zorach v. Clauson, 343 U.S. 306 (1952), where the court stated at p. 313: We are a religious people whose institutions presuppose a Supreme Being… The court went on to state at pp. 313-14: We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one JURXSDQGWKDWOHWVHDFKÁRXULVKDFFRUGLQJWRWKH]HDORILWVDGKHUHQWVDQGWKHDSSHDO of its dogma. When the state encourages religious instruction or cooperates with

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religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that LWPD\QRWZRXOGEHWRÀQGLQWKH&RQVWLWXWLRQDUHTXLUHPHQWWKDWWKHJRYHUQPHQW show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe… The above passages should not be taken as indicating that aid to religion is necessarily permissible, but rather that a religious purpose alone will not always justify the constitutional invalidation of legislation even when an “anti-establishment” principle governs, as in the United States. The U.S. Supreme Court is divided on what constitutes permissible accommodation of religion, and at least some believe that the establishment clause does not require the banning of all religious activity from the public sphere. A recent case that highlights the uncertain state of American law is Wallace v. Jaffree, 472 U.S. 38 (1985). The court struck down a statute that authorized a period of silence “for meditation or voluntary prayer” because it manifested an impermissible endorsement of prayer during that moment of silence. Chief Justice Burger dissented on the ground that striking down the statute merely because of the inclusion of the word “prayer” manifests not neutrality but hostility towards religion (at pp. 89-90): 7KHVWDWXWHGRHVQRWUHPRWHO\WKUHDWHQUHOLJLRXVOLEHUW\LWDIÀUPDWLYHO\IXUWKHUV the values of religious freedom and tolerance that the Establishment Clause was designed to protect. Without pressuring those who do not wish to pray, the statute simply creates an opportunity to think, to plan, or to pray if one wishes – as Congress does by providing chaplains and chapels. It accommodates the purely private, voluntary religious choices of the individual pupils who wish to pray while at the VDPHWLPHFUHDWLQJDWLPHIRUQRQUHOLJLRXVUHÁHFWLRQIRUWKRVHZKRGRQRWFKRRVH to pray. The statute also provides a meaningful opportunity for schoolchildren to appreciate the absolute constitutional right of each individual to worship and believe as the individual wishes. The statute “endorses’’ only the view that the religious observances of others should be tolerated and, where possible, accommodated. If the government may not accommodate religious needs when it does so in a wholly neutral and noncoercive manner, the “benevolent neutrality” that we have long considered the correct constitutional standard will quickly translate into the “callous indifference” that the Court has consistently held the Establishment Clause does not require. 3HUKDSVPRVWVLJQLÀFDQWO\LWDSSHDUVWKDWLIWKH6XSUHPH&RXUWKDGEHHQIDFHGZLWK a moment of silence statute that referred only to “meditation” and not to “prayer”, it would have been upheld provided that it was not passed for entirely religious purposes and that it was not used as a means for governmental encouragement of religious beliefs on public school property: Rotunda, Nowak and Young, Treatise on Constitutional Law: Substance and Procedure (1986), vol. 3, p. 390. The relevance of American cases to the issue of the constitutional permissibility in Canada of state aid for religion is limited by the fact that there is no express equivalent of the establishment clause in s. 2(a) of the Charter. In Big M, Chief Justice Dickson

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expressed the view that recourse to the American categories of “establishment” and “free H[HUFLVHµLVQRWSDUWLFXODUO\KHOSIXOLQGHÀQLQJWKHPHDQLQJRIIUHHGRPRIFRQVFLHQFH DQGUHOLJLRQXQGHUWKH&KDUWHUDWSS'/5S6&5 0RUHVSHFLÀFDOO\ he said, in a passage to which the majority referred, at p. 357 D.L.R., p. 341 S.C.R.: In my view, the applicability of the Charter guarantee of freedom of conscience and religion does not depend on the presence or absence of an “anti-establishment principle” in the Canadian Constitution, a principle which can only further obfuscate DQDOUHDG\GLIÀFXOWDUHDRIODZ Chief Justice Dickson’s point is that the absence of an establishment clause does not help settle s. 2(a) cases one way or the other. Thus one cannot rely on the absence of an anti-establishment principle to justify non-coercive state aid to religion. However, the American cases are useful to the extent that they deal with the issue of accommodation of religion by the government. One cannot ignore the positive features of the Canadian Constitution which suggest a different relationship between church and state than that which exists in the United States. The Attorney-General, in its factum, claims that the Constitution Act, 1867, and the Charter have “built a bridge between church and state rather than a wall of separation”. Reference is made to the preamble of the Charter, which states: Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law: … Attendu que le Canada est fondé sur des principes qui reconnaissent la suprématie de Dieu et la primauté du droit: The preamble of the Canadian Bill of Rights contains a similar acknowledgment: 7KH3DUOLDPHQWRI&DQDGDDIÀUPLQJWKDWWKH&DQDGLDQ1DWLRQLVIRXQGHGXSRQ principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions; $IÀUPLQJDOVRWKDWPHQDQGLQVWLWXWLRQVUHPDLQIUHHRQO\ZKHQIUHHGRPLVIRXQGHG upon respect for moral and spiritual values and the rule of law… … Le Parlement du Canada proclame que la nation canadienne repose sur des principes qui reconnaissent la suprématie de Dieu, la dignité et la valeur de la personne humaine ainsi que le rôle de la famille dans une société d’hommes libres et d’institutions libres; Il proclame en outre que les hommes et les institutions ne demeurent libres que dans la mesure où la liberté s’inspire du respect des valeurs morales et spirituelles et du règne du droit…

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In Reference re Language Rights under the Manitoba Act, 1870 (1985), 19 D.L.R. (4th) 1 at p. 24, [1985] 1 S.C.R. 721 at p. 751, [1985] 4 W.W.R. 385, the Supreme Court of Canada sanctioned reliance on the preambles to the Constitution Acts, and the general object and purpose of the Constitution, in inferring constitutional principles. The preamble to the Charter is probably no more than an interpretive tool and it is clear that it cannot be relied on to derogate from the substantive rights guaranteed in the Charter. But it does lend credence to the view that a strict separation of church and state is not contemplated by the Charter, and that the advancement of religion is permissible as long as it does not infringe anyone’s religious freedom. In McBurney v. The Queen (1984), 84 D.T.C. 6494 at p. 6496, 19 E.T.R. 15, [1984] C.T.C. 466, Muldoon J. of the Federal Court, Trial Division characterized the situation as follows: [I]t is not stretching matters to say that even in the modern, secular age the advancement of religion is rooted in our law and in our Constitution. That policy is readily discernable in the declaratory preambles to the Canadian Bill of Rights, R.S.C. 1970, Appendix III and the Canadian Charter of Rights and Freedoms which both DIÀUPWKDW&DQDGD´LVIRXQGHGXSRQSULQFLSOHVWKDWµDFNQRZOHGJHDQGUHFRJQL]H “the supremacy of God”, and the “rule of law”… So it is that while Canada may aptly be characterized as a secular State, yet, being declared by both Parliament and the Constitution to be founded upon principles which recognize “the supremacy of God”, it cannot be said that our public policy is entirely neutral in terms of “the advancement of religion”. Support for the proposition that the Canadian Constitution has built a bridge between church and state in the realm of public education can be gleaned from a reading of s. 93(1) of the Constitution Act, 1867, which provides: 93(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… … 93(1) Rien dans ces lois ne devra préjudicier à aucun droit ou privilège conféré, lors de l’union, par la loi à aucune classe particulière de personnes dans la province, relativement aux écoles séparées (denominational)… The protection afforded denominational schools has been included in s. 29 of the Charter which reads: 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. … 29. Les dispositions de la présente charte ne portent pas atteinte aux droits ou privilèges garantis en vertu de la Constitution du Canada concernant les écoles séparées et autres écoles confessionnelles.

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7KHVLJQLÀFDQFHRIWKHHQWUHQFKPHQWRIHGXFDWLRQDOULJKWVZDVH[SODLQHGLQWKHPDMRULW\ decision of the Ontario Court of Appeal in Reference re an Act to Amend the Education Act (1986), 53 O.R. (2d) 513 at pp. 575-6, 25 D.L.R. (4th) 1 at p. 64, 23 C.R.R. 193: These educational rights… make it impossible to treat all Canadians equally. The country was founded upon the recognition of special or unequal educational rights IRU VSHFLÀF UHOLJLRXV JURXSV LQ 2QWDULR DQG 4XHEHF 7KH LQFRUSRUDWLRQ RI WKH Charter into the Constitution Act, 1982, does not change the original Confederation bargain. (Quoted approvingly by Wilson J. in the appeal to the Supreme Court of Canada in Reference re an Act to Amend the Education Act (Ontario) (1987), 40 D.L.R. (4th) 18 at p. 61, [1987] 1 S.C.R. 1148 at pp. 1198-9, 77 N.R. 241.) 7KLVHQWUHQFKPHQWRIHGXFDWLRQDOULJKWVVKRZVWKDWWKHUHLVQRÀUPZDOOEHWZHHQ church and state in Canada, at least in the realm of public education. Irwin Cotler in “Freedom of Assembly, Association, Conscience and Religion”, W.S. Tarnopolsky and G.A. Beaudoin eds., The Canadian Charter of Rights and Freedoms: Commentary (1982), has suggested that the incorporation of s. 93 into the Charter amounts to a breach of the establishment principle and states at p. 201: In Canada… separation of church and state has never been an avowed policy of Canadian legislators, and indeed, the incorporation of s. 93 into the Charter, together with the reference in the Preamble to the Supreme Deity, would seem to evince a contrary legislative intention, let alone a distinguishable legal culture. A. Wayne MacKay draws a similar conclusion, stating that, because of s. 93 of the Constitution Act, 1867, and s. 29 of the Charter, “the Canadian situation is exactly opposite to that in the United States, as religion in the schools is guaranteed rather than forbidden”: “The Canadian Charter of Rights and Freedoms: a Springboard to Students’ Rights” (1984), 4 The Windsor Yearbook of Access to Justice 174 at p. 213. See also Anderson, “Effect of Charter of Rights and Freedoms on Provincial School Legislation”, Manley-Casimir and Sussel eds., Courts in the Classroom: Education and the Charter of Rights and Freedoms (1986), where the following passage appears at p. 190: The European Convention does not prohibit religion in schools but it does provide that education must be in conformity with parental “religious” convictions. For public schools in Canada, there is no constitutional prohibition against “religion” in schools. Insofar as provincial legislation permits religious matters in schools, it is not subject to challenge through the liberty provision of the Charter. What is reviewable in Canada is any compulsory participation in any such religious activities based on freedom of religion as guaranteed by s. 2 of the Charter. (Emphasis added.) Finally, s. 27 of the Charter may be of some assistance in this regard. Section 27 reads: 27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

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… 27. Toute interprétation de la présente charte doit concorder avec l’objectif de promouvoir le maintien et la valorisation du patrimoine multiculturel des Canadiens. &XOWXUHLVGHÀQHGLQDQWKURSRORJLFDOWHUPVDV´WKHVXPWRWDORIZD\VRIOLYLQJEXLOW up by a group of human beings and transmitted from one generation to another”: The Random House Dictionary of the English Language, 2nd ed. (1987). Religion is one of the dominant aspects of a culture which the Charter is intended to SUHVHUYHDQGHQKDQFH,Q5Y9LGHRÁLFNV/WG 25G DWSS 14 D.L.R. (4th) 10 at p. 43, 15 C.C.C. (3d) 353 (C.A.), Tarnopolsky J.A., delivering the judgment of the court, stated that: Religion is one of the dominant aspects of a culture which it [referring to s. 27 of the Charter] is intended to preserve and enhance… Section 27 determines that ours will be an open and pluralistic society which must accommodate the small inconveniences that might occur where religious practices are recognized as permisVLEOHH[FHSWLRQVWRRWKHUZLVHMXVWLÀDEOHKRPRJHQHRXVUHTXLUHPHQWV In this light, the removal of all religion from the school environment seems more consistent with the encouragement of a homogeneous society than with the preservation or enhancement of a “multicultural” one. The American concept of a “melting pot” of cultures does not form part of the Canadian tradition. As was stated by O’Leary J. in the judgment appealed from, 55 O.R. (2d) 749 at p. 759, 29 D.L.R. (4th) 709 at p. 719, 25 C.R.R. 193: Difference is the very essence of a multicultural society. Difference is to be worn with pride not hidden. While it is clear that s. 27 of the Charter cannot be invoked by a majority that wants to impose its cultural norms or standards on the rest of society, it is also clear that s. 27 does not mandate the homogenization of all public life. Religious exercises drawn from a variety of religious traditions can serve to preserve and enhance our multicultural heritage, and as long as their object is not to coerce anyone into participating, they do QRWUHÁHFWDQ\SXUSRVHLQFRQVLVWHQWZLWKWKH&KDUWHU Some judicial support for the proposition that indirect state aid to religion per se is not unconstitutional may be gleaned from Edwards Books, supra. In assessing the impact of the Retail Business Holidays Act, R.S.O. 1980, c. 453, on persons with religious beliefs, Chief Justice Dickson notes that it has a “favourable impact” on Sunday observers, in that it decreases the cost of religious observance for them (at p. '/5S6&5 7KXVWKHOHJLVODWLRQKDVWKHHIIHFWRIEHQHÀWLQJ&KULVWLDQLW\ and other Sunday-observing religions. Chief Justice Dickson never suggests that this in itself could constitute a violation of s. 2(a). It is worth noting that whether such an effect would violate the U.S. establishment clause is at least a debatable issue. In the U.S. Sunday closing cases decided in 1961 (eg., McGowan v. Maryland, 366 U.S. 420 (1961)), the legislation which prohibited the sale on Sunday of all merchandise, subject to certain exceptions, was upheld. If these cases were decided today, applying the second part of the Lemon test, i.e., that 660

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the statute cannot have a primary effect of inhibiting or aiding religion, the result would probably be the same. However, as Tribe notes, this branch of the Lemon test has been transformed: “… the Court has transformed [the requirement of ‘primary secular effect’] into a requirement that any non-secular effect be remote, indirect and incidental” (American Constitutional Law, 2nd ed. (1988), at p. 1215: see also “Note: The Unconstitutionality of State Statutes Authorizing Moments of Silence in Public Schools” (1983), 96 Harv. L. Rev. 1874 at p. 1877; Meek v. Pittenger, 421 U.S. 349 (1975); Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756 (1973)). The above-mentioned cases considered the effect of direct state aid to predominantly church-related, non-public elementary and secondary schools, by way of direct funding or the provision of instructional material and equipment. Although the purposes of the state aid were ostensibly secular or neutral, it had the effect of advancing sectarian schools, and therefore constituted an impermissible establishment of religion. The fact that a governmental action which has the effect of advancing religious activities may be prohibited in the United States under the establishment clause does not mean it is not permissible in Canada, nor does it mean that it is permissible in Canada simply because we have no establishment clause: see Big M at p. 357 D.L.R., p. 341 6&51HYHUWKHOHVVWKHIDFWWKDWWKHEHQHÀWDFFUXLQJWR6XQGD\REVHUYHUVDVDUHVXOW of the Retail Business Holidays Act was noted without comment on its constitutionality, provides some support for the position that non-coercive state aid to religion is constitutionally permissible. In summary, the decided cases in Canada establish that legislation whose purpose is to compel religious conformity infringes s. 2(a) of the Charter. However, there is no reasonable basis for asserting that the impugned regulation in the present case has such a purpose. Whatever its effects may be, its clear and comprehensive exemption provision indicates that it was not intended that all children be compelled to participate in the exercises. The issue as yet undecided is whether any religiously motivated state action is unconstitutional, absent any element of compulsion or coercion. The relevance of the American cases is limited by the fact that there is no express equivalent of the establishment clause in our Charter. However, it is clear that it has never been the policy of Canadian legislators to completely segregate church and state. On the contrary, there are provisions in the Constitution Act, 1867, and in the Charter which contemplate a “bridge” between church and state, at least in the realm of public education. Thus, even if, contrary to my opinion, the impugned regulation has a religious as opposed to an educational purpose in that it facilitates religious activities in the school, it does not violate s. 2(a) of the Charter for that reason alone. Section 2(a) of the Charter does not prohibit all governmental aid to or advancement of religion per se.

B. The effects of s. 28 It is clear that the effects of legislation are relevant in determining the legislation’s constitutional validity: Big M, at p. 349 D.L.R., p. 331 S.C.R., and Edwards Books, at p. 9 D.L.R., p. 725 S.C.R.

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I agree with the appellants that, regardless of its purpose, s. 28 of the regulation would be invalid if it had an unconstitutional effect. The appellants argue that the effect of s. 28 is to pressure children to participate in exclusively Christian religious exercises, in contravention of s. 2(a) of the Charter. The appellants strengthen this argument by pointing to the prevailing practice of the Sudbury Board of Education in offering exclusively Christian religious exercises. In my view, this requires separate consideration. The submission is based on the allegedly objectionable effect on minority students of requiring them to opt out of the majoritarian, Christian religious exercises. It is argued that this requirement is objectionable both on its face because it compels students to make a choice and in its effect, as it compels minority students to conform to the religious practices of the majority, thereby having a chilling effect on the free exercise of religion and conscience, alienating religious minorities and setting non-believers apart from the majority. According to the submission, being forced to declare one’s difference from or one’s conformity with the majority religious view, in effect, to make a religious statement, constitutes an infringement of s. 2(a). The argument taken from the factum of one intervenor, the Canadian Jewish Congress, is expressed as follows: The act of exempting oneself or one’s child from participating in religious activities is itself an outward manifestation of one’s religious conviction. Therefore, the Regulation which compels students either to participate or to exempt themselves from participation offers no real choice. In either case, students and parents are compelled to make a religious statement. 7KHUHLVQRWKLQJLQWKHGHÀQLWLRQRIIUHHGRPRIUHOLJLRQLQ%LJ0RU(GZDUGV%RRNV which supports the view that being compelled to make a religious statement alone constitutes a violation of s. 2(a). In Big M, Dickson C.J.C. said at p. 362 D.L.R., p. 347 S.C.R., in a passage partially quoted in the majority decision: Equally protected, and for the same reasons, are expressions and manifestations of religious non-belief and refusals to participate in religious practice. It may perhaps be that freedom of conscience and religion extends beyond these principles to prohibit other sorts of governmental involvement in matters having to do with UHOLJLRQ)RUWKHSUHVHQWFDVHLWLVVXIÀFLHQWLQP\RSLQLRQWRVD\WKDWZKDWHYHU else freedom of conscience and religion may mean, it must at the very least mean WKLVJRYHUQPHQWPD\QRWFRHUFHLQGLYLGXDOVWRDIÀUPDVSHFLÀFreligious belief or to manifest a VSHFLÀFreligious practice for a sectarian purpose. (Emphasis added.) The Chief Justice left open the possibility that the concept of freedom of religion PD\PHDQPRUHWKDQIUHHGRPIURPFRHUFLRQWRDIÀUPRUPDQLIHVWVSHFLÀFEHOLHIVRU practices, but the concept cannot be so broad as to prohibit government acts which compel the making of a religious choice. If “freedom” were so broadly conceived, it ZRXOGGHPDQGDVWDQFHRIVWDWHQHXWUDOLW\WKDWLVQRWMXVWLÀHGDQGSUREDEO\QRWSRVVLEOH to achieve. It was argued by counsel for the Attorney-General that, far from infringing freedom of religion, s. 28 promotes such freedom by offering the students a choice. Furthermore, 662

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it was argued that the provision of religious exercises in a manner consistent with ss. 2(a) and 15(1) of the Charter, will preserve and enhance the multicultural heritage of Canadians. Even rejecting these submissions to suggest that the requirement that a student make a choice is itself constitutionally invalid is, in my opinion, an untenable position. In my view, the government may not compel students to participate, but it is not prevented from creating a situation where a choice as to whether or not to participate must be made. Stewart J., in his dissenting opinion in Abington, said at pp. 316-17: Even as to children, however, the duty laid upon government in connection with religious exercises in the public schools is that of refraining from so structuring the school environment as to put any kind of pressure on a child to participate in those exercises; it is not that of providing an atmosphere in which children are kept scrupulously insulated from any awareness that some of their fellows may want to open the school day with prayer, or of the fact that there exist in our pluralistic society differences of religious belief. I agree entirely with this view, which I would apply to the social context existing in Canada. As mentioned above, we have no “wall of separation” between church and state. Not only are we a pluralistic society like the United States, but further, our pluralism, or “multicultural heritage”, has been entrenched in the Charter as an aid to its interpretation. The state is under no duty to insulate children from cultural and religious differences. Thus, being compelled to choose whether or not to participate in religious exercises is not, in itself, constitutionally impermissible. I also reject the proposition that the effect of the obligation to seek an exemption compels religious minorities to conform to the practices of the majority. The real question is whether it has been shown by the appellants that the pressure to conform has placed such a burden on the minority pupils or parents that the exemption is, in effect, not a viable alternative. Some American cases make it clear that not all burdens on religion violate the free exercise clause: Johnson v. Robison, 415 U.S. 361 (1974) (withholding HGXFDWLRQDOEHQHÀWVIURPDFRQVFLHQWLRXVREMHFWRUZKRSHUIRUPHGDOWHUQDWLYHFLYLOLDQ service does not violate right of free exercise of religion); Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707 (1981) (denying unemployment FRPSHQVDWLRQEHQHÀWVWRD-HKRYDK·V:LWQHVVZKRWHUPLQDWHGKLVHPSOR\PHQWWRDYRLG participating directly in the production of weapons was an infringement upon his free exercise right pursuant to the First Amendment) and Hobbie v. Unemployment Appeals Com’n of Florida, 107 S.Ct. 1046 (1987) (denial of unemployment compensation EHQHÀWVWRFODLPDQWZKRZDVGLVFKDUJHGZKHQVKHUHIXVHGWRZRUNRQKHU6DEEDWK violated her free exercise right pursuant to the First Amendment). Each case must therefore be examined to determine the impact of the challenged legislation. My colleagues in this court adopt the view expressed by Brennan J. in Abington at p. 288, where he stated that the exemption provision stigmatizes as non-conformists those who utilize it, thereby imposing a penalty on pupils who wish to be exempt for any reason based on the dictates of conscience. The majority also rely on Engel. These cases are said to support the conclusion that pupils will refrain from seeking the

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permissible exemption as they feel a compulsion to conform, and they are therefore restrained in their guaranteed freedom of conscience and religion. The U.S. cases on religion in school referred to by the majority appear to turn on the establishment clause of the First Amendment of the Constitution of the United States and not on the free exercise clause. ,Q(QJHOWKHÀUVWFDVHRQVFKRROSUD\HU0U-XVWLFH%ODFNGHOLYHULQJWKHRSLQLRQ of the court said at p. 430: Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause, as it might from the Free Exercise Clause, of the First Amendment… (Emphasis added.) This may be taken as some indication that school prayer would be constitutionally permissible in the United States if there were no establishment clause. However, Black J. went on to say at pp. 430-1: 7KLVLVQRWWRVD\RIFRXUVHWKDWODZVRIÀFLDOO\SUHVFULELQJDSDUWLFXODUIRUPRI religious worship do not involve coercion of such individuals. When the power, SUHVWLJHDQGÀQDQFLDOVXSSRUWRIJRYHUQPHQWLVSODFHGEHKLQGDSDUWLFXODUUHOLJLRXV belief, the indirect coercive pressure upon religious minorities to conform to the SUHYDLOLQJRIÀFLDOO\DSSURYHGUHOLJLRQLVSODLQ In the second school prayer case, Abington, Mr. Justice Clark, writing the opinion of the court, noted that one of the parties to the action, a father, had decided not to have his children excused from the religious opening exercises for fear of having them labelled as “odd balls” and “un-American” (at p. 208, fn. 3). Mr. Justice Douglas, in his concurring opinion, also referred to that evidence, but he held that coercion of that sort must be SURYHGDIÀUPDWLYHO\0U-XVWLFH%UHQQDQDOVRFRQFXUULQJZURWHWKHRQO\RSLQLRQLQ which the free exercise clause was discussed. He stated that, while it was not necessary to decide the case on the basis of the free exercise clause, the excusal procedure itself operated in such a way as to infringe the free exercise rights of those children who wished to be excused (at p. 288). He pointed to both the susceptibility of school-age children to “peer-group norms” and their “understandable reluctance to be stigmatized as atheists or nonconformists” (at p. 290). He relied on expert evidence concerning the susceptibility of children to peer-group pressure, although he pointed out that there were no reported experiments bearing directly on the question under consideration. He also made note of the fact that this situation was distinguishable from similar cases involving adults, because of the impressionability of children (at pp. 298-9). It is worth noting that the distinction made by Mr. Justice Brennan was repeated in Marsh v. Chambers, 463 U.S. 783 (1983), where the Supreme Court upheld the constitutionality of the practice of beginning each session of the Nebraska Legislature with a prayer by a chaplain paid by the state. The case turned on an interpretation of the establishment clause, but the majority distinguished Abington on the ground that “the individual claiming injury by the practice is an adult, presumably not readily susceptible to ‘religious indoctrination’… or peer pressure” (at p. 792).

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In McCollum v. Board of Education, 333 U.S. 203 (1948), religious instruction given by private religious groups to pupils in public school buildings during school hours was challenged. Pupils whose parents so requested were excused from their secular classes to attend religious instruction, but other pupils were not released from their public school duties. In ruling that the practice violated the First Amendment, made applicable to the states by the Fourteenth Amendment, Frankfurter J., concurring with the majority, said at p. 227: That a child is offered an alternative may reduce the constraint; it does not eliminate WKHRSHUDWLRQRILQÁXHQFHE\WKHVFKRROLQPDWWHUVVDFUHGWRFRQVFLHQFHDQGRXWVLGH the school’s domain. The law of imitation operates, and non-conformity is not an outstanding characteristic of children. The result is an obvious pressure upon children to attend… In Wallace, supra, a “moment of silence” case, the Supreme Court based its decision RQ WKH ÀQGLQJ WKDW WKH ZRUGV RI WKH VWDWXWH LPSHUPLVVLEO\ HQGRUVHG SUD\HU DV WKH preferred activity. It did not deal with the effects of the statute, although reference was made to the comments of Mr. Justice Frankfurter in McCollum, supra, quoted above, and of Mr. Justice Brennan in Abington (per Stevens J., at pp. 60-1, fn. 51). Madam Justice O’Connor, in her concurring opinion, made note of the fact that the decisions on state-sponsored, vocal school prayers acknowledged the coercion implicit in a statutory scheme where a non-adhering pupil must choose to actively withdraw from the exercises, thereby drawing attention to his or her non-conformity (at p. 72). She did not endorse those earlier decisions but merely pointed out that such implicit coercion does not exist in a “moment of silence” context. The U.S. cases on religion in school appear to have been decided on establishment clause principles, or through the combined operation of the free exercise and establishment clauses, which often overlap. The two clauses also determine the standard to be applied in determinations of what constitutes an impermissible burden on freedom of religion. In saying this, I do not overlook what Chief Justice Dickson said in Big M about the anti-establishment principle in the context of the Charter guarantee of freedom of conscience and religion. The American jurisprudence is not determinative, obviously because of the difference in the constitutional provisions, and also because members of the U.S. Supreme Court are clearly divided on the implications of their interpretations of the constitutional provisions for the special situation of public school children. I tend to agree with the conclusion of Anderson J. in the Divisional Court decision of the present case, that the question of compulsion, coercion and constraint is a question of fact from which “judgments made elsewhere upon different evidence are of little help” (at p. 782 O.R., p. 742 D.L.R.). Neither common experience nor the evidence in this case lend support to the conclusion that the obligation to seek an exemption imposes on religious minorities a compulsion to conform to the practices of the majority. The appellants’ expert, Dr. Bassis, could go no further than to assert that the requirement of seeking an exemption “may be harmful” to the children. However, the evidence is clear that students of the respondent board are regularly excused from class-room or educational activities for many different reasons. They are permitted to be absent from school to observe 665

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religious holidays at their parents’ requests. It has not been suggested that a request of this nature raises in the minority students or their parents any concern in differentiating them from the majority. We as a contemporary multicultural Canadian society are trying to encourage minority children to be proud of their ethnic heritage and to assert their respective religious or ethnic identities. In my respectful opinion there is no support in the material for the argument that compulsion arises by reason of the chilling effect of seeking an excusal. In this case, the preponderance of expert opinion given by eminent psychologists is to the contrary. $FFRUGLQJWR'U.HQQHG\LQKLVDIÀGDYLW 0RGHUDWHOHYHOVRI´SUHVVXUHWRFRQIRUPµDQG´FRQÁLFWµDUHSDUWRIWKHQRUPDO developmental process in children, as well as in adults. In normal children, the PRVW OLNHO\ UHVXOW RI DQ\ VXFK SUHVVXUHV RU FRQÁLFWV ZRXOG EH WR LQFUHDVH WKH arousal level and thereby to strengthen the learning process. Under such conditions, GHFLVLRQPDNLQJVKRXOGEHUHLQIRUFHGDQGVHOIGHÀQLWLRQHQFRXUDJHG,QWKHQRUPDO child, with respect to morning exercises as practiced in Ontario public schools, the expected result would be a strengthening of genuinely held convictions… He later states: It has been my experience that the public school system in Ontario is neither an DGYRFDWHRIDVSHFLÀFUHOLJLRXVEHOLHIV\VWHPQRUWKHDGYRFDWHRIVHFXODULVPRURI humanism. It has evolved into a school system that attempts to inculcate sensitivity and respect for all socio-cultural value-systems. It tends to be philosophically inclusive, rather than exclusive. It tends to expose students to a wide variety of ideas, while encouraging reasoned dissent. It does not reduce exposure to the minimum, but rather maximizes exposure and encourages understanding and respect for variety. It is multi-cultural, rather than espousing either the viewpoint of one group over and above others, or alternatively advocating a “melting pot” philosophy, in which differences are discouraged, merged and submerged. It requires exposure to differences in order to teach sensitivity, understanding, respect for others, and cooperative behaviour. ,QKLVDIÀGDYLW'U3KLOLSSH[SUHVVHGWKHIROORZLQJRSLQLRQ In my opinion, it is expected and indeed common for children of whatever faith to have to reconcile differences between the value and belief systems of their parents and those with which they come into contact in school and in society at large. This process is in fact important in the child’s development of his own value and belief system. Some of these passages and others were relied upon by O’Leary J. in the Divisional &RXUWGHFLVLRQDWSS25SS'/57KH\DSSHDUWRPHWRUHÁHFWWKH reality of contemporary Canadian society as I have endeavoured to express it. In fact, the respondent board itself, operating in an area where many cultures make up its demographic mosaic, acknowledges the value of the multicultural heritage. However, the board has never been requested by the appellants nor by anyone else to incorporate other readings and prayers into its religious exercises. The board has

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expressed a willingness, upon the request of parents, to vary its practice to attain a multi-denominational programme such as that developed by the Board of Education for the City of Toronto. In fact, there exists not only tolerance but active encouragement of the minority view. The appellants, who are not forced to participate in the exercises, should not succeed in prohibiting suitable prayers and readings which have traditionally been deemed to be in the best interests of public school children. If the circumstances disclosed in the record, or an objective analysis of the situation, could reasonably support an inference that the impugned regulation creates indirectly a coercive effect, I would not hesitate to concur with my colleagues’ conclusion with respect to its constitutional invalidity. I agree that, where the inference of coercion can reasonably be drawn, there is no need for the applicants to produce concrete evidence of harm in order to demonstrate a prima facie infringement of the constitutional freedom. Canadian cases make it clear that not all burdens on religion will violate the Charter. 1RUPDOO\DQH[HPSWLRQSURYLVLRQVKRXOGVXIÀFHWRQXOOLI\DQLQIHUHQFHRIFRHUFLRQ thereby defeating a Charter challenge. In Jones v. the Queen (1986), 31 D.L.R. (4th) 569, 28 C.C.C. (3d) 513, [1986] 2 S.C.R. 284, the Supreme Court of Canada was concerned with the requirement that every child of school age attend public school unless lawfully excused. The court held that compulsory attendance provisions did not offend the freedom of conscience and religion of the pastor of a fundamentalist church who educated his children and others in a church basement. It was also held that the legislation, if it had any impact at all on the pastor’s freedom of conscience and religion, did not contravene the constitutional guarantee under s. 2(a) of the Charter, in that the impact was merely “formalistic and technical”. The burden on conscience or religion in the present case is considerably less than that which existed in Big M and Edwards Books. It is instead, similar to the formalistic and technical burden in Jones, supra. I agree with the majority in the Divisional Court that there is no reason why a child should feel coerced into participating in religious exercises. 6LPLODUO\LQ5Y9LGHRÁLFNVVXSUD7DUQRSROVN\-$VXJJHVWHGDWS25 SS'/5WKDWDEURDGXQTXDOLÀHGH[HPSWLRQFODXVHZRXOGKDYHUHPRYHGWKH element of coercion: in that case, the inducement of persons who observe a Sabbath other than Sunday to conform with the Sunday closing requirement of the Retail Business Holidays Act.

C. Conclusion on s. 2(a) argument In my opinion the challenged legislation has a broad secular purpose, which is both educational and pedagogical. While it has a religious component, its purpose is not coercive. The legislation does not attempt, directly or indirectly, to pressure public school children to participate in any religious exercise. Further, the regulation cannot properly be said to have a coercive effect. In any event, the Canadian Constitution contemplates a bridge rather than a wall of separation between church and state, so that even a religious purpose or an incidental religious effect would not render the challenged legislation unconstitutional.

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I have therefore concluded that s. 50 of the Education Act and s. 28 of Reg. 262 do QRWYLRODWHVD RIWKH&KDUWHU,ÀQGLWWKXVXQQHFHVVDU\WRFRQVLGHUDQ\MXVWLÀFDWLRQV of the legislation under s. 1 of the Charter.

II SECTION 15 CHALLENGE The appellants have argued that the impugned regulation violates the equality rights guaranteed by s. 15 of the Charter because it (i) can be applied in a discriminatory manner, (ii) reveals a preference for Christian prayers and readings, and (iii) discriminates against non-believers on the basis of religion. Section 15 provides as follows: 15(1) Every individual is equal before and under the law and has the right to the equal SURWHFWLRQDQGHTXDOEHQHÀWRIWKHODZZLWKRXWGLVFULPLQDWLRQDQGLQSDUWLFXODU without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. … 15(1) La loi ne fait acception de personne et s’applique également à tous, et tous RQWGURLWjODPrPHSURWHFWLRQHWDXPrPHEpQpÀFHGHODORLLQGpSHQGDPPHQWGH toute discrimination, notamment des discriminations fondées sur la race, l’origine QDWLRQDOH RX HWKQLTXH OD FRXOHXU OD UHOLJLRQ OD VH[H O·kJH RX OHV GpÀFLHQFHV mentales ou physiques. Section 52(1) of the Constitution Act, 1982 provides: 52(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. … 52(1) La Constitution du Canada est la loi suprême du Canada; elle rend inopérantes les dispositions incompatibles de toute autre règle de droit. As stated by Chief Justice Dickson in Big M at p. 365 D.L.R., p. 351 S.C.R., in a society with a diversity of belief and non-belief, such diversity makes it “constitutionally incompetent for the federal Parliament to provide legislative preference for any one religion at the expense of those of another religious persuasion”. This statement also applies to provincial legislation and may be read together with the statement at p. 362 D.L.R., p. 347 S.C.R.: The equality necessary to support religious freedom does not require identical treatment of all religions. In fact, the interests of true equality may well require differentiation in treatment. In light of the above passages from Big M, I agree with the conclusion of the majority of the Divisional Court that the legislation itself does not violate s. 15. The fact that a statute or regulation may be improperly interpreted or applied in a discriminatory manner does not mean that the legislation itself infringes s. 15. In my view, the refer668

6. CANADIAN JUDICIAL DECISIONS

ence in s. 28 to the Scriptures and the Lord’s Prayer are given by way of illustration of the sort of exercise contemplated, without preference for Christian texts over other suitable readings and prayers. Non-religious persons may be accommodated by readings on secular humanism such as are included in the Toronto board’s book of readings. The selection by the legislature of Scriptures and the Lord’s Prayer as an illustration of suitable readings and prayers is in conformity with the Christian heritage of the majority. As Chief Justice Dickson has said in Edwards Books, supra, at p. 22 D.L.R. p. 743 S.C.R.: “Our society is collectively powerless to repudiate its history, including the Christian heritage of the majority.” The Lord’s Prayer, admittedly of Christian origin, perhaps because it does not mention Christ, has gained such wide acceptance that it is regarded by many as ecumenical and so acceptable to other religious groups as to make it universal. It reads as follows: Our Father, Who art in Heaven, hallowed be Thy name, Thy kingdom come, Thy will be done in earth as it is in Heaven; give us this day our daily bread; and forgive us our trespasses as we forgive them that trespass against us; and lead us not into temptation, but deliver us from evil: For thine is the kingdom, and the power, and the glory, for ever. Amen. [Holy Bible: St. Matthew 6: 9-13] , ÀQG LW GLIÀFXOW WR VHH KRZ LWV ZRUGV FRXOG RIIHQG DQ\ UHOLJLRXV JURXS +RZHYHU if, contrary to my opinion, the reference to it and to the Scriptures in the regulation appear to favour the Christian faith, or if the regulation is interpreted as having that effect, thereby limiting the use of other suitable readings and prayers, the appropriate remedy would not, in my opinion, require that the entire regulation be struck down. In accordance with s. 52(1) of the Constitution Act, 1982, the court would be entitled to hold that the regulation, to the extent of the inconsistency with the Charter, is of no force and effect. Section 28(1) would then read: A public school shall be opened or closed each school day with religious exercises consisting of suitable readings and suitable prayers. The deletion would render the section clearly non-discriminatory. However, my interpretation of the impugned words of s. 28 as examples of a suitable prayer and readings, does not lead to the conclusion that there is a legislative SUHIHUHQFHIRU&KULVWLDQWUDGLWLRQ,WKHUHIRUHÀQGLWXQQHFHVVDU\WRGHOHWHWKHUHIHUHQFHV to the Lord’s Prayer and the Scriptures in order to preserve the constitutional validity of the section. The s. 15 challenge against the actual practice of the Sudbury Board of Education with respect to its opening exercises is more persuasive than the attack against the wording of s. 28 of the regulation. It is clear that the practice of the Sudbury Board has been to formally open each school day by the singing of O Canada and the recitation of the Lord’s Prayer, often followed by Scripture readings or Biblical stories, in order to encourage respect for the moral principles emphasized within the Judeo-Christian tradition. This practice may be explained by the fact that the board has never been requested to incorporate other prayers or readings in the opening exercises, although it has now expressed its willingness to vary its present practice. 669

STATE SUPPORT FOR RELIGIOUS EDUCATION

In determining whether the practice of the Sudbury Board is discriminatory and therefore violates s. 15(1) of the Charter, it is not necessary to enter into a step-by-step analysis, as recommended in R. v. Ertel (1987), 35 C.C.C. (3d) 398 at p. 418 et seq., &5G DWSHWVHT&552QW&$ ,WLVVXIÀFLHQWWRVWDWH that the practice of the board, in conducting opening exercises based exclusively in the Christian religious tradition, may be deemed discriminatory in the sense that it gives preference to that tradition at the expense of all non-Christians. This has an adverse impact on the equality rights of non-Christians, thereby infringing s. 15(1) of the Charter: Re McKinney and Board of Governors of University of Guelph (1987), 63 O.R. (2d) 1 at p. 40, 46 D.L.R. (4th) 193 at p. 232 (C.A.). This infringement cannot EHMXVWLÀHGXQGHUVRIWKH&KDUWHUDVWKHUHDUHRWKHUZD\VZKLFKDUHOHVVLQWUXVLYH on the equality rights of religious minorities, to implement religious exercises which encourage respect for moral principles. An example of one such practice is that of the Toronto board, which has implemented opening exercises consisting of suitable readings and prayers from a variety of traditions. The appellants do not now seek a variation of the Sudbury board’s practice but, as previously mentioned, seek the abolition of all religious exercises in school as a matter of freedom of conscience. The majority of the Divisional Court, having found the impugned legislation to be valid, purported to exercise its discretion by refusing to prohibit the respondent board or its director from implementing daily opening exercises of a more ecumenical nature. If the application before the court had been made under s. 24(1) of the Charter, claiming that the applicants’ freedom of conscience had been infringed or denied, the court could have considered granting as a remedy the order of prohibition sought. The applicants’ defective procedure should not prevent the court from granting the appropriate Charter remedy. In my opinion, it would have been appropriate and just to grant the order of prohibition. The practice of the Sudbury board constitutes a prima facie violation of the equality provisions of the Charter by favouring the Christian religion in the school RSHQLQJH[HUFLVHV7KLVYLRODWLRQFDQQRWEHMXVWLÀHGXQGHUVRIWKH&KDUWHU7KH fact that the applicants had not requested any change in the board’s practice should not deprive them of a remedy where a clear violation of a constitutionally entrenched freedom is continuing. However, the appellants’ failure to request a voluntary change of practice before launching this application after s. 15 came into effect on April 17, 1985, may be taken into account in assessing the costs of the application. ,ZRXOGDIÀUPWKDWSRUWLRQRIWKH'LYLVLRQDO&RXUWMXGJPHQWZKLFKVXSSRUWVWKH constitutional validity of s. 50 of the Education Act and of s. 28 of Reg. 262, but I would allow the appeal, in part, to vary the judgment by adding a declaration that the prevailing practice of the Sudbury Board of Education and its Director of Education, in conducting its daily opening exercises, violates s. 15 of the Charter, and by adding an order in the nature of prohibition to compel those responsible to comply with s. 15 of the Charter, as indicated. I would not allow any costs in favour of or against any party or intervenor in this court or in the Divisional Court. Appeal allowed.

670

#31 Canadian Civil Liberties Association v. Ontario (Minister of Education)  25G &55&$  January 1990 (Ontario Court of Appeal) In this case the Canadian Civil Liberties Association and parents of children enrolled in schools of The Elgin County Board of Education challenged the constitutional validity of another Ontario law and the curriculum of religious studies of the Board. The Ontario regulation required two periods of religious education in public schools each week, but noted that issues of a controversial or sectarian nature should be avoided. Parents could apply to have their child exempted from religious education. The Court decided that the regulation violated the Charter. It held that the regulation permitted the indoctrination of school children in Ontario in the Christian faith, and for the same reasons given in Zylberberg was not saved by the exemption provision. Although the Board had made an effort to make changes to its curricula following the Zylberberg case, the Court found that the curricula contained indoctrinating material. They made a general declaration that the curricula were inconsistent with the freedom of conscience and religion guaranteed by s.2(a) of the Charter. Reproduced here is the decision of the Ontario Court of Appeal.

5H&RUSRUDWLRQRIWKH&DQDGLDQ&LYLO/LEHUWLHV$VVRFLDWLRQHWDODQG Minister of Education et al., January 30, 1990 %<7+(&2857:– This is an appeal, with leave of this court, from the judgment of the Divisional court, reported at 64 O.R. (2d) 577, 50 D.L.R. (4th) 193, dismissing the appellants’ application under the Judicial Review Procedure Act, R.S.O. 1980, c. 224. The application sought an order: (a) to declare s. 28 of Regulation 262, R.R.O. 1980, as amended, to be of no force or effect in consequence of its alleged infringement or denial of certain rights or freedoms guaranteed by the Canadian Charter of Rights and Freedoms, (“the Charter”); (b) to declare the curriculum of religious studies prescribed by the respondent, The Elgin County Board of Education (“the Board”) to be a denial of certain rights or freedoms guaranteed by the Charter; and (c) to enjoin the respondent, the Board, from continuing to require or permit its curriculum of religious studies to be offered in its schools. The interveners were given liberty to intervene in this appeal by orders of the Chief Justice of Ontario. The crucial issue in this appeal is whether the purpose and the effects of the regulation and the curriculum are to indoctrinate school children in Ontario in the Christian faith. If so, the rights to freedom of conscience and religion under s. 2(a) of the Canadian

671

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Charter of Rights and Freedoms and the equality rights guaranteed under s. 15 of the Charter may be infringed. On the other hand, it is conceded that education designed to teach about religion and to foster moral values without indoctrination in a particular religious faith would not be a breach of the Charter. It is indoctrination in a particular religious faith that is alleged to be offensive.

5(*8/$7,21 Two provisions of the Education Act, R.S.O. 1980, c. 129 (“the Act”), are of particular importance when considering the regulation. Section 50 provides: 50(1) Subject to the regulations, a pupil shall be allowed to receive such religious instruction as his parent or guardian desires or, where the pupil is an adult, as he desires. (2) No pupil in a public school shall be required to read or study in or from a religious book, or to join in an exercise of devotion or religion, objected to by his parent or guardian, or by the pupil, where he is an adult. Section 10(1), para. 18 of the Act provides: 10(1) Subject to the approval of the Lieutenant Governor in Council, the Minister may make regulations in respect of schools or classes established under this Act, or any predecessor of this Act, and with respect to all other schools supported in whole or in part by public money, … 18. governing the provision of religious exercises and religious education in public and secondary schools and providing for the exemption of pupils from participating in such exercises and education and of a teacher from teaching, and a public school board or a secondary school board from providing, religious education in any school or class; It will be noted that s. 10(1), para. 18 distinguishes between religious exercises and religious education in public and secondary schools. Religious exercises include school prayers, which were dealt with by this court in Zylberberg v. Sudbury Board of Education (Director) (1988), 65 O.R. (2d) 641, 52 D.L.R. (4th) 577, 34 C.R.R. 1. The Zylberberg decision will be referred to shortly. The constitutionality of ss. 50 and 10(1), para. 18 were not challenged by the appellants. It is only the portion of Reg. 262, R.R.O. 1980, dealing with religious education that is in issue in this appeal. The relevant provisions of s. 28 of Reg. 262, as amended by s. 21 of O. Reg. 617/81, but prior to the amendments in 1989, were as follows: 28 (4) Two periods per week of one-half hour each, in addition to the time assigned to religious exercises at the opening or closing of a public school, shall be devoted to religious education.

672

6. CANADIAN JUDICIAL DECISIONS

(5) Religious education shall be given immediately after the opening of a public school or immediately before the closing of school in either the morning or the afternoon session. (6) Instruction in religious education shall be given by the teacher and issues of controversial or sectarian nature shall be avoided. (7) By resolution of a board, a clergyman or clergymen of any denomination, or a lay person or lay persons selected by the clergyman or clergymen, may give religious instruction in a school of the board in lieu of a teacher or teachers. (8) Where two or more clergymen of different denominations, or lay persons selected by the clergymen, upon written application to the board, secure permission under subsection (7) to give religious instruction in the same school, the principal of the school, by resolution of the board, shall arrange for such accommodation within the school and such times within the periods referred to in subsection (5) as are agreeable to both the principal and the clergymen or the lay persons selected by the clergymen.  :KHUHWKHQXPEHURIURRPVLQDSXEOLFVFKRROLVLQVXIÀFLHQWWRPHHWWKHQHHGV of the groups organized for religious instruction under subsection (7) or (8), the principal of the school, by resolution of the board, may arrange for additional accommodation elsewhere. (10) No pupil shall be required to take part in any religious exercises or be subject to any instruction in religious education where a parent of the pupil, or the pupil where the pupil is an adult, applies to the principal of the school that the pupil attends for exemption of the pupil therefrom. (11) In public schools without suitable waiting rooms or other similar accommodation, if the parent of a pupil or, where the pupil is an adult, the pupil applies to the principal of the school for the exemption of the pupil from attendance while religious exercises are being held or religious education given, such request shall be granted. (12) Where a parent of a pupil, or the pupil where the pupil is an adult, objects to the pupil’s taking part in religious exercises or being subject to instruction in religious education, but requests that the pupil remain in the classroom during the time devoted to religious exercises or instruction in religious education, the principal of the school that the pupil attends shall permit the pupil to do so, if the pupil maintains decorous behaviour. (13) If, because of the right to be absent from religious exercises or instruction in religious education, any pupil is not present in the classroom during the periods VSHFLÀHGIRUUHOLJLRXVH[HUFLVHVRULQVWUXFWLRQLQUHOLJLRXVHGXFDWLRQWKHDEVHQFH shall not be considered a contravention of the rules of the school. (14) A teacher claiming exemption from the teaching of religious education as prescribed by this section shall notify the board to that effect in writing, and the

673

STATE SUPPORT FOR RELIGIOUS EDUCATION

board shall make such other provisions as is necessary to implement this section with respect to the teaching of religious education. (15) The Minister may grant to a board exemption from the teaching of religious education in any classroom or school if the board requests in writing the exemption and submits reasons for its request.  7KHDSSURSULDWHVXSHUYLVRU\RIÀFHUVKDOOHDFK\HDUEULQJWKHSURYLVLRQVRI WKLVVHFWLRQWRWKHDWWHQWLRQRIWKHERDUGRUERDUGVLQUHVSHFWRIZKLFKVXFKRIÀFHU has jurisdiction. As a result of the Zylberberg decision, supra, amendments were made to the regulation in January, 1989 (O. Reg. 6/89) by which the provisions for “religious exercises” in s-ss. 28(1), (2) and (3), were revoked and the references to “religious exercises” in s-ss. 28(4), (10), (11), (12) and (13) were amended so that ss. 28(4) now reads as follows: 28(4) Two periods per week of one-half hour each, in each public school shall be devoted to religious education. However, the amendments are not material to the decision in this appeal.

7+(&+$57(5 The applicable provisions of the Charter for the purposes of this appeal are the following: THE CONSTITUTION ACT, 1982 PART 1 CANADIAN CHARTER OF RIGHTS AND FREEDOMS Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law: 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 GHPRQVWUDEO\MXVWLÀHGLQDIUHHDQGGHPRFUDWLFVRFLHW\ 2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; … 15 (1) Every individual is equal before and under the law and has the right to equal SURWHFWLRQDQGHTXDOEHQHÀWRIWKHODZZLWKRXWGLVFULPLQDWLRQDQGLQSDUWLFXODU without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the muliticultural heritage of Canadians.

674

6. CANADIAN JUDICIAL DECISIONS

PART VII GENERAL 52(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

7+(&855,&8/80$1'7+($33/,&$7,2172$'0,7)5(6+ EVIDENCE There are 25 elementary schools in Elgin County operated by the board, with a total enrolment in 1986 of approximately 8,100 pupils. According to the 1981 Canadian Census, over 90% of the people residing in Elgin County are of Christian background. Later in these reasons we shall consider the curriculum in some detail, but it is useful at this point to give the following general description. Originally, the curriculum of the board was exclusively Christian in form. The Elgin County Bible Club and the local ministerial association had participated in its development. Up until, and including, the 1986-87 academic year, it was exclusively or primarily taught in the board’s public schools by members of the Elgin County Bible Club selected and recommended by clergymen. In 1983, the board took steps towards revision of the curriculum. However, it was only in April, 1986, after the commencement of these proceedings, that the board determined to invite submissions and briefs from interested individuals and groups to assist in developing a revised policy on religious education for its schools, ZKLFKZRXOGUHÁHFWWKHVRFLDODQGFXOWXUDOQDWXUHRIWKHFRXQW\,Q-DQXDU\WKH board approved a recommendation from its religious education committee that a new curriculum of study be prepared. It resolved that from September, 1987, instruction in religious education be provided by its own teachers. At the time when the application was heard by the Divisional Court in June, 1987, the new curriculum had not yet been adopted. The curriculum considered by the Divisional Court was the interim religious education plan implemented in the board’s elementary schools in the 1986-87 school year. The 1986-87 curriculum did contain references to other faiths. In the 1986-87 school year, approximately 124 pupils out of 8,100 were excused from religious education programmes at the request of their parents. On the hearing of this appeal, an application was made for the admission of the new religious education curriculum for 1988-89 as fresh evidence because it contained several changes from the curriculum considered by the Divisional Court. In order to avoid further litigation based on the new curriculum, this court decided that any submissions by counsel based on the new curriculum would be heard, and the court would rule on the matter of its admissibility when delivering its judgment. The status of the new curriculum will accordingly be dealt with later in this judgment.

675

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'(&,6,212)7+(',9,6,21$/&2857 (i) Constitutionality of the regulation The majority of the Divisional Court (Watt and McKeown JJ.) held that neither the purpose nor the effects of the regulation infringed s. 2(a) of the Charter. In their opinion the regulation did not, either in purpose or effects, compel, coerce or constrain anyone because s. 28(10) clearly stated that no pupil, where there is an application for exemption, shall be required to take part in any religious exercise, or be subject to any instruction in religion. The purpose of religious education, said the majority, was to introduce a moral element into the education of public elementary school pupils whereby, together with intellectual instruction, they may become adequately equipped for the task of the work life. There was no sectarian purpose of religious indoctrination in majoritarian Christian precepts. Nor was the majority persuaded that the effects of the section, viewed as a whole, were of such a nature or extent as to violate s. 2(a) of the Charter. In addition, the majority was not persuaded that either the purpose or the effects of the regulation infringed the applicants’ right to equality before and under the law and WKHLUULJKWWRWKHHTXDOSURWHFWLRQDQGEHQHÀWRIWKHODZZLWKRXWGLVFULPLQDWLRQEDVHG on religion under s. 15(1) of the Charter. The majority of the Divisional Court held that, because instruction in religious education was equally available to Christians and nonChristians, any disadvantage from taking advantage of the exemption mechanism would be the result of one’s own exercise of free choice and right of self-determination.

(ii) Purpose and effects of the curriculum In the same way, the purpose and effects of the curriculum were found by the Divisional Court not to infringe the applicants’ religious freedom and/or equality rights. The majority did point out that, while the curriculum did not exclude the tenets of non-Christian religions, the discussion of Christian religious beliefs did predominate. However, equal time for other religions was not the prerequisite, provided the treatment of other religions was not unfair or unreasonable, and this they found to be the case.

(iii) Austin J.’s dissent Mr. Justice Austin disagreed with the conclusions of the majority. After reviewing the history, terms and operation of the regulation, he concluded that the original intent of the regulation was to permit the indoctrination of school children in the Christian faith, and that it was still being used for that purpose. He did not consider that the exempting provisions were a complete answer to any suggestion of inequality or coercion; he felt that there was an appreciable degree of coercion or pressure on the individual appellants. He concluded that the regulation constituted an interference with IUHHGRPRIUHOLJLRQFRQWUDU\WRWKH&KDUWHUDQGFRXOGQRWEHMXVWLÀHGDVDUHDVRQDEOH limitation within s. 1 of the Charter. Having found s. 28(4) of the regulation offensive to the Charter, Austin J. held that the programmes and curricula purporting to be set up under it must also fall.

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7+(=
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to conform to the practices of the majority. He also took the position that s. 15(1) of the Charter was not violated. He considered that the references to the Scriptures and the Lord’s Prayer in s. 28(1) were illustrations and did not indicate a preference for Christian texts. However, he conceded that the practice of the Sudbury Board in conducting opening exercises based exclusively in the Christian religious tradition might be deemed discriminatory, and therefore he held that it violated s. 15(1) of the &KDUWHUDQGFRXOGQRWEHMXVWLÀHGXQGHUV We have dealt with the decision of this court in Zylberberg at some length because of its obvious importance for the issues before the court in this appeal.

+,6725<2)7+(/(*,6/$7,21 (i) The statute The constitutionality of s. 50 of the Education Act is not challenged by the appellants, but neither is it conceded. The history of s. 50 of the Education Act can be traced back through various consolidations and enactments as far as an “Act for the establishment and maintenance of Common Schools in Upper Canada”, S.C. 1843, c. 29. Section 54 of the 1843 Act read as follows: 54. And be it enacted, that in the Common Schools or Town or City Schools, established under this Act, no child shall be required to read or study in or from any Religious Book, or to join in any exercise of Devotion or Religion, which shall be objected to by his or her Parents or Guardians. In 1850, the legislation referred explicitly to the right of pupils to receive religious instruction and provided for an exemption both from religious instruction and from religious exercises. Section 14 of an “Act for the better establishment and maintenance of Common Schools in Upper Canada”, S.C. 1850, c.48, provided in part that: 14. … nor shall any pupil in any such School be required to read or study in or from any religious book, or join in any exercise of devotion or religion, which shall be objected to by his or her parents or guardians: Provided always, that within this limitation, pupils shall be allowed to receive such religious instruction as their parents and guardians shall desire, according to the general regulations which shall be provided according to law. Section 50 of the current Education Act has appeared in various public statutes over the years and was enacted in its present form as s. 48 of S.O. 1974, c. 109. This section is in virtually the same form as the 1850 provision.

(ii) The regulation 7KHFXUUHQWUHJXODWLRQÀQGVLWVRULJLQLQVRIWKH*HQHUDO5HJXODWLRQV3XEOLFDQG Separate Schools, 1924. The regulation reads in part as follows: 13(1)(a) Every Public School shall be opened with the reading of the Scriptures and the repeating of the Lord’s Prayer, and shall be closed with the Lord’s Prayer

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or the prayer authorized by the Department; but no pupil shall be required to take part in any religious exercises objected to by his parent or guardian. (b)(i) In schools without suitable waiting-rooms or other similar accommodation, if the parent or guardian demands the withdrawal of a pupil while the religious exercises are being held, such demand shall be complied with, and the reading of the Scriptures shall be deferred in inclement weather until the closing. (ii) To secure the observance of this regulation, the teacher, before commencing a religious exercise, shall allow the necessary interval to elapse, during which the FKLOGUHQRUZDUGVRIWKRVHZKRKDYHVLJQLÀHGWKHLUREMHFWLRQWKHUHWRPD\UHWLUH (c) If the parent or guardian objects to his child or ward taking part in the religious exercises, but directs that he shall remain in the schoolroom during these religious exercises, the teacher shall permit him to do so, provided that he maintains decorous behaviour during the exercises. (d) If, in virtue of his right to be absent from the religious services, any pupil does not enter the schoolroom in the morning till the close of the time allowed for religious exercises, such absence shall not be treated as an offence against the rules of the school. … (3)(a) (i) A clergyman of any denomination shall have the right, and it shall be lawful for the Board to allow him, to give religious instruction to the pupils of his own denomination, in each school house, at least once a week, before the hour of opening the school in the morning or after the hour of closing the school in the afternoon as the Board may determine. (ii) Under the same conditions, a clergyman, selected by the clergymen of any number of denominations, shall also have the right to give religious instruction to the pupils belonging to such denominations. (b) If the clergymen of more than one denomination apply to give religious instrucWLRQLQWKHVDPHVFKRROKRXVHZKHUHWKHQXPEHURIFODVVURRPVLVLQVXIÀFLHQWIRU all at the same time, the Board shall decide on what day of the week a classroom shall be at the disposal of each, at the time above stated. In 1944, O. Reg. 30/44 (“the 1944 regulation”) replaced the earlier regulation and provided the basis for the present system: 13(1)(a) Every public school shall be opened each school day with religious exercises consisting of the reading of the Scriptures and the repeating of the Lord’s Prayer or other prayers approved for use in schools. (b) The Scripture passages, forming a part of the religious exercises referred to in 1(a), shall be read daily and systematically at the opening of school and may be chosen from any list of selections adopted by the Department for use in schools,

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or from any other list approved by the Minister, as the Board by resolution may direct. (c) If the Board does not pass the resolution provided for in 1(b) above, the principal shall make the selection after duly notifying the Board of his intention, but such selection shall be subject to revision by the Board at any time. (d) The religious exercises held at the daily opening of school may include the singing of one or more hymns authorized for use in schools. (2)(a) Subject to the regulations, two periods per week of one-half hour each, in addition to the time assigned to religious exercises at the opening of school, shall be devoted to Religious Education. (b) Religious Education shall be given immediately after the opening of school or immediately before the closing of school in either the morning or the afternoon session. (c) Instruction in Religious Education shall be given by the teacher in accordance with the course of study authorized for that purpose by the Department, and issues of a controversial or sectarian nature shall be avoided. (d) By resolution of the School Board, a clergyman or clergymen of any denomination, or lay person or lay persons selected by the clergyman or clergymen, shall have the right, subject to the regulations, to give Religious Instruction, in lieu of a teacher or teachers. (e) If two or more clergymen of different denominations, upon written application to the Board, secure permission to give Religious Instruction, the principal of the School, by resolution of the Board, shall arrange for such accommodation within the school and at such prescribed times within the periods denoted above as shall be agreeable to both the principal with the clergymen concerned. I :KHUHWKHQXPEHURIURRPVLQWKHVFKRROLVLQVXIÀFLHQWWRPHHWWKHQHHGVRIWKH groups organized for Religious Instruction under 2(d) and (e) above, the principal of the school, by resolution of the Board, may arrange for additional accommodation elsewhere. (3)(a) No pupil shall be required to take part in any religious exercises or be subject to any instruction in Religious Education to which objection is raised by his parent or guardian. (b) In schools without suitable waiting-rooms or other similar accommodation, if the parent or guardian applies to the principal for the exemption of his child or ward from attendance while religious exercises are being held or Religious Education given, such request shall be granted. (c) If the parent or guardian objects to his child or ward taking part in religious exercises or being subject to instruction in Religious Education, but requests that

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he shall remain in the schoolroom during the time devoted to such education, the teacher shall permit him to do so provided he maintains decorous behaviour. (d) If by virtue of his right to be absent from religious exercises or instruction in 5HOLJLRXV(GXFDWLRQDQ\SXSLOLVQRWSUHVHQWLQWKHFODVVURRPGXULQJVXFKVSHFLÀHG periods, his absence shall not be considered a violation of the rules of the school. (4) A teacher claiming exemption from the teaching of Religious Education as prescribed by the regulations, shall notify the Board to that effect in writing; and it shall then be the duty of the Board to make such other provisions as may be necessary to implement the regulations with respect to the teaching of the subject. (5) The Minister may grant to a Board exemption from the teaching of Religious Education in any classroom or school provided the Board shall request in writing such exemption and shall submit reasons therefor. (6) The inspector shall each year bring to the attention of the boards of trustees of his inspectorate the foregoing regulations relating to religious exercises and Religious Education. Prior to the time this application was commenced, the 1944 regulation was changed in RQO\RQHVLJQLÀFDQWUHVSHFW,QE\25HJV IRUPHUO\V F  was amended to read as follows: 28(6) Instruction in religious education shall be given by the teacher and issues of controversial or sectarian nature shall be avoided. The effect of this change was to empower the local school boards to implement the regulation. For all other purposes, the regulation regarding religious education in the public schools has been continued in substantially the same form as the 1944 regulation. We have already set out the provisions of s. 28 of Reg. 262, the legislation presently in force, which are of relevance for this appeal.

(iii) The reports of the Hope Commission and the Mackay Committee Two comprehensive studies have been conducted on the subject of religious education in Ontario public schools: the Royal Commission on Education (“the Hope Commission”) from 1945 to 1950, and the Committee on Religious Education in the Public Schools of Ontario (“the Mackay Committee”) from 1966 to 1969. The Hope Commission was appointed on March 21, 1945, and was given a broad mandate “to inquire into and report upon the provincial education system”. It is unnecessary to reproduce its precise terms of reference here. The Commission submitted its report on December 15, 1950. Among other things, it approved the system of religious education then in effect. In describing the “Aims of Education”, the Hope Commission stated, at pp. 27-29: 15. There are two virtues about which there can be no question – honesty, and &KULVWLDQORYH7KH\UHÁHFWWKHLQWHOOHFWXDODQGUHOLJLRXVKHULWDJHRI:HVWHUQ&LYLOLzation. Honesty means truthfulness and fair dealing, which are the very foundations 681

STATE SUPPORT FOR RELIGIOUS EDUCATION

of freedom. Christian love means kindness and consideration for others, which are mandatory by the Golden Rule. Honesty and love must be taught by precept and even more by example, as absolute rights, or eternal verities, which everyone must accept, defend, and strive to practise. To insist on their acceptance will do no violence to the conscience of any child or parent. No earnest Christian or Jew, or sincere adherent of any other enduring faith or philosophy of intelligence and good will, could have conscientious scruples regarding these two virtues. They may be taught whole-heartedly and without reservation. 16. Without honesty, society disintegrates. Fair dealing is the indispensable basis of community life. Truthfulness and respect for truth, no less than free access to truth, are essential to the operation of democracy and to the safeguarding of democracy against false doctrines which may threaten to overthrow it. Without love of our fellow-men life is not worth living. There is need for more consideration toward those with whom we come into immediate contact, and need for more consideration toward those who will be affected less directly but no less surely by our beliefs and our practices. There is a warning to the world in the recent spread of ideologies under which kindness is weakness and pity is evidence of guilt. For the preservation of our society the school must teach honesty and Christian love. 17. But the school must not be content with theory. It must teach honesty and love in practice, and thus educate for service to one’s fellow-men, to one’s country, and to God. As the pupil recognizes the obligation to be honest, he must give value in his work and in every transaction. Because he recognizes the obligation of love, he must seek to translate it into action. Whether in relation to one other person, to several persons, or to all – whether at home, at school, in business, or as a citizen ²KHPXVWIXOÀOWKLVGXDOREOLJDWLRQWRWKHEHVWRIKLVDELOLW\,QKLVHGXFDWLRQWKH school must help him not only to understand and to accept these obligations, but also to acquire the disposition, the will, and the ability, to live daily by the application of this divine precept. 18. In teaching these universal values the school cannot work alone. The enemy of KRQHVW\DQGORYHLQDFWLRQLVWKHXELTXLWRXVGHPRQQDPHGVHOÀVKQHVV7KHFKXUFK in particular, must build and continuously strengthen the spiritual foundations of the basic virtues. The home must provide security for their growth in understanding and practice. School, home, and church should stand together to counteract more HIIHFWLYHO\WKRVHLQÁXHQFHVLQVRFLHW\ZKLFKRIIHUUHZDUGVIRUVHOÀVKQHVV*UDGXDOO\ the whole social environment of future generations may then perceptibly improve as an educative agency. … 19. Honesty and Christian love are the absolutes of a free society. They may therefore be taught by the strongest means at the school’s command – an explicit acceptance that they are right. If this be indoctrination we accept the stricture. (Emphasis added.)

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There are other references to Christian values in this section of the report, notably para. 41, at pp. 36-37: 41. We reiterate that the two essential allies of the school in this regard are the home and the church. By precept and by example gifted teachers can engender in their pupils certain immutable values accepted, and indeed won, by mankind as the expression of his highest ideals in terms of beauty, truth, and goodness. Mankind has found in the practice of these ideals the deepest satisfaction as he seeks to serve his fellow-men, his country, and his God. The importance of the individual and WKHVLJQLÀFDQFHRIKLVREOLJDWLRQVZKLFKIRUPSDUWRIRXUVSLULWXDOKHULWDJHDUH the foundations of our democratic society. The meaning of life is made manifest in adherence and obedience to ideals that lie outside oneself and that transcend one’s personal interests. Inspiration and aspiration are never self-centred. Without proclaiming any creed or doctrine we know that in our democracy the Christian LGHDOVDVSHUVRQLÀHGDQGH[HPSOLÀHGE\-HVXVKDYHDQDSSHDOWRDOOSHUVRQVRI good will, and are the surest common ground for an educational programme related to the pupil as a person. The attitude of Jesus toward children, His understanding of human nature and behaviour, His charity and loving kindness toward all men, form a perfect model for a true democracy in the classroom, the community, and the nation. (Emphasis added.) In a chapter of the report dealing explicitly with “Social, Spiritual and Other Aspects of Education”, the Commission expressed satisfaction with the regulation then in place. It saw it as ensuring a programme of religious education which was “non-sectarian and non-denominational” and which guaranteed religious freedom of the individual through the right to an exemption. It also stated that the regulations were in accord with the “Aims of Education” articulated by the Commission. In 1966, the Mackay Committee was appointed by the government in response to representations for change to the religious education programme established by the 1944 regulation. The Committee’s mandate, among other things, was to evaluate the programme then in effect and to consider suggestions for change and improvement. The Committee concluded, on the basis of the regulations, the department’s programme outline and the departmental guides, that the programme was one designed to indoctrinate students in the Christian faith and way of life. In recommending the discontinuance of the present course of study and the repeal of the 1944 regulation, the Mackay Committee observed at pp. 21-22 of its report: 7KLVPDWHULDOPXFKRIZKLFKLVGHÀQLWHO\&KULVWLDQDQG3URWHVWDQWLQFRQWHQWLVLQ our opinion a vehicle leading to religious commitment rather than to true education. The Regulations and Programme clearly states “that ‘the schools of Ontario exist for the purpose of preparing children to live in a democratic society which bases its way of life upon the Christian ideal,’ and further, that ‘the school must seek to lead the child to choose and accept as his own those ideals of conduct and endeavour which a Christian and democratic society approves’. The teacher is then counselled ‘to

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bring home to the pupils as far as their capacity allows, the fundamental principles of Christianity and their bearing on human life and thought’.” In accordance with these instructions, the children of Ontario are exposed to Christian indoctrination throughout the elementary grades. This indoctrination EHJLQVLQWKHNLQGHUJDUWHQZKHUHWKHWHDFKHUÀQGVUHDGLO\DYDLODEOH&KULVWLDQ%LEOH stories, hymns and busy-work materials adapted to young children and it continues with more or less intensity into the higher grades. The pressure becomes stronger DW WKH &KULVWPDV DQG (DVWHU VHDVRQV VRPHWLPHV UHVXOWLQJ LQ VHULRXV FRQÁLFW LQ the minds of children. The views expressed in their homes on religious matters may differ from those stated by the teacher. To the youthful mind, the authority of the teacher is usually beyond question. Where does this leave the authority of the parents? Confusion and distress is thus created in the minds of young children loyal to both teacher and parents. Christian doctrines are not only inculcated by the present course, but it is implied that these truths are exclusive to Christianity. The introduction to the Program of 6WXGLHVIRU*UDGHV,WR9,VWDWHV´5HOLJLRXVWHDFKLQJFDQQRWEHFRQÀQHGWRVHSDUDWH periods on the timetable. It will affect the teaching of all subjects, and the wise teacher will be anxious, in the various departments of school activity, to bring home to the pupils, as far as their capacity allows, the fundamental truths of Christianity and their bearing on human life and thought”. Accordingly pupils may be taught that all of the high principles of morals and ethics on which our society is founded are exclusive to Christianity. It is quite conceivable, therefore, that children might leave Grade 8 with the impression that the Ten Commandments and the Golden Rule, for example, are solely Christian doctrines. This misapprehension will not be discouraged in those schools where the classes are conducted by some Protestant clergymen or by teachers employed through Christian Bible clubs. Organized religions other than Christian are made to appear alien and inferior in our present course of studies. The Committee considered the role of exemptions and concluded that they were discriminatory and unfair (at p. 24): It has been suggested to the Committee by several briefs that although the present course of study may appear to leave children open to Protestant religious indoctrination, the provisions for exemption of those whose parents object to the teaching offset the exposure. It is our view, and we are supported by a number of other briefs, that this special treatment is in itself discriminatory and should as far as possible be eliminated from the public school system. Discrimination through exemption is IHOWHTXDOO\E\WKRVHZKRÀQGWKHFRXUVHWRRVHFXODUWRDFFRUGZLWKWKHLUUHOLJLRXV LGHDVDQGE\WKRVHZKRÀQGLWWRRVHFWDULDQ,WLVXQIDLUDOVRWRWHDFKHUVZKRDUH unable to teach the course conscientiously and are accordingly either embarrassed by having to secure exemption or are pressured into hypocritical conformity. It is important to see clearly where the responsibility in this situation lies: contrary to 684

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popular belief, discrimination is not the problem of those who are discriminated against, but of the “smug majority” who permit the practice, and who alone have the power to end it. The public schools must surely be kept free of prejudices if society as a whole is to advance towards their elimination. Every course or program in the public school should be designed to be acceptable to all reasonable persons and, FRQVHTXHQWO\OHDYHQRMXVWLÀFDWLRQIRUUHTXLULQJGLVFULPLQDWRU\H[HPSWLRQV As indicated, the Mackay Committee recommended an end to religious education in the public schools. The Committee found the present system inconsistent with modern principles of education and proposed instead that the focus be directed to instilling knowledge of world religions and transmitting high standards of character, ethical ideals and moral values without trespassing on students’ personal religious beliefs.

7+(5(*8/$7,21$1'68%6(&7,21$ 2)7+(&+$57(5 (i) Purpose and effect Speaking for the majority of the Supreme Court of Canada in R. v. Big M Drug Mart Ltd. (1985), 18 D.L.R. (4th) 321, 18 C.C.C. (3d) 385, [1985] 1 S.C.R. 295, Dickson J. held, at p. 350, that “both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation”. He went on to add, at pp. 351-2: [T]he legislation’s purpose is the initial test of constitutional validity and its effects are to be considered when the law under review has passed or, at least, has purportedly passed the purpose test. … [T]he effects test will only be necessary to defeat legislation with a valid purpose; effects can never be relied upon to save legislation with an invalid purpose. Furthermore, in Big M, Dickson J. went on, at pp. 352-3, to assert that it is the original legislative purpose that is relevant; he explicitly rejected the American notion of a “shifting purpose”, by which the purpose of the law could change with changing social conditions. He suggested that effects may change, but the purpose of legislation remains constant. Counsel for the respondent board argued that every time the legislation is amended its purpose can change, but that would only be true if the amendments eliminated the legislation’s original purpose. Counsel’s argument that the purpose of the regulation has VKLIWHGFDQQRWEHVXSSRUWHGE\DQ\VLJQLÀFDQWFKDQJHVLQWKHWH[W$OWKRXJKWKHVRFLDO circumstances surrounding the legislation may have changed over time, the original purpose has not. Changing circumstances, as Dickson J. pointed out in Big M, supra, loc. cit., are relevant only to effects. At the same time, one must note that, as Dickson J. pointed out in Big M, supra, at p. 350, both purpose and effects are linked. The intended and actual effects can provide a guide in assessing the purpose of legislation.

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(ii) Purpose What is a court to look at to determine purpose? The Supreme Court of Canada has indicated that a court may look to the historical background of the legislation, although WKHFRXUWLVQRWERXQGE\VSHFLÀFUHPDUNVHYHQRIOHJLVODWLYHGUDIWHUV,QGHWHUPLQLQJ the historical context within which the legislation was enacted, the court can consult legislative debates, as well as reports of Royal Commissions, other boards of inquiry DQGRIÀFLDOUHSRUWVVHH%LJ0VXSUDDWSS5HIHUHQFHUHV RI0RWRU Vehicle Act (B.C.) (1985), 24 D.L.R. (4th) 536 at pp. 551-5, 23 C.C.C. (3d) 289, [1985] 2 S.C.R. 486; R. v. Edwards Books & Art Ltd. (1986), 35 D.L.R. (4th) 1 at pp. 24-26, 30 C.C.C. (3d) 385, [1986] 2 S.C.R. 713; R. v. Morgentaler (1988), 44 D.L.R. (4th) 385 at pp. 470-1, 37 C.C.C. (3d) 449, [1988] 1 S.C.R. 30. Although the text of the regulation and its enabling legislation must always be FRQVLGHUHGLQWKLVFDVHLWLVQRWVXIÀFLHQWWRVROLPLWWKHDQDO\VLV2QHPXVWDVGLG Austin J. in his dissenting judgment in the Divisional Court, at pp. 695-701 O.R., pp. 311-17 D.L.R., consider the history in the light of legislative debates, government guides and brochures, materials submitted by the respondent board, and the reports of the Hope Commission in 1950, and the Mackay Committee in 1969. The reports of the Hope Commission and the Mackay Committee were subsequent in time to the making of the regulation and accordingly are not part of the historical background. They afford, KRZHYHUXVHIXOFRQÀUPDWLRQRIWKHYLHZVZHKDYHIRUPHGRQWKHEDVLVRIWKHWH[WRI the legislation and other materials. We have already outlined the historical background of the regulation, and we would now like to relate that historical background to the determination of the purpose of the legislation. Traditionally, there have been two aspects of the role of religion in Ontario’s public schools: “religious education” and “opening and closing religious exercises”. “Exercises” consisted of the reading of the Lord’s Prayer and a Bible reading. “Education” consisted of the teaching of religious faith and tenets – until very recently, exclusively from a Christian perspective. There was very little resistance to Christian school prayer during the nineteenth and early twentieth centuries, because Ontario’s population was predominantly Christian. However, the same consensus did not exist with respect to “religious education”. In fact, due to the denominational factions within the Christian population, no regulatory SURYLVLRQZDVPDGHIRU´UHOLJLRXVHGXFDWLRQ··XQWLOZKHQWKHÀUVWIRUPXODWLRQ of the impugned regulation was enacted. Prior to 1944, however, the regulations provided for “religious instruction”, which was to be available in public schools before or after regular school hours. It was to be taught by members of the clergy of particular denominations and only to pupils of those denominations. Before 1944, then, a distinction was drawn between “religious exercises” and “religious instruction”. While the former was for all pupils, subject to exemptions for those opting out, the latter was available on a specialized basis outside the class-room. Both activities were conducted from a normative, rather than descriptive perspective – the pupils were to participate in manifestations of faith, not critical or objective study. In this sense, both can be said to have been aimed at indoctrination,

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although one might have argued that the real aim was teaching “morality” by means of teaching religion. In the 1944 Speech from the Throne, it was said: “Increasing emphasis will be placed upon the importance of the development of character. Religious education will be offered in public and secondary schools.” Consequently, O.Reg. 30/44, entitled “Religious Exercises and Religious Education in the Public Schools” was passed. It provided that time each week be devoted to “religious education”. As we have indicated, this was the predecessor to the section impugned in this appeal. The classes were to be taught during school hours by regular teachers or by a clergyman of any denomination in lieu of a teacher. The content was set by the Department of Education and was to avoid “issues of a sectarian or controversial nature”. The Programme for Religious Education, adopted by the department to implement the 1944 regulations, stated the aim of religious instruction in public schools to be “the acceptance of the historic Christian faith”. It also stated that: “Jesus Christ is more than a hero to be admired; He is the Revelation of God in history and an abiding power in the lives of men; He is ‘the Way, the Truth and the Life’.” At the time the 1944 regulations were adopted, the Public Schools Act, R.S.O. 1937, c. 357, s. 103(a), required teachers to, among other things, “inculcate by precept and example respect for religion and the principles of Christian morality”. It should be noted that s. 235(1)(c) of the Education Act now states that it is the duty of every teacher to “inculcate by precept and example respect for religion and the principles of Judaeo-Christian morality …”. We have reviewed at length the reports of the Hope Commission and the Mackay Committee. The purpose of the regulation, as recognized by both the Hope Commission and the Mackay Committee, was Christian indoctrination. That purpose, as noted earlier, does not change merely because of changing social conditions and through minor amendments; the amendments would have to be major to change the original purpose. The Mackay Committee’s response (at p. 26) to possible revisions within the present legislative framework to include “less intensive study of other major religions … presented by better trained teachers” illustrates the futility of trying to meet changing social conditions within the present legislative framework: We have given careful consideration to this proposal. It is our opinion that a VDWLVIDFWRU\PRGLÀFDWLRQRIWKHSUHVHQWFRXUVHFDQQRWEHDFKLHYHG7KLVFRQFOXVLRQ is supported by the fact that various briefs have expressed views that the present FRXUVHLVWRRVXSHUÀFLDOWRRGRJPDWLFWRRHPRWLRQDOWRREODQGWRRHOHPHQWDU\ WRRDEVWUDFW:HÀQGPXFKHYLGHQFHWRVXSSRUWDOOWKHVHYLHZVFRQÁLFWLQJWKRXJK WKH\DUH+RZWKHQFRXOGWKHFRXUVHEHPRGLÀHGWRPHHWWKHFULWLFLVPV"7KHIDFW remains that, after 24 years, the manuals, although revised, are still objectionable to many; the teachers, although better informed, are still inadequately prepared; and the course itself is still only haphazardly integrated into the curriculum. At many levels and in many areas it has fallen into disuse or has become the cause of friction in the community. The course invades the integrity of public education and is, therefore, basically wrong. There must be a totally new approach to the problem.

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The above-elaborated conclusion as to legislative purpose based on historical background is, as Austin J. outlined in the decision appealed from, substantiated as to legislative effects by the respondent board’s teaching materials as recently as the 1986-87 teaching years. As Austin J. said (at pp. 700-1 O.R., pp. 316-17 D.L.R.) : In so far as the material used by the Elgin Board up to and including 1986 is concerned, no serious attempt was made to defend it. A review of it reveals it to be exclusively Christian, Protestant, fundamentalist and evangelical. As such, it would be offensive to some non-Christians and to a good many Christians as well. From the content and from the layout of the material, it is a fair inference that it was used or to be used for indoctrination rather than education. Indeed it is not necessary to draw inferences; in February, 1986, the teachers’ guide for Grade VII stated that: “The objective of the religious education program in the schools of Elgin County would be to provide pupils with a religious context, primarily Christian, in which to develop appropriate responses to life’s situations.” It was apparent from the changes made from the teaching year 1986-1987 that part of Mr. Millington’s message got through. The curriculum material did contain UHIHUHQFHVWRRWKHUIDLWKVVSHFLÀFDOO\-XGDLVPWKH0HQQRQLWHV´1DWLYH3HRSOHVµ the Mormons, Jehovah’s Witnesses, Islam and Baha’i. It appears to me however that the material continued to be taught exclusively from the Christian point of view, not from the point of view of a person of one or other of the other faiths. Again the content and the layout of the material suggests strongly that the purpose was indoctrination rather than education in the ordinary sense. The conclusion as to the purpose revealed by reference to historical background is also revealed by the text of the legislation and the regulation. As Austin J. pointed out at pp. 702-3 O.R., pp. 318-19 D.L.R., the exemption provision in s. 10(1), para. 18 of the Act “strongly suggests something other than pure education”: [I]f all that was involved in “religious education” was teaching in the ordinary sense, LWLVGLIÀFXOWWRXQGHUVWDQGZK\DQ\SURYLVLRQVKRXOGEHPDGHIRUWKHH[HPSWLQJRI students. The section then goes on to deal with exempting teachers from teaching WKLVVXEMHFWDQGDJDLQLWLVGLIÀFXOWWRLPDJLQHXQOHVVWKHREMHFWLVLQGRFWULQDWLRQ why teachers should be exempted from teaching this particular subject. Finally, the section goes on to provide an exemption for either a whole class or a whole school. This exemption is “from providing religious education”. There is no indication as to why a distinction is drawn, if such is the case, between religious exercises and UHOLJLRXVHGXFDWLRQ$JDLQLWLVGLIÀFXOWWRLPDJLQHZK\WKHUHLVWREHDSURYLVLRQ for exemption of a class or a school unless the object of the legislation is something other than education in the ordinary sense. Counsel were not able to give the court any other examples of such exemptions. :LWKUHVSHFWWRWKHWH[WRIWKHUHJXODWLRQLWZRXOGEHVXSHUÁXRXVWRUHSHDWWKHDQDO\VLV of Austin J. His reasoning at pp. 703-7 O.R., pp. 319-23 D.L.R., is adopted and summarized. With respect to s. 28(7), he suggested three reasons why indoctrination as a purpose was indicated: (1) why else would a member of the clergy be invited to give

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instructions; (2) such “outsiders” were not authorized for any other part of the school programme, except possibly the heritage language programme; (3) in the absence of evidence that clergymen are better equipped to teach comparative religions than they are skilled at indoctrination, the conclusion has to be that the purpose was indoctrination. With respect to s. 28(8), he suggested that the use of the term “denominations”, rather than “religions” or “faiths”, indicates that the Christian faith was intended, rather than many faiths. Section 28(9) led him to conclude that if separate rooms were necessary for teaching purposes, the teaching of comparative religions could not have been the intention. The exemption provisions in s. 28(10) to (15) also led him to conclude (at pp. 706-7 O.R., pp. 322-3 D.L.R.) that the object of s. 28(4) of Reg. 262 could not have been the teaching of comparative religions, but rather “to permit the indoctrination of schoolchildren in Ontario in the Christian faith and that it is being used for that purpose at the present time”. We agree. Before considering whether religious indoctrination contravenes s. 2(a) of the Charter, one further question has to be dealt with. This is whether the exemption SURYLVLRQVLQVSURYLGHVXIÀFLHQWUHOLHIWRSHUPLWDFRQFOXVLRQWKDWVLQFHWKRVHZKR do not want to receive religious instruction (indoctrination) do not have to, this alters the purpose. It is not necessary to deal here at any length with this question. We agree with observations of the Mackay Committee and of Austin J., which have been quoted or referred to earlier. We accept the factual analysis of Austin J., at pp. 707-12 O.R., pp. '/5WKDWWKHUHZDVHYLGHQFHWRÀQG … that there is an appreciable degree of coercion or pressure on the personal applicants in this case. There is an inequality of situation by virtue of the nature of this programme. Accordingly, I am unable to agree with counsel for the board and for the Minister that the exempting provisions constitute a complete answer to any suggestion of inequality or coercion. The judgment of this court in Zylberberg, supra, at p. 656 O.R., p. 592 D.L.R., is, indeed, determinative of the issue: [T]he exemption provision imposes a penalty on pupils from religious minorities who utilize it by stigmatizing them as non conformists and setting them apart from their fellow students who are members of the dominant religion.

(iii) Does religious indoctrination violate s. 2(a) of the Charter? The short answer is that it must. State-authorized religious indoctrination amounts to the imposition of majoritarian religious beliefs on minorities. Although s. 2(a) of the Charter is not infringed merely because education may be consistent with the religious beliefs of the majority of Canadians (see Edwards Books, supra, p. 35), teaching students Christian doctrine as if it were the exclusive means through which to develop moral thinking and behaviour amounts to religious coercion in the class-room. It creates a direct burden on religious minorities and non-believers who do not adhere to majoritarian beliefs. That this amounts to violation of s. 2(a) of the Charter, especially when viewed in the light of s. 27 of the Charter, becomes clear from the review by this court in Zylberberg,

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supra (at pp. 652-3 O.R., pp. 588-9 D.L.R.), of those passages in Big M, supra, where Dickson J. dealt with the nature of the Charter freedom of conscience and religion. The most pertinent for our purposes here are the following (Big M, at p. 354): 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. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. … What may appear good and true to a majoritarian religious group, or the State acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view. The Charter safeguards religious minorities from the threat of “the tyranny of the majority”. … The theological content of the legislation remains as a subtle and constant reminder to religious minorities within the country of their differences with, and alienation from, the dominant religious culture. As Dickson C.J.C. held in Edwards Books, supra, at p. 34: 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). Furthermore, pertinent to the case under appeal, at p. 362 of the Big M case, Dickson J. pointed out that s. 2(a) of the Charter protects non-believers from having to conform with the religious practices of the majority, and perhaps extends further: Equally protected, and for the same reasons, are expressions and manifestations of religious non-belief and refusals to participate in religious practice. It may perhaps be that freedom of conscience and religion extends beyond these principles to prohibit other sorts of governmental involvement in matters having to do with religion. The basis for our conclusion that s. 28(4) contravenes s. 2(a) of the Charter is probably best summed up in the following passage of the Chief Justice in Big M, at p. 365: In an earlier time, when people believed in the collective responsibility of the community toward some deity, the enforcement of religious conformity may have been a legitimate object of government, but since the Charter, it is no longer legitimate. With the Charter, it has become the right of every Canadian to work out for himself

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or herself what his or her religious obligations, if any, should be and it is not for the State to dictate otherwise. We do not agree with those who would describe the “differences” between minorities and the majority as “their” differences, i.e., those of the minority, which they must “face” as soon as possible. Rather, we would emphasize that religious diversity is to HYHU\RQH·VEHQHÀWDQGVRPXVWEHHYHU\RQH·VEXUGHQ A further issue has been raised based on the proposition that if legislation can be interpreted in a manner consistent with Charter rights this should be done. Counsel referred to Slaight Communications Inc. v. Davidson (1989), 59 D.L.R. (4th) 416 at pp. 444-5, [1989] 1 S.C.R. 1038, 26 C.C.E.L. 85, per Lamer J. speaking for the court on this issue. As we have already indicated, the purpose of the regulation is to provide for religious indoctrination, and this governs the meaning of “religious education” in the regulation. Accordingly, it is not open to us to interpret the regulation in a manner consistent with Charter rights and the proposition recognized in Slaight has no application to this case.

(iv) Effects In view of our conclusion that the purpose of s. 28(4) of Reg. 262 is contrary to s. 2(a) of the Charter, it is not necessary, as we have pointed out, to deal with the test of the effects on constitutional rights of that provision. However, even if we were to consider the effects, the result would, in our opinion, be the same. The individual appellants, James Millington and Nancy Millington, Edith Louise Hough and Elizabeth C. Sebestyen, have, or had at the time of the commencement of this proceeding, children enrolled in public schools operated by the board, and are, or were, themselves at such times residents of Elgin County. The Millingtons were members of the Baha’i faith. They were raising their children in that faith, which is premised upon principles of tolerance and respect for other religions. Their seven-year-old daughter, Andrea, who was in Grade 2 at Forest Park School, had been taught in the religious education class offered by the school that if she was not a Christian she would “go to hell”. During the time she was receiving such instruction, she had recurring nightmares in which she was pursued by the Devil and felt that she was burning in hell. The Millingtons tried unsuccessfully to have the instructor, who was a member of the Elgin County Bible Club and a “born again Christian”, change his lessons. The Millingtons do not wish to accept the alternative of having Andrea exempted from attendance at religious education classes. It was felt that such exclusion would ostracize her from her friends and embarrass her as being different. The Millingtons wanted their children to have instruction in the various world religions and their moral teachings and precepts. The appellant, Edith Louise Hough, who had children aged 13 and 12 attending Port 6WDQOH\3XEOLF6FKRRODOVRJDYHHYLGHQFHE\DIÀGDYLW6KHWRRNVWURQJH[FHSWLRQWRWKH board’s religious education curriculum, which she felt amounted to religious indoctrination in the dogma of Christianity to the exclusion of other organized religions. Elizabeth &6HEHVW\HQZKRKDGWZRFKLOGUHQDJHGÀYHDQGVHYHQDWWHQGLQJ$OGERURXJK3XEOLF 6FKRROVLPLODUO\JDYHHYLGHQFHE\DIÀGDYLWH[SUHVVLQJKHUREMHFWLRQWRLQGRFWULQDWLRQ 691

STATE SUPPORT FOR RELIGIOUS EDUCATION

in the Christian faith. She also found the alternatives either of having her children sit on a bench outside the class-room, or of their sitting in on the class, to be unacceptable as she feared that her children would be seriously ostracized by their classmates. Expert evidence was given by Dr. Jonathan Freedman, former chairman of the department of psychology at the University of Toronto, and Dr. Donald Kennedy, a registered practising psychologist, on the effect on children of being exempt from religious education classes. Dr. Freedman deposed that children whose religion is different from that being taught in the class-room will feel pressure to conform and experience stress and discomfort if they remain in the class-room. This stress and discomfort arises from the fact that FKLOGUHQDUHFDXJKWEHWZHHQWKHRSLQLRQVDQGZLVKHVRIWZRDXWKRULW\ÀJXUHVWKHLU teachers and their parents. If they decide not to participate, they will feel deviant and worry about the consequences. In his opinion, participation may make them especially OLNHO\WREHLQÁXHQFHGE\ZKDWWKH\KHDU+HFRQFOXGHGWKDWPHUHO\WHOOLQJFKLOGUHQRU their parents that they may claim exemption and opt out of classes on religious education does not serve to remove the “great pressure to remain in the classroom”. Dr. Kennedy disagreed with Dr. Freedman. He considered that it was common practice for children to be excused from a class-room for many reasons during a school day as instruction has become more individualized. Pressure to remain in the class-room for a given activity was therefore largely absent. He also felt that the creation of peer pressure was not a normal or usual result of exemptions from school activities and would not be considered harmful except in very extreme situations. On the other hand, in a normal child, some peer pressure would strengthen the child’s learning process and his or her genuinely held convictions. We agree with the conclusions of Dr. Freedman as they accord with the evidence of the individual appellants. Thus, the effect of the regulation was to provide for the use of curricula and materials which constituted the basis for indoctrination. This is unconstitutional.

7+(&855,&8/80 We now consider the constitutionality of the curriculum in religious education offered by the respondent board.

(i) Whether law or conduct? The majority judgment in the Divisional Court given by Watt J. contained some discussion (on pp. 675-80 O.R., pp. 291-6 D.L.R.) on whether the curriculum was law and could, therefore, be declared unconstitutional under s. 52(1) of the Constitution Act, 1982 if it was inconsistent with s. 2(a) of the Charter. There was no argument on this point in this court. In our respectful view, the appropriate way to view the matter is to regard the curriculum not as law but as governmental conduct authorized by s. 28(4) of the Regulation. If this conduct infringes rights guaranteed by s. 2(a) of the Charter then this court should so declare. The remedy would be under s. 24(1) of the Charter and not s. 52(1) of the Constitution Act, 1982. This approach is in accord with the relief

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sought by the appellant, the Corporation of the Canadian Civil Liberties Association, in its original notice of application: An order of judicial review pursuant to the Judicial Review Procedure Act, R.S.O. 1980, c. 224 declaring the curriculum of religious studies prescribed by the Elgin County School Board to be a denial to freedom of conscience and religion and a GHQLDORIHTXDOLW\EHIRUHDQGXQGHUWKHODZDQGWKHHTXDOSURWHFWLRQDQGHTXDOEHQHÀW of the law as guaranteed by the Charter of Rights and Freedoms, ss. 2 and 15;

(ii) The test to be applied As indicated earlier in these reasons, s. 2(a) of the Charter prohibits religious indoctrination but it does not prohibit education about religion. While this is an easy test to state, WKHOLQHEHWZHHQLQGRFWULQDWLRQDQGHGXFDWLRQLQVRPHLQVWDQFHVFDQEHGLIÀFXOWWR draw. With this in mind it may be of assistance to refer to the following more detailed statement of the distinction: 1. The school may sponsor the study of religion, but may not sponsor the practice of religion. 2. The school may expose students to all religious views, but may not impose any particular view. 3. The school’s approach to religion is one of instruction, not one of indoctrination. 4. The function of the school is to educate about all religions, not to convert to any one religion. 5. The school’s approach is academic, not devotional. 6. The school should study what all people believe, but should not teach a student what to believe. 7. The school should strive for student awareness of all religions, but should not press for student acceptance of any one religion. 8. The school should seek to inform the student about various beliefs, but should not seek to conform him or her to any one belief. This is taken from Religion in the Public Schools (1986), a publication of the American Association of School Administrators, at p. 33 which, in turn, quoted from an earlier statement of the Public Education Religion Studies Center, Wright State University.

(iii) The elements of a curriculum Based upon the materials in the record in this proceeding, we regard the curriculum as including general themes, lesson plans, teaching and resource materials and the manner of presentation of the course of study. Evidence of the purpose and scope of the curriculum may be gleaned not only from these elements but also from documents issued by the board such as handbooks for parents and policy statements.

(iv) The curricula before the court They are: (1) the pre-1986 curriculum;

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(2) the 1986-87 curriculum, described by the board as the “Interim Curriculum”; and (3) the 1988-89 curriculum. These will be treated in the reasons that follow in varying degrees of detail. It might usefully be said at this point that the board concedes the unconstitutionality of the pre1986 curriculum. It may fairly be described as directed toward Christian indoctrination. The board makes no concession with respect to the other two curricula. The appellants are prepared to admit that the latter two curricula show some progress in what they consider to be the right direction but still contend that they are unconstitutional. The Divisional Court heard this matter in June of 1987. The 1988-89 curriculum was not before it. As indicated earlier in these reasons, we reserved our decision on whether the new evidence relating to it should be admitted in evidence in this proceeding. As a practical matter, we think that it should be admitted. This is in accord with the wishes of the parties, and it would be of little assistance to the parties to rule on a curriculum that is, in several respects, no longer in place, although we do appreciate that there are limits on the extent to which this consideration may be applied as a proceeding works its way up the appellate ladder. We turn now to each curriculum in sequence. (1) The pre-1986 curriculum As we have said, the board concedes that this curriculum is unconstitutional. It will be of value, however, as a matter of historical context, to refer to some of its features before considering the curricula which followed it. Most of the material relating to this curriculum which is before the court is embodied in a board document entitled “Intermediate Lesson Plans”. This document states the following under the heading “Objectives for the Teaching of Religious Education”: The objective of the religious education program in the schools of Elgin County would be to provide pupils with a religious context, primarily Christian in which to develop appropriate responses to life’s situations. This is an important statement and may be usefully compared with later statements of objectives, to which we shall refer. While the primary emphasis was on the Christian religion, the following statements on the same page as the statement of objectives show that the orientation was not exclusively Christian: It should not be assumed by a statement of this objective that other religious bodies and even non-religious interests are to be ignored. Rather, it is hoped that moral, ethical, and religious concerns which they hold in common with Christianity will be the primary content of any religious education program in the public schools. As such groups become more numerous in proportion to the population, this objective should be reviewed in the light of their concerns. … The approach should recognize the possibilities and values of other beliefs, respecting as well the concerns of agnostic pupils.

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The lessons include verses from the Bible to be memorized and some conclude with a prayer. The prayers end with: “In Jesus name. Amen.” Most lessons contain a statement of purpose. The purpose of Lesson 5 is stated as follows: Each student may see through faith that Jesus is God’s Lamb and His substitute. The lesson concludes, before the prayer, with the following statement relating to the “Meaning of the Passover”: We have sin. Only through the blood of Jesus can this sin be taken away. To take another representative sample, the recapitulation for Lesson 21 reads: Teach the students to see that, although their future plans are important, they must also follow the example of Christ and believe in Him in order that they might be saved. When material of this nature is coupled with the fact that the classes in religious education were conducted by clergymen, or lay teachers designated by them, it can be seen why it was conceded that this curriculum constituted Christian indoctrination. (2) The interim 1986-87 curriculum The board stated the “Aims of Religious Education” in a document entitled “Religious Education Plan 1986-87”. Since this is a formal and deliberate statement of the board bearing directly on the issue before the court, it merits quotation in full: Aims of Religious Education: To provide pupils with a religious context in which to develop an understanding of the moral and religious values of the local community. To foster an appreciation for the child’s religious tradition and for the religious traditions of others. To help the pupil become aware of the moral principles by which people act. To contribute to the development of reasoning which a person uses to reach moral decisions. While knowledge of the Old Testament is basic to the Judaeo-Christian tradition the variety of denominational and ethnic backgrounds of school pupils requires that the lessons outlined be suitable and interesting to students with varied religious and philosophic orientations. Pupils, through the lessons provided will acquire general knowledge of other people’s beliefs and cultures so that they can communicate and live as world citizens. The habit of critical examinations of both one’s own and other’s beliefs is crucial to understanding one’s own values: Public School education recognizes the freedom of the individual to interpret religious and moral questions according to conscience.

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In the same vein, a child has a right to knowledge of a heritage supportive of home and community. Freedom of conscience is a fundamental right of the public schools. Provisions for exemption by reason of conscience is clearly set out in Regulation 262 for both pupil and teacher. The outline of a Pilot Religious Education Elementary School Curriculum is intended for the public elementary school as an interim measure for the school year 1986-87. The pluralism inherent in our society precludes indoctrination as a purpose of the curriculum. The programme is designed in such a manner as to respect the aims of public education. Values and attitudes will be transmitted in the public school but commitment to theology of any religious body belongs to the home and the tradition of worship of that home. The religious education programme aims to create a caring, sharing atmosphere which recognizes each person’s self-worth. The programme is intended to help a child begin to develop a personal value structure. (Emphasis added.) The following points should be noted. The “religious context” sentence at the outset of the statement shows a change in wording from the earlier statement of objectives. The earlier statement could be interpreted as disclosing the intent to indoctrinate; the religious context was to enable pupils “to develop appropriate responses to life’s situations”, with the implication that it is only in a religious context that “appropriate” responses could be developed. The intent in 1986-87 is to develop “an understanding of the moral and religious values of the local community”. This shows much less clearly an intent to indoctrinate. Rather, it appears to show an intent to expand the pupil’s general knowledge and understanding. (The only reservation we have on this point is based on the fact that the local community is overwhelmingly Christian; accordingly, the “understanding” to be developed could, possibly, amount to indoctrination.) Further, there is no longer reference to a “primarily Christian” religious context. In our view, as long as the purpose of the teaching is to inform the pupils, as an object of study, of the religious perspective as a way of looking at issues and values, it cannot be regarded as an indoctrinal purpose. The document states explicitly that indoctrination is not a purpose of the curriculum. There is no reason why, in the absence of evidence to the contrary, this statement should QRWEHDFFHSWHGDVUHÁHFWLQJWKHSXUSRVHRIWKHERDUG7KLVRIFRXUVHGRHVQRWHQG the inquiry because, among other matters, the actual course as taught, regardless of intentions, may amount to indoctrination. The outline of the 1986-87 curriculum shows, for each of the three levels, the following themes: Primary Junior Intermediate

With My Family Being Together A Growing Awareness

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Each of these themes was to be taught in three modules: (1) Judaeo-Christian Story; (2) Celebration; and (3) Relationships. Notwithstanding the foregoing indications of non-indoctrinal purposes, the appellants submit that the course is taught from a Christian perspective. They refer in this regard to the matters which we will now consider. Some of the lessons contain memory verses. For example the verse for Lesson 7 at the intermediate level is John 14:6, which, in the King James version, reads: Jesus saith unto him, I am the way, the truth, and the life: no man cometh unto the Father, but by me. The recapitulation for Lesson 2, which was concerned with the concept of “responsibility, preparation for our life work”, reads: There is something planned for each of you just as it was for Moses. It may not be as exciting a life as he had, but you may be sure that you won’t be disappointed. Remember, there was help for Moses – you need it too. In the same lesson, another part of the material relates to the relationship between “Moses’ Experiences” and “Your Experiences (Suggestions only)”. One of Moses’ experiences was: “God assured Moses that he would be with him.” The equivalent under “Your Experiences” is: “God will give the courage and support it takes to do what is right.” In keeping with the ambivalent nature of this curriculum, it may be noted that this lesson is to conclude with a “silent prayer”. In a programme that is purely educational, and not indoctrinal or devotional, there would be no place for a prayer of any kind. The interim curriculum, like the pre-1986 version, was taught by lay teachers drawn from such organizations as the Elgin County Bible Club. A lesson plan prepared by one of the lay teachers is replete with Biblical references and concludes with Jesus’ statement to Thomas in John 20:29: “Blessed are those who believe who have not seen.” One of the resource materials for the primary level was the book My Favourite Bible Stories, which was published by Concordia Publishing House, St. Louis, Missouri, in 1967. There was evidence that this was a Christian publishing house. This book, a copy of which is in the material before us, presents various Bible stories from a Christian perspective. The nature of the book may be gleaned from passages such as the following, which appears in the story entitled “When Jesus Died For Us”: When Jesus died, the ground shook. Big rocks broke open. Many children of God who were dead became alive again. A large curtain in the temple tore apart from top to bottom. The captain of the soldiers near the cross of Jesus said: “Surely this was the Son of God.” (YLGHQFHVHWIRUWKLQDQDIÀGDYLWE\DSDUHQWZKRREMHFWHGWRWKHUHOLJLRXVHGXFDWLRQ classes taught at her children’s school in Elgin County was to the effect that the Grade 6 class taught by one of the clergy-designated lay teachers bore no relation to anything in the Elgin County Board Religious Education Plan 1986-87. She described a class 697

STATE SUPPORT FOR RELIGIOUS EDUCATION

which she had attended. She could only conclude that the teacher considered religious instruction to be a mission and that her ultimate aim was to have the children believe in the Bible without doubt. In his dissenting reasons in the Divisional Court, Austin J. (at pp. 700-1 O.R., pp. 316-17 D.L.R.) concluded as follows with respect to the 1986-87 curriculum: It appears to me however that the material continued to be taught exclusively from the Christian point of view, not from the point of view of a person of one or other of the other faiths. Again the content and the layout of the material suggests strongly that the purpose was indoctrination rather than education in the ordinary sense. In view of features of the curriculum of the kind we have just considered, despite what we accept were sincere efforts on the part of the board to broaden the curriculum in the direction of teaching the pupils about religion, we must agree with this assessment. (3) The 1988-89 curriculum It should be said at the outset that this curriculum indicates further efforts of a substantial nature in the direction of teaching about religion as opposed to religious indoctrination. The statement of the aims of the 1988-89 curriculum, set forth in a “Parent Pamphlet”, reads as follows: To provide pupils with a religious context in which to develop an understanding of the moral and religious values of the local community. To foster an appreciation for the child’s religious tradition and for the religious traditions of others. To help pupils become aware of the moral principles by which people act. To contribute to the development of reasoning which a person uses to reach moral decisions. It will be noted that these professed aims are the same as the basic aims for the 1986-87 curriculum. The themes for each division are stated as follows: PRIMARY DIVISION THEME – FAMILY RELATIONSHIPS Units on cooperation, responsibility and celebration of traditions and events are built from children’s stories. Pupils learn the value of sharing traditions, and caring for others. Teacher resource packages provide activities suitable for young children. Such topics as family love, obedience and respect for new life will connect religious and language studies at this level.

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JUNIOR DIVISION THEME – RULES AND LAWS Units on religion and rules, religion and rituals, and religion and culture are introduced. Pupils learn to develop respect for family observances and to understand how FXOWXUHLQÁXHQFHVUHOLJLRXVSUDFWLFHV Teacher resource packages provide the pupil with activities suitable for junior division children. Topics such as love of neighbour, use of talents and handling prejudice join religions [sic] and social studies at this level. INTERMEDIATE DIVISION THEME – TRADITIONS Units on the historical development of religious beliefs and traditions are introduced. Pupils learn of religious observances, customs and practices which emphasize such values as loyalty, forgiveness, and friendship. Teacher resource packages provide activities suitable for early teen years. The topics presented correlate with history, geography, literature and guidance studies at this level. These statements, on their face, indicate educational purposes. However, a more detailed document describing programme objectives lists the following objective for the Junior Level: 4. To appreciate the importance of caring, contributing and co-operating within a group as illustrated in the teachings of Jesus. A new feature of this curriculum relates to the use of clergy, or lay teachers nominated by clergy. In June, 1987, the board decided that the services of these teachers would not be required as of September, 1987. This decision lends support to the view that the board was attempting to deliver an educational, as opposed to an indoctrinal, programme. However, a large number of ratepayers in Elgin County took exception to this decision by the board. The board received letters from eight Protestant clergymen requesting it to teach the fundamentals of Christian religion. The board refused to accede to this request. It did, however, agree to release from classes children connected with the churches represented by these clergymen, at a time convenient to the board, to be taught by a teacher designated by the clergyman. As a result of the board’s decision, parents in Elgin County may choose one of three options for their children in respect of religious education: 1. the pupil may attend the religious education programme taught by Board staff using the Board curriculum; 699

STATE SUPPORT FOR RELIGIOUS EDUCATION

2. the parent may request that the pupil be exempted from the Board’s programme and be taught religious education by a clergyman or designate of his choice; or 3. the parent may exempt a pupil entirely from any instruction in religious education. 7KHIROORZLQJSDUDJUDSKVLQDQDIÀGDYLWÀOHGE\WKH6XSHULQWHQGHQWRI(GXFDWLRQIRU the board describe how this system operates: 24. Instruction in religious education provided by clergymen or their designates operates in the following way. At the beginning of the school year, a parent must VSHFLÀFDOO\UHTXHVWWKDWKLVRUKHUFKLOGEHH[FXVHGIURPWKH%RDUG·VSURJUDPPH and be taught by a clergyman. The clergyman, or designate, must be approved by the Board in conformity with the requirements of Section 28 of Regulation 262. The Board makes available time and space for the clergymen, or their designates, to provide instruction in religious education in the Board’s schools. Classroom space is made available at times when other children in the school are being taught the Board’s religious education programme. Since the clergymen or their designates are volunteers, a staff teacher is present throughout the allotted time to supervise the health and safety of the pupils. The clergymen and their designates have agreed to conform with the four aims articulated by the Board for the religious education programme set out in paragraph 5 above. [They are the four aims set forth in the “Parent Pamphlet” which we have set forth above.] The clergymen or their designates may use their own teaching materials although they have access to, and in fact use, some of the Board’s resource materials. 25. In the 1988-89 school year, 8,626 pupils are enrolled in the Board’s elementary schools. The breakdown of pupils under each of the three religious education options are as follows: (1) Participating in Board’s programme:

7,494

(87%)

(2) Exempt but not attending clergy run classes:

887

(10%)

(3) Exempt from any religious education:

245

(3%)

We turn now to the curriculum in the board’s programme. The curriculum includes a substantial amount of non-religious resource material. Notable in this respect are two ERRNVE\&OLYH%HFN5HÁHFWLQJRQ9DOXHVDQG9DOXHVDQG/LYLQJDQGDERRNE\-RQ Mayled, Religious Food. Although memory verses and prayer are occasionally referred to in the lesson material in the curriculum, teachers have been instructed to discontinue both of these practices. Further, the emphasis on Christianity is somewhat reduced. For example, in the 32 periods during the year at the intermediate level, three periods are devoted to an introduction to Christianity, although this unit appears to be longer and more detailed than the others. The balance of the year comprises introductions to Islam, +LQGXLVPRU6LNKLVPDQG%XGGKLVPDVZHOODVFODVVHVRQWKHKLVWRULFDOLQÁXHQFHRI religious traditions, coping with grief, friendship and handling pressure or betrayal.

700

6. CANADIAN JUDICIAL DECISIONS

Notwithstanding these developments, there still is a clear emphasis in some parts of the curriculum on the Christian perspective. The materials at the primary level still include My Favourite Bible Stories. Among the stories to which reference is made is WKHVWRU\RIWKH*RRG6DPDULWDQ7KHIROORZLQJDSSHDUVLQWKHÀQDOSDUDJUDSKRIWKLV story: Jesus told this story to show that our Father in heaven wants His children to be NLQG:KHQ+HKDGÀQLVKHGWKHVWRU\-HVXVDVNHG´:KLFKRIWKHWKUHHPHQDFWHG like a good neighbor to the man who was hurt by the robbers?” Someone answered: “The man who helped.” Jesus said: “Go and do as he did.” At the junior level there are several lessons which are devoted to Bible stories about Joseph and his family. One of them has the following objective, which is suggestive of indoctrination: The student will become aware of how God’s continued guidance and care led Joseph to forgive his brothers, and he will express this feeling of forgiveness by acting out the story. The over-all impression is that Old Testament Bible stories are included for their own sake, rather than as general illustrations to enhance the teaching about values. The junior level also contains a section on prejudice, which begins: The purpose of this Unit is to study several forms of Prejudice and to explore possible reactions based on the life and teachings of Jesus. The story of the Good Samaritan, again, is used. The following statements are contained in the teacher resource material relating to this topic. Jesus continually draws Jews and Gentiles together throughout His ministry. As children of God, we are expected to love each other. … Jesus asks us to love our neighbour, not to judge whether our neighbour is deserving of our love. (Emphasis in original text.) Then there is a reference to Matthew 5:43-48, which concludes: You must be perfect – just as your Father in heaven is perfect! The reference background material for teachers contains the following statement: Jesus made it very clear that the Word of God and the Work of God were for both men and women alike. This material teaches about the evil of prejudice almost entirely from the Christian perspective and may fairly be regarded as a form of indoctrination. At the intermediate level, there are included student worksheets which require the SXSLOWRUHDGSDVVDJHVLQWKH%LEOHDQGWKHQÀOOEODQNVLQVHQWHQFHVVXFKDV Jesus Christ is the ______way to God.

701

STATE SUPPORT FOR RELIGIOUS EDUCATION

The word to be inserted is “only”. And: God offers to save mankind by _______in Jesus Christ. The word to be inserted is “belief”. The treatment of other religions is, as one might expect, entirely non-indoctrinal. )RUH[DPSOHZLWKUHVSHFWWR%XGGKLVPWKHUHDUHVWDWHPHQWVZLWKEODQNVWREHÀOOHG in that begin “Buddhists believe [or believe in] …”. There is no similar treatment of Christianity, e.g., “Christians believe [or believe in] …”. The intermediate level lesson plans indicate the nature of the world religion courses taught. For each of the non-Christian religions being studied the emphasis is on historical, geographical and descriptive features. With respect to Christianity we have already noted that the materials seem to be more detailed than those relating to other religions. For example, there is a tabulation of 158 events in the life of Christ complete with Gospel references. Nothing comparable is shown for the spiritual leaders of other faiths. Also, there appears to be more emphasis on matters of belief and theory in the Christianity unit, rather than on factual description. For example, the objective of Lesson 2, which is concerned with the promise of Christ, is stated as follows: The student will be able to trace the promises of the coming Messiah or Christ. A footnote says that Messiah is a Hebrew word meaning “the Promised One” and that Christ is the Greek word for Messiah. The method for teaching this lesson includes discussing “the concept of prophecy and some of the modern day examples of it”, and the suggested activities include the students’ collecting prophecies from daily newspapers and then discussing the possibility of these predictions coming true. The resource chart for this lesson contains Old Testament references relating to the SURPLVHVRI&KULVWDQG1HZ7HVWDPHQWUHIHUHQFHVGHVFULELQJWKHLUIXOÀOOPHQW7KLV part of the materials was dealt with in the cross-examination of the Superintendent of Education as follows: Q. On page 11 then, one of the things a teacher could do is review this material with the students which has Old Testament references said to have promised the coming RI&KULVWDQGWKHQ1HZ7HVWDPHQWIXOÀOPHQWVRIWKRVHSURPLVHV" A. Yes, that’s to emphasize or to look at the topic of prophecy, belief and faith under the teaching points. Q. You realize that that idea is absolutely offensive to Jewish belief? A. Yes, I do, but this unit would be taught from a Christian perspective… Q. Let’s… MR. BROWN: No, let Mrs. Westaway give her answer. MS. WESTAWAY: …and there may be some ideas when they do the unit on Judaism that would be absolutely offensive to the Christian belief. Maybe the two wrongs don’t make a right! 702

6. CANADIAN JUDICIAL DECISIONS

$GLIÀFXOWIHDWXUHLQWKLVSURFHHGLQJZKLFKDSSHDUVIRUWKHÀUVWWLPHLQWKLVFRXUWDVD result of the admission of fresh evidence, relates to the three-option system introduced in the year 1988-89, which we have described. Notwithstanding that the clergymen, or their designates, have agreed to adhere to the four aims of the board respecting religious education, the materials and resources which they use are “up to them” according to the board’s Superintendent of Education. Also, the Superintendent conceded, it would be the purpose of these persons to teach the doctrines of the churches with which they were associated. Therefore, with respect to the 10% of the pupils who have “opted in”, the education is one of indoctrination. Does this affect the basic curriculum which 87% of the pupils take? The appellants submit that it does. They submit that this explicit indoctrinal training, with consent, is a clue to the purpose of the religious education programme generally provided by the board; the clergy teaching is an adequate substitute for the general programme. Since this is an issue which was not considered by the Divisional Court, because the facts which give rise to it were not in existence at the time of the hearing in that court, and since its resolution is not necessary, in the circumstances, to decide this appeal, we do not think that we should decide it. There is another feature of this clergy teaching which may have implications relating to s. 2(a) of the Charter with respect to which we also do not think it would be appropriate to express an opinion in this case. It could be argued that the use of school facilities for this teaching amounts to government support of indoctrinal instruction which contravenes s. 2(a): cf. McCollum v. Board of Education of School District No. 31, Champaign County, Illinois, 333 U.S. 203 (1948), which was concerned with the establishment clause of the freedom of religion guarantee in the United States Bill of 5LJKWV6LQFHWKLVSDUWLFXODULVVXHKDVDULVHQIRUWKHÀUVWWLPHLQWKLVFRXUWDQGLVQRW part of the issue in the proceedings that were before the Divisional Court, we think that it would be inappropriate to deal with it at this time.

(v) Conclusion on the curriculum We have commented on each of the three curricula which have been put before the court. The pre-1986 curriculum is substantially of an indoctrinating nature and may appropriately be declared to be inconsistent with s. 2(a). As the foregoing reasons indicate, the other two curricula present a mixed picture. Notwithstanding the efforts which appear to have been made to effect changes in these curricula, it is our opinion WKDWWKH\FRQWDLQVXIÀFLHQWLQGRFWULQDWLQJPDWHULDOWRSUHFOXGHXVIURPUHJDUGLQJLWDV trivial or inconsequential: cf. Jones v. The Queen (1986), 31 D.L.R. (4th) 569 at pp. 578-80, 28 C.C.C. (3d) 513, [1986] 2 S.C.R. 284. The broad tests respecting the line between indoctrination and education have been given earlier in these reasons and we have given examples of portions of these curricula which, in our view, fall into the category of indoctrination. We do not think that we can usefully be more detailed in our exposition. Certainly it would not be appropriate to grant a declaration specifying each of the particular features of the curriculum that

703

STATE SUPPORT FOR RELIGIOUS EDUCATION

are unconstitutional. A general declaration that these curricula are inconsistent with s. 2(a) of the Charter should be granted.

7+(5(*8/$7,21$1'7+(&855,&8/80$1'6(&7,21  2)7+(&+$57(5 Counsel for the appellants submitted that the majority of the Divisional Court erred LQIDLOLQJWRÀQGWKDWWKHUHJXODWLRQDQGWKHFXUULFXOXPLQIULQJHGWKHHTXDOLW\ULJKWV guaranteed by s. 15(1) of the Charter. Counsel sought to impugn the regulation and the curriculum on two grounds: 1. The religious instruction authorized and required by the regulation and provided under the curriculum favours one religious group. The regulation and the curriculum FRQIHUDEHQHÀWXSRQRQHUHOLJLRQ&KULVWLDQLW\ZKLFKLVGHQLHGWRRWKHUVLQWKDW the precepts of Christianity are taught in the public elementary schools, but other religious groups are not accorded that privilege. The provision of religious education to one group, and merely an opportunity for exemption to others, is a denial of the ULJKWWRHTXDOSURWHFWLRQDQGHTXDOEHQHÀWRIWKHODZFRQIHUUHGE\V  2. Non-Christians and non-believers must take a positive step, likely to render them conspicuous, in order to avoid indoctrination from the religious education programme authorized by the regulation and provided under the curriculum. The burden imposed by the regulation and the curriculum infringes the appellants’ rights WRHTXDOLW\XQGHUWKHODZDQGWRWKHHTXDOEHQHÀWRIWKHODZ In argument, counsel for the appellants made it clear that they were only using s. 15(1) to reinforce their position under s. 2(a). In view of the conclusions we have arrived at on s. 2(a), we think it unnecessary for us to express any opinion on s. 15(1). Our FRQFOXVLRQVRQVD DUHVXIÀFLHQWWRGLVSRVHRIWKHDSSHDO

6(&7,212)7+(&+$57(5 As we have found that s. 28(4) of the regulation and the curriculum infringe the freedom of religion conferred by s. 2(a) of the Charter, it is necessary to consider the effect of s. 1 of the Charter. In our opinion, the curriculum does not constitute a “limit prescribed by law”, and therefore s. 1 has no application to it. In Zylberberg, supra, a majority of this court held that if the true purpose of the OHJLVODWLRQZDVWRFRPSHOUHOLJLRXVREVHUYDQFHLWFRXOGQRWEHMXVWLÀHGXQGHUV Similarly, in this case, where we have found that the true purpose of the impugned regulation is to indoctrinate children in the Christian faith, we do not believe that the LQIULQJHPHQWFDQEHMXVWLÀHGXQGHUV Even if s. 1 were applicable, the regulation does not, in our opinion, meet the requirements of R. v. Oakes (1986), 26 D.L.R. (4th) 200, 24 C.C.C. (3d) 321, [1986] 1 6&5IRUWKHRSHUDWLRQRIWKHVHFWLRQ5HJDUGOHVVRIKRZEHQHÀFLDODQREMHFWLYHLV ascribed to the regulation, such as, for example, the inculcation of proper moral standards in elementary schoolchildren, the measures adopted – the indoctrination of children in the Christian religion – are not rationally connected to that objective. In addition, they

704

6. CANADIAN JUDICIAL DECISIONS

fail to impair the appellants’ freedoms under s. 2(a) as little as possible. We agree with the conclusions of the Report of the Mackay Committee, supra, at p. 28: … there are ways of encouraging the development of young people in public school of high standards of character, ethical ideals, and an understanding of moral values, without trespassing on the personal religious beliefs which they have learned at home or in their separate places of worship. Accordingly, s. 1 cannot, in our opinion, be used to justify the violation of the appellants’ freedoms conferred by s. 2(a) of the Charter.

CONCLUSION In the result, the appeal will be allowed, the judgment below set aside, and in its place there will be a judgment: (a) declaring that s. 28(4) of R.R.O. 1980, Reg. 262, is inconsistent with the freedom of conscience and religion guaranteed by s. 2(a) of the Charter and consequently is of no force or effect; and (b) declaring that the curriculum of religious studies prescribed by the respondent, the Elgin County Board of Education, denies the freedom of conscience and religion guaranteed by s. 2(a) of the Charter, and an order will issue enjoining the board from continuing to require or permit the curriculum to be offered in its schools. In the circumstances, there will be no order as to costs. Appeal allowed.

705

#32 Adler v. Ontario    '/5 WK   6&&   November 1996 (Supreme Court of Canada) The issue of the differential treatment of non-Catholics in Ontario’s education system was raised again by two groups of applicants, one a group of Jewish parents and one a group of Christian parents. The two groups sought a ruling that they were entitled to the same funding rights for religious schools in the Province of Ontario as those given to Catholics. On 4 August 1992 the Ontario Court (General Division), Anderson, J., held that the applicant’s rights under the Canadian Charter of Rights and Freedoms had not been infringed and the applications should be dismissed. On 6 July 1994 the Court of Appeal for Ontario also dismissed the applications. On 21 November 1996 the Supreme Court of Canada agreed. The Supreme Court held that its 1987 decision, the Bill 30 Reference, was determinative of the Adler case. Mr. Justice Iacobucci, writing for the majority, quoted the earlier decision of the Court to the effect that Bill 30 was “immune” from Charter review. He stated: “In other words, Wilson J [in the Bill 30 Reference]…refused to use one part of the Constitution to interfere with rights protected by a different part of that same document: “It was never intended, in my opinion, that the Charter could be used to invalidate other provisions of the Constitution…” Following the same line of reasoning used by Wilson J in the Reference re Bill 30,ÀQGWKDW public funding for the province’s separate schools cannot form the basis for the appellants’ Charter claim.” At the same time, Justice Iacobucci acknowledged the inequality of this result and its apparent incoherence with the Canadian Charter of Rights and Freedoms. Justice Iacobucci (quoting Justice Wilson in the Bill 30 Case) noted the immunity of the privileges of Roman Catholics in the Constitution Act of 1867: “was true regardless of the fact that this unequal funding might… ‘sit uncomfortably with the concept of equality embodied in the Charter’”.

$'/(5(7$/97+(48((1,15,*+72)217$5,2(7$/ 129(0%(5 1. IACOBUCCI J. (LAMER C.J.C., LA FOREST, GONTHIER AND CORY JJ. concurring): This appeal involves the question of whether the current education funding scheme in the Province of Ontario violates the appellants’ religious and equality rights as guaranteed by ss. 2(a) and 15 of the Canadian Charter of Rights and Freedoms. The appeal also raises the question of whether the provision of school health support services only to students in the public school system violates the appellants’ ss. 2(a) and 15 Charter rights.

707

STATE SUPPORT FOR RELIGIOUS EDUCATION

I. Background 2. The appellants are parents who, by reason of religious or conscientious beliefs, send WKHLUFKLOGUHQWRSULYDWHUHOLJLRXVVFKRROV7KHÀUVWÀYHDSSHOODQWVWKH´$GOHUDSSHOlants”) are parents of children attending Jewish day schools. The “Elgersma appellants” DUHIRXUSDUHQWVZKRVHFKLOGUHQDWWHQGLQGHSHQGHQW&KULVWLDQVFKRROVDQGDQRQSURÀW corporation, the Ontario Alliance of Christian School Societies (“OACSS”), which is active in the promotion of Christian elementary and secondary education. 3. The Adler appellants sought a declaration that the non-funding of Jewish day schools in Ontario was unconstitutional. Full-time Jewish day schools have existed in Ontario since 1949 and now have an enrolment of approximately 10, 000 students. The schools provide Jewish religious instruction and Judaic studies in addition to secular studies at both the elementary and high school levels in conformity with Ministry of Education guidelines, although they receive no direct funding from the Government of Ontario. Their costs are met through tuition fees, funds raised by the schools, and other fundraising activities of the Jewish community. 4. The Elgersma appellants sought, along with other relief, a declaration that the nonfunding of independent Christian schools infringed their rights as guaranteed under the Charter. There are now 73 Christian schools in Ontario. Membership in each individual school society is open to all adult, active Christian church members who assent to the society’s aims and confessional principles, who pay the prescribed membership fee, and who are willing to be actively involved in the work of the society. Most society members belong to the Christian Reformed Church. OACSS member schools, like Jewish day schools, do not receive government funding. Funds are obtained from parental tuition pledges, community donations, and other fund-raising activities. 5. Both the Adler and the Elgersma applications include claims with respect to School Health Support Services Program (“SHSSP”). Matan Kezwer, the son of the appellant Paula Kezwer, has a hearing and speech impairment. The appellants claim that if Matan were enrolled in a public or Roman Catholic separate school, he would qualify for school health support services. Furthermore, they claim that the failure to fund such services at Matan’s Jewish day school violates his Charter rights. 6. Walter Elgersma, the son of the appellant Leo Elgersma, attends a Christian day VFKRRO+HZDVERUQZLWKVSLQDELÀGDDQGK\GURFHSKDOXVDQGDVDFRQVHTXHQFHQHHGV periodic medical attention throughout the course of the day, in addition to wheelchair accessible transportation to and from school. These services are not provided at his present school. 7. Joel Pott is the son of the appellant Harry Pott. He is a non-verbal, developmentally handicapped child with autistic tendencies and behavioural problems. Harry Pott deposed that Joel requires special attention of the sort provided under the school health support services program. At the time of the hearing, Joel was attending a Roman Catholic separate school in Kingston. His parents want to send him to an independent Christian school, but the school lacks the funding to provide the special services which the Potts say that Joel needs. Both the Elgersmas and the Potts claim that the government’s refusal

708

6. CANADIAN JUDICIAL DECISIONS

to extend the school health support services to independent Christian schools violates their children’s rights under s. 2(a) and s. 15(1) of the Charter.

II. 5HOHYDQW&RQVWLWXWLRQDODQG6WDWXWRU\3URYLVLRQV 8. Constitution Act, 1867 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: (2) All the Powers, Privileges and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen’s Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen’s Protestant and Roman Catholic Subjects in Quebec: (3) Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen’s Subjects in relation to Education: (4) In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section. Canadian Charter of Rights and Freedoms 2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; … 15(1) Every individual is equal before and under the law and has the right to the equal SURWHFWLRQDQGHTXDOEHQHÀWRIWKHODZZLWKRXWGLVFULPLQDWLRQDQGLQSDUWLFXODU without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Education Act, R.S.O. 1990, c. E.2 1(1) In this Act and the regulations, except where otherwise provided in the Act or regulations,

709

STATE SUPPORT FOR RELIGIOUS EDUCATION

… “exceptional pupil” means a pupil whose behavioural, communicational, intellectual, physical or multiple exceptionalities are such that he or she is considered to need placement in a special education program by a committee established under subparagraph iii of paragraph 5 of subsection 11(1), of the board, (a) of which the pupil is a resident pupil, (b) that admits or enrols the pupil other than pursuant to an agreement with another board for the provision of education, or (c) to which the cost of education in respect of the pupil is payable by the 0LQLVWHU´pOqYHHQGLIÀFXOWpµ … “private school” means an institution at which instruction is provided at any time EHWZHHQWKHKRXUVRIDPDQGSPRQDQ\VFKRROGD\IRUÀYHRUPRUHSXSLOV who are of or over compulsory school age in any of the subjects of the elementary RUVHFRQGDU\VFKRROFRXUVHVRIVWXG\DQGWKDWLVQRWDVFKRRODVGHÀQHGLQWKLV section; (“école privée”) … “school” means, (a) the body of public school pupils or separate school pupils or secondary school pupils that is organized as a unit for educational purposes under the jurisdiction of the appropriate board, or (b) the body of pupils enrolled in any of the elementary or secondary school courses of study in an educational institution operated by the Government of Ontario, and includes the teachers and other staff members associated with such unit or institution and the lands and premises used in connection therewith; (“école”) … “special education program” means, in respect of an exceptional pupil, an educaWLRQDOSURJUDPWKDWLVEDVHGRQDQGPRGLÀHGE\WKHUHVXOWVRIFRQWLQXRXVDVVHVVPHQW DQGHYDOXDWLRQDQGWKDWLQFOXGHVDSODQFRQWDLQLQJVSHFLÀFREMHFWLYHVDQGDQRXWOLQH of educational services that meets the needs of the exceptional pupil; (“programme G·HQVHLJQHPHQWjO·HQIDQFHHQGLIÀFXOWpµ  “special education services” means facilities and resources, including support personnel and equipment, necessary for developing and implementing a special HGXFDWLRQSURJUDP´VHUYLFHVjO·HQIDQFHHQGLIÀFXOWpµ  … 

21(1) Unless excused under this section, D  HYHU\FKLOGZKRDWWDLQVWKHDJHRIVL[\HDUVRQRUEHIRUHWKHÀUVWVFKRROGD\ in September in any year shall attend an elementary or secondary school on

710

6. CANADIAN JUDICIAL DECISIONS



HYHU\VFKRROGD\IURPWKHÀUVWVFKRROGD\LQ6HSWHPEHULQWKDW\HDUXQWLO the child attains the age of sixteen years; and E  HYHU\FKLOGZKRDWWDLQVWKHDJHRIVL[\HDUVDIWHUWKHÀUVWVFKRROGD\LQ September in any year shall attend an elementary or secondary school on HYHU\VFKRROGD\IURPWKHÀUVWVFKRROGD\LQ6HSWHPEHULQWKHQH[WVXFceeding year until the last school day in June in the year in which the child attains the age of sixteen years. (2) A child is excused from attendance at school if, (a) the child is receiving satisfactory instruction at home or elsewhere; … 70(1) Subject to subsection (2) and to the regulations, every board shall provide adequate accommodation for the trainable retarded pupils, (a) who are exceptional pupils of the board; and (b) in respect of whom a placement in a school or class for trainable retarded pupils has been made by a committee established under paragraph 5 of subsection 11 (1),

Health Insurance Act, Regulation 552, R.R.O. 1990, 13(1) In this section, “home care facility” means, (a) a local board of health of a municipality or a health unit, or (b) an agency, approved by the minister to provide home care services; “home care services” means, (a) the services that are provided, on a visitation basis, by a nurse or a nursing assistant, (b) the services provided, on a visiting basis, by a physiotherapist, occupational therapist, speech therapist, social worker or nutritionist, (c) the provision of dressings and medical supplies, (d) the provision of diagnostic and laboratory services, (e) the provision of hospital and sickroom equipment, (f) the provision of transportation services to and from the home to a hospital, KHDOWKIDFLOLW\RUWKHDWWHQGLQJSK\VLFLDQ·VRIÀFHDVWKHFDVHPD\EH …  ,QWKLVVHFWLRQ´KRPHFDUHIDFLOLW\µPHDQVDKRPHFDUHIDFLOLW\DVGHÀQHG LQVXEVHFWLRQ ´VFKRROµPHDQVDVFKRRODVGHÀQHGLQVXEVHFWLRQ RIWKH Education Act; “school health support services” means, (a) the services that are provided, on a visitation basis, by a nurse, physiotherapist, occupational therapist, speech therapist or nutritionist,

711

STATE SUPPORT FOR RELIGIOUS EDUCATION

(b) the training, supervision or consultation services of a nurse, physiotherapist, occupational therapist, speech therapist or nutritionist to support personnel UHIHUUHGWRLQWKHGHÀQLWLRQRI´VSHFLDOHGXFDWLRQVHUYLFHVµLQVXEVHFWLRQ (1) of the Education Act, and (c) the provision of dressings and medical supplies necessary for the services referred to in clause (a), … ´VSHFLDO HGXFDWLRQ SURJUDPµ PHDQV D VSHFLDO HGXFDWLRQ SURJUDP DV GHÀQHG LQ subsection 1 (1) of the Education Act; … (2) School health support services provided by a home care facility to an insured person who is placed in a special education program in a school are prescribed as insured services.

III. -XGJPHQWV$SSHDOHG)URP A. Ontario Court of Justice (Toronto Motions Court) (1992), 9 O.R. (3d) 676, 94 D.L.R. (4th) 417 9. Anderson J. accepted the Adler appellants’ evidence that the religious education necessary for their practice of the Jewish religion can only be achieved in a Jewish day school environment. Similarly, with regard to the Elgersma appellants, Anderson J. found that the dictates of their religion required them to educate their children in accordance with the principles of the Christian Reformed Church and that this was not possible in the province’s publicly funded schools. 10. Anderson J. accepted the appellants’ arguments relating to ss. 2(a) and 15(1) of the Charter. He noted from the outset that the funding of Roman Catholic separate schools was not a relevant consideration in determining any of the rights of the appellants. He based this conclusion on Reference Re Act to amend the Education Act (Ontario), [1987] 1 S.C.R. 1148, 40 D.L.R. (4th) 18 (S.C.C.) (Reference Re Bill 30), which upheld the constitutionality of full funding for Roman Catholic separate schools under s. 93 of the Constitution Act, 1867. According to Anderson J., at p. 693, funding for Roman Catholic separate schools was a constitutional anomaly having its roots in a historical political compromise “made as an incident of the Confederation of 1867” and, as such, was not subject to Charter scrutiny. 11. However, the motions court judge concluded that government funding for public secular schools coupled with the non-funding of independent religious schools violated the appellants’ s. 15(1) equality rights. He reasoned that the Education Act created a GLVWLQFWLRQEDVHGRQUHOLJLRQLQVRIDUDVLWSURYLGHGWKHEHQHÀWRIDIUHHHGXFDWLRQWR SHRSOHZKRVHFKLOGUHQDWWHQGSXEOLFVFKRROVEXWGHQLHGWKDWEHQHÀWWRSHRSOHZKR because of religious convictions, sent their children to private parochial schools. 12. Anderson J. also held that the appellants’ freedom of religion as guaranteed by s. 2(a) of the Charter had been infringed. He found that the Education Act made school attendance mandatory and that, for parents who were precluded by religious and

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conscientious belief from taking advantage of the publicly funded school system, the price of escape was the payment of tuition fees. The legislation, thus, imposed a cost or burden on parents such as the appellants. 13. However, Anderson J. concluded that the legislation in question was saved by s. 1 of the Charter. In his view, the legislative objectives, including the provision of tuition-free, secular, universally accessible public education, and the establishment of a public education system fostering and promoting the values of a pluralistic, democratic VRFLHW\ZHUHRIVXIÀFLHQWLPSRUWDQFHWRZDUUDQWRYHUULGLQJDFRQVWLWXWLRQDOO\SURWHFWHG right or freedom. He found there to be a rational connection between those objectives and the means chosen to achieve them. He held that the “degree of impairment” of the DSSHOODQWV·ULJKWVZDV´ZLWKLQSHUPLVVLEOHOLPLWVµ)LQDOO\KHKHOGWKDWWKHEHQHÀWVRI the legislation were proportionate to its adverse effects on the appellants. B. Ontario Court of Appeal (1994), 19 O.R. (3d) 1, 116 D.L.R. (4th) 1 (a) Dubin C.J.O. (for the majority) 'XELQ&-2KHOGWKDW$QGHUVRQ-KDGHUUHGLQÀQGLQJDVD YLRODWLRQ,QKLV view, s. 2(a) did not provide a positive entitlement to state support for the exercise of one’s religion. A breach can only consist in state action which denies or limits religious practice. 'XELQ&-2IRXQGWKDW$QGHUVRQ-KDGPDGHWZRIXUWKHUHUURUV7KHÀUVWZDVWKH PRWLRQVFRXUWMXGJH·VÀQGLQJWKDWVRIWKH(GXFDWLRQ$FWPDGHVFKRRODWWHQGDQFH mandatory. Dubin C.J.O. noted that the Act only made education (as opposed to school attendance) compulsory and that children need not attend school so long as they receive satisfactory instruction elsewhere. Dubin C.J.O. found that this provision for excusing FKLOGUHQIURPSXEOLFVFKRROVSURYLGHGDVXIÀFLHQWSURWHFWLRQIRUUHOLJLRXVIUHHGRP 16. Dubin C.J.O. went on to hold, at p. 14, that the state action complained of was not, in fact, responsible for creating the alleged burden for the Adler and Elgersma appellants: Further, there is no evidence that any of the appellants’ children receive education because of s. 21 of the Act, or that the appellants would choose to forego educating their children in the absence of that section. There is no evidence that compulsory education is inconsistent with any of the appellants’ religious beliefs, DQGWKHUHIRUHWKHUHLVQRFRQÁLFWEHWZHHQVRIWKH$FWDQGWKHDSSHOODQWV· religious freedom. In the opinion of the majority in the Court of Appeal, the appellants’ decision not to send their children to public school was entirely attributable to their religious beliefs and not to any government action. Thus, what was complained of was not government action, but rather, government inaction which in the circumstances of this case could not be the subject of a s. 2(a) Charter challenge. 17. Dubin C.J.O. then considered the arguments relating to equality rights. He agreed with Anderson J. that, pursuant to Reference re Bill 30, the funding of Roman Catholic

713

STATE SUPPORT FOR RELIGIOUS EDUCATION

separate schools was not a basis for holding that the Education Act contravened s. 15 of the Charter. 18. Having disposed of the arguments relating to funding for separate schools, Dubin C.J.O. turned to the claim that the funding of secular public schools constituted discrimination on the basis of religion. He held, at p. 24, that if the lack of government funding for private schools created a distinction, that distinction was not one based on religion: The public school system is solely secular and, in my view, because it is secular, it cannot found a claim of discrimination because it does not provide public funds for religious education under private auspices. 19. Dubin C.J.O. stated that even if the appellants’ Charter rights had been infringed, the absence of funding for the religious schools was a reasonable limit under s. 1 of the Charter. 20. With respect to the school health support services program, Dubin C.J.O. stated WKDWWKHUHZDVQRWDVXIÀFLHQWIDFWXDOIRXQGDWLRQXSRQZKLFKWREDVHWKHFRQVWLWXWLRQDO challenge. In his view, there was no proof that any of the appellants’ children would KDYHTXDOLÀHGIRUWKHVFKRROKHDOWKVXSSRUWVHUYLFHVLIWKHVHUYLFHVKDGEHHQH[WHQGHG to independent schools. In any event, according to Dubin C.J.O., the program was not merely a matter of health services, as contended by the appellants, but was inextricably tied to the educational services provided in the public and separate schools for handicapped children. (b) Weiler J.A. (Dissenting in part) 21. Weiler J.A. agreed with the majority judgment on the issues relating to public funding for private religious schools. 22. With regard to the school health support services question, Weiler J.A. agreed with Dubin C.J.O. that the record disclosed no evidence to support the standing of the Kezwers and the Potts to challenge the regulation. However, in her view, the evidence did show that Walter Elgersma would be eligible to receive support services under SHSSP if he attended a public or separate school. Therefore, Walter Elgersma was directly affected by the legislation in question and his parents did have a genuine interest in the outcome of the legislation. Further, she said, at pp. 40-41 that “[t]he present action by Walter Elgersma’s father appears to be the only reasonable and effective way to bring the legislation’s validity before the court”. Weiler J.A. accordingly found that there was “an adequate contextual basis” to grant standing. 23. Weiler J.A. held that s. 93 of the Constitution Act, 1867 had no bearing on the matter, and that it was appropriate to consider the applicability of the Charter. She found that the school health services regulation was legislation in relation to health, QRWHGXFDWLRQDQGFRQFOXGHGWKDWWKHDSSHOODQWV·FKLOGUHQZHUHGHQLHGHTXDOEHQHÀWRI the law and that the funding scheme constituted discrimination on the basis of religion. 6KHKHOGWKDWWKHGHQLDORIHTXDOEHQHÀWRIWKHODZZDVQRWDUHDVRQDEOHOLPLWXQGHUV 1 of the Charter. With regard to the appropriate remedy, she held that reading into the

714

6. CANADIAN JUDICIAL DECISIONS

UHJXODWLRQDQH[SDQGHGGHÀQLWLRQRIVFKRRODVRSSRVHGWRQXOOLÀFDWLRQZRXOGEHWKH more consistent with the government’s purpose in enacting the legislation.

IV. Issues on Appeal 24. By order of Lamer C.J.C. dated May 16, 1995, the following constitutional questions were stated: 'RWKHGHÀQLWLRQVRI´ERDUGµDQG´VFKRROµLQV RIWKH(GXFDWLRQ$FW562 1990, c. E.2, together with the annual General Legislative Grants promulgated under ss. 11(3)(a) and 11(3)(b) thereof, infringe or deny the appellants’ freedom of religion under s. 2(a) of the Canadian Charter of Rights and Freedom by not providing funding to religious-based independent schools? D 'RWKHGHÀQLWLRQVRI´ERDUGµDQG´VFKRROµLQV RIWKH(GXFDWLRQ$FW R.S.O. 1990, c. E.2, together with the annual General Legislative Grants promulgated under ss. 11(3)(a) and 11(3)(b) thereof, infringe or deny the appellants’ equality rights under s. 15(1) of the Canadian Charter of Rights and Freedoms by providing funding to public school boards but not to religious-based independent schools? E 'RWKHGHÀQLWLRQVRI´ERDUGµDQG´VFKRROµLQV RIWKH(GXFDWLRQ$FW562 1990, c. E.2, together with the annual General Legislative Grants promulgated under ss. 11(3)(a) and 11(3)(b) thereof, infringe or deny the appellants’ equality rights under s. 15(1) of the Canadian Charter of Rights and Freedoms by providing funding to Roman Catholic separate school boards but not to religious-based independent schools?  ,I WKH DQVZHU WR 4XHVWLRQ  RU  LV LQ WKH DIÀUPDWLYH LV WKH QRQIXQGLQJ RI UHOLJLRXVEDVHGLQGHSHQGHQWVFKRROVMXVWLÀHGDVDUHDVRQDEOHOLPLWSXUVXDQWWRV of the Canadian Charter of Rights and Freedoms? 4. (a) Does s. 14 of Regulation 552, R.R.O. 1990, made under s. 45 of the Health Insurance Act, R.S.O. 1990, c. H.6, infringe the appellants’ freedom of religion under s. 2(a) of the Canadian Charter of Rights and Freedoms by prescribing school health support services as insured services to an insured person who is placed in a VSHFLDOHGXFDWLRQSURJUDPLQD´VFKRROµDVGHÀQHGLQV RIWKH(GXFDWLRQ$FW but not to an insured person in a religious-based independent school? (b) Does s. 14 of Regulation 552, R.R.O. 1990, made under s. 45 of the Health Insurance Act, R.S.O. 1990, c. H.6, infringe the appellants’ equality rights under s. 15(1) of the Canadian Charter of Rights and Freedoms by prescribing school health support services as insured services to an insured person who is placed in a VSHFLDOHGXFDWLRQSURJUDPLQD´VFKRROµDVGHÀQHGLQV RIWKH(GXFDWLRQ$FW but not to an insured person in a religious-based independent school? ,IWKHDQVZHUWR4XHVWLRQD RUE LVLQWKHDIÀUPDWLYHLVWKHSUHVFULELQJ of school health support services as insured services to an insured person who is SODFHGLQDVSHFLDOHGXFDWLRQSURJUDPLQD´VFKRROµDVGHÀQHGLQV RIWKH

715

STATE SUPPORT FOR RELIGIOUS EDUCATION

Education Act, but not to an insured person in a religious-based independent school MXVWLÀHGDVDUHDVRQDEOHOLPLWSXUVXDQWWRVRIWKH&DQDGLDQ&KDUWHURI5LJKWV and Freedoms?

V. Analysis 25. As I see the issues before us, this case is to be resolved with reference to s. 93 of the Constitution Act, 1867. Section 93 grants to the provinces the power to legislate with regard to education. This grant is subject to certain restrictive conditions, among them s. 93(1) which provides that no law may prejudicially affect any right or privilege with respect to denominational schools which any class of persons had at the time of Union. The effect of this subsection is to entrench constitutionally a special status for such classes of persons, granting them rights which are denied to others. 7KHDSSHOODQWVDGYDQFHLQHVVHQFHWZR&KDUWHUDUJXPHQWV7KHÀUVWLVWKDWVD ·V guarantee of freedom of religion requires the Province of Ontario to provide public funding for independent religious schools. The second is that, by funding Roman Catholic separate schools and secular public schools at the same time as it denies funding to independent religious schools, the province is discriminating against the appellants on the basis of religion contrary to s. 15(1). 27. I propose to deal with these arguments in turn. As will be explained more fully below, it is my opinion that the s. 2(a) claim fails because any claim to public support for religious education must be grounded in s. 93(1) which is a “comprehensive code” of denominational school rights. With regard to the appellants’ equality argument, this claim fails because the funding of Roman Catholic separate schools and public schools is within the contemplation of the terms of s. 93 and is, therefore, immune from Charter scrutiny. A. The Appellants’ Claims with regard to Section 2(a) of the Charter 28. In my view, any analysis of denominational school rights must take as its starting point the guarantees contained in s. 93(1). If the rights claimed are not found in this subsection, I fail to see how other sections of the Constitution, in particular s. 2(a) of the Charter, can be used to enlarge upon s. 93’s constitutionally blessed scheme for public funding of denominational schools. 29. Section 93 is the product of an historical compromise which was a crucial step along the road leading to Confederation. As Gonthier J. said in Reference re Education Act (Que.), [1993] 2 S.C.R. 511 at p. 529, 105 D.L.R. (4th) 266 (S.C.C.): Section 93 is unanimously recognized as the expression of a desire for political FRPSURPLVH,WVHUYHGWRPRGHUDWHUHOLJLRXVFRQÁLFWVZKLFKWKUHDWHQHGWKHELUWK of the Union. Without this “solemn pact”, this “cardinal term” of Union, there would have been no Confederation. See Wilson J.’s discussion of the history of s. 93 in Reference re Bill 30, supra, at pp. 1173-74; and the judgment of Duff C.J.C. in Reference re Adoption Act, [1938] S.C.R. 398 at p. 402, [1938] 3 D.L.R. 497 (S.C.C.).

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30. As a child born of historical exigency, s. 93 does not represent a guarantee of fundamental freedoms. Beetz J. stated, in Greater Montreal Protestant School Board v. Quebec (Attorney-General), [1989] 1 S.C.R. 377 at p. 401, 57 D.L.R. (4th) 521 (S.C.C.): While it may be rooted in notions of tolerance and diversity, the exception in s. LVQRWDEODQNHWDIÀUPDWLRQRIIUHHGRPRIUHOLJLRQRUIUHHGRPRIFRQVFLHQFH« [and] should not be construed as a Charter human right or freedom or, to use the expression of Professor Peter Hogg, a “small bill of rights for the protection of minority religious groups” … And see Reference re Education Act (Que), supra, at pp. 539-40. 31. A useful analogy can be drawn between s. 93 and the minority language guarantees contained in s. 23 of the Charter. Like s. 93, s. 23 has its origins in political compromise. See Societe des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549 at p. 578, 27 D.L.R. (4th) 406 (S.C.C.); Reference re Public Schools Act (Man.) s. 79(3), (4) and (7), [1993] 1 S.C.R. 839 at p. 851, 100 D.L.R. (4th) 723 (S.C.C.). 32. Furthermore, both sections grant special status to particular classes of people. Dickson C.J. discussed the entrenched inequality created by s. 23 in Mahe v. Alberta, [1990] 1 S.C.R. 342, 68 D.L.R. (4th) 69 (S.C.C.). In this case, a group of parents claimed that their children were being denied the French language educational facilities to which they were entitled under s. 23 of the Charter. The parents argued that s. 23 should be interpreted in light of the words of s. 15(1) of the Charter. Speaking for a unanimous court, Dickson C.J.C. rejected this argument. In his words, s. 23 provides a “comprehensive code”, a unique source for minority language educational rights. See Mahe, supra, at p. 369. The Court recognized that this would create inequalities: English speakers living in francophone provinces and French speakers living in anglophone provinces would enjoy rights which are denied to other linguistic groups. However, it is the words of the Constitution itself which create this “special status”. As Dickson C.J.C. said at p. 369: [Section 23] is, if anything, an exception to the provisions of ss. 15 and 27 in that it accords these groups, the English and the French, special status in comparison to all other linguistic groups in Canada. 33. Section 93(1) confers a similarly privileged status on those religious minorities which, at the time of Confederation, enjoyed legal rights with respect to denominational schools. In Reference re Bill 30, Wilson J. acknowledged at p. 1197 that this special status may “sit uncomfortably with the concept of equality embodied in the Charter,” but it must nonetheless be respected. In his concurring judgment, Estey J. drew a similar conclusion, saying that the purpose of s. 93 was “to provide the province with the jurisdiction to legislate in a prima facie selective and distinguishing manner.” See Reference re Bill 30, supra, at p. 1206.

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STATE SUPPORT FOR RELIGIOUS EDUCATION

34. As Dickson C.J.C. concluded in Mahe, at p. 369, to use s. 15(1)’s equality rights as an interpretive aid to s. 23 would unacceptably distort the meaning and scope of the educational guarantees: … it would be totally incongruous to invoke in aid of the interpretation of a provision which grants special rights to a select group of individuals, the principle of equality intended to be universally applicable to “every individual”. 35. In my opinion, the reasoning used in Mahe is equally applicable to the appellants’ attempt to use s. 2(a) in combination with s. 15(1) to expand on s. 93’s religious educational guarantees. Thus, just as s. 23 is a comprehensive code with respect to minority language education rights, s. 93 is a comprehensive code with respect to denominational school rights. As a result, s. 2(a) of the Charter cannot be used to enlarge this comprehensive code. Given that the appellants cannot bring themselves within the terms of s. 93’s guarantees, they have no claim to public funding for their schools. To emphasize, in Ontario, s. 93(1) entrenches certain rights with respect to public funding of religious education. However, these rights are limited to those which were enjoyed at the time of Confederation. To decide otherwise by accepting the appellants’ claim that s. 2(a) requires public funding of their religious schools would be to hold one section of the Constitution violative of another – a result which Reference re Bill 30 tells us to avoid, as will be further discussed below. B. The Appellants’ Claims with regard to Section 15(1) of the Charter (a) Section 15(1) and Roman Catholic Separate Schools: 36. In Reference re Bill 30, Wilson J., writing for the majority, upheld Ontario legislation which extended full funding to the province’s Roman Catholic separate schools. Her GHFLVLRQUHVWHGRQWZRDOWHUQDWLYHÀQGLQJV 37. First, she found that Bill 30 was a valid exercise of provincial power under the combined effect of the opening words of s. 93 and s. 93(3). See Reference re Bill 30, DWS6HFRQGVKHSUHVHQWHGDQDOWHUQDWLYHÀQGLQJZKLFKZDVWKDWDWWKHWLPHRI Confederation, separate schools were entitled to public funding for secondary education. Thus, s. 93(1) requires the Ontario government to fund fully Roman Catholic separate schools. Seen in this light, Bill 30 simply righted an old wrong. 38. Wilson J. went on to address the claim that the government’s choice to fund Roman Catholic separate schools but not other religious schools contravened s. 15(1) of the Charter. The Adler and Elgersma appellants are advancing what amounts to the same argument in the present case. Wilson J. rejected this argument for two reasons. First, she found that, in the event that Bill 30 was passed pursuant to s. 93(1), it would fall “fairly and squarely” (at p. 1196) within s. 29 of the Charter which explicitly exempts from Charter challenge all rights and privileges “guaranteed” under the Constitution in respect of denominational, separate or dissentient schools. Second, she found that, in the event that Bill 30 was passed pursuant to the opening words of s. 93 and s. 93(3), it was nonetheless “immune” from Charter review because it was “legislation enacted pursuant to the plenary power in relation to education granted to the provincial

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legislatures as part of the Confederation compromise”. See Reference re Bill 30, at p. 1198. This was true regardless of the fact that this unequal funding might, as I mentioned above, “sit uncomfortably with the concept of equality embodied in the Charter”. In other words, Wilson J. at p. 1197 refused to use one part of the Constitution to interfere with rights protected by a different part of that same document: “It was never intended, in my opinion, that the Charter could be used to invalidate other provisions of the Constitution ….” 39. Following the same line of reasoning used by Wilson J. in the Reference re Bill ,ÀQGWKDWSXEOLFIXQGLQJIRUWKHSURYLQFH·VVHSDUDWHVFKRROVFDQQRWIRUPWKHEDVLV for the appellants’ Charter claim. (b) The Appellants’ Section 15(1) Claims and Public Schools 40. The appellants advanced a further argument which was that, even assuming that Roman Catholic separate schools are given a privileged place in our constitutional scheme, public schools are given no such protection. According to this argument, the fact that the government funds public schools but not private religious schools is analogous to the government funding, for example, private Christian schools but not private Islamic schools. As the reasoning goes, public schools are not a part of the scheme envisioned by s. 93 and are, thus, open to Charter challenge. 41. In my view, this argument is mistaken in supposing that public schools are not contemplated by the terms of s. 93, as it applies to Ontario. On the contrary, the public school system is an integral part of the s. 93 scheme. When the province funds public schools, it is, in the words of Wilson J. in Reference re Bill 30, at p. 1198, legislating “pursuant to the plenary power in relation to education granted to the provincial legislatures as part of the Confederation compromise”. A closer examination of s. 93, in particular s. 93(1), as it applies to the Province of Ontario, will help to illustrate that the public school system is impliedly, but nonetheless clearly, contemplated by the terms of that section. 42. In order to claim the protection of s. 93, it must be shown that there was a right or privilege with respect to denominational schooling which was enjoyed by a class of persons, by law, at the time of union. See Attorney General of Quebec v. Greater Hull School Board, [1984] 2 S.C.R. 575 at p. 582, 15 D.L.R. (4th) 651 (S.C.C.). Thus, for Ontario, s. 93(1) requires an examination of the law as it stood in 1867, with regard to denominational schooling. As Wilson J. said in Reference re Bill 30, at pp. 1177-78, “Our task is therefore to examine the laws in force prior to Confederation to see what rights or privileges they gave.” In the words of Gonthier J., in Reference re Education Act (Que.), supra, at p. 539, “[Section 93] is in a sense a snapshot of the legislative situation in 1867.” 43. An Act to restore to Roman Catholics in Upper Canada certain rights in respect to Separate Schools, S. Prov. C. 1863 (2nd Sess.), c. 5 (Scott Act), was the last piece of legislation relating to denominational schools in Upper Canada enacted before &RQIHGHUDWLRQ ,Q HVVHQFH ZKDW WKLV OHJLVODWLRQ GLG ZDV WR GHÀQH WKH ULJKWV DQG

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STATE SUPPORT FOR RELIGIOUS EDUCATION

privileges of Roman Catholic separate schools in terms of the rights and privileges of the province’s common schools. The preamble reads: WHEREAS it is just and proper to restore to Roman Catholics in Upper Canada certain rights which they formerly enjoyed in respect to separate Schools, and to bring the provisions of the Law respecting Separate Schools more in harmony with the provisions of the Law respecting Common Schools …. [Emphasis added.] This close linkage between the separate and public schools was made most clearly through s. 7 which gave the separate school trustees “all the powers in respect of Separate Schools, that the Trustees of Common Schools have and possess under the provisions of the Act relating to Common Schools” and through s. 9 which gave the separate school trustees all “the same duties … as Trustees of Common Schools.” Section 20 of the Scott Act required that separate schools receive a proportionate share of the funds annually JUDQWHGE\WKHOHJLVODWXUHWRVXSSRUWWKHFRPPRQVFKRROV(YHQWKHTXDOLÀFDWLRQRI separate school teachers was to be determined according to the same standards used in the public schools. In Roman Catholic Separate School Trustees for Tiny v. The King, [1928] A.C. 363 at p. 387, [1928] 3 D.L.R. 753 (P.C.), Viscount Haldane went so far as to say that, in 1867, “[t]he separate school was only a special form of common school ….” For a full discussion of the history of separate school legislation in the province see Wilson J.’s discussion in the Reference re Bill 30, supra, at p. 1176 ff, and Viscount Haldane’s speech in Tiny, supra, at pp. 376 ff. 44. The effect of s. 93(1) is to create what Professor Pierre Carignan, in “La raison d’etre de l’article 93 de la Loi constitutionnelle de 1867 a la lumiere de la legislation preexistante en matiere d’education” (1986), 20 R.J.T. 375, has called the (translation) “constitutionalization mechanism” whereby denominational school rights and privileges created by ordinary legislation are raised to the status of constitutional norms. See Reference re Education Act (Que.), supra, at p. 531; Greater Montreal Protestant School Board, supra, at p. 418. What the relevant pre-Confederation legislation did was to equate the rights and privileges of separate schools to those of public schools. The result is that public schools are part and parcel of s. 93’s comprehensive code. Accordingly, as I noted above, public schools are impliedly but nonetheless clearly within the terms of the regime set up by s. 93. 45. This inclusion of public schools in the Constitution is consistent with the historical purpose of s. 93. As was explained by the Privy Council in Brophy v. Attorney-General of Manitoba, [1895] A.C. 202 (P.C.) at p. 214, during the negotiations leading up to Confederation, Roman Catholic separate school supporters expressed concern that the existing public school system, open as it was to children of all races and religions, could not meet the needs of the Roman Catholic community: They regarded it as essential that the education of their children should be in accordance with the teaching of their Church, and considered that such an education could not be obtained in public schools designed for all the members of the community alike, whatever their creed ….

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Thus, when separate school supporters were negotiating the terms of s. 93, they were negotiating against the back-drop of the existing common school system. The hallmark of these common schools was that they were not organized (in the relevant legislation) along denominational lines and were, therefore, open to all members of the community without distinction, (with the exception of those for whom a separate school had been established). As Professor Carignan says, at p. 428, (translation) “In the context of public education, the structures set up by Parliament itself are designed for children of all beliefs and all races.” As Wilson J. pointed out in Reference re Bill 30, supra, at p. 1193, at the time s. 93 was being negotiated, it was assumed that publicly funded non-denominational schools would always be a part of the political landscape: The security afforded the Roman Catholic minority through the tying of funding for its schools to a proportion of the funding for the common schools was in the certainty that the Legislature would never cut off funding for the common schools. 46. At the time of Confederation, Roman Catholic parents could choose to support either the local separate schools or the local common schools. Section 14 of the Scott Act lays out the registration procedure to be followed. If a parent chose to register as a separate school supporter, then his or her child would be eligible to attend only the local separate school. An Act respecting Common Schools in Upper Canada, C.S.U.C. 1859, c. 64, s. 27(16). In other words, Roman Catholic parents could choose between two publicly funded educational systems – one Roman Catholic, the other non-denominational. Section 93 gives constitutional protection to this publicly funded choice. Therefore, the public school system is an integral part of the Confederation compromise and, consequently, receives a protection against constitutional or Charter attack. 47. This protection exists despite the fact that public school rights are not themselves constitutionally entrenched. It is the province’s plenary power to legislate with regard to public schools, which are open to all members of society, without distinction, that is constitutionally entrenched. This is what creates the immunity from Charter scrutiny. To paraphrase Wilson J., in Reference re Bill 30, supra, at p. 1198, funding for public schools is insulated from Charter attack as legislation enacted pursuant to the plenary education power granted to the provincial legislatures as part of the Confederation compromise. If the plenary power is so insulated, then so is the proper exercise of it. 48. One thing should, however, be made clear. The province remains free to exercise LWVSOHQDU\SRZHUZLWKUHJDUGWRHGXFDWLRQLQZKDWHYHUZD\LWVHHVÀWVXEMHFWWRWKH restrictions relating to separate schools imposed by s. 93(1). Section 93 grants to the province of Ontario the power to legislate with regard to public schools and separate schools. However, nothing in these reasons should be taken to mean that the province’s legislative power is limited to these two school systems. In other words, the province could, if it so chose, pass legislation extending funding to denominational schools other than Roman Catholic schools without infringing the rights guaranteed to Roman Catholic separate schools under s. 93(1). See the words of Gonthier J., writing for the Court, in Reference re Education Act (Que.), supra, at p. 551. However, an ability to pass such legislation does not amount to an obligation to do so. To emphasize, s. 93 GHÀQHVWKHH[WHQWRIWKHREOLJDWLRQVRIWKHSURYLQFHWRVHWXSDQGIXQGGHQRPLQDWLRQDO

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schools when public schools are established. In this respect, it is a comprehensive code thereby excluding a different or broader obligation regarding denominational schools, while not restricting the plenary power of the province to establish and fund such other schools as it may decide. 49. Furthermore, it should be pointed out that all of this is not to say that no legislation in respect of public schools is subject to Charter scrutiny, just as this court’s ruling in Reference re Bill 30 did not hold that no legislation in respect of separate schools was subject to Charter scrutiny. Rather, it is merely the fact of their existence, the fact that the government funds schools which are, in the words of the Lord Chancellor, in Brophy, supra, at p. 214, designed for all the members of the community alike, whatever their creed” that is immune from Charter challenge. Whenever the government decides WRJREH\RQGWKHFRQÀQHVRIWKLVVSHFLDOPDQGDWHWKH&KDUWHUFRXOGEHVXFFHVVIXOO\ invoked to strike down the legislation in question. )RUWKHVHUHDVRQV,ÀQGWKDWWKHIXQGLQJRISXEOLFVFKRROVFRXSOHGZLWKWKHQRQ funding of private religious schools is immune from Charter attack and therefore does not violate s. 15(1) of the Charter. (c) School Health Support Services 51. With regard to the question of whether any of the appellants have standing to challenge the school health support services program, I agree with the reasons of Weiler J.A. While the record does not show that either Matan Kezwer or Joel Pott would be eligible for the school health support services program (“SHSSP”) if they were enrolled in a public school, Walter Elgersma is “in a different category”. A government witness, Ms. Spalding-Martin, acknowledged that the health services Walter requires are eligible for funding under the SHSS program. For these reasons, it is my view that Leo Elgersma, as Walter’s father, should be granted standing to challenge the school health support services program. 52. In 1980, the Education Act was amended by Bill 82 which laid the foundation for SHSSP. The purpose of the Bill was to ensure universal access to public education. The Minister of Education emphasized this goal of accessibility to the public schools: This bill does two things. First, the basis of universal access contained within the bill guarantees the right of all children, condition notwithstanding, to be enrolled in a school. No longer will retarded children be enrolled after an assessment procedure established in law which has in fact denied universality of access. [Legislature of 2QWDULR'HEDWHV2IÀFLDO5HSRUW+DQVDUG )RXUWK6HVVLRQVW3DUOLDPHQW0D\ 23, 1980 pp. 2135, per Hon. B. Stephenson, Minister of Education.] In addition to the provision for SHSSP, this legislation included a requirement that every school board provide special education programs for all children who could EHQHÀWLQFOXGLQJWKRVHZLWKLQWHOOHFWXDOFRPPXQLFDWLRQEHKDYLRXUDODQGSK\VLFDO disabilities. 53. The school health support services program was implemented through s. 14 of Regulation 552, R.R.O. 1990, made under s. 45 of the Health Insurance Act, R.S.O.

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1990, c. H.6. In essence, this regulation provides that certain health-related services provided by a “home care facility” to children in public and separate schools are publicly insured services. 54. With respect to whether the failure to extend the SHSSP to private religious schools violates either s. 2(a) or s. 15(1) of the Charter, I am in agreement with Dubin C.J.O.’s resolution of the matter. He characterized the services as “education services” as opposed to “health services”. It is true, as the Elgersma appellants maintain, that catheterization does not look much like an educational service. However, it is necessary to look at the context in which these services are provided. The services are delivered in the public schools. They are designed to ensure that children with special needs have full access to the public school system whose constitutionally protected purpose is to provide education to all members of the community. This purpose is made clear in the speech of the Minister of Education, quoted above. Put another way, the provision of the health VHUYLFHVWRWKRVHTXDOLÀHGLVVLPSO\DPHDQVWRDQHQGDZD\WRHQVXUHDFFHVVWRHGXFDtion. Therefore, the school health support services program is simply a manifestation RIWKH2QWDULRJRYHUQPHQW·VIXOÀOOLQJLWVPDQGDWHWRSURYLGHDQHGXFDWLRQGHVLJQHGIRU all members of the community and is, thus, immune from Charter scrutiny. 55. Accordingly, I would dismiss the appeal and answer the stated constitutional questions as follows: 1. No 2(a) No 2(b) No 3. Not necessary to answer. 4(a) No 4(b) No 5. Not necessary to answer. 56. /·+(85(8;'8%(- (dissenting): – This appeal raises the question of whether the provincial scheme – which denies funding to independent denominational schools established by parents who, for religious reasons, are unable to educate their children in the public schools – violates the freedom of religion and equality guarantees in the Canadian Charter of Rights and Freedoms. 57. I have had the advantage of reading my colleagues’ reasons. I am in agreement with Justice McLachlin that s. 93 of the Constitution Act, 1867 does not provide an answer to the appellants’ Charter claim. While s. 93 requires the provinces of Ontario and Quebec to provide funding for schools serving the Roman Catholic and Protestant minorities, respectively, this is the only school support which is constitutionally guaranteed under that section. Where provinces otherwise exercise their plenary powers to provide education, they must, subject to this requirement, comply with the Charter.

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,DOVRDJUHHZLWK0F/DFKOLQ-·VUHDVRQVZKLFKÀQGWKDWWKHIDLOXUHWRIXQGWKH independent religious schools does not constitute a limit on the guarantee of freedom of religion. Given the exemption from public education included in its s. 21, the Education Act, R.S.O. 1990, c. E.2, does not compel the appellants to violate the tenets of their religion with respect to education. The burden complained of by the appellants, viz. the cost of sending their children to private schools, being not a prohibition of a religious practice but rather the absence of funding for one, has not historically been considered a violation of the freedom of religion. While these parents do bear a cost which is not LPSRVHGRQSDUHQWVZKRFDQVHQGWKHLUFKLOGUHQWRSXEOLFVFKRROVWKLVODFNRIEHQHÀW is more appropriately addressed under s. 15 of the Charter, the equality guarantee. ,OLNH0F/DFKOLQ-GRÀQGWKDWWKHGHQLDORIIXQGLQJWRLQGHSHQGHQWGHQRPLQDWLRQDO schools effects a prima facie violation of s. 15, albeit following a different route. Where ,GHSDUWPRVWVLJQLÀFDQWO\IURPWKHUHDVRQVRI0F/DFKOLQ-LVLQP\ÀQGLQJWKDWWKH funding scheme in the Education Act cannot be saved under s. 1, and, accordingly, I cannot agree with the result she reaches on that issue. 2QWKHRWKHUKDQGWKLVDQDO\VLVOHDGVPHDOVRWRÀQGWKDWDGHQLDORIKHDOWKVXSSRUW services for children with disabilities who attend the independent religious schools is impermissible under s. 1, and, consequently, I do agree with the result on this issue which was reached by McLachlin J.

,'RHV'HQLDORI)XQGLQJWR,QGHSHQGHQW'HQRPLQDWLRQDO6FKRROV &RQVWLWXWHD3ULPD)DFLH%UHDFKRI6HFWLRQRIWKH&KDUWHU" 61. In Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at p. 171 and at pp. 174 and 175, 56 D.L.R. (4th) 1 (S.C.C.), McIntyre J. for the court gave this GHÀQLWLRQRIZKDWFRQVWLWXWHVGLVFULPLQDWLRQ It is clear that the purpose of s. 15 is to ensure equality in the formulation and application of the law. The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration. It has a large remedial component. … I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which ZLWKKROGVRUOLPLWVDFFHVVWRRSSRUWXQLWLHVEHQHÀWVDQGDGYDQWDJHVDYDLODEOHWR other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed. 62. In Egan v. Canada, [1995] 2 S.C.R. 513, 124 D.L.R. (4th) 609 (S.C.C.), I developed an approach to interpreting and applying the equality guarantee of the Charter which 724

6. CANADIAN JUDICIAL DECISIONS

had the primary objective of giving effect to its purpose, that is, the elimination of discrimination, as opposed to focusing on the enumerated or analogous grounds of the provision. I was concerned that, by focussing on the grounds, we risked ignoring state action which, given its impact on a particular group, would effect or encourage inequality LQWKHVXUURXQGLQJVRFLRHFRQRPLFFRQWH[W,DGYRFDWHG´SXWWLQJ¶GLVFULPLQDWLRQ·ÀUVWµ at para. 55, through the following principled, three-stage method of analysis: In my view, for an individual to make out a violation of their rights under s. 15(1) of the Charter, he or she must demonstrate the following three things: (1) that there is a legislative distinction; (2) that this distinction results in a denial of one of the four equality rights on WKHEDVLVRIWKHULJKWVFODLPDQW·VPHPEHUVKLSLQDQLGHQWLÀDEOHJURXS (3) that this distinction is “discriminatory” within the meaning of s. 15. 63. In elaborating the content of the third stage of the analysis I also found, at para. 56, that [a] distinction is discriminatory within the meaning of s. 15 where it is capable of either promoting or perpetuating the view that the individual adversely affected by this distinction is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration. This examination should be undertaken from a subjective-objective perspective: i.e. from the point of view of the reasonable person, dispassionate and fully apprised of the circumstances, possessed of similar attributes to, and under similar circumstances as, the group of which the rights claimant is a member. 64. Furthermore, in determining whether discrimination has occurred, it is necessary to reconstruct the context in which the distinction arises. Two categories of factors prove particularly instructive: (1) the nature of the group adversely affected by the distinction, and (2) the nature of the interest adversely affected by the distinction. Where the group LGHQWLÀHG E\ WKH GLVWLQFWLRQ LV VRFLDOO\ YXOQHUDEOH DQG GHOLQHDWHG E\ FKDUDFWHULVWLFV which are popularly conceived of as fundamental to personhood, the distinction is more OLNHO\WREHFRQVLGHUHGGLVFULPLQDWRU\:KHUHWKHLQWHUHVWLQYROYHVDQHFRQRPLFEHQHÀW SURWHFWLRQRIWKHULJKWWRWKHEHQHÀWPXVWEHLQFLGHQWDOWRSURWHFWLRQRIWKHZRUWKDQG dignity of a human person. (See Egan, supra, at paras. 58 to 65.) 65. An evaluation of the interest at stake must, however, reach beyond economic SUHMXGLFH WR WKH FRQVWLWXWLRQDO DQG VRFLHWDO VLJQLÀFDQFH RI WKH LQWHUHVW RU LQWHUHVWV adversely affected. Distinctions which restrict access to a fundamental social institution or affect an aspect of full membership in Canadian society are more likely to constitute discrimination. Also, as I concluded in Egan, supra, at para. 64: It stands to reason that a group’s interests will be more adversely affected in cases involving complete exclusion or non-recognition than in cases where the legislative distinction does recognize or accommodate the group, but does so in a manner that is simply more restrictive than some would like. [Emphasis in original.] In the end, the distinction must be shown to violate a basic right to equal human dignity and worth in the context of both the nature of the group and the interest. This 725

STATE SUPPORT FOR RELIGIOUS EDUCATION

approach is primarily effects-oriented in its contextual determination of the impact of the legislation in question on a particular group. Inherent in this model is a recognition of the importance of adverse impact discrimination in our present-day society, which, as my colleagues Justices Sopinka and McLachlin have stated, is a principle which has been clearly recognized by this Court. (See Egan, supra, at para. 78.) 2XULQLWLDOWDVNVLQYROYHGHWHUPLQLQJÀUVWZKHWKHUDGLVWLQFWLRQLVFUHDWHGE\WKH legislation between the appellants and others in the surrounding social context; and second, whether this distinction results in the denial of one of the claimants’ four basic HTXDOLW\ULJKWVRQWKHEDVLVRIWKHLUPHPEHUVKLSLQDQLGHQWLÀDEOHJURXS7KHEDVLF equality guarantees include: equality before the law, equality under the law, equal SURWHFWLRQRIWKHODZDQGHTXDOEHQHÀWRIWKHODZ 67. In the Education Act scheme, parents have three choices in undertaking the mandatory education of their children: enrollment in Roman Catholic religious schools, in the public schools, or, if for some reason, the parents cannot or do not want to send their children to these schools, in an alternative educational environment which the state FRQVLGHUVDVDWLVIDFWRU\VXEVWLWXWH,QWKHÀUVWWZRRSWLRQVWKHFRVWVRIWKHFKLOGUHQ·V education are paid by the state. Under the third option, parents provide for their children’s education at their own expense. 68. The distinction affecting the appellants arises in regard to the third option. For some SDUHQWVZKRPDNHWKLVFKRLFHPHPEHUVKLSLQDQLGHQWLÀDEOHJURXSLVQRWDIDFWRU theirs is truly an individual preference. For these parents the public education system LVDFFHVVLEOHZLWKRXWGLVFULPLQDWLRQDVLWLVWRWKRVHZKRFKRRVHWKHÀUVWWZRRSWLRQV )RURWKHUVLQFOXGLQJWKHDSSHOODQWVLQWKLVFDVHPHPEHUVKLSLQDQLGHQWLÀDEOHJURXS precludes their accessing the other, publicly funded, options. Evidence submitted by the appellants and accepted by the trial judge establishes that to remain a member of the particular religious communities in question, and to act in accordance with the tenets of these faiths, the appellants are required to educate their children in a manner consistent with this faith and therefore outside of the public or the separate schools. $OVRHVWDEOLVKHGE\WKHDSSHOODQWV·HYLGHQFHDFFRUGLQJWRWKHMXGJPHQWRIÀUVWLQVWDQFH ZDVWKHÀQGLQJWKDWFRQWURORYHUWKHHGXFDWLRQRIWKHLUFKLOGUHQZDVHVVHQWLDOWRWKH continuation of the religious communities in question. None of the parties before our FRXUWKDVFRQWHVWHGWKHERQDÀGHVRIWKHUHOLJLRXVEHOLHIVKHOGE\WKHDSSHOODQWV 69. While the legislature may not have intended to create this distinction, the effect of the legislative choice is to distinguish between parents who can access the public schools, and those, like the appellants, who cannot, for religious reasons. This distinction UHVXOWVLQWKHWRWDOGHQLDORIWKHHTXDOEHQHÀWRIIXQGHGHGXFDWLRQIRUWKHDSSHOODQWV RQWKHEDVLVRIWKHLUPHPEHUVKLSLQDQLGHQWLÀDEOHJURXSDJURXSPDGHXSRIVPDOO religious minority communities. 0\FROOHDJXH6RSLQND-ÀQGVWKDWWKHUHOLJLRQVRIWKHDSSHOODQWVFDXVHWKHGHQLDO RIWKHEHQHÀWDVRSSRVHGWRWKHOHJLVODWLRQ$GRSWLQJWKHMXGJPHQWRIWKH2QWDULR&RXUW of Appeal (1994), 19 O.R. (3d) 1, 116 D.L.R. (4th) 1, as delivered by Dubin C.J.O., he concludes that the legislature has created an education system which, owing to its secular nature, accommodates all parents of all religious beliefs. In the view of Sopinka J., it is 726

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the religion of the appellants which precludes their access to this publicly funded service, a religion which the appellants have chosen freely without state coercion. McLachlin J. presents the differing view, that the chosen aspect of religion does not have a part to play in determining whether discrimination has taken place. In her opinion, if state action which discriminates on the basis of religion can be excused on the grounds that religion is a choice, and that the individuals may choose to avoid the negative impact which arises from the state’s response to their religious identity, discrimination on the basis of religion will become an empty concept. I agree. 71. While I stated in Egan, supra, that the degree of choice which a person may be expected to have in identifying with a particular group will be relevant to our determination, this analysis must be undertaken from the subjective-objective perspective which I have outlined above. We must determine whether the individual in question, in the circumstances, would consider him- or herself to have a choice. For members of religious communities, particularly those of the appellants, this is clearly not the case. What might be termed an objective choice of a particular religion from the court’s point of view, will, from the religious adherent’s perspective, entail a moral imperative. $OVRFRPPLWPHQWDQGDGKHUHQFHWRWKHEHOLHIVDQGSUDFWLFHVRIRQH·VUHOLJLRQGHÀQH one’s membership in the particular religious community. From the point of view of WKHFRPPXQLW\DQGLWVPHPEHUVWKHVHDUHQRWRSWLRQDOEXWHVVHQWLDOGHÀQLQJIHDWXUHV of leading a moral life. 72. While s. 2(a) of the Charter is primarily concerned with the necessary limits to be placed on the state in its potentially coercive interference with the original, objectively perceived religious “choice” that individuals make, s. 15 ensures that consequences LQEHKDYLRXUDQGEHOLHIZKLFKÁRZIURPWKLVLQLWLDOFKRLFHDQGDUHQRWSHUFHLYHGE\ the rights claimant as optional, not be impacted upon by state action in such a way as to attack the inherent dignity and consideration which are due all human persons. The protections afforded in s. 15 may thus be of greater scope than those in s. 2(a), as our concern moves from the coercive aspect of the state action to its impact on the individuals’ and groups’ sense of dignity and worth in the socio-economic context of the day. 73. In accordance with its inherent focus on human dignity and worth, s. 15 may require not only that the state program be formally open to all members of society, but also that it include extra steps, or accommodation, to ensure equal access, in real terms, by DOOPHPEHUVRIVRFLHW\WRWKHEHQHÀWLQTXHVWLRQ7KHSULQFLSOHRIDFFRPPRGDWLRQIRU religious beliefs is well accepted in Canadian human rights law, as evidenced by the case of Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561, 23 D.L.R. (4th) 481 (S.C.C.), to which my colleague McLachlin J. refers. This principle has been LQFRUSRUDWHGLQWRWKHVXEVWDQWLYHDSSURDFKWRHTXDOLW\ZKLFKZDVÀUVWDUWLFXODWHGLQ Andrews, supra, and has remained, in principle, that adopted by the majority of this Court. (See Miron v. Trudel, [1995] 2 S.C.R. 418, 124 D.L.R. (4th) 693 (S.C.C.); Egan, supra.) 74. In Andrews, supra, at p. 175, McIntyre J., writing for the majority on this issue, recognized that general principles of human rights law will apply to the interpretation

727

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RI V  RI WKH &KDUWHU 0RUHRYHU LQ GHYHORSLQJ D GHÀQLWLRQ RI GLVFULPLQDWLRQ KH UHIHUUHG VSHFLÀFDOO\ DW S  WR WKH FDVH RI 2QWDULR +XPDQ 5LJKWV &RPPLVVLRQ  v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, 23 D.L.R. (4th) 321 (S.C.C.), which expresses the principle of accommodation as forming a necessary aspect of determining whether facially neutral actions are discriminatory. Professor Peter W. Hogg also asserts that the application of s. 15 of the Charter will involve the concept of accommodation, especially given its prohibition of adverse effects discrimination. As he explains in Constitutional Law of Canada, 3rd ed., supplemented (Scarborough: Carswell, 1992, looseleaf) at pp. 52-32 and 52-33 (referring to a point made by Dale Gibson, The Law of the Charter: Equality Rights (1990), at p. 133): [I]t is a necessary corollary of the rule that discrimination may be indirect and unintended that a law may have to make reasonable accommodation for those ZKRE\UHDVRQRIUHOLJLRXVDIÀOLDWLRQRUGLVDELOLW\IRUH[DPSOH DUHGLVFULPLQDWHG against by otherwise neutral laws. Decisions by this court on the basis of the freedom of religion guarantee in s. 2(a) have also recognized that accommodation or differential treatment may be necessary to avoid indirect coercion under state action. (See R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321 (S.C.C.), per Dickson J. (as he then was), at p. 347; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, 35 D.L.R. (4th) 1 (S.C.C.).) 75. While one might argue that the exemption for religious parents contained in s. 21 of the Education Act constitutes the necessary accommodation, in my view, such accommodation addresses the potential coercive aspect of mandatory secular education alone, and thus allows the impugned legislation to meet the requirements of s. 2(a). However, it does not achieve the necessary accommodation required under s. 15 where unequal DFFHVVWRDEHQHÀWLVLQYROYHG,QDFDVHRIXQHTXDOEHQHÀWDFFRPPRGDWLRQZLOOPHDQ taking the steps necessary to ensure access to these parents without discrimination. *LYHQWKHFRPSOHWHGHQLDORIWKLVEHQHÀWWRWKRVHZKRFDQQRWDFFHVVLWIRUUHOLJLRXV UHDVRQV , FRQFOXGH WKDW WKH HTXDO EHQHÀW RI D SXEOLFO\ IXQGHG HGXFDWLRQ KDV EHHQ denied the appellants on the basis of a distinction which relates to their membership LQDQLGHQWLÀDEOHJURXS 7KHÀQDOVWHSWRWDNHZLWKLQDVDQDO\VLVLVWRDVNZKHWKHUWKHGLVWLQFWLRQLVRQH capable of promoting or perpetuating a view that the appellants are, by virtue of their religious beliefs, less capable or worthy of recognition or value as human beings or members of Canadian society equally deserving of concern, respect, and consideration. $V,VWDWHGDERYHLQFDUU\LQJRXWWKLVÀQDOVWDJHRIWKHDQDO\VLVFRQVLGHUDWLRQPXVW be given to both the nature of the group affected and the nature of the interest. These together make up the all-important social context in which the distinction arises. 77. In Egan, supra, at para. 59, I explained that the kinds of questions which arise in the analogous grounds approach to determining whether a particular group comes within the purview of the s. 15 guarantee continue to be instructive in deciding whether the QDWXUHRIWKHJURXSVXSSRUWVDÀQGLQJRIGLVFULPLQDWLRQLQDSDUWLFXODUVRFLDOFRQWH[W

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6. CANADIAN JUDICIAL DECISIONS

Furthermore, it is important to ask ourselves questions such as “Is the adversely affected group already a victim of historical disadvantage?”; “Is this distinction reasonably capable of aggravating or perpetuating that disadvantage?”; “Are group members currently socially vulnerable to stereotyping, social prejudice, and/or marginalization?”; and “Does this distinction expose them to the reasonable possibility of future social vulnerability to stereotyping, social prejudice and/or marginalization?” Membership in a “discrete and insular minority”, lacking in political power and thus susceptible to having its interests overlooked, is yet another consideration that may be taken into account. 78. While under the grounds-oriented approach to equality these questions would be VHHQDVXQQHFHVVDU\JLYHQWKDWUHOLJLRQLVDQHQXPHUDWHGJURXQG,ÀQGLWLPSRUWDQWWR consider them in determining the discriminatory effects of the legislation in question in this appeal. In answering these queries with respect to the appellants’ religious communities, it becomes evident that they constitute the quintessential group deserving of protection under s. 15. 79. The group to which the Adler and Elgersma appellants belong includes religious communities which might be termed minorities-within-minorities. As the appellants claim and the courts below have accepted, these are small religious groups which have attempted to protect their adherents from the assimilating effects of secular society. They have struggled to maintain a space for a lifestyle which is infused with religious belief and practice. 80. Dissentient minority religious groups have probably suffered most severely from the historic disadvantage which has adhered to religious identity. Examples abound in earlier jurisprudence of this Court. (See National Trust Co. v. Christian Community of Universal Brotherhood Ltd., [1941 ] S.C.R. 601, [1941] 3 D.L.R. 529 (S.C.C.); Saumur v. City of Quebec, [1953] 2 S.C.R. 299, [1953] 4 D.L.R. 641 (S.C.C.); Roncarelli v. Duplessis, [1959] S.C.R. 121, 16 D.L.R. (2d) 689 (S.C.C.).) In today’s secular society, it stands to reason that religious sub-groups which have attempted to maintain a non-secular life-style are even more vulnerable to stereotype, social prejudice and marginalization. 81. These communities also constitute discrete and insular minorities, as their attempts to maintain a religious life leads them to distance themselves somewhat from the secular institutions of the larger society around them. While some may say this is their choice, we must remember that, in evaluating discriminatory effects of state action, we are concerned with its potential impact within the broader societal context. Insularity has become necessary to maintaining the religious lifestyle practised by the appellants by virtue of the powerful economic and other forces of secularization in society. Such insularity clearly carries with it the danger of such a group’s interests being overlooked. The questions which I concluded above to be indicative of the vulnerability of a SDUWLFXODU JURXS WR GLVFULPLQDWLRQ ZRXOG DOO EH DQVZHUHG LQ WKH DIÀUPDWLYH IRU WKH appellants. They constitute a group which is most clearly intended to receive Charter protection under s. 15.

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$V IRU WKH QDWXUH RI WKH LQWHUHVW LQYROYHG DV , KDYH DOUHDG\ VWDWHG ÀQDQFLDO SUHMXGLFHDORQHZLOOQRWVXSSRUWDÀQGLQJRIGLVFULPLQDWLRQ+RZHYHULQWKLVFDVHDV LQ(JDQVXSUDWKHFRQVHTXHQFHVZKLFKÁRZIURPWKHGHQLDORIDQHFRQRPLFEHQHÀW are necessarily incidental to protecting the dignity and value of the appellants. Both of the lower courts accepted the appellants’ evidence that education of their children in accordance with religious practices and beliefs was essential to their membership in the religious communities in question as well as to the very survival of these communities. The educational practices of religious communities merit special attention given their necessity to future membership in these faiths. Thus, mandatory, publicly funded state education policies may attract a greater degree of Charter scrutiny under s. 15 than other institutions which will not have as great an impact on the continuation of the religious community in question. 83. In Egan, supra, at para. 86, I made the following observation: 2IÀFLDOVWDWHUHFRJQLWLRQRIWKHOHJLWLPDF\DQGDFFHSWDQFHLQVRFLHW\RIDSDUWLFXODU type of status or relationship may be of greater value and importance to those DIIHFWHGWKDQDQ\SHFXQLDU\JDLQÁRZLQJIURPWKDWUHFRJQLWLRQ 'HQLDORIDQ\IXQGLQJWRWKHDSSHOODQWVFRQVWLWXWHVQRWRQO\DÀQDQFLDOSUHMXGLFHEXW also a complete non-recognition of their children’s educational needs and the children’s and parents’ fundamental interest in the continuation of their faith. 84. The interests at stake for the appellants, being the recognition and continuation of these communities, are clearly recognized as relevant to the fundamental purposes of the Charter. This conclusion can be drawn from the incorporation of the principle of accommodation in the interpretation of s. 2(a) and s. 15. Moreover, it is consonant with the interpretive guidance of s. 27 which reads as follows: 27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians. 85. In applying this provision to the application of the freedom of religion guarantee of the Charter in Big M Drug Mart Ltd. and Edwards Books and Art Ltd., supra, Dickson C.J.C. held that religion forms an integral part of the multicultural heritage of Canada. The interests underlined in s. 27, they being both “the preservation and enhancement of the multicultural heritage of Canadians” (emphasis added) thus informed an approach to freedom of religion which could impose on the state the duty to accommodate religious minorities where the adverse and coercive impact of a secular law required it. (See Big M Drug Mart Ltd., supra, at pp. 337-338; Edwards Books and Art Ltd., supra, at p. 758.) In applying s. 15 in the context of the denial of funding for education to those ZKRFDQQRWDFFHVVLWIRUUHOLJLRXVUHDVRQVVVXSSRUWVDÀQGLQJWKDWWKHLQWHUHVWV at stake, the preservation and continuation of the communities in question, do form interests fundamental to the purposes of the Charter. 86. At issue here are the efforts of small, insular religious minority communities seeking to survive in a large, secular society. As such, the complete non-recognition of this group strikes at the very heart of the principles underlying s. 15. This provision, more than any other in the Charter, is intended to protect socially vulnerable groups from the 730

6. CANADIAN JUDICIAL DECISIONS

discriminatory will of the majority as expressed through state action. The distinction created under the Education Act gives the clear message to these parents that their beliefs and practices are less worthy of consideration and value than those of the majoritarian secular society. They are not granted the same degree of concern, dignity and worth as other parents. I conclude that the Education Act funding scheme results in a prima IDFLHYLRODWLRQRIV·VJXDUDQWHHRIHTXDOEHQHÀWRIWKHODZZLWKRXWGLVFULPLQDWLRQ To use the metaphor which I developed in Egan, we cannot imagine a deeper scar being LQÁLFWHGRQDPRUHLQVXODUJURXSE\WKHGHQLDORIDPRUHIXQGDPHQWDOLQWHUHVWLWLVWKH very survival of these communities which is threatened.

,,,VWKH'HQLDORI)XQGLQJWR,QGHSHQGHQW'HQRPLQDWLRQDO6FKRROV 5HDVRQDEO\-XVWLÀHGXQGHU6HFWLRQ" 87. A violation of s. 15(1) may be saved under s. 1 if the impugned distinction is GHPRQVWUDEO\MXVWLÀDEOHLQRXUIUHHDQGGHPRFUDWLFVRFLHW\,DPRIWKHRSLQLRQKRZHYHU that the instant violation cannot be salvaged by s. 1, as it is not proportionately tailored to the pressing objectives of the legislation. $VDQLQWURGXFWLRQWRWKHVDQDO\VLVRIWKHOHJLVODWLRQLQTXHVWLRQ,ÀQGLWQHFHVVDU\ to make some observations regarding the general purposes of this provision and how these should inform the degree of judicial deference accorded the legislature’s choice in a particular case. 89. As is well known, the case of R. v. Oakes, [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200 6&& SURYLGHGWKHÀUVWRFFDVLRQIRUWKLV&RXUWWRGHYHORSWKHSULQFLSOHVRIMXGLFLDO UHYLHZRIWKHVWDWH·VMXVWLÀFDWLRQIRUOLPLWVLPSRVHGRQD&KDUWHUULJKWLQDFFRUGDQFH with s. 1. An approach was developed, subsequently referred to as the “Oakes test”, which was meant to provide a universal and onerous standard of review of the evidence and argument submitted by state representatives in defence of a prima facie breach of the Charter. 90. In Oakes, supra, writing for the Court on this issue, Dickson C.J.C. applied a purposive approach to interpreting s. 1. He noted that, while constitutionally guaranteeing the rights and freedoms of the Charter, s. 1 also gave a clear signal that these entitlements were not unlimited in scope. However, for limits to be considered “reasonable”, they PXVWEHMXVWLÀHGLQD´IUHHDQGGHPRFUDWLFVRFLHW\µDQGWKHUHIRUHQHFHVVDULO\LQIRUPHG by the values and principles underlying the Charter itself: ,QFOXVLRQRIWKHVHZRUGVDVWKHÀQDOVWDQGDUGRIMXVWLÀFDWLRQIRUOLPLWVRQULJKWVDQG freedoms refers the Court to the very purpose for which the Charter was originally entrenched in the Constitution: Canadian society is to be free and democratic. The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate

731

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standard against which a limit on a right or freedom must be shown, despite its HIIHFWWREHUHDVRQDEOHDQGGHPRQVWUDEO\MXVWLÀHG>2DNHVVXSUDDWS@ 91. In subsequent applications of the Oakes test, this Court has varied the standard RIMXVWLÀFDWLRQZLWKUHVSHFWWRSURRIDQGWKHHYLGHQWLDU\EXUGHQSODFHGRQWKHVWDWH granting a greater degree of deference to the legislative choice in cases of “social legislation”, that is, legislation with a valid objective related to social justice. For example, a less onerous burden has been placed on the state where the legislature was seeking to balance Charter rights and/or values (Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, 133 D.L.R. (4th) 1 (S.C.C.)), otherwise protect a socially vulnerable group (Irwin Toy Ltd. v. Quebec (Attorney-General), [1989 ] 1 S.C.R. 927, 58 D.L.R. (4th) 577 (S.C.C.)), balance competing interests of various social groups (McKinney v. University of Guelph, [1990] 3 S.C.R. 229, 76 D.L.R. WK 6&& RUDGGUHVVFRQÁLFWLQJVRFLDOVFLHQFHHYLGHQFHDVWRWKHFDXVHRI a social problem (RJ-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, 127 D.L.R. (4th) 1 (S.C.C.)). 92. As La Forest J. concluded in his dissenting reasons in RJ-MacDonald, supra, at SDUDLQGHWHUPLQLQJWKHGHJUHHRIÁH[LELOLW\DQGGHIHUHQFHWREHVKRZQ3DUOLDPHQW in a s. 1 analysis, this jurisprudence directs courts to take a contextual approach to the legislation in question, to evaluate both the nature of the right infringement and that of the social interest or values meant to be promoted by the legislation. For example, where the objective of the legislation promotes the protection of a socially vulnerable group and the nature of the infringement lies far from the core Charter values, deference will be warranted. 93. No issue was taken by the majority in that case with this characterization of the task facing courts except as regards the necessity of maintaining a limit to judicial deference. As McLachlin J. stated for the majority on this point, at para. 129: While remaining sensitive to the social and political context of the impugned ODZDQGDOORZLQJIRUGLIÀFXOWLHVRISURRILQKHUHQWLQWKDWFRQWH[WWKHFRXUWVPXVW nevertheless insist that before the state can override constitutional rights, there be a reasoned demonstration of the good which the law may achieve in relation to the seriousness of the infringement. It is the task of the courts to maintain this bottom line if the rights conferred by our constitution are to have force and meaning …. No matter how important Parliament’s goal may seem, if the state has not demonstrated that the means by which it seeks to achieve its goal are reasonable and proportionate to the infringement of rights, then the law must perforce fail. 94. Thus, while deference has been granted the state in its legislative role by the courts in undertaking a s. 1 analysis, this deference has been designed to better give effect to the general purposes of the Charter and with an understanding that Charter values may at times require a sensitive balancing. Deference has not been found warranted where to do so would frustrate the very values of the Charter, but rather to give better HIIHFWWKHUHWRDQGWRDOORZWKHOHJLVODWXUHWKHÁH[LELOLW\WRPDNHWKHVHGLIÀFXOWSROLF\ choices.

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95. A corollary to this principle should also be articulated: where the nature of the infringement lies at the core of the rights protected in the Charter and the social objective is meant to serve the interest of the majority as a whole, as represented by state DFWLRQFRXUWVPXVWEHYLJLODQWWRHQVXUHWKDWWKHVWDWHKDVGHPRQVWUDWHGLWVMXVWLÀFDWLRQ for the infringement. A less deferential stance should be taken and a greater onus remain on the state to justify its encroachment on the Charter right in question. In HDFKFDVHWKHUHIRUHRQO\DIWHUWKHREMHFWLYHRIWKHOHJLVODWLRQKDVEHHQLGHQWLÀHGFDQ the appropriate degree of deference be determined. Indeed, cases will be rare where it is found reasonable in a free and democratic society to discriminate. (See Andrews, supra, per Wilson J., at p. 154.) 96. As I stated in Egan, supra, at para. 75 “social” legislation per se will not, in the DEVHQFH RI WKHVH IDFWRUV ZDUUDQW GHIHUHQFH 7KLV ÀQGLQJ ZDV HFKRHG E\ WKH RWKHU dissenting judges in that case. Cory and Iacobucci JJ. particularly expressed concern about a deferential stance allowing governments to justify any discriminatory impact RQWKHEDVLVWKDWWKH\DUHEDODQFLQJWKHÀQDQFLDOQHHGVRIYDULRXVJURXSV6HH(JDQ supra, at para. 216.) In deciding whether deference is in order, the guiding principles have always been and continue to be those embodied in the Charter as articulated by Dickson C.J.C. in Oakes, supra. 7KHÀUVWWDVNLQDVVHVVLQJZKHWKHUWKHOLPLWWRWKHULJKWLQTXHVWLRQLVUHDVRQDEO\ MXVWLÀHG DV UHTXLUHG XQGHU V  ZLOO LQYROYH GHWHUPLQLQJ ZKHWKHU WKH UHVWULFWLRQ RQ funding has an objective of pressing and substantial concern in a free and democratic society. A contextual approach in this case reveals the principal objectives of the legislaWLRQWREHÀUVWWRSURYLGHDODUJHSXEOLFO\IXQGHGV\VWHPRIHGXFDWLRQLQWHQGHGWREH universally open and free to all, without discrimination; and second, to foster the values of a pluralist, democratic society, including the values of cohesion, religious tolerance and understanding. It would be misleading to look at either goal in isolation from the other. The choice of increasing social tolerance through encouraging the coming together of members of all communities is predicated on a system of education which is meant to be universal, and thus meet the needs of the majority of parents. 98. In such a system, the objective of encouraging religious tolerance becomes linked to discouraging non-secular education. However, such a link is not inevitable. In fact, it is QRWWKHJRDORIHQFRXUDJLQJVRFLDOWROHUDQFHDQGXQGHUVWDQGLQJWKDWFUHDWHVDGLIÀFXOW\ for the appellants, but rather the secular nature of the education. For example, as the $GOHUDSSHOODQWVVXEPLWWHGDQGRQHRIWKHUHVSRQGHQWV·H[SHUWVWHVWLÀHGWKHHQYLURQPHQW in the Jewish day schools was very conducive to social tolerance, successful integration, and acceptance of others. +DYLQJLGHQWLÀHGWKHREMHFWLYHVRIWKHOHJLVODWLRQLQTXHVWLRQ,PXVWQRZWXUQWR the question of the degree of deference to be shown the legislature in reviewing the respondents’ arguments and evidence to support the legislation. The circumstances in the case on appeal differ greatly from those previous cases where deference has been found appropriate. The value underlying the legislation in this appeal is the provision RIHGXFDWLRQLQDPDQQHUZKLFKIXOÀOOVWKHPDMRULWDULDQLQWHUHVWVRIDVHFXODUVRFLHW\

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STATE SUPPORT FOR RELIGIOUS EDUCATION

Arguably, it is not vulnerable and discrete social groups which are threatened by the funding of religious schools but rather the interests of the majority of citizens. 100. In comparison with this interest, the right infringement affects members of an insular religious minority within a minority. Moreover, the infringement impacts on an interest which is, as accepted by the courts below, essential to the survival of their communities and practices. Rather than being consonant with the values underlying the Charter, as articulated by Dickson C.J.C. in Oakes, supra, deference in such a case would promote the very problem the Charter is meant to remedy, that is, the unlimited and discriminatory impact of the interests and needs of the majority on the rights of a small and relatively powerless minority. The degree of judicial deference allowed in other cases is thus not warranted in this case. The state must clearly discharge the burdens of evidence and proof which are mandated under s. 1.  , DJUHH ZLWK WKH &RXUW RI$SSHDO·V ÀQGLQJ LQ WKLV FDVH WKDW WKH REMHFWLYHV RI providing free public education and of fostering tolerance are clearly pressing and substantial in a democratic society. In R. v. Jones, [1986] 2 S.C.R. 284 at p. 299, 31 D.L.R. (4th) 569 (S.C.C.), the reasons of La Forest J, dissenting but not on this point, clearly establish this conclusion. However, before discussing the proportionality element of the inquiry, I note that this same objective is no less pressing and substantial in the HGXFDWLRQV\VWHPVLQWKHÀYHRWKHUSURYLQFHVRI&DQDGDZKHUHLQGHSHQGHQWUHOLJLRXV schools receive partial funding, as indicated by the respondents’ evidence. 102. To reiterate my earlier conclusion, in the proportionality aspects of the s. 1 analysis, a more rigorous burden should thus rest with the respondents than has rested, perhaps, LQRWKHUFDVHVRI´VRFLDOOHJLVODWLRQµ7KHÀUVWVWHSLQDVVHVVLQJWKHSURSRUWLRQDOLW\ between the objective sought through the legislation and the right infringement is to ask whether the state has demonstrated a rational connection between restricting funding and the maintenance of a public school system which is open to all and fosters social tolerance. As I stated in Egan, supra, at para. 73, here the state is required to establish the relevance of the distinction created to the objective of the legislation. 103. In the case before us, the question becomes: has it been proven on a balance of probabilities that a denial of funding will further the purposes of the legislation? The respondents have argued that if full funding is provided to independent schools, there ZLOOEHDQRXWÁRZRIVWXGHQWVIURPWKHSXEOLFVFKRROV\VWHPRISRWHQWLDOO\VRJUHDWD magnitude as to change that system in a fundamental manner. The connection sought here is between the provision of funding and the schooling parents choose for their FKLOGUHQ,ÀQGWKDWWKLVOLQNKDVEHHQHVWDEOLVKHGE\WKHHYLGHQFHOHGE\WKHUHVSRQGHQWV through the expert testimony and reports as regards the possible effects on parental behaviour of increased funding and the report cited of a jurisdiction where full funding is provided. Also, while partial funding in other provinces resulted in a relatively low increase in the number of independent schools, this effect could be expected to be of greater and unpredictable magnitude were full funding provided. A rational connection has thus been established by the respondents between funding choices and the maintenance of universally open and religiously tolerant schools.

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104. The respondents have, however, failed to discharge the burden of proving that the means used, in this case, a complete denial of funding, constitute a minimal impairment of the right in question. As has been established in the jurisprudence following Oakes, supra, and recently reiterated in the majority reasons on this point in RJ-MacDonald, supra, at para. 160, >L@IWKHODZIDOOVZLWKLQDUDQJHRIUHDVRQDEOHDOWHUQDWLYHVWKHFRXUWVZLOOQRWÀQG [a legislative choice] overbroad merely because they can conceive of an alternative which might better tailor objective to infringement: see Reference re ss. 193 and 195.1(1)(c)) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123, at pp. 1196-97; R. v. Chaulk, [1990] 3 S.C.R. 1303, at pp. 1340-41; Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084, at pp. 1105-06. On the other hand, if the government fails WRH[SODLQZK\DVLJQLÀFDQWO\OHVVLQWUXVLYHDQGHTXDOO\HIIHFWLYHPHDVXUHZDVQRW chosen, the law may fail. I had made a similar observation in Egan, supra, at para. 75. 105. In this case, the appellants made the alternate submission that partial funding should be provided to the independent schools. The respondents’ evidence and argument nonetheless focused primarily on the potential effects of full funding to independent schools on the current system. This evidence consisted mainly of the opinion of expert witnesses and one study of the private school system in Ontario dating from 1985, the “Shapiro Report” (Report of the Commission on Private Schools in Ontario (Toronto, 1985)). Moreover, the evidence which they did lead as to the effects of partial funding points to a very limited impact on the current public system. In the evidence submitted by the respondents, estimates as to the increase in enrollment in independent schools in the event of partial funding ranged from 3% of the total enrollment in the public schools, to approximately 6%. Clearly, the loss of 3% to 6% of the students currently enrolled in public schools would not undermine the primary objectives of creating a large, universally open public school system, where people of varying beliefs and backgrounds will come together. In fact, the source of the 3% estimate, the “Shapiro Report”, concluded that some funding to independent schools could be extended without VLJQLÀFDQWO\LPSLQJLQJRQWKHODUJHUSXEOLFV\VWHP 106. While partial funding is, on the evidence submitted by the respondents, a means IRU UHDVRQDEO\ LPSDLULQJ WKH ULJKW LQ TXHVWLRQ \HW IXOÀOOLQJ WKH REMHFWLYHV RI WKH legislation, this option was not implemented by the legislature. I thus cannot agree with the conclusion that it is impossible to say whether a less intrusive measure such as partial funding might achieve the same objective with less of an infringement. In IDFWSDUWLDOGLUHFWIXQGLQJWRLQGHSHQGHQWUHOLJLRXVVFKRROVLVFXUUHQWO\SURYLGHGLQÀYH Canadian provinces, namely, Quebec, Manitoba, Saskatchewan, Alberta, and British Columbia. In these provinces, the minimum and maximum amounts of funding vary. Expressed as a percentage of the public school rate, the maximum rates of funding for independent religious schools in the provinces range from 50% to 75%. Partial funding would actually further the objective of providing a universally accessible education system and promote the value of religious tolerance in this context where some religious communities cannot be accommodated in the secular system.

735

STATE SUPPORT FOR RELIGIOUS EDUCATION

107. A further principle established in the majority reasons of RJ-MacDonald, supra, on the basis of preceding jurisprudence is that a complete ban or denial of a right, will EHPRUHGLIÀFXOWWRXSKROGWKDQDSDUWLDORQHHYHQZKHUHWKHH[HUFLVHRIWKHULJKWLQ question falls far from the core values upheld in the Charter. Complete bans will only be permissible where the government can show that this is absolutely necessary to further its objective. (See RJ-MacDonald, supra, per McLachlin J, at para. 163.) For example, in the majority reasons of RJ-MacDonald, a complete ban on advertising was QRWVHHQDVDGHPRQVWUDEO\MXVWLÀHGLQFXUVLRQRQIUHHGRPRIH[SUHVVLRQ7KLVSULQFLSOH was applied more recently in Ross, supra. In this case, as the complete exclusion of the teacher from the classroom was the only means to remedy the discriminatory effects RIWKHWHDFKHU·VLQYLGLRXVH[SUHVVLRQRQKLVVWXGHQWVLWZDVIRXQGWREHMXVWLÀHG/D Forest J., writing for the majority in Tetreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22 at p. 47, 81 D.L.R. (4th) 358 (S.C.C.), LQGLFDWHVWKDWWKLVSULQFLSOHDOVRDSSOLHVWRWKHWRWDOGHQLDORIDULJKWWRWKHHTXDOEHQHÀW of a program funded by the Federal government. 108. Given the necessity of a less deferential approach in the case on appeal for the reasons I mentioned earlier, and the fact that the infringement of the appellants’ equality ULJKWDULVHVIURPDODFNRIIXQGLQJ,ÀQGWKDWWKHFRPSOHWHGHQLDORIIXQGLQJLVWKH most excessive impairment possible, not one of a range of permissible alternatives. In essence, the respondent made no effort to impair minimally the equality right in question. Furthermore, the respondents’ own evidence regarding partial funding in RWKHU SURYLQFHV VXSSRUWV WKH ÀQGLQJ WKDW WKH REMHFWLYHV RI D SXEOLF VHFXODU VFKRRO system which fosters tolerance will not be eroded unduly by such accommodation. Partial funding could thus be provided without affecting the objectives and would ensure a less severe impairment. This measure could ensure some recognition of these communities and assist in their continuation, all the while maintaining the generally secular, universal, and socially tolerant nature of the public school system. 109. The respondents have argued that partial funding is already provided indirectly through property tax exemptions and tuition and charitable donation deductions in the federal income tax legislation. However, these do not relate to the direct provincial funding which is given the other schools in addition to revenues from property taxes. Moreover, they are not co-extensive with the costs borne by the parents; a large portion of this indirect support is from federal legislation over which the province has no control; DQGWKHEHQHÀWRIWKHWD[GHGXFWLRQZLOOEHJUHDWHUIRUSDUHQWVZLWKLQFUHDVHGHFRQRPLF resources. As Cory and Iacobucci JJ. explained in Egan, supra, at paras. 151 to 161 and SDUDVWRLWLVQRWDFFHSWDEOHWRÀQGOHJLVODWLRQFRQVWLWXWLRQDOO\YDOLGRQWKH EDVLVRIEHQHÀWVSURYLGHGLQWKHOHJLVODWLRQRIDQRWKHUMXULVGLFWLRQZKLFKDUHQHLWKHU FRH[WHQVLYHZLWKWKHEHQHÀWORVWQRUDYDLODEOHWRDOOZKRIDOOZLWKLQWKHLGHQWLÀDEOH group. Other concerns relating to the funding of independent schools which have been LGHQWLÀHGE\WKHUHVSRQGHQWVUHODWHWRDFFRXQWDELOLW\DQGWKHQHFHVVDU\SURPRWLRQRI tolerant values through hiring practices and other means. These could be addressed in fashioning the appropriate funding mechanism.

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110. In my view, the minimal impairment element of the Oakes test has not been VDWLVÀHGLQWKLVFDVH7KHUHVSRQGHQWVIDLOHGWRVKRZZK\DPHDVXUHOHVVLQWUXVLYHWKDQ a complete denial of the right in question was not adequate to promote the objectives of the legislation. The following conclusion which I drew in Egan, supra, at para. 75, applies equally to the case before us: In fact, to defer to the legislative prerogative in circumstances where social science YLHZV GR QRW VXEVWDQWLDOO\FRQÁLFWDQG ZKHUH WKHUHLV D UHDVRQDEOHDOWHUQDWLYH PHDQVRIIXOÀOOLQJWKHOHJLVODWLYHREMHFWLYHLQDZD\WKDWZRXOGPDWHULDOO\OHVVHQ the magnitude of the rights violation, would frustrate the purpose of the Charter. 111. Finally, while it is unnecessary to pursue the analysis, I note that the salutary effects of the legislation do not outweigh the deleterious impact on the claimants. No evidence has been adduced by the respondents that a total denial of funding is required to further the goals of creating a large, public education system which fosters the development of social tolerance and harmony. The respondents led no evidence establishing that the ÀVFDOLPSDFWRISDUWLDOIXQGLQJZRXOGFDUU\ZLWKLWIXQGDPHQWDOFKDQJHVLQWKHQDWXUH or extent of the public school system. We must also remember that the students of the independent religious schools would have a right to public expenditures were the public schools accessible to them. 112. This case involves a severe breach of an insular minority group’s equality rights, IRUWKHSXUSRVHVRIIXUWKHULQJPDMRULWDULDQLQWHUHVWVLQFLUFXPVWDQFHVZKHUHWKHEHQHÀWV DUHODUJHO\ÀQDQFLDO,Q5H6LQJKDQG0LQLVWHURI(PSOR\PHQWDQG,PPLJUDWLRQ>@ 1 S.C.R. 177 at pp. 218-220, 17 D.L.R. (4th) 422 (S.C.C.), Wilson J. held that budgetary FRQVLGHUDWLRQVDORQHZLOOQRWFRQVWLWXWHDUHDVRQDEOHMXVWLÀFDWLRQIRUDQLQIULQJHPHQW of a Charter right, a result which has not been overruled by this Court. At most, these considerations will come into play in the fashioning of a remedy, as indicated in Schachter v. Canada, [1992] 2 S.C.R. 679, 93 D.L.R. (4th) 1 (S.C.C.). Partial funding would strongly attenuate the discriminatory effects of legislation which completely denies any funding and thus any recognition of these communities’ educational needs. 7KHVDOXWDU\HIIHFWVRIWKHH[FOXVLRQEHLQJHVVHQWLDOO\ÀQDQFLDODUHQRWSURSRUWLRQDO to the serious infringement of the constitutional rights in question. 113. In conclusion, the respondents have not discharged their burden under s. 1. The funding scheme created in the Education Act represents an impermissible violation of WKHDSSHOODQWV·ULJKWWRHTXDOEHQHÀWRIWKHODZXQGHUVRIWKH&KDUWHU The School Health Support Service Plan ,ÀQGLWXQQHFHVVDU\WRDQDO\VHWKHVFKRROKHDOWKVHUYLFHVVHSDUDWHO\IURPWKH general question of funding for independent schools. I agree with McLachlin J. that, given their designation as a part of a “special education program”, the services to disabled students provided under the Health Insurance Act, R.R.O. 1990, Reg. 552, s. 14, in the public and separate schools, form an integral part of the education services funded in the province under the Education Act. Denial of funding for school health services in the independent schools, as part of the complete denial of funding to these schools, thus also infringes s. 15.

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STATE SUPPORT FOR RELIGIOUS EDUCATION

115. Regulation 552 which extends these services to those schools which receive public funds under the Education Act, clearly links these services to the objectives of that Act. It is evident that providing services which make it possible for disabled students to attend publicly funded schools furthers the objectives of the Education Act in creating a non-discriminatory, universal system of education. 0F/DFKOLQ-KRZHYHUDGGLWLRQDOO\ÀQGVWKDWWKHGHQLDORIWKHKHDOWKVXSSRUW program to independent religious schools is rationally connected to the objectives of the legislation. I cannot agree, given the characterization of the legislative objectives which I believe is warranted in the context. The twofold objectives involve the provision of education which is universally open to all students without discrimination and the encouragement of social tolerance and harmony. These objectives were undertaken in a scheme which allowed parents to opt out of the secular system. Given that the state has already recognized that parents may not be able to educate their children in the secular system, denying disabled children access to the services which make attendance DWLQGHSHQGHQWVFKRROVSRVVLEOHIRUWKHPFRQÁLFWVGLUHFWO\ZLWKWKHSULPDU\JRDORIWKH legislation, to provide education for all children in Ontario. 117. Moreover, as parents of children in the independent schools are unable, for UHOLJLRXVUHDVRQVWRVHQGWKHLUFKLOGUHQWRWKHVHFXODUSXEOLFVFKRROVLWLVGLIÀFXOWWR imagine how denying these children access to the independent schools will, in any VLJQLÀFDQWZD\IXUWKHUHQKDQFHWKHVRFLDOGLYHUVLW\DQGKDUPRQ\LQWKHSXEOLFVFKRRO system. Such a policy seems likely to encourage such parents to educate these children DWKRPHWKHUHE\ORVLQJWKHPDQ\EHQHÀWVRIHGXFDWLRQLQDVFKRROHQYLURQPHQWDQG compounding the marginalization and isolation of children with disabilities from these communities. The denial of the school health support services to independent schools clearly is not rationally supportable on the objectives of the legislation. $V,ÀQGQRUDWLRQDOFRQQHFWLRQEHWZHHQWKHGHQLDORIVFKRROKHDOWKVXSSRUWVHUYLFHV to children in independent denominational schools, it is unnecessary to undertake a determination of whether a minimal impairment has been imposed or whether the effects are proportionate to the objective. The discrimination caused by Regulation 552 is not GHPRQVWUDEO\MXVWLÀHGLQDIUHHDQGGHPRFUDWLFVRFLHW\,QP\YLHZWKHDSSURSULDWH remedy with respect to the school health services, is that recommended by McLachlin -$ SURYLVLRQ VKRXOG EH UHDG LQWR 5HJXODWLRQ  ZKLFK H[SDQGV WKH GHÀQLWLRQ RI “school” in the Education Act to include private denominational schools and extends WKH(GXFDWLRQ$FW·VGHÀQLWLRQRIVSHFLDOHGXFDWLRQSURJUDPVWRLQFOXGHWKRVHHTXLYDOHQW to the ones offered in the Roman Catholic and public school systems.

III. Disposition 119. I would allow the appeal with costs throughout. The appropriate disposition is to declare the current Education Act unconstitutional on the grounds of its violation of s. 15(1) of the Charter. However, this declaration should be suspended in its effect for two years so as to allow the provincial government the opportunity to undertake the necessary inquiry as to the level of direct funding to independent denominational schools which can be supported in the present system without unduly undermining

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the central objectives of the legislation. A reasonable, carefully tailored alternative legislative scheme of education funding must be chosen, one which minimally impairs the rights in question. Other reasonable requirements, such as accountability measures, for the independent schools may also be established. 120. With respect to the health support services, the “reading in” remedy proposed by McLachlin J. is appropriate. This should take effect immediately and should be maintained under the future legislative choices which aim to impair minimally the rights in question. 121. Finally, I would answer the constitutional questions as follows: 4XHVWLRQ'RWKHGHÀQLWLRQVRI´ERDUGµDQG´VFKRROµLQV RIWKH(GXFDWLRQ Act, R.S.O. 1990, c. E.2, together with the annual General Legislative Grants promulgated under ss. 11(3)(a) and 11(3)(b) thereof, infringe or deny the appellants’ freedom of religion under s. 2(a) of the Canadian Charter of Rights and Freedoms by not providing funding to religious-based independent schools? Answer: No. 4XHVWLRQD 'RWKHGHÀQLWLRQVRI´ERDUGµDQG´VFKRROµLQV RIWKH(GXFDtion Act, R.S.O. 1990, c. E.2, together with the annual General Legislative Grants promulgated under ss. 11(3)(a) and 11(3)(b) thereof, infringe or deny the appellants’ equality rights under s. 15(1) of the Canadian Charter of Rights and Freedoms by providing funding to public school boards but not to religious-based independent schools? Answer: Yes. 4XHVWLRQE 'RWKHGHÀQLWLRQVRI´ERDUGµDQG´VFKRROµLQV RIWKH(GXFDtion Act, R.S.O. 1990, c. E.2, together with the annual General Legislative Grants promulgated under ss. 11(3)(a) and 11(3)(b) thereof, infringe or deny the appellants’ equality rights under s. 15(1) of the Canadian Charter of Rights and Freedoms by providing funding to Roman Catholic separate school boards but not to religiousbased independent schools? Answer: Not necessary to decide. 4XHVWLRQ,IWKHDQVZHUWR4XHVWLRQRULVLQWKHDIÀUPDWLYHLVWKHQRQIXQGLQJ RIUHOLJLRXVEDVHGLQGHSHQGHQWVFKRROVMXVWLÀHGDVDUHDVRQDEOHOLPLWSXUVXDQWWR s. 1 of the Canadian Charter of Rights and Freedoms? Answer: No. Question 4(a): Does s. 14 of Regulation 552, R.R.O. 1990, made under s. 45 of the Health Insurance Act, R.S.O. 1990, c. H.6, infringe the appellants’ freedom of religion under s. 2(a) of the Canadian Charter of Rights and Freedoms by prescribing school health support services as insured services to an insured person who is placed LQDVSHFLDOHGXFDWLRQSURJUDPLQD´VFKRROµDVGHÀQHGLQV RIWKH(GXFDWLRQ Act, but not to an insured person in a religious-based independent school?

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Answer: Not necessary to decide. Question 4(b): Does s. 14 of Regulation 552, R.R.O. 1990, made under s. 45 of the Health Insurance Act, R.S.O. 1990, c. H.6, infringe the appellants’ equality rights under s. 15(1) of the Canadian Charter of Rights and Freedoms by prescribing school health support services as insured services to an insured person who is placed in a VSHFLDOHGXFDWLRQSURJUDPLQD´VFKRROµDVGHÀQHGLQV RIWKH(GXFDWLRQ$FW but not to an insured person in a religious-based independent school? Answer: Yes. 4XHVWLRQ  ,I WKH DQVZHU WR 4XHVWLRQ D  RU E  LV LQ WKH DIÀUPDWLYH LV WKH prescribing of school health support services as insured services to an insured person ZKRLVSODFHGLQDVSHFLDOHGXFDWLRQSURJUDPLQD´VFKRROµDVGHÀQHGLQV RI the Education Act, but not to an insured person in a religious-based independent VFKRROMXVWLÀHGDVDUHDVRQDEOHOLPLWSXUVXDQWWRVRIWKH&DQDGLDQ&KDUWHURI Rights and Freedoms? Answer: No. 122. SOPINKA J. (0$-25- concurring): – In this appeal the Adler appellants challenged the legislative scheme for the funding of public and Roman Catholic separate school education on two bases. First, they alleged that the funding of separate Roman Catholic schools creates a distinction and inequality that violates s. 2(a) and s. 15 of the Canadian Charter of Rights and Freedoms. Second, they submit that the funding of public schools while failing to fund independent religious schools constitutes a violation of these provisions. The Elgersma appellants limited their submissions to the second ground of attack. :LWKUHVSHFWWRWKHÀUVWJURXQGDGYDQFHGE\WKH$GOHUDSSHOODQWVWKHGHFLVLRQRI this Court in the Reference re Bill 30, an Act to Amend the Education Act (Ontario), [1987] 1 S.C.R. 1148, 40 D.L.R. (4th) 18 (S.C.C.), is a complete answer. Legislation for the funding of separate schools is supported under both s. 93(1) and 93(3) of the Constitution Act, 1867. In the Reference re Bill 30, this Court decided that legislation passed pursuant to these provisions was immune from Charter attack. On the other hand, legislation funding the public school system stands on a different footing. It is passed pursuant to the opening words of s. 93 conferring on the province a plenary power to legislate with respect to education. This power is no different from the heads of power contained in s. 92 of the Constitution Act, 1867. Like the latter, it is subject to the Charter. Nothing in the Reference re Bill 30 suggests otherwise. 124. My colleague Justice Iacobucci would hold that s. 93 is a complete code with respect to denominational schools and that presumably the province is restricted to legislation that is mandated by s. 93(1) or permitted by s. 93(3). He concludes that this renders such legislation immune from s. 2(a) of the Charter but apparently not immune from s. 15. In my view, this wholly unwarranted restriction on the plenary power is supported by neither authority nor principle.

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:LWKUHVSHFWWRVP\FROOHDJXHÀQGVWKDWLQFHUWDLQUHVSHFWVDQGLQSDUWLFXODU with respect to funding, s. 93(1) can be interpreted to extend constitutional protection QRWRQO\WR´GHQRPLQDWLRQDOVFKRROVµVSHFLÀHGLQWKHVHFWLRQEXWWRSXEOLFVFKRROVDV well. I cannot agree with this proposition. My reasons, in summary, are as follows: (1) The historic compromise which is embodied in s. 93 had as its purpose the protection of the religious schools of the minority, primarily Protestants in Quebec and Roman Catholics in Ontario. The majority schools needed no protection. (2) Section 93 makes no mention of protection of the rights and privileges of the public schools. (3) No decision of this Court or of any other court can be cited to support this proposition and all the authorities support the opposite conclusion. (4) If s. 93 protects the rights and privileges of the public schools, then all rights and privileges enjoyed at Confederation must be included. There is no basis for concluding that while all rights and privileges of denominational schools are protected, the only privilege protected relating to public schools is funding. (5) Entrenching rights and privileges of public schools relative to a benchmark of 1867 places the province in a strait-jacket which impedes the progressive reform of educational institutions.  , ZLOO ÀUVW GHYHORS WKH UHDVRQV IRU P\ FRQFOXVLRQ WKDW WKH &KDUWHU DSSOLHV WR the legislation that provides funding to the public schools but not to the independent religious schools. I will then address the submission of the appellants that the legislation violates s. 2(a) and s. 15 of the Charter.

1. Section 93 – A Complete Code 127. My colleague deals with the applicability of s. 2(a) and s. 15 separately. With respect to s. 2(a), he concludes that s. 93 “is a comprehensive code with respect to denominational school rights. As a result, s. 2(a) of the Charter cannot be used to enlarge WKLVFRPSUHKHQVLYH&RGHµ:LWKUHVSHFWWRVKRZHYHUKHÀQGVWKDWWKHIXQGLQJRI public schools is impliedly within the protection of s. 93(1). 128. In my view, if the impugned legislation is insulated from the Charter because it is a comprehensive code, it would be insulated from both s. 2(a) and s. 15. I propose to deal with this issue on this basis. What my colleague’s proposition amounts to is that s. 93 limits the power of the province to extend funding to the appellants and, therefore, the Charter cannot enlarge those powers. Otherwise, the Charter would invalidate the limiting provisions of s. 93 contrary to this Court’s decision in the Reference re Bill 30. The contrary view that s. 93 is a comprehensive Code and that funding cannot be extended to independent religious schools would prevent the province from creating alternative religious schools such as those which exist in Alberta. See School Act, S.A. 1988, c. S-3.1, s. 16. It would also call into question the Alberta legislation. Later in his reasons my colleague states that “[t]he province remains free to exercise its plenary SRZHUZLWKUHJDUGWRHGXFDWLRQLQZKDWHYHUZD\LWVHHVÀW«>7@KHSURYLQFHFRXOGLILW

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STATE SUPPORT FOR RELIGIOUS EDUCATION

so chose, pass legislation extending funding …” to independent religious schools. These schools are not within the guarantees of s. 93 and if the province is free to legislate as suggested then s. 93 is not a comprehensive Code with respect to legislative powers in relation to denominational schools. 129. The problem with this proposition is that the legislation funding the public school system is passed pursuant to the plenary power contained in the opening words of s. 93. As well, legislation extending funding to the appellants would call for the exercise of the plenary power. The plenary power is not restricted by the other provisions of s. 93 unless: (a) a right or privilege protected by s. 93(1) is affected or, (b) the legislation affects “any Right or Privilege of the Protestant or Roman Catholic Minority” created after Confederation in which case an appeal lies under s. 93(3) to the Governor General in Council. Neither the provisions of the Education Act, R.S.O. 1990, c. E.2, funding public schools nor legislation that would fund religion-based independent schools are within the terms of s. 93(3). Whether such legislation deals or would deal with a right or privilege protected by s. 93(1) is the issue with respect to the second branch of my colleague’s reasons which I will address below. 130. The broad scope of the power of the province over education conferred by s. 93 is manifest from the breadth of the language of the opening words: “In and for each Province the Legislature may exclusively make Laws in relation to Education ….” This power has been characterized as “a plenary power” over education to stress that it is a provincial power on the same footing as the provincial powers granted to the provinces in s. 92 of the Constitution Act, 1867. 131. In Hirsch v. Protestant Board of School Commissioners of Montreal, [1928 ] A.C. 200, [1928] 1 D.L.R. 1041 (P.C.), Viscount Cave L.C. commented on the scope of the plenary power at p. 215: While s. 93 of the Act of 1867 protects every right or privilege with respect to denominational schools which any class of persons may have had by law at the Union, it does not purport to stereotype the educational system of the Province as then existing. On the contrary, it expressly authorizes the Provincial Legislature to make laws in regard to education subject only to the provisions of the section; and it LVGLIÀFXOWWRVHHKRZWKH/HJLVODWXUHFDQHIIHFWLYHO\H[HUFLVHWKHSRZHUVRHQWUXVWHG to it unless it is to have a large measure of freedom to meet new circumstances and needs as they arise. This passage was cited with approval in Attorney-General of Quebec v. Greater Hull School Board, [1984] 2 S.C.R. 575 at pp. 585-86, 15 D.L.R. (4th) 651 (S.C.C.), and Greater Montreal Protestant School Board v. Quebec (Attorney-General), [1989] 1 S.C.R. 377 at pp. 399-400, 57 D.L.R. (4th) 521 (S.C.C.). 132. It is incontestable that if the plenary power stood alone, legislation providing funding to religion-based independent schools would be competent to the province and that legislation which failed to do so would be subject to Charter scrutiny. The limitation, if any, which restricts the power so as to immunize it from the Charter must be imposed by the other provisions of s. 93. What are these limitations?

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133. In the Reference re Bill 30, Estey J. stated at p. 1201: The opening words of s. 93 are a clear grant of legislative power to the province, providing the province with the authority to make laws in relation to education. As such, the opening words of s. 93 are similar to the various grants of provincial power found in s. 92 of the Constitution Act, 1867 and might well have been included in s. 92 …. And at p. 1202: When read with the opening words of s. 93, which provide the province with a general plenary power to “exclusively make laws in relation to Education”, it is clear that the province can make any laws with respect to education subject only to two limitations. First, any such laws may not violate the minimum constitutional guarantees found in s. 93(1), and second, the exercise of this provincial power may also face federal intervention under s. 93(4). Support for this general proposition can be found in both Brophy v. Attorney-General of Manitoba, [1895] A.C. 202, and Tiny Separate School Trustees v. The King, [ [1928] A.C. 363, [1928] 3 D.L.R. 753 (P.C.)]. 134. With respect to s. 93(1), as I have already indicated, this limitation is dependent on DÀQGLQJWKDWOHJLVODWLRQIXQGLQJWKHDSSHOODQWV·VFKRROVZRXOGDIIHFWDULJKWRUSULYLOHJH protected by s. 93(1). For reasons that will follow, I am of the opinion that, even if it could be said that extending the funding to the appellants would affect the funding of public schools, the latter is not a right or privilege protected by s. 93(1). 135. As for s. 93(3), Wilson J., speaking for the majority, stated at p. 1169: On their face these provisions would appear to support the view that Bill 30 is a valid exercise of legislative power by the provincial legislature. The opening words of s. 93 vest an exclusive plenary power over education in the Province “subject and according to” the provisions that follow. Section 93(3) does not appear to derogate in any way from that power. 7KHUHLVQRWKLQJLQV WKDWUHVWULFWVH[WHQGLQJIXQGLQJWRRWKHUV,WVSHFLÀcally contemplates the exercise of the plenary power to create a “System of Separate or Dissentient Schools” where one does not exist. In addition, it provides an appeal to the Governor General in Council from, inter alia, any legislation which affects a right or privilege protected under s. 93(1) or created by subsequent legislation. Neither the legislation funding public schools nor legislation extending funding to the appellants’ schools would be within the terms of s. 93(3). It would not affect any right or privilege of the Protestant or Roman Catholic minority and it would not establish a system of separate or dissentient schools. 137. Bill 30 was held to be immune from Charter scrutiny because it was an exercise RI WKH SOHQDU\ SRZHU LQ D PDQQHU VSHFLÀFDOO\ FRQWHPSODWHG E\ V   DQG ZKLFK authorized legislation which made distinctions on the basis of religion. A Charter remedy in these cases, based on this distinction, would negate the power to make them.

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The effect would be that one part of the Charter would invalidate another. At p. 1198, Wilson J. stated: But the province is master of its own house when it legislates under its plenary power in relation to denominational, separate or dissentient schools. This was the agreement at Confederation and, in my view, it was not displaced by the enactment of the Constitution Act, 1982. To the same effect, Estey J., at p. 1207, stated: The power to establish or add to a system of Roman Catholic separate schools found in s. 93(3) expressly contemplates that the province may legislate with respect to a religiously-based school system funded from the public treasury. Although the Charter is intended to constrain the exercise of legislative power conferred under the Constitution Act, 1867 where the delineated rights of individual members of the community are adversely affected, it cannot be interpreted as rendering unconstitutional distinctions that are expressly permitted by the Constitution Act, 1867. [Emphasis added.] :KHQWKHSURYLQFHH[HUFLVHVLWVSOHQDU\SRZHURXWVLGHRIWKHDUHDVVSHFLÀHGLQ s. 93(1) and s. 93(3), it cannot be said that any distinctions that violate the Charter are “expressly permitted” or even contemplated. Legislation in such cases is no different than legislation under any of the heads of s. 92. Giving effect to the Charter will not invalidate any power conferred by s. 93 and the principle in the Reference re Bill 30 has no application. 139. This conclusion is not affected by anything that was said in Mahe v. Alberta, [1990] 1 S.C.R. 342, 68 D.L.R. (4th) 69 (S.C.C.), to which my colleague refers. In Mahe, parents of children of the minority Francophone community in Edmonton claimed the right to management and control of their schools. In furtherance of this claim, WKH\VRXJKWWKHEHQHÀWRIVLQLQWHUSUHWLQJWKHLUULJKWVXQGHUVRIWKH&KDUWHU Dickson C.J.C. refused to accede to this argument. He observed that s. 23 provides in a comprehensive way for protection of minority linguistic rights. English and French minorities are given preferential treatment over other groups and it would be quite incongruous for members of one of these groups to rely on s. 15 which seeks to attain universal equality for all individuals. 140. The situation in Mahe is not at all comparable to the situation in which the appellants claim Charter relief. They are not members of a group entitled to claim protection under s. 93(1) or s. 93(3). They cannot be told, as were the appellants in Mahe, that there is already a special provision in the Charter for protection of their rights. The case would be comparable if parents of children of a separate school sought the aid of s. 15 to maximize their rights and privileges under s. 93.

2. Section 93(1) and the Charter 141. The second proposition advanced by my colleague which serves to insulate the impugned legislation from Charter scrutiny under s. 15 is that pre-Confederation legislation equated certain rights and privileges of separate schools to those of public

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schools and thereby impliedly brought these rights and privileges within the protection of s. 93(1). Not all rights and privileges of public schools existing at Confederation are protected, just those that relate to the existence of public schools “which are open to all members of society, without distinction”. 142. I note at the outset that this proposition erroneously assumes that because certain rights and privileges of the Protestant majoritarian schools are relevant in identifying the rights and privileges of separate schools, the former are ipso facto given constitutional protection. My colleague says that “public schools are part and parcel of s. 93’s comprehensive Code”. But, the rights and privileges of public schools are merely the benchmarks for ascertaining the rights and privileges of separate schools. Certain provisions of pre-Confederation statutes gave separate schools the same rights as enjoyed by public schools. While the terms of those statutes are relevant to ascertain what these rights and privileges were, the statutes themselves are not given constitutional status. Only the rights and privileges of separate schools were given constitutional protection. 143. My colleague further states that the plenary power is entrenched only as long as it LVH[HUFLVHGZLWKLQWKHFRQÀQHVUHIHUUHGWRDERYH7KHSURYLQFHFDQOHJLVODWHKRZHYHU to extend funding to independent religious schools which, of course, are not open to all without distinction. Such legislation would perforce be subject to the Charter. It follows logically that failure to legislate would also be subject to the Charter. On a more fundamental basis, I cannot accept that, when the plenary power is exercised divorced from ss. 93(1) and 93(3), it is entrenched in the sense that its exercise is immune from Charter scrutiny. It is entrenched only to the same extent that other powers in s. 92 are entrenched. It is in the Constitution and like other powers can be exercised only in conformity with the Charter. 144. With due respect to the contrary view, the conclusion I have reached is supported by: (1) the wording of s. 93 of the Constitution Act, 1867 and s. 29 of the Constitution Act, 1982; (2) the historical background; (3) the cases; and (4) policy.

3. Sections 93 and 29 145. Section 93(1) provides: 93. … (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 …. 146. There is no mention in s. 93(1) of any rights or privileges of the common schools or of the rights and privileges of the majority. 147. Section 93(2) refers to the separate schools and the dissentient schools. No mention is made of common schools or the schools of the majority. 148. Section 93(3) refers only to “any Right or Privilege of the Protestant or Roman Catholic Minority”. In ascertaining what rights and privileges are protected by s.

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93(1), it is necessary to review the history of pre-Confederation legislation. As stated by Wilson J. in the Reference re Bill 30, at 1177: It is immediately apparent that the scope of the rights and privileges protected under the section must be determined by ascertaining the rights and privileges in existence at the time of the Union. Was there any right or privilege entitling denominational secondary schools to full funding by law at the time of Confederation? To answer this it is necessary to consider the history of pre-Confederation legislation pertaining to education in Upper Canada. 149. In some instances, as in the case of funding, the historical evidence reveals that the denominational schools were treated on an equal footing with the majority school system. In such cases, the only relevance of the right and privilege is to establish the constitutionally protected entitlement of the denominational school. The fact that historical evidence relating to the entitlement of the majority schools is resorted to does not mean that it is thereby given constitutional protection. 150. In 1982 the framers of the Charter had occasion to consider what protection was provided under s. 93(1). Section 29 was enacted to immunize rights protected by s. 93(1) from Charter scrutiny. Section 29, therefore, serves as a statement of Parliament DQGWKHSURYLQFHVZKLFKUDWLÀHGWKH&KDUWHUDVWRWKHH[WHQWRIWKHULJKWVJXDUDQWHHGE\ s. 93(1). In the Reference re Bill 30, Wilson J. was of the view that s. 29 immunized s. 93(1) from Charter review even though she concluded that such immunity existed apart from s. 29. Section 29 was adopted for greater certainty. This in no way diminishes its force as a statement by Parliament and provinces as to what s. 93(1) protects. Section 29 is a clear statement that the rights and privileges guaranteed under s. 93 are those of “denominational, separate or dissentient schools”.

4. Historical Background 151. A number of cases have reviewed the background to the historical compromise which s. 93 embodies. See Brophy v. Attorney-General of Manitoba, [1895] A.C. 202 (P.C.), and Reference re Adoption Act, [1938] S.C.R. 398, [1938] 3 D.L.R. 497 (S.C.C.). The most recent review is contained in the reasons of Wilson J. in the Reference re Bill 30. At p. 1173, Wilson J. sums up the situation as follows: The protection of minority religious rights was a major preoccupation during the negotiations leading to Confederation because of the perceived danger of leaving the religious minorities in both Canada East and Canada West at the mercy of overwhelming majorities. 152. Wilson J. refers to extracts in the Parliamentary debates of the time to stress the crucial importance of protecting the religious minority. At p. 1173, the statement of Lord Carnarvon is quoted: “… the object of the clause [s. 93] is to secure to the religious minority of one province the same rights, privileges and protection which the religious minority of another Province may enjoy. The Roman Catholic minority of Upper Canada,

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the Protestant minority of Lower Canada and the Roman Catholic minority of the Maritime Provinces, will thus stand on a footing of entire equality.” And, at pp. 1173-4, Sir Charles Tupper in Debates of the House of Commons dated March 3, 1896, is quoted as follows: “… 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 …. ,VD\WKHUHIRUHLWLVLPSRUWDQWLWLVVLJQLÀFDQWWKDWZLWKRXWWKLVFODXVHZLWKRXWWKLV guarantee for the rights of minorities being embodied in that new constitution, we should have been unable to obtain any confederation whatever. That is my reason for drawing attention to it at present.” 153. No mention is made in these historic statements of protection for the majority. The reason is obvious. The majority was in control of the legislature and had no need to have special guarantees in the Constitution Act, 1867. Wilson J. sums it up at p. 1193: The security afforded the Roman Catholic minority through the tying of funding for its schools to a proportion of the funding for the common schools was in the certainty that the Legislature would never cut off funding for the common schools. There would therefore always be a grant in which the separate schools would be entitled to share. 154. There is another aspect of my colleague’s analysis of this point to which the historical background is pertinent. The rights and privileges that s. 93(1) protects are those which existed at law at Confederation. With respect to denominational schools, all such rights are protected provided they relate to the denominational character of the school. See Greater Montreal Protestant School Board v. Quebec (Attorney-General), supra. If the plenary power to legislate to protect the existence of public schools “designed for all members of the community alike, whatever their creed” was similarly entrenched, RQHZRXOGH[SHFWWRÀQGVRPHKLVWRULFDOVXSSRUWIRUWKLV2QHZRXOGH[SHFWWRÀQG pre-Charter challenges to the teaching of Christianity in the public schools on this basis. The historical record, however, does not support this scenario. While education in common schools might have been classed as non-denominational, it certainly did not conform to the model which my colleague says s. 93 is intended to protect from the Charter. Instead, the Council for Public Instruction for Upper Canada prescribed that “… Christianity is the basis of our whole system of elementary education … [and] that principle should pervade it throughout” (as quoted by Pierre Carignan, “La raison d’être de l’article 93 de la Loi Constitutionnelle de 1867 à la lumière de la législation préexistante en matière d’éducation” (1986), 20 R.J.T. 375, at p. 431, note 269). Moreover, where separate denominational schools were allowed to exist, children of that denomination were not entitled to attend common schools but were required to attend separate school: An Act respecting Common Schools in Upper Canada, C.S.U.C.

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FV 'LVVHQWLHQWSDUHQWVWKDWGLGQRWKDYHWKHEHQHÀWRIDVHSDUDWH school had to rely on a statutory exemption in order for their children to be excused from participating in religious activities or instruction in the public school system. See An Act respecting Common Schools in Upper Canada, s. 169. Similar provisions remained virtually unchanged on the books in Ontario until recent times. The very H[LVWHQFHRIVXFKDQH[HPSWLRQFRQÀUPVWKHQRQVHFXODUQDWXUHRIWKHSXEOLFVFKRRO system at the time of Confederation. 155. The issue of religious education in Ontario public schools was the subject of two comprehensive government studies: the Royal Commission on Education in Ontario (the +RSH&RPPLVVLRQ LQWKHHDUO\ÀIWLHVDQGWKH&RPPLWWHHRQ5HOLJLRXV(GXFDWLRQLQWKH Public Schools of the Province of Ontario (the MacKay Committee) in the late sixties. Referring extensively to Christian values and ideas as the cornerstone of Canadian society, the Hope Commission Report endorsed the existing system of religious education in public schools, in particular the teaching of “honesty and Christian love”. 156. The MacKay Report (Report on Religious Information and Moral Development), released in 1969, examined the existing system and concluded that the religious curriculum was designed to indoctrinate students in the Christian faith and way of life. Considering the exemption provisions, the Committee concluded that they were discriminatory and unfair. While some changes towards secularization took place, it was not until the provisions were successfully challenged under the Charter that the exemption provisions were removed. 157. Zylberberg v. Sudbury Board of Education (Director) (1988), 65 O.R. (2d) 641, 52 D.L.R. (4th) 577 (Ont. C.A.), and Canadian Civil Liberties Assn. v. Ontario (Minister of Education) (1990), 71 O.R. (2d) 341, 65 D.L.R. (4th) 1 (Ont. C.A.) (hereinafter referred to as the “Elgin County case”), in which religious instruction was successfully challenged, contain no discussion that would suggest that there was any consideration given DVWRZKHWKHUWKHSOHQDU\SRZHUKDGEHHQH[HUFLVHGZLWKLQWKHFRQÀQHVWKDWLPPXQL]H its exercise from Charter challenge. In my view these cases were decided, and rightly so, on the ground that the Charter applied because they were not dealing with protected rights in that rights and privileges of the public school system were at issue.

5. The Cases 158. The judgments of this Court and the Privy Council that have analysed s. 93 uniformly refer only to the rights and privileges of religious minorities. No case has EHHQFLWHGDQG,KDYHEHHQXQDEOHWRÀQGRQHWKDWVXJJHVWVWKDWWKHSURWHFWLRQRIV  extends to aspects of the public school system. In Hirsch, supra, at p. 207, Viscount Cave stated: In order to determine whether the restrictions imposed by s. 93 of the Act of 1867 DUHLQIULQJHGE\WKH4XHEHFVWDWXWHRILWLVQHFHVVDU\WRFRQVLGHUÀUVWZKHWKHU any and which of the schools referred to in that statute were denominational schools in which any class of persons had by law any right or privilege at the Union, and, secondly, whether and to what extent that statute prejudicially affects any such right or privilege.

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159. In the Reference re Bill 30 there are numerous references to the scope of s. 93(1). I have already referred to them above. No suggestion is made that the protection relates to rights and privileges of public schools. My colleague’s reference to the statements of Wilson J. in relation to the plenary power does not support his paraphrase to the effect that legislation under the plenary power relating to funding for secular schools is insulated from Charter attack. It is clear that it is the exercise of the plenary power LQUHODWLRQWRWKHPDWWHUVVSHFLÀFDOO\DXWKRUL]HGE\V WKDWLVLPPXQH. The whole of the passage from which my colleague’s extracts are taken makes this clear. Wilson J. states, at p. 1198: The question then becomes: does s. 29 protect rights or privileges conferred by legislation passed under the province’s plenary power in relation to education under the opening words of s. 93? In my view, it does although again I do not believe it is required for this purpose. The Confederation compromise in relation to education is found in the whole of s. 93, not in its individual parts. The section 93(3) rights and privileges are not guaranteed in the sense that the s. 93(1) rights and privileges are guaranteed, i.e., in the sense that the legislature which gave them cannot later pass laws which prejudically affect them. But they are insulated from Charter attack as legislation enacted pursuant to the plenary power in relation to education granted to the provincial legislatures as part of the Confederation compromise. Their protection from Charter review lies not in the guaranteed nature of the rights and privileges conferred by the legislation but in the guaranteed nature of the province’s plenary power to enact that legislation. What the province gives pursuant to its plenary power the province can take away, subject only to the right of appeal to the Governor General in Council. But the province is master of its own house when it legislates under its plenary power in relation to denominational, separate or dissentient schools. 160. As I have pointed out earlier in my reasons, the Court was at pains to stress that the plenary power itself was no different in character than any of the powers in s. 92. When exercised in the manner expressly permitted by s. 93(3) in relation to denominational schools, the legislature is expressly authorized to make distinctions on the basis of religion. This is what renders the legislation immune from Charter review. If subject to the Charter, s. 93(3) would be emasculated. This would mean that one part of the Constitution would be permitted to invalidate another. As explicitly stated by Estey J. in the passage quoted above from Reference re Bill 30 at p. 1207, “it [the Charter] cannot be interpreted as rendering unconstitutional distinctions that are expressly permitted by the Constitution Act, 1867”. 161. In Greater Montreal Protestant School Board v. Quebec (Attorney-General), supra, our Court held that even in respect of denominational schools only denominational aspects and non-denominational aspects related thereto were protected. At issue was the validity of s. 16(7) of the Education Act, R.S.Q., c. I-14, and regulations thereunder which sought to regulate the non-denominational aspects of elementary and secondary curriculum. The appellants contended that these provisions violated a right protected under s. 93(1) enabling the Protestant minority in Quebec to manage and control its schools, including curriculum. At p. 411, Beetz J. stated:

749

STATE SUPPORT FOR RELIGIOUS EDUCATION

… certain non-denominational aspects of curriculum may fall within the protection of the s. 93(1) guarantee because they are “with respect to Denominational Schools”. In other words, constitutional protection “with respect to Denominational Schools” has both denominational and non-denominational components. The problem in Hull [Attorney-General of Quebec v. Greater Hull School Board, [1984] 2 S.C.R. 575, 15 D.L.R. (4th) 651 (S.C.C.)] in this case and in other like cases, is determining the extent to which these non-denominational aspects of curriculum merit constitutional protection. 162. In Mahe, supra, it was argued that the transfer of power to linguistic minority boards would infringe the rights and privileges of denominational schools under s. 93(1). Dickson C.J.C., speaking for the Court, held that transfer of powers of management and control to a minority linguistic board would not alter the denominational character of denominational schools. At pp. 382-83, he observed: The transfer of the powers in respect of management and control thus amounts to the regulation of a non-denominational aspect of education, namely, the language of instruction, a form of regulation which the courts have long held to be valid …. I note that this conclusion was also reached by the Ontario Court of Appeal in Reference re Education Act of Ontario and Minority Language Education Rights, [(1984), 10 D.L.R. (4th) 491 (Ont. C.A.)]. That court stated that the provinces enjoy a “full power of regulation”, adding on p. 538, that “[s]o long as the legislation regulates education and does not threaten the existence of the separate schools or interfere with their denominational character it is valid”. 163. In the latest pronouncement by this Court with respect to the scope of the protection afforded by s. 93(1), Gonthier J., writing for the Court in Reference re Education Act (Que.), [1993] 2 S.C.R. 511 at pp. 539-40, 105 D.L.R. (4th) 266 (S.C.C.), states: Section 93 of the Constitution crystallizes the rights and privileges pertaining to denominational schools under the law in effect at the time of Confederation: it is in a sense a snapshot of the legislative situation in 1867. … As the rights and privileges protected by s. 93(1) of the Constitution are those with respect “to Denominational Schools”, it is helpful in determining the scope of the constitutional protection to try to distinguish the content of denominational status EH\RQGWKHGHÀQLWLRQRIWKHGHQRPLQDWLRQDOVFKRROLWVHOI

6. Policy 164. Section 93, although it served to promote the union of the provinces, has also been a considerable impediment to reform designed to modernize the education system. Changes have been achieved only through long and costly litigation as the plethora of cases dealing with s. 93 attests. As a consequence, one province is nearing completion of the process of attempting to discard this costly yoke. The process, however, involves a long and expensive constitutional amendment. In light of the foregoing, in my view it would be a retrograde step to add to the costly restrictions on the power of provinces 750

6. CANADIAN JUDICIAL DECISIONS

to legislate with respect to education. Inasmuch as it has not been suggested in the past that changes to the public school system may infringe s. 93, a decision to this effect ZRXOGOLNHO\SURGXFHDÁXUU\RIOLWLJDWLRQDVPDQ\RIWKHSDVWFKDQJHVWRWKHSXEOLF school system are challenged on the basis of their departure from the Confederation benchmark. Moreover, the distinction between protected rights and those which are subject to provincial legislation is less than crystal clear. 165. To conclude on this aspect of the appeal, I am of the view that the legislation which funds public schools but not religious-based independent schools is subject to Charter scrutiny. I now turn to consider whether the legislation violates the Charter.

7. The Charter²)UHHGRPRI5HOLJLRQ 166. It is evident that there is some overlap between the claims based on s. 2(a) and s. 15 of the Charter. Under both sections, the appellants argue that the non-funding of private religious schools imposes an unfair burden on them. In both contexts, the argument is made that the appellants suffer an economic disadvantage in relation to parents who send their children to secular public schools. On the one hand, this economic burden is said to amount to an infringement of freedom of religion. On the other hand, this VDPHEXUGHQLVVDLGWRGHQ\WRWKHDSSHOODQWVWKHHTXDOEHQHÀWRIWKHODZRQJURXQGV of religion, in breach of equality rights guaranteed under s. 15. During oral argument, LWEHFDPHLQFUHDVLQJO\GLIÀFXOWWRLGHQWLI\ZKHWKHUDSDUWLFXODUDUJXPHQWVXSSRUWHGD claim under s. 2(a) or under s. 15. 7KLVRYHUODSPD\ÁRZIURPWKHPDQQHULQZKLFKWKLV&RXUWDSSURDFKHGWKHTXHVWLRQ of religious freedom in R. v. Edwards Books and Arts Ltd., [1986] 2 S.C.R. 713, 35 D.L.R. (4th) 1 (S.C.C.). There this Court held that a Sunday-closing law infringed s. 2(a) because it imposed an economic burden on, inter alia, Saturday observers but not on Sunday observers. The analysis compared the effect of the legislation on different religious groups and on non-observers. Yet the Court in Edwards Books explicitly did not consider the issue under s. 15 because that section was not in force at the time the appellants were charged with breaching the Sunday-closing legislation. 168. The appellants submit that the current funding scheme violates their freedom of religion under s. 2(a) of the Charter by mandating that children be educated but providing funding only to secular public schools and not to religious-based independent schools. Section 21 of the Education Act provides: 21(1) Unless excused under this section, (a) every child who attains the age of six years … shall attend an elementary or secondary school on every school day … in that year until the child attains the age of sixteen years; … (2) A child is excused from attendance at school if, (a) the child is receiving satisfactory instruction at home or elsewhere …. 169. At trial, Anderson J. (1992), 9 O.R. (3d) 676, 94 D.L.R. (4th) 417, found that the above section made school attendance mandatory. The Court of Appeal (1994), 751

STATE SUPPORT FOR RELIGIOUS EDUCATION

25G '/5WK FRUUHFWO\UHYHUVHGWKLVÀQGLQJKROGLQJWKDWRQWKH grounds of the exemption in s. 21(2), the Act made education compulsory, not school attendance. In R. v. Jones, [1986] 2 S.C.R. 284, 31 D.L.R. (4th) 569 (S.C.C.), we held that this type of scheme did not violate freedom of religion. 170. The precise issue in Jones was whether it was a violation of religious freedom to require someone to apply to the Alberta Department of Education to set up a private school or a home-teaching program for religious instruction. The appellant was challenging the fact that he was required to apply for an exemption from mandatory school attendance for the home schooling program he was providing for his children because to recognize the authorityof the school board in such a way would offend his conscience and religious convictions. Wilson J., dissenting on another issue but with the support of the majority on this issue, said this requirement did not violate the appellant’s s. 2(a) rights. At p. 312 she states: In my view, the School Act does not offend religious freedom; it accommodates it. It envisages the education of pupils at public schools, private schools, at home or elsewhere. The legislation permits the existence of schools such as the appellant’s ZKLFKKDYHDUHOLJLRXVRULHQWDWLRQ,WLVDÁH[LEOHSLHFHRIOHJLVODWLRQZKLFKVHHNV to ensure one thing–that all children receive an adequate education …. There is no FRQÁLFWEHWZHHQZKDWWKHOHJLVODWLRQUHTXLUHVDQGZKDWWKHDSSHOODQWIHHOVLWLVKLV GXW\WRSURYLGH7UXHKHZLVKHVWRSURYLGHPRUHVSHFLÀFDOO\UHOLJLRXVJXLGDQFH but the legislation does not prohibit that. 171. There is no disputing the fact that the appellants enjoy a fundamental constitutional right to send their children to the religious school of their choice. This Court has recently reiterated that parents have the right to educate their children in the religion of their choice. In B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, 122 D.L.R. (4th) 1 (S.C.C.), La Forest J., writing for the majority, made the following statement, at p. 382: It seems to me that the right of parents to rear their children according to their religious beliefs, including that of choosing medical or other treatments, is an equally fundamental aspect of freedom of religion. The appellants cannot, however, complain that the Ontario Education Act prevents them from exercising this aspect of their freedom of religion since it allows for the provision of education within a religious school or at home. The statute does not compel the appellants to act in any way that infringes their freedom of religion. Nothing in the Education Act relating to mandatory education per se involves a breach of appellants’ rights under s. 2(a) of the Charter. 172. I note that the appellants are not claiming that without the compulsory education provision of the Education Act they would choose not to send their children to school. 2QWKHFRQWUDU\WKH(OJHUVPDDSSHOODQWVVSHFLÀFDOO\VWDWHWKDWWKH\KDYHDSDUHQWDO duty to provide their children with an education consistent with and supportive of their religious beliefs. Thus with or without s. 21 of the Education Act, the appellants

752

6. CANADIAN JUDICIAL DECISIONS

would act in the same manner, thereby eliminating any potentially coercive aspect of the legislation. 173. In the alternative, the appellants argue that the province’s failure to fund private religious schools imposes an unconstitutional burden on their freedom of religion. It is thus the effect of the Education Act that is the source of the infringement. Much reliance LVSODFHGRQ(GZDUGV%RRNVVXSUDLQZKLFK'LFNVRQ&-&VSHFLÀHGDWSS that s. 2(a) captures both indirect and direct coercion of religious beliefs. In my opinion indirect coercion by the state is comprehended within the evils from which s. 2(a) may afford protection. … 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). In Edwards Books the purpose of Ontario’s Retail Business Holidays Act, R.S.O. 1980, c. 453, under challenge was to provide a common day of rest for retail workers, and therefore the purpose was not to coerce religious observance. However, this Court found that the effect of the Act imposed an economic burden on retailers whose sabbath was a day other than Sunday, relative to those retailers who observed a Sunday sabbath. In effect, the Act gave an advantage to Sunday sabbath observers by choosing their sabbath as a common day of rest, and burdened observers of a sabbath other than Sunday by forcing them to choose between closing their business an extra day or keeping their business open on their sabbath. Dickson C.J.C. explained this concept of relative burden at p. 765 as follows: A careful comparison of the effects of Sunday closing legislation on different UHOLJLRXVJURXSVFOHDUO\GHPRQVWUDWHVWKHPDQQHULQZKLFKWKHEXUGHQÁRZVIURP the legislation. In the absence of legislative intervention, the Saturday observer and the Sunday observer would be on a roughly equal footing in competing for shares of the available consumer buying power. Both might operate for a maximum of six days each week. Both would be disadvantaged relative to non-observing retailers who would have the option of a seven day week. On this account, however, they would have no complaint cognizable in law since the disability would be one ÁRZLQJH[FOXVLYHO\IURPWKHLUUHOLJLRXVWHQHWV,DJUHHZLWK3URIHVVRU3HWWHU>LQ ´1RW¶1HYHURQD6XQGD\·5Y9LGHRÁLFNV/WGHWDOµ 6DVN/DZ 5HY@WKDWWKHVWDWHLVQRUPDOO\XQGHUQRGXW\XQGHUVD WRWDNHDIÀUPDWLYH action to eliminate the natural costs of religious practices. But, exemptions aside, the Retail Business Holidays Act has the effect of leaving the Saturday observer at the same natural disadvantage relative to the non-observer and adding the new, purely statutory disadvantage of being closed an extra day relative to the Sunday observer. Just as the Act makes it less costly for Sunday observers to practise their religious beliefs, it thereby makes it more expensive for some Jewish and Seventhday Adventist retailers to practise theirs. [Emphasis added.] As I understand this passage, it is on the basis that the legislation had the effect of imposing different burdens on different religions vis-a-vis non-observers that a s. 2(a)

753

STATE SUPPORT FOR RELIGIOUS EDUCATION

infringement was found. See also Chambly, Commission scolaire regionale v. Bergevin, [1994] 2 S.C.R. 525, 115 D.L.R. (4th) 609 (S.C.C.). 174. In the case of funding under the Education Act, private religious schools receive no state funding whereas public non-religious schools receive funding. By analogy to the situation in Edwards Books, then, all parents whose religion requires them to send their children to a private religious school charging tuition would be equally disadvantaged relative to parents who have the option of sending their children to state-funded public schools. All of the diverse religious groups represented by the appellants, and the many interveners on this appeal, suffer the same economic cost associated with sending their children to private religious schools. While a distinction is made between these religious groups and the separate Roman Catholic schools, this distinction is constitutionally mandated and cannot be the subject of a Charter attack. The legislation is not the source of any distinction amongst all the groups whose exercise of their religious freedom involves an economic cost. This situation is distinguishable from Edwards Books, where one religious group was suffering an additional burden not imposed on other religious groups vis-a-vis non-observers. On this account, the appellants have no complaint cognizable in law since the disadvantage they must bear LVRQHÁRZLQJH[FOXVLYHO\IURPWKHLUUHOLJLRXVWHQHWV 175. In addition, failure to act in order to facilitate the practice of religion cannot be considered state interference with freedom of religion. The fact that no funding is provided for private religious education cannot be considered to infringe the appellants’ freedom to educate their children in accordance with their religious beliefs where there is no restriction on religious schooling. As submitted by the intervener, the Canadian Civil Liberties Association, there are many spheres of government action which hold UHOLJLRXVVLJQLÀFDQFHIRUUHOLJLRXVEHOLHYHUV,WGRHVQRWIROORZWKDWWKHJRYHUQPHQW PXVWSD\IRUWKHUHOLJLRXVGLPHQVLRQVRIVSKHUHVLQZKLFKLWWDNHVDUROH,IWKLVÁRZHG from s. 2(a), then religious marriages, religious corporations, and other religious community institutions such as churches and hospitals would all have a Charter claim to public funding. The same could also be said of the existing judicial system which is necessarily secular. The appellants’ argument would lead to an obligation by the state to fund parallel religious justice systems founded on canon law or Talmudic law, for example. These are clearly untenable suggestions. 176. In conclusion, for the reasons given above, I am of the view that the failure to fund cannot constitute state interference with freedom of religion equivalent to a violation of s. 2(a) of the Charter. Moreover, the cost of sending their children to private religious schools is a natural cost of the appellants’ religion and does not, therefore, constitute an infringement of their freedom of religion protected by s. 2(a) of the Charter.

6HFWLRQ(TXDOLW\5LJKWV 177. The appellants’ basic claim under this heading is that the funding of public VFKRROV GHQLHV WKHP DQ HTXDO EHQHÀW XQGHU WKH ODZ RQ WKH EDVLV RI WKHLU UHOLJLRQ which constitutes a breach of s. 15 of the Charter. The methodology for considering a s. 15 claim was originally set out by this Court in Andrews v. Law Society of British

754

6. CANADIAN JUDICIAL DECISIONS

Columbia, [1989] 1 S.C.R. 143, 56 D.L.R. (4th) 1 (S.C.C.), and R. v. Turpin, [1989] 1 S.C.R. 1296 (S.C.C.). The two-step approach formulated therein was most recently re-stated by McLachlin J. in Miron v. Trudel, [1995] 2 S.C.R. 418, 124 D.L.R. (4th) 693(S.C.C.), and by Cory and Iacobucci JJ. in Egan v. Canada, [1995] 2 S.C.R. 513 at p. 584 (paras. 130-31), 124 D.L.R. (4th) 609 (S.C.C.): 7KHÀUVWVWHSLVWRGHWHUPLQHZKHWKHUGXHWRDGLVWLQFWLRQFUHDWHGE\WKHTXHVWLRQHG law, a claimant’s right to equality before the law, equality under the law, equal protecWLRQRIWKHODZRUHTXDOEHQHÀWRIWKHODZKDVEHHQGHQLHG'XULQJWKLVÀUVWVWHS the inquiry should focus upon whether the challenged law has drawn a distinction between the claimant and others, based on personal characteristics. Not every distinction created by legislation gives rise to discrimination. Therefore, the second step must be to determine whether the distinction created by the law results in discrimination. In order to make this determination, it is necessary to consider ÀUVWZKHWKHUWKHHTXDOLW\ULJKWZDVGHQLHGRQWKHEDVLVRIDSHUVRQDOFKDUDFWHULVWLF which is either enumerated in s. 15(1) or which is analogous to those enumerated, and second, whether that distinction has the effect on the claimant of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or OLPLWLQJDFFHVVWREHQHÀWVRUDGYDQWDJHVWKDWDUHDYDLODEOHWRRWKHUV 178. The application of this methodology to the facts of this appeal returns us to the issues canvassed in the course of the analysis of the s. 2(a) issue. This reinforces the fact that the claim under s. 2(a) and under s. 15 are narrowly inter-related in this case because of the comparative aspect of the questions involved. As a result, it should not EHVXUSULVLQJWKDWWKHFRQFOXVLRQDUULYHGDWXQGHUWKHVD DQDO\VLVZLOOEHUHÁHFWHG in the answer given to the s. 15 argument.

'HQLDORI(TXDO%HQHÀWRIWKH/DZ'RHVWKH$FW&UHDWHD'LVWLQFWLRQ"  ,Q WKLV FDVH WKH DSSHOODQWV FODLP WKDW WKH\ DUH GHQLHG D EHQHÀW XQGHU WKH ODZ because the schools to which they send their children do not receive funding otherwise available to public schools. The respondent replies that the only reason why the appellants’ schools do not receive funding is because they are private schools. Obviously this distinction is not one based on personal characteristics of an individual or group. Thus while the Education Act does create a distinction between public and private schools with respect to funding, it is not, on its face, a distinction that meets the thresholdstage of the s. 15 inquiry. 180. It remains to be determined whether the Education Act gives rise indirectly to a distinction based on personal characteristics. Adverse effect discrimination has long been recognized by this Court as a type of discrimination that is prohibited under the Charter. See Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, 23 D.L.R. (4th) 321 (S.C.C.). This concept was recently reformulated as follows in Egan, supra, at para. 138: “Adverse effect discrimination occurs when a law … is facially neutral but has a disproportionate impact on a group because of a particular characteristic of that group.”

755

STATE SUPPORT FOR RELIGIOUS EDUCATION

181. Here the Act does not appear to distinguish between the appellants and other groups on the basis of a particular characteristic common to the appellants. However, LWLVFOHDUWKDWWKHLUFODLPLVGHSHQGHQWRQVXFKDÀQGLQJ,QP\YLHZVXFKDQDUJXPHQW cannot be sustained. While it is true that the appellants feel compelled to send their children to private school because of a personal characteristic, namely their religion, DQGWKHUHIRUHDUHXQDEOHWREHQHÀWIURPSXEOLFO\IXQGHGVFKRROLQJ,IDLOWRVHHKRZ this is an effect arising from the statute. The reason why the public school system is not acceptable to the appellants lies in its secular nature. This secular nature is itself mandated by s. 2(a) of the Charter as held by several courts in this country. 182. In Zylberberg v. Sudbury Board of Education (Director), supra, the Ontario Court of Appeal wrestled with the issue of religious exercises in public schools. A regulation under the Education Act made opening religious exercises compulsory in public schools, though allowing for exemptions of students whose parents objected. After an exhaustive review of the role of religion in Ontario schools and of the case law on freedom of religion, a majority of the Court concluded, at pp. 654 and 656, that school prayer infringed upon freedom of religion and was not mitigated by a right to an exemption: On its face, [the regulation] infringes the freedom of conscience and religion guaranteed by s. 2(a) of the Charter …. The recitation of the Lord’s Prayer, which is a Christian prayer, and the reading of Scriptures from the Christian Bible impose Christian observances upon non-Christian pupils and religious observances on non-believers. … [T]he right to be excused from class, or to be exempted from participating, does not overcome the infringement of the Charter freedom of conscience and religion by the mandated religious exercises. On the contrary, the exemption provision imposes a penalty on pupils from religious minorities who utilize it by stigmatizing them as non-conformists and setting them apart from their fellow students who are members of the dominant religion. A similar conclusion was reached in British Columbia in the case of Russow v. British Columbia (Attorney-General) (1989), 35 B.C.L.R. (2d) 29, 62 D.L.R. (4th) 98 (B.C.S.C.). In both cases, the challenges had been brought by parents who opposed the practice of Christian exercises in public schools. 183. A subsequent challenge to religious education in Ontario public schools was also successful. In the Elgin County case, supra, the Ontario Court of Appeal once again declared that a regulation under the Education Act making periods of religious education a compulsory part of the public school curriculum was inconsistent with freedom of religion under s. 2(a). Moreover, it held that the actual curriculum of religious studies prescribed by the Elgin County Board of Education, and permitted under the Education Act, denied freedom of religion because it amounted to indoctrination in the Christian faith. In so doing, the majority of the Court held, at pp. 360-61, that:

756

6. CANADIAN JUDICIAL DECISIONS

The purpose of the regulation, as recognized by both the Hope Commission and the Mackay Committee, was Christian indoctrination. And, at p. 363, the majority concluded that state-authorized religious indoctrination violates s. 2(a) because it “ … amounts to the imposition of majoritarian religious beliefs on minorities”. Because the Court arrived at these conclusions on the s. 2(a) claim, it did not express an opinion on the s. 15(1) arguments presented by the appellants in that case. 184. More recently, in Bal v. Ontario (Attorney General) (1994), 21 O.R. (3d) 681, 121 D.L.R. (4th) 96 (Ont. Ct. (Gen. Div.)), these same issues were considered from a different perspective. As a result of the decisions in the Zylberberg and Elgin County cases, the Ontario Ministry of Education issued Policy Memorandum 112 entitled “Education about Religion in the Public Elementary and Secondary Schools”. According to the memorandum, religious education in public schools is to be non-indoctrinational DQGQRWJLYHSULPDF\WRDQ\UHOLJLRXVIDLWK5HJXODWLRQVZHUHODWHUDPHQGHGWRUHÁHFW this new policy. 185. Prior to the change in regulations, certain school boards allowed the operation of religious public schools alongside secular public schools. The parents in the Bal appeal either sent their children to existing religious schools or wished to set new ones up. They argued that the new regulations, which essentially prohibited these schools within the public system, infringed their rights under ss. 2 and 15 of the Charter. Considering himself bound by the Ontario Court of Appeal’s decisions in Zylberberg v. Sudbury Board of Education (Director), supra, the Elgin County case, supra, and Adler v. Ontario (1994), 19 O.R. (3d) 1, 116 D.L.R. (4th) 1, Winkler J. rejected the appellants’ claims. In his view, the Elgin County decision “signif[ies] the end of an era of majoritarian &KULVWLDQLQÁXHQFHDQGPDUN>V@WKHEHJLQQLQJRIDSHULRGRIVHFXODULVPLQHGXFDWLRQ based on an awareness of a changing societal fabric and Charter protection for minority rights to freedom of religion.” See Bal, supra, at p. 684. 186. It follows that if the distinctions relied on by the appellants do not arise as a result of the legislation, no governmental action is involved to which s. 15 can attach. In this regard, I adopt the following statement from the reasons of Dubin C.J.O. in Adler, at p. 18: In this case, in my opinion, there was no government action that compelled the appellants to send their children to private, religious-based independent schools. They were free to send their children to secular public schools maintained at public expense. Their decision not to do so was solely a response to their religious beliefs and not a result of any government action. 187. I therefore conclude that the appellants have not succeeded in demonstrating that the Education Act draws a distinction, either directly or indirectly, between the appellants and others, based on personal characteristics. The fact the appellants belong to a group that is unable to take advantage of the public school system does not result from the Education Act itself. It results from the combination of the appellants’ religious beliefs and the imperatives of the Charter as they apply to the exercise of the province’s

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plenary power over education. As a result, the threshold stage of a s. 15 inquiry is not met and there is no distinction to consider in the second stage, namely as to whether discrimination results from such a distinction. 188. Even if the appellants had succeeded in showing that the legislation created a distinction, I do not believe they would have succeeded in demonstrating that this distinction amounts to discrimination on the basis of religion. As observed by the Court of Appeal, the only ground of distinction in this case is between “public” institutions, which are funded by the government, and “private/independent” institutions, which do not receive funding from the government. No private schools receive funding whether they are religious or secular. No religion is given preferential treatment within the system. The distinction between “private” and “public” institutions is neither an enumerated nor an analogous ground in s. 15 of the Charter. 189. Accordingly, I would reject the appellants’ claim based on s. 15 of the Charter. Because I have found no violation of either s. 2(a) or s. 15 of the Charter, it is unnecessary for me to embark upon a s. 1 analysis.

10. School Health Support Services 190. With regard to the question of School Health Support Services, I am in agreement with Iacobucci J. that these services are properly characterized as “education services” as opposed to strict “health services”. However, given my disagreement with him on the constitutional status of the public education system in Ontario, I am unable to subscribe to his reasons for dismissing the appellants’ claim on this point. 191. Nevertheless, it is my view that this claim must also fail. Indeed, if the appellants have no basis for claiming a right to public funding for the education provided in private schools, they have no claim for additional “educational services” available only within the public school system. There is no reason to distinguish funding for this aspect from other aspects of funding for educational purposes. In addition, I must respectfully disagree with the conclusion of Weiler J.A. that funding for these services was funding for a non-denominational purpose and that the guarantees in s. 93(1) and (3) of the Constitution Act, 1867, did not apply to insulate the funding of separate schools from review under s. 15 of the Charter. The holding in the Reference Re Bill 30 decision applies to all aspects of funding of separate schools for educational purposes. The right guaranteed by s. 93(1) in this regard was the right to funding proportionate to that extended to public schools. I, therefore, agree with the majority of the Court of Appeal on this issue.

11. Conclusion 192. I would dismiss the appeal and answer the stated constitutional questions in the same manner as Iacobucci J., but for the reasons stated above. 193. MCLACHLIN J. (dissenting in part): – The Ontario government provides funding for secular and Roman Catholic schools in the province. Many people, often for religious reasons, choose not to educate their children in either the secular or the Roman Catholic system. They see no alternative but to establish and send their children to private schools. 758

6. CANADIAN JUDICIAL DECISIONS

The province contributes nothing to the funding of these schools. The issue on this appeal is whether this violates the guarantees of freedom of religion and equality of the Canadian Charter of Rights and Freedoms. I agree with Justice Iacobucci and Justice Sopinka that the lack of support to private schools violates neither guarantee, although for different reasons. On the subsidiary issue of whether the province’s refusal to fund health services to children in private religious schools violates their constitutional right to equal treatment, I would respectfully dissent and allow the appeal.

$'HQLDORI)XQGLQJWR,QGHSHQGHQW5HOLJLRXV6FKRROV ,V6HFWLRQRIWKH&RQVWLWXWLRQ$FWDQ$QVZHUWRWKH$SSHOODQWV·&KDUWHU Claim 194. Before considering the Charter issues, it is necessary to determine whether s. 93 of the Constitution Act, 1867 constitutes a code which ousts the operation of the Charter. I agree with Sopinka J. that it does not. Section 93 requires Ontario to fund schools for the Roman Catholic minority in Ontario and requires Quebec to fund schools for the Protestant minority in Quebec. Neither its language nor its purpose suggests that it was intended to do more than guarantee school support for the Roman Catholic or Protestant minorities in the two provinces respectively. Provinces exercising their plenary powers to provide education services must, subject to this restriction, comply with the Charter. 2. Does the Failure to Fund Minority Religious Schools Constitute a Limit on the Guarantee of Freedom of Religion 7KH DSSHOODQWV DGYDQFH WZR VXEPLVVLRQV XQGHU WKLV KHDG7KH ÀUVW LV WKDW WKH requirement of compulsory education infringes their freedom of religion. The second is that the failure to fund the minority religious schools imposes a burden on them not borne by persons of other religions or no religion, thereby infringing their freedom of religion. 7KHÀUVWVXEPLVVLRQLVHDVLO\UHVROYHG,IWKH(GXFDWLRQ$FW562F( required all children to go to either secular or Roman Catholic schools, it would impinge on the religious freedom of those whose beliefs require non-Roman Catholic religious education. The Education Act does not do this. Section 21 excuses children from school attendance if they are receiving satisfactory instruction elsewhere. Parents whose beliefs do not permit them to educate their children in the secular or Roman Catholic school systems are free to educate their children in other schools or at home. The requirement of PDQGDWRU\HGXFDWLRQWKHUHIRUHGRHVQRWFRQÁLFWZLWKWKHFRQVWLWXWLRQDOULJKWRISDUHQWV to educate their children as their religion dictates. To quote Dubin C.J.O. (1994), 19 25G DWS'/5WK ´WKHUHLVQRFRQÁLFWEHWZHHQVRIWKH$FW and the appellants’ religious freedom”.  7KH VHFRQG VXEPLVVLRQ SRVHV JUHDWHU GLIÀFXOW\ 7KH DUJXPHQW UHVWV RQ WKH proposition that the imposition of burdens on some religious minorities which people of other religions do not bear constitutes an infringement of freedom of religion. This Court’s decisions in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, 18 D.L.R. (4th)

759

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321 (S.C.C.), and R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, 35 D.L.R. (4th) 1 (S.C.C.), contain statements that appear to support this proposition. In Edwards Books, Dickson C.J.C., quoting from Big M Drug Mart (pp. 336-37) stated at p. 758: One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. [Emphasis added by Dickson C.J.C. in Edwards Books.] Dickson C.J.C. went on to note that a provision which increases the cost or burden of practising one’s religion may violate that person’s freedom of religion. He also expressly rejected the argument that the burden resulted not from state action, i.e., the legislation, but from the religious belief. At the same, however, he was careful to indicate that not every burden or cost borne by a religious minority because of its beliefs will constitute an infringement of freedom of religion. For example, if the cost were trivial or insubstantial, it would not constitute an infringement. 198. The burden complained of in this case is not one which constitutes an infringement of freedom of religion, in my view. The burden at issue in Big M Drug Mart and Edwards Books was a state prohibition on business operations which presented religious minorities with the option of either violating their religious tenets by operating RQUHOLJLRXVKROLGD\VRUVXIIHULQJWKHÀQDQFLDOORVVZKLFKZRXOGÁRZIURPFORVLQJ their businesses on both their own religious holidays and the majoritarian holidays. Special burdens placed on religious minorities in the operation of their businesses have a venerable and infamous status in the annals of religious persecution. What was at stake in Big M Drug Mart and Edwards Books was nothing less than a state prohibition that put members of minority religions at a disadvantage in gaining their livelihood. This Court, looking at the history and context of such measures, concluded that they might indeed constitute an infringement of freedom of religion. 199. The burden at issue in the case at bar differs from that at issue in Big M Drug Mart and Edwards Books in two ways. First, it does not involve a state prohibition on otherwise lawful conduct. People remain free to educate their children whenever and however they choose, provided they meet prescribed standards. While this may impose costs on them not borne by parents of children attending public secular schools, the cost issue is more appropriately considered under the equality provision of the Charter, s. 15. 200. The second distinction between this case and the Sunday-closing cases is that WKHVRUWRIDEVHQFHRIEHQHÀWFRPSODLQHGRILQWKLVFDVHKDVQRKLVWRU\RIUHFRJQLWLRQ as a violation of freedom of religion. Absence of state funding for private religious practices, as distinct from prohibitions on such practices, has never been seen as religious persecution. In determining the content of the guarantees contained in the Charter, the courts must look to the history of values enshrined. That history provides no support for extending the guarantee of freedom of religion to the provision of equal funding for 760

6. CANADIAN JUDICIAL DECISIONS

religious practices, like religious education. Never, to borrow the reasoning of Dubin C.J.O., has it been suggested that freedom of religion entitles one to state support for one’s religion. 201. I conclude that no infringement of the guarantee of freedom of religion has been established. 'RHVWKH)DLOXUHWR)XQG,QGHSHQGHQW5HOLJLRXV6FKRROV,QIULQJHWKH(TXDOLW\ Guarantee of the Charter? 6HFWLRQRIWKH&KDUWHUSURYLGHVWKDWHYHU\SHUVRQLVHQWLWOHGWRHTXDOEHQHÀW of the law and not to be discriminated against on grounds such as that of religion. Put in the context of this case, this means that the Province of Ontario may not enact an HGXFDWLRQODZZKLFKGHSULYHVVRPHSHRSOHRIEHQHÀWVZKLFKRWKHUVUHFHLYHRQWKH ground of their religion. 7KHFDVHIRULQIULQJHPHQWRIVRIWKH&KDUWHULVSXWRQWZRJURXQGV7KHÀUVW alleges treatment unequal to that of the funded Roman Catholic schools. This argument is untenable in view of the special constitutional bargain protecting funding for Roman Catholic schools at the time of Confederation: Reference Re Bill 30, An Act to Amend the Education Act (Ontario), [1987] 1 S.C.R. 1148, 40 D.L.R. (4th) 18 (S.C.C.). The second argument alleges treatment unequal to that of the funded secular schools. It is to that argument that I now turn. 204. The analysis under s. 15(1) involves two steps. First, the claimant must show a GHQLDORIHTXDOSURWHFWLRQRUHTXDOEHQHÀWRIWKHODZDVFRPSDUHGZLWKVRPHRWKHU person. Second, the claimant must show that this denial constitutes discrimination, that is, that it rests on one of the grounds enumerated in s. 15(1) or an analogous ground based on the stereotypical application of presumed group or personal characteristics: Miron v. Trudel, [1995] 2 S.C.R. 418, 124 D.L.R. (4th) 693 (S.C.C.); Egan v. Canada, [1995] 2 S.C.R. 513, 124 D.L.R. (4th) 609 (S.C.C.). 7KHGHQLDORIHTXDOSURWHFWLRQRUEHQHÀWRIWKHODZPD\DSSHDURQWKHIDFHRIWKH enactment, or may arise by reason of the effect which a facially neutral provision has on the person discriminated against. It will be rare that a law expressly discriminates on religious grounds. More often, discrimination based on religion is founded in the effect of a seemingly neutral provision. For example, in Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561, 23 D.L.R. (4th) 481 (S.C.C.), this Court found that the facially neutral requirement that everyone on a construction site wear a hard hat discriminated against Sikhs on the basis of religion because of the religious requirement that Sikhs wear turbans. This type of discrimination is referred to as adverse effect discrimination. 206. The appellants concede that the education scheme of Ontario, apart from the special position of the Roman Catholic schools, is facially neutral. They contend that notwithstanding this facial neutrality, the effect of the regulations is to discriminate against the users of independent religious schools as compared with the users of public VHFXODUVFKRROV7KH\VXEPLWWKDWWKH&RXUWRI$SSHDOHUUHGLQKROGLQJWKDWLWLVVXIÀFLHQW that the province make secular public schools equally available without discrimina761

STATE SUPPORT FOR RELIGIOUS EDUCATION

WLRQRQWKHEDVLVRIUHOLJLRXVDIÀOLDWLRQ,QWKHLUYLHZVRIWKH&KDUWHULVYLRODWHG when a provision has the effect of placing an unequal and disproportionate burden on members of a group on the basis of their religious beliefs. They argue that, just as Mr. Bhinder’s religion required him to wear a turban, their religion requires them to send their children to private religious schools. The effect in each case is to deny them a EHQHÀWRQWKHJURXQGRIUHOLJLRQ²LQ0U%KLQGHU·VFDVHWKHEHQHÀWRIHPSOR\PHQWLQ WKHDSSHOODQWV·FDVHWKHEHQHÀWRIVFKRROIXQGLQJ,QVKRUWDEHQHÀWVFKRROIXQGLQJLV provided in a way that makes it unavailable to certain groups because of their religion. This establishes, in their submission, both the elements required to show an infringement of s. 15 of the Charter – unequal treatment and discrimination. 207. The respondents present two counter-arguments. First, they deny unequal treatment on the ground that the funding of public secular schools treats all religions equally. All may attend the public schools regardless of their religion, and no religious instruction LVSHUPLWWHGLQWKHP7KLVLVVXIÀFLHQWWRHVWDEOLVKWKDWWKHV\VWHPRQLWVIDFHLVQHXWUDO However, it fails to counter the submission that the funding system has the effect of GHQ\LQJDEHQHÀWWRWKRVHZKRVHUHOLJLRQVGRQRWSHUPLWWKHPWRVHQGWKHLUFKLOGUHQWR public secular schools. The distinction is between a school system which is formally open to all children and a school system which is in fact accessible to all children. The evidence establishes that the Ontario public school system is not in fact accessible to all children. There exists a minority of students whose parents, out of religious conviction, cannot send their children to public schools. To these children, public education is as inaccessible as a job on the construction site was to Mr. Bhinder. 208. The respondents’ second argument is that even if adverse effect discrimination is established, it is not caused by the Education Act, but by the appellants’ religion. The cause of the inequality, they submit, is not government action, but the appellants’ decision to belong to a religion which puts them in the position of having to reject the public secular schools and establish and fund their own independent schools. With all GHIHUHQFHWRWKRVHZKRKROGRWKHUZLVH,FDQQRWDFFHSWWKLVGHIHQFH%\GHÀQLWLRQWKH effect of a discriminatory measure will always be attributable to the religion, gender, disability and so on of the person who is affected by the measure. If a charge of religious discrimination could be rebutted by the allegation that the person discriminated against chose the religion and hence must accept the adverse consequences of its dictates, WKHUHZRXOGEHQRVXFKWKLQJDVGLVFULPLQDWLRQ7KLV&RXUWKDVFRQVLVWHQWO\DIÀUPHGD substantive approach to equality. The substantive approach to equality is founded on acceptance of the differences which lie at the heart of discrimination. Be they differences of birth, like race or age, or be they differences of choice, as religion often is, the law proceeds from the premise that the individual is entitled to equal treatment in spite of such differences. The state cannot “blame” the person discriminated against IRUKDYLQJFKRVHQWKHVWDWXVZKLFKOHDGVWRWKHGHQLDORIEHQHÀW7KHSHUVRQLVHQWLWOHG WRWKHEHQHÀWUHJDUGOHVVRIWKDWFKRLFH7KHHVVHQFHRIVLVWKDWWKHVWDWHFDQQRW use choices like the choice of religion as the basis for denying equal protection and EHQHÀWRIWKHODZ

762

6. CANADIAN JUDICIAL DECISIONS

209. I conclude that while secular schooling is in theory available to all members of the public, the appellants’ religious beliefs preclude them from sending their children to public schools. Therefore, they are adversely discriminated against by the lack of funding for schooling consistent with their religious beliefs. The fact that they may have chosen their religion and with it the need to send their children to religious schools does not negate the discrimination. This discrimination places a real and substantial ÀQDQFLDOEXUGHQRQWKHDSSHOODQWV7KHDSSHOODQWVDUHQRWWUHDWHGDVHTXDOEHIRUHDQG XQGHUWKH(GXFDWLRQ$FWDQGGRQRWUHFHLYHHTXDOEHQHÀWRIWKHODZ7KHUHIRUHWKH infringement of s. 15 is established. ,VWKH,QIULQJHPHQWRI6HFWLRQRIWKH&KDUWHU-XVWLÀHG8QGHU6HFWLRQ" 210. An infringement of one of the guarantees of the Charter does not establish a breach of the Charter. Section 1 of the Charter proclaims that the state is entitled to limit the rights and freedoms set out in the Charter provided that the limit is reasonable and GHPRQVWUDEO\MXVWLÀDEOHLQDIUHHDQGGHPRFUDWLFVRFLHW\ 211. Is the denial of funding to private religious schools reasonable and demonstrably MXVWLÀDEOHLQDIUHHDQGGHPRFUDWLFVRFLHW\"7KHRQXVLVRQWKH3URYLQFHRI2QWDULRWR HVWDEOLVKWKDWLWLV,QRUGHUWRGRVRLWPXVWVKRZÀUVWWKDWWKHUHVWULFWLRQRIIXQGLQJ has an objective of pressing and substantial concern in a free and democratic society; and second, that the objective is proportionate to, or not outweighed by, the effect of the infringing measure: R. v. Oakes, [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200 (S.C.C.). Proportionality generally requires proof that the measure is rationally connected to the objective; that it impairs the right or freedom as little as possible; and that there is proportionality between the effects of the infringing measure and the objective sought. The Objective of the Denial of Funding 212. The decision to fully fund public secular schools while denying any funding to independent religious schools (other than the constitutionally mandated funding for Roman Catholic schools) is at base a political decision. Its objective, the record shows, is to foster a strong public secular school system attended by students of all cultural and religious groups. Canada in general and Ontario in particular is a multicultural, multireligious society. A multicultural multireligious society can only work, it is felt, if people of all groups understand and tolerate each other. According to the Shapiro Report (Report of the Commission on Private Schools in Ontario (Toronto, 1985)), submitted in evidence, “the public school context represents … the most promising potential for realizing a more fully tolerant society”. Children of all races and religions learn together and play together. No religion is touted over any other. The goal is to provide a forum for the development of respect for the beliefs and customs of all cultural groups and for their ethical and moral values. The strength of the public secular school system is its diversity – diversity which its supporters believe will lead to increased understanding and respect for different cultures and beliefs. 213. Against this, it is submitted that the real goal of denying funding is not to create a more tolerant society, but merely to avoid siphoning any funds from the public school

763

STATE SUPPORT FOR RELIGIOUS EDUCATION

system. This contention goes to the effect of denying funding and is more properly considered at the stage of rational connection in the proportionality inquiry. 214. It is also argued that the objective of fostering a multicultural ethic by denying funding to private schools and hence encouraging minorities to attend public schools cannot be accepted because it strikes at the core of the Charter right. It will have the effect, it is argued, of forcing some people to violate their religious beliefs. This cannot, it is asserted, be a valid objective. In essence, this argument asserts that the effect of the infringing measure – the denial of a practice at the core of freedom of religion – is such that it outweighs the social objective by which the province seeks to justify the intrusion of freedom of religion. Since this assertion is really an argument that the effect of the measure is disproportionate to the objective, I prefer to consider it under that head. 215. I conclude that the encouragement of a more tolerant harmonious multicultural society constitutes a pressing and substantial objective capable, provided its effect is duly proportionate, of justifying the infringement of s. 15. Proportionality (i) Rational Connection 7KHÀUVWTXHVWLRQLVZKHWKHUWKHUHLVDUDWLRQDOFRQQHFWLRQEHWZHHQWKHGHQLDORI funding to independent religious schools and the ultimate goal of promoting tolerance and understanding between people of different cultural and religious groups. 217. The argument linking denial of funding for independent religious schools to the ultimate objective of a more tolerant society goes like this. By providing funding to secular schools where people of all religions are welcomed free of cost, the government encourages people of different cultures and creeds to educate their children together. If funding were provided for private religious schools many of those who now send their children to secular schools would instead send their children to independent religious schools. The public secular schools would lose some students from diverse backgrounds. These students, instead of being educated in public multicultural multireligious schools, would be educated with homogeneous groups of people of similar beliefs. In short, secular schools might become less diverse and the number of students receiving parochial educations would increase. The overall effect would be to diminish the multicultural exposure of children in schools. This lack of exposure, in turn, would diminish the mutual tolerance and understanding of Ontarians of diverse cultures and religions for one another. 6FLHQWLÀFGHPRQVWUDWLRQRIFDXVHDQGHIIHFWLVQRWQHFHVVDU\WRVDWLVI\WKHUHTXLUHment of a rational connection between the objective sought and the infringing measure. Legislators can seldom demonstrate that the measures they propose for the betterment of society will inevitably have that effect. What is required is that the measure not be arbitrary, unfair or based on irrational considerations: Oakes, supra, at p. 139. As a matter of common sense, can it be said that the measure or legislative scheme in question may promote (as opposed to inevitably accomplish) the objective sought?

764

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219. This test, in my view, is met in this appeal. The denial of funding to separate schools is rationally connected to the goal of a more tolerant society. (ii) Minimal Impairment 220. Once it is established that the infringing measure is rationally connected to the objective by which the province seeks to justify it, the enquiry moves to the question of whether the measure impairs the right or freedom as little as possible. Where social issues are at stake, courts approach the legislature’s decision as to what infringement LVUHTXLUHGWRDFKLHYHWKHGHVLUHGHQGZLWKFRQVLGHUDEOHGHIHUHQFH,WLVQRWGLIÀFXOWWR conjure up hypothetical solutions which might infringe the right in question less than WKHVROXWLRQFKRVHQE\WKHOHJLVODWXUH7KLVDORQHLVLQVXIÀFLHQWWRDOORZWKHFRXUWV to declare that the legislature’s solution violates the Charter. As long as the measure falls within a range of acceptable solutions to the problem, it will pass the minimal impairment test: Edwards Books, supra, Irwin Toy Ltd. v. Quebec (Attorney-General), [1989] 1 S.C.R. 927, 58 D.L.R. (4th) 577 (S.C.C.), Reference re ss. 193 and 195.1(1)(c)) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 (S.C.C.), R. v. Chaulk, [1990] 3 S.C.R. 1303 (S.C.C.). Again, common sense is the guide. 221. In the appeal at bar, it is impossible to say whether a less intrusive measure, such as partial funding for private religious schools, might achieve the same objective with less infringement of the guarantee of freedom of religion. The Ontario Legislature has chosen a measure that falls within the range of reasonable responses to the problem of promoting a more tolerant multicultural society. (iii) Proportionality Between the Effect of the Infringing Measure and the Objective 222. The appellants argue that the effect of denial of funding is to infringe a right at the heart of their religious practice. This infringement is so serious that it can never be MXVWLÀHGWKH\DVVHUW7RMXVWLI\LWZRXOGQHJDWHUDWKHUWKDQOLPLWIUHHGRPRIUHOLJLRQ While the argument was put forward to assert that the province’s objective was not pressing and substantial, it really amounts to an argument that the effect of the measure is so serious that it must outweigh the state’s objective of fostering a more tolerant society through multicultural education. 223. Section 1 of the Charter permits reasonable limitations of rights, not their annihilaWLRQ,WLVQRWGLIÀFXOWWRFRQFHLYHRIODZVZKRVHHIIHFWZRXOGEHYLUWXDOO\WRHYLVFHUDWH a particular freedom or right, creating an effect so disproportionate to the goal by which WKH\DUHVRXJKWWREHMXVWLÀHGWKDWWKH\FRXOGQRWEHMXVWLÀHG)RUH[DPSOHLWPLJKWEH GLIÀFXOWWRDFFHSWWKDWDODZSUHYHQWLQJ0XVOLPV&KULVWLDQV+LQGXVRUVRPHRWKHU UHOLJLRXVJURXSIURPSXEOLFZRUVKLSFRXOGEHMXVWLÀHGRQDQ\JURXQG$WWKHVDPH time, the Charter permits limitation of rights provided the effect is proportionate to the objective the state asserts. Virtually every aspect of human conduct is capable of being the subject of religious belief. It is inevitable that some of the conduct sanctioned or SUHVFULEHGE\UHOLJLRXVEHOLHIZLOOFRQÁLFWZLWKWKHOHJDOSUHVFULSWLRQVRIVRFLHW\RUVXIIHU limitation as the state pursues broader goals in the interest of society as a whole, giving rise to a breach of the guarantee of religious freedom or to an unequal treatment on the ground of religion. To take an extreme example, a religious belief requiring corporal 765

STATE SUPPORT FOR RELIGIOUS EDUCATION

SXQLVKPHQWRIDFKLOGPLJKWFRQÁLFWZLWKDSURYLVLRQRIWKHFULPLQDOODZIRUELGGLQJ physical violence against children. The question in each case is whether the effect of the limitation is proportionate to the state objective. In this case the issue is whether the limitation on equality rights effected by the Education Act is disproportionate to the goal of encouraging social harmony. 224. In my view, the effect of denying funding to independent religious schools is proportionate to the objective sought. The goal of fostering multiracial and multicultural harmony is of great importance in a society as diverse as ours. Against this must be weighed the effect of the measure – to impose additional burdens upon parents whose religious beliefs preclude education of children in public secular schools. The denial of funding does not strike at the heart of the religion; indeed, I have concluded that it does not violate religious freedom at all. Even though it is true that the impugned scheme discriminates on the basis of religion, the record does not establish that the denial of funding compels anyone to violate their religious beliefs in a fashion which would violate s. 2(a) of the Charter. If the Act compelled attendance at public schools, then this might be argued to be the case. But the Act permits other alternatives, including home study. Such alternatives may impose burdens not carried by parents whose children DWWHQGSXEOLFO\IXQGHGVFKRROV²WKHUHLQOLHVWKHLQHTXDOLW\WKDWUHVXOWVLQDÀQGLQJRI infringement of s. 15 – but it does not preclude the state from attempting to justify its program on the ground of overarching public concern. 5. Conclusion on the Issue of Constitutionality of Denial of Funding for Independent Religious Schools 225. I conclude that while denial of funding for independent religious schools infringes WKHHTXDOLW\JXDUDQWHHRIWKH&KDUWHUWKHLQIULQJHPHQWLVMXVWLÀHGXQGHUVRIWKH Charter.

%)XQGLQJWR$VVLVW+DQGLFDSSHG&KLOGUHQ²7KH6FKRRO+HDOWK6XSSRUW Services Program 226. If the denial of funding for independent religious schools constitutes a violation of s. 15 of the Charter, so must the denial of funding for assistance for handicapped FKLOGUHQDWWHQGLQJVXFKVFKRROV7KHRQO\TXHVWLRQLVZKHWKHUWKLVGHQLDOLVMXVWLÀHG under s. 1 of the Charter. 227. With deference to those who hold otherwise, I do not think the problem can be solved simply by labelling the denial of assistance to handicapped children in independent religious schools a matter of health and not of education or vice versa. The program to assist handicapped school children, while it falls under the Health Insurance Act, R.S.O. 1990, c. H.6, is designated in Regulation 552 (R.R.O 1990, Reg. 552, s. 14(1)), as a “special education program” (emphasis added). One of its purposes is to assist disabled children to obtain education which their disability might otherwise make GLIÀFXOWLIQRWLPSRVVLEOH0RUHRYHUWRODEHOWKHPDWWHUDTXHVWLRQRIKHDOWKGRHVQRW obviate the inequality worked by restriction of the program to public secular and Roman Catholic schools. The Act offers this assistance to children attending public secular schools and Roman Catholic schools. It denies it to children attending independent 766

6. CANADIAN JUDICIAL DECISIONS

religious schools. Therefore, it treats them unequally, whether in terms of health or HGXFDWLRQ7KHXQHTXDOWUHDWPHQWÁRZVIURPWKHUHOLJLRXVFRQYLFWLRQRIWKHSDUHQWV whose belief compels them to educate their children outside the public secular system. 7KLVLVVXIÀFLHQWWRHVWDEOLVKGLVFULPLQDWLRQFRQWUDU\WRVRIWKH&KDUWHU 228. It is thus clear that the existing system discriminates against disabled children on the basis of their religion. In situations where a private religious school has a program analogous to a public school special education program, students enrolled in the program RXJKWQRWWREHGHQLHGWKHEHQHÀWVRIWKH+HDOWK,QVXUDQFH$FWXQOHVVWKHVWDWHFDQ justify the denial. 229. The objective which served to justify denial of school funding – the promotion of a more tolerant multicultural society – might be capable of serving to justify the fact WKDW5HJXODWLRQSURYLGLQJIRUVFKRROKHDOWKVHUYLFHUHOLHVRQGHÀQLWLRQVFRQWDLQHG in the Education Act and therefore alludes only to public secular schools and Roman Catholic schools. Rational connection is more problematic because of the presence of health as well as educational concerns underlying the Regulation. Nevertheless, it might be argued that the Regulation will encourage disabled children of religious minorities to participate in the multicultural public school system. The analysis founders, however, on the rocks of minimal impairment and proportionality. Unlike funding of independent religious schools generally, the cost of extending school health services to disabled children in those schools is not great. The effect of the denial is to add to the burden already imposed by lack of school funding, the additional burden, in the case of handicapped children, of coping with their disability without the assistance available to children of other religions. It is not seriously suggested that this small amount of aid to this small group of children could adversely affect the diversity in the composition of students in the public secular school system and the ultimate goal of fostering a more tolerant society. In these circumstances, I cannot conclude that WKHGLVFULPLQDWLRQHIIHFWHGE\WKH5HJXODWLRQLVGHPRQVWUDEO\MXVWLÀHGLQDIUHHDQG democratic society. I would allow the appeal on this ground. The appropriate remedy, in my view, is not to strike out Regulation 552, but to read into it a provision which, IRUWKHSXUSRVHRI5HJXODWLRQH[WHQGVWKH(GXFDWLRQ$FW·VGHÀQLWLRQRI´VFKRROµ WRLQFOXGHSULYDWHGHQRPLQDWLRQDOVFKRROVDQGEURDGHQWKH$FW·VGHÀQLWLRQRI´VSHFLDO education program” to include programs that are comparable to special education programs in public schools or Roman Catholic schools.

C. Conclusion 230. I would dismiss the appeal, except on the issue of health service to disabled children. There I would allow the appeal, reading Regulation 552 (R.R.O. 1990) of the Health Insurance Act up to include children from independent religious schools in the school Health Support Services program. Appeal dismissed.

767

$IÀGDYLWV 3URGXFHG IRU WKH Adler Case, Ontario Court of Justice (General Division) L $IÀGDYLWRI(PLO)DFNHQKHLPVZRUQ'HFHPEHU 7KLVDIÀGDYLWZDVHQWHUHGLQWRHYLGHQFHLQWKHFDVHAdler v. Ontario. The late Professor Fackenheim was Professor Emeritus in the Philosophy Department of the University of Toronto and a Fellow of the Institute of Contemporary Jewry at the Hebrew University of Jerusalem. Professor Fackenheim was a world-renowned expert in philosophy, Jewish history and Jewish education. He discusses in his DIÀGDYLW WKH LPSRUWDQFH RI -HZLVK GD\ VFKRROV WR WKH VXUYLYDO RI WKH -HZLVK SHRSOH+LVDIÀGDYLWDOVRLQFOXGHGRQHRIKLVDUWLFOHVHQWLWOHG´-HZLVK(GXFDWLRQ Its Indispensability to Diaspora Jewish Survival”, written recently before this DIÀGDYLWZDVVZRUQ LL $IÀGDYLWRI$UWKXU.UXJHUVZRUQ2FWREHU 7KLVDIÀGDYLWZDVHQWHUHGLQWRHYLGHQFHLQWKHFDVHAdler v. Ontario. Professor Kruger was a Professor of Jewish Studies at the University of Toronto and Director of the Ontario Institute for Studies and Education (OISE). Professor Kruger is an DXWKRULW\RQHGXFDWLRQDQGHGXFDWLRQDODGPLQLVWUDWLRQ+LVDIÀGDYLWGLVFXVVHVWKH importance of Jewish education to Jewish religious life and Jewish cultural survival. In his position as Director of OISE, responsible for training most of Ontario’s public school teachers, Professor Kruger stated that while “the public schools in Ontario are of extremely high calibre, it is my view that Jewish cultural survival simply cannot be insured through public school education”. LLL $IÀGDYLWRI%HUQDUG6KRXEVZRUQ2FWREHU 7KLV DIÀGDYLW ZDV HQWHUHG LQWR HYLGHQFH LQ WKH FDVH Adler v. Ontario. Bernard Shoub was the Director of School Finances for the Board of Jewish Education in Metropolitan Toronto. Mr. Shoub was a professional educator and education administrator for most of his career and for 15 years prior to his testimony had primary responsibility for overseeing community school budgets, resource allocations, tuition, and general administration of the Board of Jewish Education LQ7RURQWR0U6KRXE·VDIÀGDYLWGHOYHVLQWRWKHLVVXHVRIWKHFRVWRIIXOOWLPH Jewish education in the Toronto area, how the Jewish community calculates the granting of tuition subsidies for needy families, and what percentage of the Jewish community day-school parents receive subsidies. LY $IÀGDYLWRI5DEEL,UZLQ:LWW\VZRUQ2FWREHU 7KLVDIÀGDYLWZDVHQWHUHGLQWRHYLGHQFHLQWKHFDVHAdler v. Ontario. Rabbi Witty was the Director of the Board of Jewish Education in Metropolitan Toronto. Rabbi Witty was a pulpit rabbi, professional educator and educational administrator. +LVDIÀGDYLWJLYHVDQRYHUYLHZRIWKHKLVWRU\RI-HZLVKGD\VFKRROHGXFDWLRQLQ Ontario, the differences and similarities among the existing Jewish day schools and how they approach Jewish education, and the manner in which all Jewish high schools comply with Ontario Ministry of Education guidelines. He also speaks of the quality of educated students produced by these institutions. Attached to KLVDIÀGDYLWLVDOLVWRIWKH-HZLVKGD\VFKRROVLQ0HWURSROLWDQ7RURQWRDQGWKHLU 769 FRUUHVSRQGLQJSRSXODWLRQÀJXUHV

STATE SUPPORT FOR RELIGIOUS EDUCATION

schools comply with Ontario Ministry of Education guidelines. He also speaks of the quality of educated students produced by these institutions. Attached to KLVDIÀGDYLWLVDOLVWRIWKH-HZLVKGD\VFKRROVLQ0HWURSROLWDQ7RURQWRDQGWKHLU FRUUHVSRQGLQJSRSXODWLRQÀJXUHV $IÀGDYLWVRI (v) Susie Adler, sworn 13 October 1991 (vi) Mark Grossman, sworn 18 October 1991 (vii) Paula Kezwer, sworn 20 October 1991 (viii) Marcy Rapp, sworn 27 October 1991 and (ix) Riky Young, sworn 16 October 1991 7KHVHDIÀGDYLWVZHUHHQWHUHGLQWRHYLGHQFHLQWKHFDVHAdler v. Ontario, in support of their application challenging the non-funding of independent Jewish schools in Ontario. $OO ÀYH DSSOLFDQWV $GOHU *URVVPDQ .H]ZHU 5DSS DQG
770

6. CANADIAN JUDICIAL DECISIONS

ÀQDQFLDOEXUGHQSODFHGRQSDUHQWVFKRRVLQJQRWWRVHQGWKHLUFKLOGUHQWRSXEOLF secular schools or Catholic separate schools because of religious convictions. [Y $IÀGDYLWRI*DU\'XWKOHUVZRUQ)HEUXDU\ 7KLVDIÀGDYLWZDVHQWHUHGLQWRHYLGHQFHLQWKHFDVHAdler v. Ontario. Mr. Duthler was the Executive Director of the Federation of Independent Schools in Canada (FISC) and of the Alberta Association of Independent Schools and Colleges (AISCA). As an accredited educator and administrator in independent schools and as policy advisor to the Government of Alberta with respect to issues concerning LQGHSHQGHQWVFKRROVKLVDIÀGDYLWZDVDFFHSWHGDVH[SHUWWHVWLPRQ\LQWKLVFDVH +LVDIÀGDYLWGLVFXVVHVWKHIXQFWLRQLQJDQGSXEOLFIXQGLQJRILQGHSHQGHQWVFKRROV in the provinces of British Columbia, Alberta, and Manitoba.

$)),'$9,72)(0,//)$&.(1+(,0 I, (0,//)$&.(1+(,0, of the City of Jerusalem, in the State of Israel, MAKE OATH AND SAY: 1. I am a University Professor and a Professor Emeritus in Philosophy at the University of Toronto, and a Fellow of the Institute of Contemporary Jewry at the Hebrew University of Jerusalem. I taught philosophy as a full time professor at the University of Toronto from 1948 to 1983. I was a congressional rabbi at the Anshe Shalom synagogue in Hamilton, Ontario from 1943 to 1948, and have taught Judaic studies to both children and adults at the Holy Blossom Synagogue in Toronto for 30 years. Indeed, since moving to Israel in 1983 I have returned to Toronto annually for a lecture series at Holy Blossom on topics of Jewish educational interest. I have published numerous books, essays, articles and reviews in scholarly journals over my 45 year career as an academic. My degrees include a Ph.D (University of Toronto), LL.D. (Laurentian University), D.D. (St. Andrews College), D.Hu.L. (Hebrew Union College), Lit. D. (Barry College). I was born in Halle, Germany, and studied at the Berlin Hochschule fuer die Wissenschaft des Judentums, where I was ordained as a Rabbi in 1939. Attached KHUHWRDQGPDUNHGDV([KLELW´$µWRWKLVDIÀGDYLWLVDFRS\RID%LRVNHWFKVHWWLQJRXW my academic credentials and some, but not all, of my publications. 2. In my opinion, Jewish day school education is indispensable to the survival of Jewish communities in Canada and throughout the world. In the post-Holocaust era, this has become a matter of absolute urgency, as the Jews are a survivor people for whom it is necessary that they and their children understand their religious heritage. It is imperative that Jews know who they are and why they are here. 3. It is also my view that sending children to weekend or afternoon schools to learn about their Jewish religion and heritage is not an adequate approach to Jewish education. The psychological impact on children of having Jewish education come after school hours rather than during the school day is such that it makes Jewish education a burden

771

STATE SUPPORT FOR RELIGIOUS EDUCATION

for them rather than a natural part of their life. Jewish education is intimately linked with Jewish cultural survival, and in order to be effective it must be pursued together with the secular portion of the children’s education in a full-time, day school setting. Judaism must be taught as an integral part of life, and not as an after-hours activity that Jewish children are made to endure. 4. I have very recently written an essay entitled “Jewish Education: Its Indispensability to Diaspora Jewish Survival” in which I have set out in full my philosophical views on the subject of Jewish day school education and its role in contemporary Jewish life. A FRS\RIWKLVHVVD\LVDWWDFKHGKHUHWRDQGPDUNHGDV([KLELW´%µWRWKLVDIÀGDYLW 5. As I have stated in the essay, it is my view that Jewish communities world over are subject to strains and stresses that are without precedent. On one hand there is a startling increase in Jewish assimilation and a falling away from the Jewish faith by the Jewish people, and on the other hand there is a movement toward renewal of the Jewish faith and a return to its traditions. Jewish day school education in Canada is part of this renewal, and must be supported and fostered in order for the Jewish communities to survive the negative stresses which are present in contemporary life.  ,PDNHWKLVDIÀGDYLWIRUWKHSXUSRVHRIWKHFRQVWLWXWLRQDOFKDOOHQJHWRWKHQRQ funding of Jewish day schools. [Editor’s note: only Exhibit “B” is reproduced]

772

6. CANADIAN JUDICIAL DECISIONS

(;+,%,7´%µ -(:,6+('8&$7,21,76,1',63(16$%,/,7<72',$6325$ -(:,6+6859,9$/ by Emil L. Fackenheim, Ph.D., LL.D., D.D., D.Hu.L., Lit.D., F.R.S.C. University Professor and Professor of Philosophy Emeritus University of Toronto Fellow, Institute of Contemporary Jewry, Hebrew University Fellow, The Jerusalem Institute of Public Affairs. Jewish history almost came to a swift and violent end at the very moment it began in earnest. Such at least is its account in the most important Jewish book (which is also the second-most important Christian book), known within Christendom as the Old Testament. Barely released from slavery, the Israelites found themselves hemmed in by catastrophe – an Egyptian army bent on slaughter behind, and the impassable Red Sea in front. But then, as Scripture has it, a “strong east wind” blew “all the night, and made the sea dry land, and the waters were divided” (Exod.14:21). This enabled the Israelites to pass; and, as the enemy pursued, he was drowned by the returning waters. In the Bible this event is described, not as a fortunate coincidence, but as a saving act of God – a miracle. “The concept of miracle,” writes the twentieth century Jewish philosopher Martin Buber, “which is permissible from the [modern-critical] historiFDODSSURDFKFDQEHGHÀQHGDWLWVVWDUWLQJSRLQWDVDQDELGLQJDVWRQLVKPHQW7KH« religious person … abides in that wonder; no knowledge, no cognition, can weaken his astonishment. Any causal explanation only deepens the wonder for him …” ,QWKH%LEOHLWVHOIWKHDVWRQLVKPHQW%XEHUVSHDNVRILVUHÁHFWHGLQWKH´6RQJDWWKH Sea” in which “Moses and the Israelites” praise a God who is “glorious in holiness, fearful in praises, doing wonders.” (Exod: 15:11). That this particular astonishment has LQGHHGDELGHGFRXOGÀQGQRPRUHVWULNLQJSURRIWKDQWKHIDFWWKDWWRWKLVGD\WKH´6RQJ at the Sea” is referred to by observant Jews twice daily in their prayers. This, surely, is itself astonishing, and quite uniquely so. Without the “miracle” at the beginning – this is the twice-daily experience of Jews at prayer – , Jewish history would not have begun in earnest; and unless their astonishment at the ‘then-and-there’, were also an astonishment at the ‘here and now’, they, the Jews at prayer themselves, would survive, if at all, only (as an Arnold Tovnbee ignorant of Jewish history has put it) as a “fossil”. “Some fossil”, Winston Churchill – well remembered by Canadians for a similar remark in war-time Ottawa, and also a life-long Zionist – might have rejoined, had he come across Toynbee’s bit of ideologizing. “Some abiding,” thoughtful persons might add, about an “astonishment” felt at the very birth of a people – and re-felt by their descendants four millennia after. The wonder at the Sea is what I call a “root experience” in Judaism. The distinguished thinker Irving Greenberg calls it, perhaps more aptly, an “orienting” experience, for it has oriented Jewish life through the ages, to this day.

773

STATE SUPPORT FOR RELIGIOUS EDUCATION

Jewish existence can be and has been a vibrant life. But it also can be and has been a Toynbeean “fossil.” What makes the difference? In a word, education. For many the answer might be, more theologically and more narrowly, “prayer” and “faith”. However, XQOHVVLQIRUPHGHQULFKHGEURDGHQHGE\WKHDFWXDOÁHVKDQGEORRGKLVWRU\RIWKHHYHU relived astonishment at the ancient “miracle” – abiding despite trials and tribulations, through one exile after another – , even the twice-daily prayers of “the religious” shrivel DWEHVWLQWRPHUHÀGHLVPDQGDWZRUVWLQWRGHDGKDELW$VIRUWKHLU´VHFXODULVWµEUHWKUHQ ZKRSUD\QRPRUHWKHVHWRRQHHGWKHHQULFKPHQWRIWKHÁHVKDQGEORRGKLVWRU\IRULI cut off from it by ignorance, they are cut off also from the astonishment – at a history leading up to themselves, at the fact that they, the remote descendants, exist, still are here. If thus impoverished, what can their Jewish identity be to them but an accident of birth, or even – this especially in the post-Holocaust age – , as the poet Heinrich Heine so hauntingly put it long before the catastrophe, a misfortune? In short, then, without Jewish education “secularist” Jews become a fossil, and even “religious” Jews are not much more. What is education? At its existentially most profound, the appropriation of humanity’s past heritage for a life geared to the future. What is Jewish education? At its existentially most profound, the Jewish appropriation of the Jewish past and its heritage for a Jewish life geared to a Jewish future. Just what a Jewish being-geared to a Jewish future must ultimately be, is shown – authoritatively, once and for all – by an ancient parable. (In Judaism, this is called Midrash.) When the angels in heaven perceived the Israelites’ salvation at the Sea they wanted to sing, but God Himself reproved and stopped them. “My children are drowning,” said the Almighty, “so how can you sing?” Jewish history – such is the Jewish experience – begins with – nay, is made possible by – salvation; but this, involve as it does the drowning of God’s children, is shot through with fragmentariness, nay, tragedy, and so is salvation not only in Jewish history but human history as a whole. A Jewish life geared to the future would therefore forever hover on the brink of despair could no more be hoped for than what is appropriated from the past – more fragmentary salvation, perhaps, but this only amid endless suffering and tragedy. This threat of despair is wiped out in Jewish life, however, by the hope for a Salvation not merely within history but rather in consummation of it, when “They shall beat their swords into plowshares and their spears into pruning hooks, [when] nation shall not lift up sword against nation, [when] neither shall they learn war any more.” (Isa. 2:4) After the second World War – most disastrous in history, catastrophic in Jewish history – the nations of the world banded together. Except for voting for a Jewish state, the organization founded by them has not been kind to either the Jewish people or their Judaism: it often seems to view both as a fossil. All the more striking is the fact that the main wall of its building, at New York’s East River, bears the inscription just cited. What is this but proof that the hope by which Jews have survived through the millennia – -not as a fossil but as a living people – is itself alive?

774

6. CANADIAN JUDICIAL DECISIONS

One should not, many sages warn, count on miracles. Reliance on miracles, say others, is vain unless it is accompanied by human action: the Messianic Salvation cannot be rightly prayed for unless it is also worked for. This warning applies to the wonder hoped for in the end, but no less to the wonder remembered from the beginning. While others prayed for the Red Sea to split, a Midrash relates, a certain Nachshon of the tribe of Judah stormed into the raging waters, and the waters split only then and not before. Since this is so, the Jewish road from Salvation at the Sea necessarily leads to Commandment at Sinai. (This I call the second root experience in Judaism.) Jews without hope may not be (as has been suggested) a contradiction in terms; they are, in any case, a fossil. The same is true of Jews without Commandment; and just as Jewish education appropriates salvation in the beginning so as to subserve hope for the future, so it appropriates Sinai – the peak of the Jewish past – as issuing commandments for present and future action. 2EVHUYDQW-HZVÀQGWKHPVHOYHVERXQGWRQRIHZHUWKDQVL[KXQGUHGDQGWKLUWHHQ commandments, and a Midrash asserts that, if only the whole Jewish people observed but a single Sabbath with a pure heart, the Messianic Salvation would come at once. Less observant Jews may have whittled down Sinai to the Ten Commandments or even less. But can they be Jews – other than by accident of birth – if they no longer know, no longer live by, the need to do “mitzves”? I use the soft-sounding Yiddish pronunciation of the Hebrew word, as used by ordinary folk, rather than the stern-sounding, theologically-sounding mitzva (equally stern as the English “commandment”). And, groping for a translation of the Yiddish mitzve,ÀQGP\VHOIGULYHQWRDQRWKHU
STATE SUPPORT FOR RELIGIOUS EDUCATION

With the emancipation – the acceptance of Jews as citizens in modern states – Diaspora became a reality. There was no need, however, for the emancipating states to wonder whether Jews could reconcile their old Jewish loyalties with those required of them by their newly-won citizenship: Jewish law itself had long made the reconciliation mandatory. To be sure, the charge of “dual loyalty” – i.e., of disloyalty to their country – is often levelled at this or that Jewish Diaspora, with apparent plausibility since the rise of a Jewish state. But the plausibility is only apparent, for the disloyalty-charge, long preceding a Jewish state and indeed as old as modernity, was concocted by antisemitic foes of Jewish emancipation. The Jews, they said, were a “state-within-the state,” hence disloyal inherently and incurably. That “state-within-a-state”, needless to say, ZDVHQWLUHO\ÀFWLWLRXV7KH´DQWL=LRQLVPµRIWRGD\LVQRWDQHZSKHQRPHQRQGLVWLQFW from antisemitism; it is merely a new version of it, no better than the old. In two respects the grim twentieth century has done poorly by the Jewish Deena d’Malchuta Deena principle. The Holocaust has happened; and the Jewish state that has necessarily arisen from the ashes – the necessity is moral, religious, human – continues to be, at this time of writing, besieged by enemies bent on destroying it. If the Holocaust happened in civilized, Western-oriented Germany – its Jews were as German as they were Jewish – , where can it not happen? This is a new and unavoidable question. As new and unavoidable is an imperative. Diaspora Jews may disapprove of this or that policy of the Jewish state, but two mitzves toward it brook no compromise – to support its struggle for survival, and to support its struggle to end Jewish exile anywhere. Must the Jewish Diaspora surrender these two “political” commitments, lest it be disloyal to the country in which it exists? For any civilized state to make this demand would be as reprehensible as the demand that blacks, lest they be less than loyal citizens “at home,” must abandon their “political” opposition to apartheid “abroad”. The Jewish Deena d’Malchuta Deena, then, has not fared well in the twentieth FHQWXU\WKHUHDUHVLJQVKRZHYHUWKDWLWZLOOGREHWWHULQWKHWZHQW\ÀUVW:KHQWKHPHQ of the French revolution emancipated the Jews of France, they demanded that they make themselves over into “human beings abroad” and remain Jews, if at all, only “at home,” i.e., in the pricavy (sic), secrecy, of their houses. A proposal so arrogant and humiliating would be howled down with indignation in the “Canadian mosaic” of today, and even in the e pluribus unum of Canada’s neighbour “multiculturalism” would easily defeat it. Here is a promise for a vital Jewish Diaspora in the century that lies ahead. More profound, however, because religiously-motivated, is yet a further promise. Within Judaism Diaspora-existence is as old as the prophet Jeremiah. With the waning of Christian states in the West – we can predict nothing about Eastern Europe – a Christian self-understanding as a Diaspora also is just beginning; and that there is a need for such a self-understanding for Muslims, too, was traumatically experienced by sensitive Muslims in democratic countries when Iran’s late Ayatollah Khomeini pronounced the death sentence on Zalman Rushdie, to be carried out by faithful Muslims DQ\ZKHUH²ZKHWKHUWKDW´LQÀGHOµVRXJKWUHIXJHLQ%ULWDLQ)UDQFHWKH8QLWHG6WDWHV or Canada. The Jewish Diaspora today – the idea and the reality – is thus subject to strains and stresses that are without precedent. For this reason phenomena exist in our time that nobody would have predicted two generations ago. On the one hand, there is a strong, 776

6. CANADIAN JUDICIAL DECISIONS

nay, militant Jewish self-assertion in the Diaspora that seeks renewal through a return to the roots, and not its least remarkable expression is the rise of Jewish day schools. But on the other hand, the statistics show a startling increase in Jewish assimilation, in indifference, in falling away, and also a decrease, equally startling, in the Diaspora Jewish population. Jewish education – the renewal of the ancient wonder, of the indestructible hope, of the mitzve that brooks no compromise – this has become, for the Jewish Diaspora of our time, an imperative of unprecedented urgency. Behind the urgency lies a spectre that haunts Jews but also Gentiles sensitive to recent Jewish history. Half a century ago the world witnessed an attempt to make it judenrein²DPDVVPXUGHURIWKH-HZLVKSHRSOHVXFKZDVWKHÀQDOJRDO WKDWwould leave no survivors. Yet survivors there were; and indeed, all post-Holocaust Jews should view themselves as survivor-people. But what if that people – no longer learning who they are or why they are here, not knowing who they are or why they are here – became ever less Jewish, had ever fewer children, so that at length Diaspora Jewry were in a process even now of, slowly but surely, committing group suicide? What then is the haunting spectre? That, of Jewish history, Auschwitz might have the last word. But the history that once began with an abiding wonder must not be allowed to end with an abiding horror. * This essay was written with restriction to the role of Jewish education in Diaspora only. The issues in Israel are only partly the same.

777

STATE SUPPORT FOR RELIGIOUS EDUCATION

$)),'$9,72)$57+85.58*(5 I, $57+85.58*(5, of the City of Toronto, in the Municipality of Metropolitan Toronto, MAKE OATH AND SAY: 1. I am a Professor at the University of Toronto and have recently been appointed as the Director of the Ontario Institute for Studies and Education (“OISE”), and will be assuming this position as of January 1, 1992. I am the acting Director of the Jewish Studies Program at the University of Toronto. I am also a former Dean of Arts and Sciences at the University of Toronto and also a former Principal of Wordsworth College at the University of Toronto. I have been a professional educator, academic and academic administrator for my entire career. Attached hereto and marked as Exhibit ´$µWRWKLV$IÀGDYLWLVDFRS\RIP\FXUULFXOXPYLWDH 2. In my view, education is not only central to Jewish religious life, but is crucial to Jewish cultural survival. As a minority religious and ethnic group within a majority culture, Jewish cultural life in Canada is dependent upon the Jewish community’s ability to immerse its children in an educational context which conveys and perpetuates the knowledge and values of our faith. 3. Judaism is, of course, an ancient religion and culture. In order to be completely educated in Jewish religion, history and traditions, a Jewish child must necessarily learn an number of different languages including ancient Hebrew and Aramaic; and, moreover, in order to be knowledgeable and able to participate in contemporary Jewish cultural life a child must achieve some mastery of modern Hebrew and Yiddish. These OLQJXLVWLFGHPDQGVDORQHZRXOGVXIÀFHWRPDNHGD\VFKRROHGXFDWLRQDQHFHVVLW\IRU a Jewish child’s education. Added to this are all of the intricacies of Jewish ritual, religious literature and historical studies that are necessary to a proper understanding of the Jewish religion and way of life. 4. As a professional educator and the Director designate of this province’s premier institution for studies in education (not to mention the educational institution that has WUDLQHGVRPDQ\RI2QWDULR·VSXEOLFVFKRROWHDFKHUV ,VD\ZLWKFRQÀGHQFHWKDWWKH -HZLVKFRPPXQLW\·VYHU\VXUYLYDODVDQLGHQWLÀDEOHDQGSUDFWLFLQJUHOLJLRXVFRPPXQLW\ depends on broad access for Jewish children to the Jewish day schools. Much as I am proud to say that the public schools in Ontario are of extremely high calibre, it is my view that Jewish cultural survival simply cannot be insured through public school education. The study of Judaics is a lifelong process which should properly begin in VFKRRODWDQHDUO\DJH,WLVRQO\WKH-HZLVKGD\VFKRROVWKDWFDQIXOÀOWKLVIXQFWLRQ for the Jewish community and its children, and, accordingly, it is my opinion that any obstacle to Jewish day school attendance would amount to a denial of freedom of religion for Jewish parents and their children.  ,PDNHWKLVDIÀGDYLWLQVXSSRUWRIDQDSSOLFDWLRQFKDOOHQJLQJWKHQRQIXQGLQJRI the Jewish day schools, and for no improper purpose. [Editor’s note: Exhibit “A” has not been reproduced]

778

6. CANADIAN JUDICIAL DECISIONS

$)),'$9,72)%(51$5'6+28% I, %(51$5'6+28%, of the City of North York, in the Municipality of Metropolitan Toronto, MAKE OATH AND SAY: 1. I am the Director of School Finances for the Board of the Jewish Education in Metropolitan Toronto, and as such have knowledge of the matters to which I hereinafter depose. 2. I have been a professional educator and education administrator for most of my FDUHHU,UHFHLYHP\%6FIURP0F*LOO8QLYHUVLW\LQP\WHDFKLQJFHUWLÀFDWH from MacDonald College in 1963 and my M.T.M. from Concordia University in 1967. Before joining the Board of Jewish Education, I was a secondary school and university teacher in math and sciences. I have been with the Board on a full-time basis for fourteen years, with primary responsibilities for overseeing community school budgets, resource allocations, tuitions and the general administration of the Board. 3. The cost of education in the Jewish school system is roughly comparable to the per capita cost of the public school system in Metropolitan Toronto. By way of illustration, WKHÀQDQFLDOVWDWHPHQWVRIWKH0HWURSROLWDQ7RURQWR%RDUGRI(GXFDWLRQVKRZWKDW for public elementary education the net expenditure on a per capita basis is $6,640 per student, and that for public secondary education the net expenditure per student is $WWDFKHGKHUHWRDQGPDUNHGDV([KLELW´$µWRWKLVDIÀGDYLWLVDFRS\RID6XUYH\ of School Board 1989 Financial Statements, dated November 9, 1990, published by WKH2QWDULR0LQLVWU\RI(GXFDWLRQLQZKLFKWKHÀQDQFLDOGDWDIRUÀYHUHJLRQDOVFKRRO ERDUGVIRUSXEOLFHOHPHQWDU\HGXFDWLRQDQGÀIWHHQUHJLRQDOVFKRROERDUGVIRUSXEOLF secondary education are surveyed and compared. The cost per child of education in the Jewish school system is comparable, and tuitions range from a low of $5,000 for Grade 1 in certain schools to a high of $7,800 for high school. 4.

The Jewish day schools in Toronto receive funding from three sources: (a) the parents of school children pay tuition fees which account, on average, for 77% of the cost of elementary school education (grades 1 to 8) and 51% of high school education; (b) the schools themselves raise money through various activities and charity drives; and (c) the Jewish community, through the Toronto Jewish Congress and the Board of Jewish Education, funds the difference between parental contribution and actual education costs for those families who cannot afford the full tuition charged by the individual Jewish schools.

5. Thirteen of the Jewish day schools in the Metropolitan Toronto area participate in the community funding program administered by the Board, while other Jewish schools have opted to administer their own community funding subsidies. The Board’s overall budget for funding subsidies in 1990-1991 was $7 million. The Board audits each participating school annually and monitors the expenditures, populations and income of the schools on a monthly basis in order to ensure the accuracy of each school’s

779

STATE SUPPORT FOR RELIGIOUS EDUCATION

statement of education costs per student. Tuition assistance decisions are then made in advance of each school year on a family-by-family basis. 6. Of the 6,252 students attending the day schools which receive the Board’s comPXQLW\IXQGLQJVWXGHQWVUHFHLYHGVRPHIRUPRIÀQDQFLDODVVLVWDQFHIURPWKH community in 1990-1991. This assistance ranges anywhere from $100 per year to full WXLWLRQVXEVLGLHVDQGDSSOLHVWRFKLOGUHQLQJUDGHVWKURXJK6RPHÀQDQFLDODVVLVWance is also offered directly by the schools to pre-school students in the Jewish nursery schools and kindergartens, but statistical information for the pre-school programs is not readily available. 7. Individual tuition assistance decisions are made on the basis of family income, number of school children in the particular family, and general economic need. A rather extensive questionnaire is required to be completed by each family requesting FRPPXQLW\ÀQDQFLDODVVLVWDQFHPXFKRIZKLFKGXSOLFDWHVWKHLQIRUPDWLRQWKDWZRXOG typically be contained on a personal income tax return. Each family requesting assistance LVUHTXLUHGWRH[SODLQLQGHWDLOLWVÀQDQFLDOVWDWXVLWVYDULRXVFRVWVRIOLYLQJLWVDVVHWV its available medical and dental insurance, and other personal expenses and matters such as the extent of babysitting required, the number of vacations taken annually, etc. $WWDFKHGKHUHWRDQGPDUNHGDV([KLELW´%µWRWKLVDIÀGDYLWLVDVDPSOH application form for a tuition fee subsidy in the Jewish day schools. 8. While an assortment of personal details are taken into account in making each tuition assistance decision, the basic ground for the decision is gross family income. Accordingly, the Board of Jewish education sets annual guidelines for tuition fee assistance. The 1991-1992 guidelines take into account families whose income are as low as a gross family income of under $9,500 with four children or more in the Jewish GD\VFKRROV$WWDFKHGKHUHWRDQGPDUNHGDV([KLELW´&µWRWKLVDIÀGDYLWLVDFRS\RID memorandum from the Board of Jewish Education to all of the subsidized day schools dated May 22, 1991 setting out the 1991-1992 tuition fee guidelines. 9. Given the extensive experience that the Board has with the schools that participate in its funding program, it is possible to extrapolate the statistical information so that it pertains to all of the Jewish day schools in Metropolitan Toronto, including those that do not participate in the Board’s program. In my view, it would be conservative to project that at the grades 1-6 level for the non-participating school population of 758 students, 470 are receiving some form of assistance; and of the 268 students in grades 7-13 in the non-participating schools, 182 would be receiving assistance.  7KHÀJXUHVVHWRXWLQSDUDJUDSKDERYHUHSUHVHQWWKHSUHFLVHÀQDQFLDO assistance statistics for those schools participating in the Board’s program. By combinLQJWKRVHÀJXUHVZLWKP\RZQFRQVHUYDWLYHHVWLPDWHVWKHWRWDOÀQDQFLDOO\DVVLVWHG population for grades 1 – 13, in both the participating and the non-participating Jewish day schools, is approximately 3,040 of the overall student population of 7,278 in the Metropolitan Toronto Jewish day schools. In other words, approximately 41.8% of the FKLOGUHQDWWHQGLQJ-HZLVKGD\VFKRROVLQ7RURQWRUHFHLYH-HZLVKFRPPXQLW\ÀQDQFLDO assistance in order to educate their children in the Jewish day system.

780

6. CANADIAN JUDICIAL DECISIONS

 ,PDNHWKLVDIÀGDYLWLQVXSSRUWRIDQDSSOLFDWLRQFKDOOHQJLQJWKHQRQIXQGLQJRI Jewish day schools, and for no improper purpose. [Editor’s note: Exhibits have not been reproduced]

$)),'$9,72)5$%%,,5:,1:,77< ,5$%%,,5:,1:,77<, of the City of North York, in the Municipality of Metropolitan Toronto, MAKE OATH AND SAY: 1. I am the Director of the Board of Jewish Education in Metropolitan Toronto, and as such have knowledge of the matters to which I hereinafter depose. 2. I studied at the Talmudical Academy in Brooklyn, New York and at the Yeshiva University, where I received my B.A. in 1953. I pursued graduate studies in history at Columbia University and in education at Temple University in Philadelphia, and in my post-graduate years studied Rabbinics at the Graduate School of Yeshiva University, the Mirrer Yeshiva and at Dropsie University. I have been both a congregational Rabbi and a Jewish day school educator, and currently, in addition to my duties at the Board of Jewish Education, I teach on a part-time basis at the Faculty of Education at York University. In 1983 I served as scholar-in-residence at the Hebrew University of -HUXVDOHPLQWKH6FKRRORI(GXFDWLRQDQGZDVWKHÀUVW-HZLVKHGXFDWRUIURPRXWVLGH of Israel to teach at the Melton Centre for the training of teachers for diaspora Jewish communities. 3. There are approximately 10,000 students in full-time attendance at Jewish day schools throughout the Province of Ontario. The majority of these schools, 19 schools to be exact, are located in Metropolitan Toronto and the surrounding area, and, in addition, there are two schools in Ottawa, two schools in Hamilton, and one in each of London and Kitchener. The Board of Jewish Education, which serves various administrative functions and provides an umbrella for the majority of the schools in Metropolitan Toronto, has been in existence since 1949. Full-time Jewish day schools have been run by the Jewish community and have provided education for Jewish children in Ontario VLQFH,KDYHSUHSDUHGDVFKHGXOHZKLFKLVDSSHQGHGWRWKLVDIÀGDYLWOLVWLQJWKH Jewish day schools in Ontario and setting out the student population in each school. 4. Although all of the Jewish day schools in Ontario share certain common features, Jewish education, like the community itself, is by no means monolithic. Thus, for example, Jewish education in Ontario encompass schools run by ultra-orthodox movements, who trace their cultural origins to Eastern Europe, as well as a school such as Or HaEmet which is run by the Sephardic Jewish community who trace their origins to the Middle East and North Africa. Within Metropolitan Toronto there are schools which range in their religious orientation from ultra orthodox institutions to liberal UHIRUPDIÀOLDWHGVFKRROV,Q2WWDZDJLYHQWKHELOLQJXDOQDWXUHRIERWKWKH&LW\DQG Jewish community, there is one English language Jewish day school and one French language Jewish day school. In addition, the Jewish community in Toronto runs one school, She’arim, for learning disabled children.

781

STATE SUPPORT FOR RELIGIOUS EDUCATION

5. Given the diversity of social, cultural, religious and historic forces that have VKDSHGWKH-HZLVKFRPPXQLW\LWLVGLIÀFXOWWRGHVFULEHLQDQRYHUDUFKLQJIDVKLRQWKH content of Jewish education in Ontario. Each Jewish day school has its own principal, its own board of directors and its own curriculum Committee. On top of that, the Board of Jewish Education provides some centralized funding and tuition assistance programs as well as professional development programs for principals and teachers, training for teaching candidates and an array of other support services. What follows is a generalized description of the curricula pursued in the Jewish day schools, in an DWWHPSWWRJLYHDÁDYRXURIWKHW\SHRIHGXFDWLRQSURYLGHGLQWKHVHVFKRROVUDWKHUWKDQ to set out in precise detail the subject matters and coverage pursued in every single Jewish educational institution in the Province. 6. Virtually all of the Jewish day schools in Ontario seek to comply with the Ministry of Education curriculum requirements for elementary school. Accordingly, in kindergarten through grade 9, all of the schools teach a relatively typical mix of English, French, Math, Science, History, Physical Education, etc. 7. For the high school years, the general studies programs in all of the Jewish schools comply with the requirements of the Ontario Secondary and Intermediate Schools (“OSIS”) for obtaining a secondary school leaving diploma. Thus, the schools provide between 110 and 120 instructional hours per course per school year, and a full range of both mandatory and optional high school courses are offered in accordance with the OSIS guidelines. In addition, all of the Jewish high schools seek Ministry of Education approval for the non-OSIS courses offered in their respective curricula, so that students who obtain high school credit for Hebrew language and literature classes do so with Ministry of Education approval. For the mainstream general studies courses, an effort is made in each community to conform to the curricula offered by the local school board. 8. The Jewish studies component of each school varies in accordance with the educational philosophy of the particular school. However, the following list is probably representative of all of the elementary school level Jewish day schools, with the variety offered and emphasis placed on the different subjects varying with the educational approach and, of course, the budget of each school: (a) Hebrew reading and writing (b) Hebrew and/or Yiddish conversation (c) Bible studies (d) Mishnah and Talmud (rabbinical discourse and interpretation) (e) Codes of Jewish Law (f) Jewish ethical literature (g) Israel studies (h) Modern Hebrew literature (i) Jewish history 9. Most typically, the children in the Jewish school system receive an educational mix of about 50% Jewish studies and 50% general studies. In Toronto, the three most prominent schools, the Associated Hebrew Schools, United Synagogue Day Schools,

782

6. CANADIAN JUDICIAL DECISIONS

and Bialik Hebrew Day School, account for the majority of students in the Jewish day school system and provide a program in which half of each school day is devoted to Jewish subjects and the other half is devoted to general school studies. The school day in these schools is typically an hour or more longer than in the public schools, so that the extra religious education is not accommodated at the expense of the general studies program as offered in the public school system.  $OWKRXJKWKHVHPDWWHUVDUHGLIÀFXOWWRPHDVXUH,IHHOFRQÀGHQWLQVD\LQJWKDWWKH education provided in the Jewish day schools throughout Ontario is of an extremely high calibre. Even in the more esoteric areas of Jewish studies, about 95% of the teachers in WKH-HZLVKGD\VFKRROV\VWHPDUH0LQLVWU\RI(GXFDWLRQFHUWLÀHGRUFDSDEOHRIEHLQJ FHUWLÀHG7KHVWXGHQWVZKRFRQWLQXHLQWKH-HZLVKGD\VFKRROV\VWHPWKURXJKJUDGH leave with a full high school degree and are accepted in exceptionally large numbers to universities in Canada and abroad. 11. In my view, the students who attend Ontario’s Jewish day schools are not only well educated, but exhibit a pride in their heritage and a thirst for knowledge and scholarly achievement that comes from immersion in an educational system which stresses the value of learning as a way of life. Although I have no statistical information at my disposal, I am aware from my general familiarity with the Jewish community and my continuing contact with my own former students that these students go on to contribute widely to Canadian professions, business, arts, academics, etc. This is only logical, given the learning skills and intense educational experiences that the Jewish day schools provide their students from an early age. The combination of Jewish studies and general studies pursued in these schools provides both a depth and a breadth of experience that has proved over many generations to be a successful educational formula.  ,PDNHWKLVDIÀGDYLWLQVXSSRUWRIDQDSSOLFDWLRQFKDOOHQJLQJWKHQRQIXQGLQJRI Jewish day schools, and for no improper purpose.

6&+('8/(2)-(:,6+'$<6&+22/6,10(75232/,7$1 7252172 Presch.

Day School

Total

Associated Hebrew Day School

670

1992

2662

Beth Jacob Elementary

179

434

613

265

265

Beth Jacob High Bialik Hebrew Day School

173

575

748

Bobover Yeshiva Bnei Zion

61

84

145

Chedar Chabad

38

52

90

Eitz Chaim Day School

317

841

1158

Leo Baeck Day School

89

351

440

53

53

Mesivta School of Toronto

783

STATE SUPPORT FOR RELIGIOUS EDUCATION

Presch. Ner Israel Yeshiva

Day School

Total

173

173

Netivot Hatorah

91

308

399

Or Haemet Day School

35

162

197

She’Arim Hebrew Day

56

56

Ulpanat Orot

123

123

848

1242

Yeshiva Nachalat Zvi

44

44

Yeshivat Or Chaim

58

58

United Synagogue Day School

394

Yesodei Hatorah

170

340

510

Zareinu

10

10

20

11

11

Yeshiva Tiferes Yisrael

$)),'$9,72)686,($'/(5 I, 686,($'/(5, of the Town of Vaughan, in the Regional Municipality of York, MAKE OATH AND SAY: 1. I am the mother of a 6 year-old child in grade 1 at a Jewish day school, the Bialik Hebrew Day School (“Bialik”).  ,DPDQ2FFXSDWLRQDO7KHUDSLVWE\SURIHVVLRQZLWKD%6FLQWKLVÀHOGIURPWKH Faculty of Rehabilitation Medicine at the University of Toronto. I have worked as a WKHUDSLVWVWHDGLO\VLQFHP\JUDGXDWLRQIURPXQLYHUVLW\LQÀUVWDWWKH%D\FUHVW Hospital in Toronto, and then for seven years at the Bikur Cholim Hospital in Jerusalem, Israel, where I worked in conjunction with the Paediatric Neurology Unit providing therapy for children with various neurological impairments. Since my return to Canada in 1987, I have been employed at the Hugh MacMillan Rehabilitation Centre as a therapist with the Centre’s Augmentative Communication Service for non-speaking children. 3. I was born and raised in Niagara Falls, Ontario, where I lived until the end of high school. During those years, Niagara Falls had enough of a Jewish population to support one synagogue, but there were not enough members of the Jewish community to support a full-time day school. I therefore attended public school as well as after school Hebrew classes at the synagogue several afternoons a week. 4. My husband, Mark Adler, is a commercial account manager at the Bank of Montreal, having completed his studies at York University in 1989. We both work full-time, and my youngest child, a two year old, is in daycare for the full day while my older child is at school and my husband and I are at work.

784

6. CANADIAN JUDICIAL DECISIONS

5. I would describe our family values and lifestyle as imbued with Jewish tradition. There has never been any question in my mind that my children must be provided with a Jewish education such as that provided at Bialik. This is necessary for my daughter’s cultural identity and her religious literacy. 6. My conviction that my children should have a Jewish education in a day school setting is augmented by my own experience in Niagara Falls where there was no Jewish day school available. While my family attempted to instil Jewish values and a love and knowledge of Jewish tradition at home and at synagogue, it was extremely GLIÀFXOWWRDFFRPSOLVKWKLVWDVNZLWKP\IXOOWLPHDWWHQGDQFHDWDSXEOLFVFKRRO-HZLVK education properly requires a type of extensive learning that, in my view, simply cannot be imparted in after-school sessions. 7. Furthermore, Jewish tradition is an almost all-consuming lifestyle which can be SXUVXHGRUDSSUHFLDWHGE\FKLOGUHQLQDSXEOLFVFKRROFRQWH[WRQO\ZLWKJUHDWGLIÀFXOW\ The fact is that, as good as my secular education might have been in Niagara Falls, the SXEOLFVFKRROVHWWLQJZDVKLJKO\DVVLPLODWLRQLVWLQLWVLQÁXHQFHRQPHDQGP\-HZLVK friends. The differences between us and the non-Jewish students tended to foster negative feelings in the Jewish students rather than positive ones, and today my primary memories of Jewish identity from my public school years include the inability of the Jewish students to participate in school events which occurred on Jewish holidays. 8. Since my daughter, Maya, has started attending Bialik, I have experienced an XQH[SHFWHGEHQHÀWWKDWKDVHYHQIXUWKHUVWUHQJWKHQHGP\FRQYLFWLRQWKDW-HZLVKGD\ school education is necessary for my children. Maya has not only begun to acquire a thirst for learning about Jewish holidays and other Jewish traditions with remarkable speed, but she has brought this love of Jewish learning home to us in a way which has enriched the life of the rest of our family. 9. The Jewish High Holiday season has only recently passed this month, and I cannot remember a time (except, of course, in Israel where the Jewish holidays are national KROLGD\V ZKHQRXUFHOHEUDWLRQRIWKHUHOLJLRXVKROLGD\VZDVVRSURQRXQFHGDQGIXOÀOOing. I now realize that Maya’s Jewish education is as important for us as it is for her. While we send her to a day school in order to instil within her a Jewish consciousness, the very process has heightened our own Jewish consciousness in a very positive way. Maya’s Jewish education is and will continue to be part of our entire family’s religious DQGHWKQLFLGHQWLÀFDWLRQ 10. My husband and I returned to Canada from Israel, where we had both been working, in 1987, and my husband immediately entered a graduate program at York University. :HWKHUHIRUHHQWHUHGWKHKRXVLQJPDUNHWLQDVÀUVWWLPH7RURQWRKRPHEX\HUVDW DWLPHRIUDWKHULQÁDWHGKRXVLQJSULFHV0\KXVEDQG·VMREDWWKHEDQNDQGP\RZQMRE as a therapist, produce what might be labelled as middle incomes. While we certainly do not live in poverty, we have very little in the way of extra disposable income after our basic housing and other necessary expenses.  $OWKRXJK,IHHOWKDWWKHEHQHÀWVRI-HZLVKGD\VFKRROHGXFDWLRQDUHZRUWKDÀQDQFLDO VDFULÀFHZHVLPSO\FDQQRWFRQWLQXHWRDIIRUGWKHKLJKFRVWRIWXLWLRQDW0D\D·VVFKRRO

785

STATE SUPPORT FOR RELIGIOUS EDUCATION

Fortunately, the Jewish community has been able to make a small contribution towards VXEVLGL]LQJWKHWXLWLRQWKDWZHSD\7KLVKDVSDUWLDOO\HDVHGWKHÀQDQFLDOEXUGHQEXW has not removed it. Without this subsidy, however, I am doubtful that we would be able to send my daughter to a Jewish day school (let alone both my children when the younger one becomes of school age) without cutting into some basic necessities. I am ZLOOLQJWRVDFULÀFHIRUP\FKLOGUHQ·VHGXFDWLRQDQGZHKDYHFDUULHGWKHOLRQ·VVKDUH RIWKHÀQDQFLDOEXUGHQRIP\GDXJKWHU·VWXLWLRQEXW,VLPSO\FRXOGQRWPDQDJHWRJLYH my children the Jewish education which I consider necessary without the support and subsidization of the Jewish community. 12. It is my feeling that a child’s educational milieu constitutes a primary ingredient in her self-identity, and that this is particularly so in the case of ethnic and religious minorities. As indicated, I am intent on ensuring that my children are educated in a way which makes them proud and knowledgeable of their heritage. More than that, it seems to me that the Ontario public is strengthened and enriched by the existence of alternative educational systems such as the Jewish day school system. This education LQVWLOVLQFKLOGUHQDVHOIFRQÀGHQFHUHJDUGLQJWKHLUKHULWDJHDQGDVHQVLWLYLW\WRWKH heritage and tradition of others. 13. Having personally gone through the public school system in Ontario, I can with VRPHFRQÀGHQFHFRPSDUHP\FKLOG·V-HZLVKGD\VFKRROHGXFDWLRQWRWKDWUHFHLYHGLQ the public schools. No child who has gone through Jewish day school education will fail WRPLVVWKHVLJQLÀFDQFHWRRWKHUVRIWKHLURZQUHOLJLRXVKROLGD\VDQGWUDGLWLRQVDQGLQ my view this heightened awareness and sensitivity is far beyond what can be imparted to children in the public school ‘melting pot’. I do not mean to fault public education in any way; I simply wish to make the point that Jewish day school education is designed WREHQHÀWWKHSXEOLFDWODUJHDQGQRWMXVWWKHSDUWLFXODUFRPPXQLW\7KH*RYHUQPHQW of Ontario has apparently come to this conclusion with respect to the Roman Catholic schools, and I can see no reason for distinguishing myself and my family from our Roman Catholic neighbours. Jewish day school education compliments public and separate school education in this Province, as the goal of all of these systems is to provide for a culturally enriched and harmonious multi-ethnic public.  ,PDNHWKLVDIÀGDYLWLQVXSSRUWRIDQDSSOLFDWLRQFKDOOHQJLQJWKHQRQIXQGLQJRI the Jewish day schools, and for no improper purpose.

$)),'$9,72)0$5.*52660$1 I, 0$5.*52660$1, of the City of Kitchener, in the Regional Municipality of Waterloo, $)),50$1'6$<: 1. I am the father of a 6 year-old child in grade 1 and a 5 year-old child in kindergarten at a Jewish day school, the Kitchener-Waterloo Hebrew Day School.  ,DPDSDUWQHULQWKHODZÀUPRI6KXK&OLQH *URVVPDQDIRXUODZ\HUÀUPZLWKD general practice in the City of Kitchener. I received my law degree from the University of Toronto in 1981, and have practised in Kitchener ever since my call to the Bar in 786

6. CANADIAN JUDICIAL DECISIONS

1983. I am also the Chairman of the Board of Directors of the Kitchener-Waterloo Hebrew Day School. 3. I was born and raised in Montreal, and grew up in the relatively sizeable Jewish community in that city. While I am extremely appreciative of the lifestyle and the many attractions of life in a smaller urban centre such as Kitchener, I have in the past eight \HDUVFRPHWRUHDOL]HWKDWLWLVVXEVWDQWLDOO\PRUHGLIÀFXOWWRSXUVXHD-HZLVKUHOLJLRXV life and to observe Jewish traditions in a town without a large Jewish population. To the best of my knowledge, the Jewish community of Kitchener-Waterloo is comprised of approximately 400 families, and supports two synagogues. While the demands of -HZLVK OLIH GR QRW SRVH LQVXUPRXQWDEOH GLIÀFXOWLHV LQ DQ\ RWKHU ÀHOG WKH UHDOP RI education presents a particularly acute problem.  6LQFH,KDYHEHHQLQYROYHGLQWKHÀUVWHYHUDWWHPSWWRHVWDEOLVKD-HZLVK day school in Kitchener. The school opened its doors in September 1990 with fourteen students in kindergarten, grade 1 and grade 2. The school is housed in a local synagogue, the Beth Jacob Congregation, and today has thirty-one students enrolled in kindergarten through grade 5. The children are taught in duplex classes, so that junior kindergarten and senior kindergarten are taught together, grades 1 and 2 are taught together, and grades 3, 4 and 5 are taught together in the same classroom. We project a maximum HQUROOPHQWRIVWXGHQWVLQÀYH\HDUV·WLPHZLWKGXSOH[HGFODVVHVXSWRJUDGH 5. The school is funded by means of tuition fees as well as local Jewish community support. Each family pays $4,000 in tuition per child in attendance at the school, with a slightly reduced rate in effect for the kindergarten years. In addition, the school funds a bursary program for children of families who cannot afford the tuition. 6. In addition to the tuition fees, the school’s operating expenses and the bursaries are funded by various fundraising activities such as an annual telethon, a bingo night and DUDIÁHKHOGDWWKH%HWK-DFRE&RQJUHJDWLRQ)XUWKHUPRUHWKHVFKRROKDVRFFDVLRQDOO\ KDGWRUHVRUWWREDQNORDQVLQRUGHUWRNHHSLWVHOIDÁRDWDQGWREULGJHYDULRXVÀQDQFLDO GLIÀFXOWSHULRGV,WLVIDLUWRVD\WKDWVLQFHLWVLQFHSWLRQWKHVFKRROKDVVWUXJJOHGIRULWV ÀQDQFLDOVXUYLYDO 7. The Kitchener Jewish community does not meet the numerical threshold in HIIHFWIRUUHFHLYLQJÀQDQFLDOVXSSRUWIURPWKHODUJHU-HZLVKIXQGUDLVLQJRUJDQL]DWLRQV operating in Ontario. Community fundraising in the context of a small community OLNHRXUVLVSDUWLFXODUO\GLIÀFXOWDVDOOFRPPXQLW\PHPEHUVWHQGWRNQRZHDFKRWKHU on a personal basis. Fundraising therefore inevitably takes the form of one neighbour FDOOLQJDQRWKHUWRUHTXHVWÀQDQFLDODVVLVWDQFHIRUWKHLUFKLOGUHQ·VHGXFDWLRQDQGWHQGV to be rather awkward for both the fund raisers and the donors. It is probably not the most effective way to operate, but we have little choice. 8. The school operates on an annual budget of approximately $150,000. Most of this is consumed by salaries paid to the two full-time teachers, one three-quarter time teacher and one half-time teacher, as well as the part-time janitor that the school employs. It does not overstate the case to say that the school runs on a shoestring, and we are

787

STATE SUPPORT FOR RELIGIOUS EDUCATION

constantly asking the parents and other members of our community to volunteer their services in various ways in order to enrich the children’s educational program. 9. Having grown up in a large urban centre with a substantial Jewish community, my wife and I came to the realization several years ago that we would be unable to maintain our children’s sense of Jewish identity if we were to send them to public schools. The public schools in Kitchener are of a high calibre and I would not want to criticize them on any educational grounds. However, the fact is that the population of our city is such that it is likely that my children would have very few Jewish classmates. A true appreciation of annual Jewish holidays, as well as the entire range of Jewish traditions and life cycle events (from circumcisions, through Bar Mitzvahs, weddings and funerals) requires both individual observance and community participation. Jewish prayer takes place in a group context, and other facets of Jewish religious observance tend to be group and community oriented. Jewish identity is inevitably one of identity ZLWKDVHOIGHÀQHGFRPPXQLW\DQGLWLVQHDUO\LPSRVVLEOHWRLPEXHFKLOGUHQZLWKD sense of this identity where they are not surrounded by other community members. 10. As the Kitchener Jewish community does not have the critical mass which would enable a Jewish consciousness to be instilled in our children outside of the school context, we have concluded that the best solution is to have our children educated in a Jewish day school setting. While we do not have a sizeable population in any one school district within Kitchener, there are certainly enough Jewish children in the area to justify a single community school. In this way we can ensure that our children will be immersed during the school day in the community’s religious and cultural life. The problem, however, is that the Kitchener Jewish community simply does not have the IXQGVWRFUHDWHWKHW\SHRIIXOOÁHGJHGHGXFDWLRQDOLQVWLWXWLRQWKDWZHIHHORXUFKLOGUHQ deserve.  ,PDNHWKLVDIÀGDYLWLQVXSSRUWRIDQDSSOLFDWLRQFKDOOHQJLQJWKHQRQIXQGLQJRI the Jewish day schools, and for no improper purpose.

$)),'$9,72)3$8/$.(=:(5 I, 3$8/$.(=:(5, of the City of North York, in the Municipality of Metropolitan Toronto, MAKE OATH AND SAY: 1. I am the mother of a 7 year-old child in grade 2 at a Jewish day school, the United Synagogue Day School (“USDS”). 2. I am a teacher by profession and the head of the English as a Second Language Department at Kipling Collegiate Institute in the Etobicoke Board of Education. I am also a doctoral candidate in educational linguistics at the Ontario Institute for Studies in Education and a part-time instructor at the Faculty of Education at York University.  0\VRQ0DWDQKDGKLVÀUVWH[SHULHQFHLQVFKRROLQZKHQKHDWWHQGHG junior kindergarten at the Cedarvale Public School. His teacher at that time noticed WKDWKHKDGDGLIÀFXOW\LQDUWLFXODWLRQDQGVHQWKLPWRDQLWLQHUDQWODQJXDJHVSHFLDOLVW

788

6. CANADIAN JUDICIAL DECISIONS

provided by the City of York Board of Education. This specialist, Mrs. Sax, proposed a programme of continue monitoring and evaluation of Matan’s progress over the course of his early school years. 4. The following year, when Matan was in senior kindergarten, we enrolled him in USDS in order to commence his Jewish education in conjunction with his secular preVFKRROHGXFDWLRQ'XULQJWKDW\HDUKHFRQWLQXHGWRKDYHVRPHGLIÀFXOWLHVLQDUWLFXODWLRQ and was eventually diagnosed by an ear specialist at the Hospital for Sick Children as having a unilateral hearing impairment in his right ear. This hearing impairment has been described by the doctor as being moderate to moderately severe. As both a parent and a teacher, I realized that while Matan’s intellectual development was progressing ZHOOKHZRXOGQHHGVRPHVSHFLDODWWHQWLRQWRRYHUFRPHKLVKHDULQJGLIÀFXOWLHVDQG possibly, some speech therapy in order to bring his communication skills up to the level of his peers. 5. In June 1990 and again in September 1990 I spoke with the principal of USDS, Ms. Zita Gardner, and requested that the school provide some of the special education and health services that I knew had been available at the Cedarvale Public School. Ms. Gardner informed me that, unfortunately, the Jewish day schools are not able to fund such programmes, and that I would have to privately retain a specialist in order for Matan to have any health related educational or therapeutic programmes. I also contacted the coordinator of itinerant teachers for the hearing impaired for the public schools in Metropolitan Toronto, Ms. Dorothy Boothroyd, in order to inquire whether the services provided by the public school boards extended to the Jewish day schools. I was told by Ms. Boothroyd and (sic) believe that the programmes funds do not cover the Jewish schools, only public schools. The health support services of which Matan is in need are apparently funded by the Ontario Ministry of Health and are provided to public school children and to Roman Catholic Separate School children only. 6. In December 1990, I consulted a speech pathologist, Ms. Lisa Schwartz, who examined Matan in order to evaluate him and help design a therapeutic programme for him. Ms. Schwartz’ full-time job is a speech pathologist for the Peel Region Board of Education, and in that capacity her services are provided free of charge to children in the public schools in Peel Region. I paid privately for the services which Ms. Schwartz rendered for Matan. 7. Ms. Schwartz’ recommendation was that Matan be monitored on an ongoing basis by an educational audiologist, a type of health/teaching professional that is provided to hearing impaired children in the public and separate schools. If Matan is to continue DW86'6KRZHYHUKHZLOOQRWEHDEOHWRKDYHWKHEHQHÀWRIVXFKVHUYLFHVVXSSOLHG by his school. 8. Knowing that the diagnostic, therapeutic and educational services that Matan requires are available in the public education system and in the Roman Catholic schools, but are not available to Matan because of the non-funding of his Jewish school, has made my family and me feel a strong sense of injustice. Given our commitment to Jewish traditions, we view education in a Jewish day school to be not a luxury but a cultural and educational requirement for our children. I am a teacher and my husband 789

STATE SUPPORT FOR RELIGIOUS EDUCATION

is a journalist, and we are simply not able to afford the tuition fees at Matan’s school. We have been fortunate enough to receive a tuition subsidy from the Jewish community, EXWQHYHUWKHOHVVWKHÀQDQFLDOEXUGHQLVVXEVWDQWLDO7RWKHQEHLQIRUPHGWKDWKHDOWK related services such as itinerant teachers for the hearing impaired and educational audiologists, which are provided to all public and Roman Catholic school children, are not provided to children with hearing impairments in the Jewish schools, is both hurtful and alienating. 9. Out of this sense of injustice, I turned to the Canadian Jewish Congress in late 1990 in order to press the case for extending health services to the Jewish day schools. After DQXPEHURIFRQYHUVDWLRQVEHWZHHQWKH&DQDGLDQ-HZLVK&RQJUHVVDQGRIÀFLDOVRIWKH 0LQLVWU\RI+HDOWK,XQGHUVWDQGWKDWWKH0LQLVWU\ÀQDOO\DFNQRZOHGJHGWKDWWKHGHQLDO of health support services to the Jewish school represents an unfairness which should EHUHPHGLHG$WWDFKHGKHUHWRDQGPDUNHGDV([KLELW´$µWRWKLVDIÀGDYLWLVDFRS\RID letter from J. Michael Ennis, the Assistant Deputy Minister of Health, to Bernie Farber, the Director of Research for the Canadian Jewish Congress, dated January 25, 1991, which proposes the extension of school health support services to children in private schools. 10. The proposal of the Ministry of Health was that the extension of school health support services to children attending the Jewish schools would be implemented in time for the commencement of the school year in September 1991. Despite these good intentions, however, no progress seems to have been made, and the 1991-1992 school year has begun without any such services being available at Matan’s school or at the RWKHU-HZLVKGD\VFKRROV$WWDFKHGKHUHWRDQGPDUNHGDV([KLELW´%µWRWKLVDIÀGDYLWLV a letter from the Ministry of Health to Davies, Ward & Beck solicitors for the Canadian Jewish Congress, dated May 17, 1991, setting out the target date of September 1991.  ,PDNHWKLVDIÀGDYLWLQVXSSRUWRIDQDSSOLFDWLRQFKDOOHQJLQJWKHFRQVWLWXWLRQDOLW\ of the non-funding of the Jewish day schools, and for no improper purpose. [Editor’s note: Exhibits have not been reproduced]

$)),'$9,72)0$5&<5$33 I, 0$5&<5$33, of the City of North York, in the Municipality of Metropolitan Toronto, MAKE OATH AND SAY:  ,DPWKHPRWKHURIDVHYHQ\HDUROGFKLOGLQJUDGHDQGDÀYH\HDUROGFKLOGLQ senior kindergarten at a Jewish day school, Netivot Hatorah. 2. My husband and I are Orthodox Jews, and we are raising our children in the traditions of Orthodox Judaism. 3. The rigorous practice of Orthodox Judaism makes for a spiritually and intellectually IXOÀOOLQJEXWGHPDQGLQJOLIHVW\OH)RUPDOSUD\HULVFRQGXFWHGWKUHHWLPHVGDLO\DVZHOO as after each meal. Synagogue attendance is a constant feature of everyday life, and is a focal point not only for prayer but for continuous learning and study. In addition, all

790

6. CANADIAN JUDICIAL DECISIONS

food, dish wear and eating utensils have to be strictly kosher, and children as well as adults must adhere to certain traditional dress codes. 4. Our religious practices make it a virtual necessity that our children attend a Jewish day school. Netivot Hatorah is an Orthodox school which starts teaching children from an early age the language skills, Jewish legal codes and intricacies of Jewish tradition necessary for the pursuit of an Orthodox life. The children engage in group prayer at the school and are taught to observe all of the traditions surrounding each and every Jewish holiday, as well as the weekly Sabbath rituals. It is no exaggeration to say that Orthodox Judaism entails an entire lifetime of intensive and progressive learning, such that education is at the very centre of our religion.  ,WZRXOGEHH[WUHPHO\GLIÀFXOWIRURXUUHOLJLRXVSUDFWLFHVWREHDFFRPPRGDWHGLQWKH public schools. My children conform to the dress codes which prevail in the Orthodox Jewish community, and we take the religious-based dietary restrictions very seriously. In addition, my children are absent from school during every one of the Jewish holidays. These demands of our religious beliefs can, of course, be readily accommodated at a Jewish day school, as the demands are the same on all of the parents and the school can schedule its academic year around the Jewish holidays rather than around the Christian and secular holidays that dominate the public school calendar. 6. Perhaps more importantly, our religion is necessarily part of our children’s educational experience. I know from personal experience that it is nearly impossible to acquire the knowledge and skills necessary to Orthodox Jewish practices if one is not immersed in a Jewish day school environment from an early age. The intellectual demands of our religion, combined with the lifestyle requirements, make Jewish day school education imperative.  ,PDNHWKLVDIÀGDYLWLQVXSSRUWRIDQDSSOLFDWLRQFKDOOHQJLQJWKHQRQIXQGLQJRI Jewish day schools, and for no improper purpose.

$)),'$9,72)5,.<<281* I, 5,.<<281*, of the City of North York, in the Municipality of Metropolitan Toronto, MAKE OATH AND SAY: 1. I am the mother of a 13 year-old child in grade 8 at a Jewish day school, the Associated Hebrew Day School (“Associated”). 2. I was born in Tel Aviv, Israel and emigrated to Canada in 1981. My daughter has been a student at Associated since the very beginning of her elementary school education. 3. My family and I are very much a product of World War II and of the upheaval experienced by both the Jews and the non-Jews of Europe during the war and its imPHGLDWHDIWHUPDWK2XUVLVDXQLTXHIDPLO\KLVWRU\DQG,ZLOOJRLQWRLWYHU\EULHÁ\LQ order to provide some background for the inequity that I currently feel as a result of the

791

STATE SUPPORT FOR RELIGIOUS EDUCATION

Ontario Government’s funding of Roman Catholic Separate schools and non-funding of Jewish day schools. 4. My father, Joseph Braun, was born in Budapest, Hungary and at an early age moved with his family to Czechoslovakia where he spent his entire childhood. His family circumstances and social environment were perhaps typical of much of pre-war Eastern European Jewry, and his family led a very traditional Jewish life. Unfortunately, the fate of his family was also typical of the vast majority of the Jews of Eastern Europe, nearly all of whom died in concentrations camps or otherwise perished in the Holocaust. My father was one of the fortunate few survivors, as he had set off from his home to what was then British Palestine just prior to Hitler’s invasion of Czechoslovakia. Only one of his brothers survived the war, while his parents and the rest of his immediate and extended family died in Eastern Europe. 5. My mother’s story is distinctly less typical. She was born Gisella Robellini in the village of San Leo, Italy, in the Perugia region just north of Rome. Like nearly everyone else in this and other parts of Italy, her family is Roman Catholic. To this day my mother’s family lives in the village of San Leo, and she makes frequent visits to her birth place. Her family is very much steeped in Italian heritage, and the Roman Catholic religion and its traditions play a central role in their cultural and social lives. My daughter and I have also visited our family in Italy quite frequently during summer vacations, and I have attempted to imbue my daughter with a strong sense of family ties and history. 6. My mother was trained as a nurse in Italy. During the war she worked in a number of different hospitals and clinics, and in the immediate aftermath of the War found herself providing medical services to the inmates of a Jewish camp for displaced persons and IRUPHUFRQFHQWUDWLRQFDPSLQWHUQHHVLQ6DO]EXUJ$XVWULD7KLVZDVP\PRWKHU·VÀUVW exposure to a Jewish community, and it was a particularly dramatic one that has had a life-long impact on her. 7. The turmoil and trauma of the war in Europe, combined with distressing circumstances in my mother’s own family, had left my mother uprooted and somewhat alienated from her pre-war life in Italy. She has told me on numerous occasions, and, indeed, I have been brought up hearing stories of how the Jewish population in the post-war camps accepted her as one of their own. She was attracted by the strong sense of community exhibited by these survivors of the Holocaust, and she ultimately accepted an invitation to join this group of Jewish displaced persons in seeking a new life in Palestine. 8. My mother arrived in British Palestine in early 1948 with a boat load of Jewish refugees from Europe. To the best of my knowledge, she was the only Italian Catholic to do so. Indeed, for my mother this voyage marked her spiritual and social transformation from an uprooted Italian Roman Catholic to a resettled European Jew.  0\PRWKHURIÀFLDOO\FRQYHUWHGWR-XGDLVPDIWHUKHULPPLJUDWLRQWR3DOHVWLQH2QH RIKHUÀUVWMREVLQKHUQHZFRXQWU\ZDVDVDQXUVHLQ=DKDORQ+RVSLWDOLQ-DIIDZKHUH

792

6. CANADIAN JUDICIAL DECISIONS

my father was also employed as a driver. I am the only child of this marriage, and was raised in Israel in the Jewish faith of my father by birth and of my mother by choice. 10. My daughter, Hila, was born in 1978 in Israel and emigrated to Canada with me in 1981. We are now both Canadian citizens. Since the beginning of her schooling in Canada, I have endeavoured to keep Hila connected with and to some extent immersed in her Jewish heritage. At the same time, I have attempted to teach Hila to speak Italian and to understand that part of our family background. My mother has contributed greatly to this effort, and we have taken Hila on frequent trips to Italy in order to at least partially immerse her in the Italian portion of her heritage. 11. We embody perhaps an unusual ethno-cultural combination from both a historic and a sociological point of view, but I am quite proud to say that Hila has in many UHVSHFWVUHDSHGWKHEHQHÀWVRIWKLVPXOWLFXOWXUDOH[SRVXUH$VXQLTXHDVRXUIDPLO\ background is, I feel that Hila’s cross-cultural sensitivity and understanding is truly &DQDGLDQ,QP\H[SHULHQFHLWLVDVGLIÀFXOWWRDFKLHYHDVHQVLWLYHXQGHUVWDQGLQJRI a Catholic community in Israel as it is to achieve such an understanding of a Jewish community in Italy. In Ontario, on the other hand, Hila has had the opportunity to see these two cultures co-exist along with many others. 12. In my view, the great irony of this multicultural existence in Ontario is that, from DÀQDQFLDOSRLQWRIYLHZZHZRXOGKDYHEHHQEHWWHURIIKDGP\IDWKHUFRQYHUWHGWR Catholicism than we are with my mother having converted to Judaism. With the full funding of the Roman Catholic Separate schools and the non-funding of the Jewish day schools, one-half of my heritage has been given preference over the other. 13. I have been told that one has to understand the history and heritage of Canada itself in order to comprehend the preference given to the Roman Catholic school system over other denominations; however, as my own family history illustrates, contemporary Ontario is a mix of cultures, each of which deserves equal governmental protection and support. As a person whose mother was born a Roman Catholic and whose father was born a Jew, and who is a Canadian citizen like any other, I simply cannot see a distinction between the two systems of denominational schools.  ,PDNHWKLVDIÀGDYLWLQVXSSRUWRIDQDSSOLFDWLRQFKDOOHQJLQJWKHQRQIXQGLQJRI the Jewish day schools, and for no improper purpose.

$)),'$9,72)/(2(/*(560$ I, /(2 (/*(560$, of the Town of Cayuga, in the Regional Municipality of Haldimand-Norfolk, MAKE OATH AND SAY: 1. My wife Alice and I are parents of six children ranging in age from 14 to 28 years. 2. When our children became of school age, we sought a school that would support and enhance the work of our Christian home and the Christian church and we enrolled our children at Calvin Christian School in Hamilton for their elementary education.

793

STATE SUPPORT FOR RELIGIOUS EDUCATION

Some of our children subsequently attended the Hamilton District Christian High School while others, for a time, attended the public secondary school in Cayuga, Ontario. At present our youngest boy, Walter, attends Calvin Christian School in Hamilton. 3. We are supportive members of a Christian church which teaches us and our children to live obedient lives to the service of God and our neighbours. Our home life has tried to teach our children to be God fearing and to know that all of life is centered around God.  :DOWHURXU\RXQJHVWFKLOGZDVERUQZLWKVSLQDELÀGDDQGK\GURFHSKDOXV:DOWHU began his education at the Cerebral Palsy Centre at the Chedoke-McMaster Hospital system when he was 3 years old. When he turned 5 he attended the Holbrook Public School adjacent to the hospital facilities. While Walter was in these institutions he UHFHLYHG PDQ\ ÀQH VHUYLFHV LQFOXGLQJ FDWKHWHUL]DWLRQ DQG SK\VLFDO WKHUDS\ :DOWHU was transported daily from our home to the Holbrook Public School and we were told at the time that the cost to the Haldimand County Board of Education for transporting Walter was $12,000.00 a year.  ,QWKH6SULQJRIP\ZLIHDQG,DWWHQGHGDQ,GHQWLÀFDWLRQ3ODFHPHQW5HYLHZ Committee conference concerning Walter’s placement for the following school year. The Conference was also attended by staff from the Holbrook Public School, Haldimand County Board of Education representatives, the V.O.N. nurses who provided health services to Walter at Holbrook Public School, a Chedoke-McMaster paediatrician and the Principal of Calvin Christian School. We informed the Committee that we had decided to send Walter to Calvin Christian School so that he could attend a school where he would receive an education consistent with our religious beliefs. The V.O.N. nurse said that she would be pleased to continue her services for Walter at Calvin Christian School. However, when the nurse discovered that the school was a private school, she informed us that she would have to charge us $28.00 per day for her services. I distinctively remember the paediatrician commenting that he thought that to be blatant discrimination. 6. After being advised that Wally would lose the V.O.N. services he had been receiving in public school when he transferred to Calvin Christian School, we sought the assistance of our Member of Provincial Parliament, Cam Jackson. Mr. Jackson raised the issue RI:DOWHU·VGLIÀFXOWLHVLQWKH/HJLVODWXUHEXWWKHJRYHUQPHQWKDVQHYHUFKDQJHGLWV SRVLWLRQ$WWDFKHGKHUHWRDQGPDUNHGDV([KLELW´$µWRWKLVP\$IÀGDYLWLVDOHWWHUGDWHG March 13, 1989 from Mr. Jackson to my wife and me enclosing the Hansard record of his representations on Wally’s behalf. When the Minister of Community and Social Services was asked in the Legislature why Wally was being discriminated against and denied medical services basically because of his religious convictions, the Minister responded “I certainly cannot accept that the reason, whatever it may be, would be the RQHWKDWWKHKRQRXUDEOHPHPEHUKDVJLYHQ,ZLOOFHUWDLQO\ÀQGRXWEXWMXVWWKHIDFW that he is in a Christian school versus a public school would not be the reason”. In fact, that is exactly the reason why Wally is being denied the medical services he would otherwise get if he attended a public or Roman Catholic separate school.

794

6. CANADIAN JUDICIAL DECISIONS

7. When we enrolled Walter at Calvin Christian School in September, 1986 the health services which he had received as a student in Holbrook Public School ceased. My wife and I felt then, and we still do today, that the Christian perspective at Calvin was worth more to Walter and to us than the services which the public school could provide. To have Walter in an environment which supports the aims and objectives of our Christian home is very valuable to us. At Calvin Christian School Walter has been exposed to what we believe are the true values for life. The school teaches him the same values which are so important to our home and church life. Walter loves to sing the bible songs he learns at school and he loves his relationships with children at Calvin Christian School. Walter is progressing very well and my wife and I believe that he is developing a valuable relation to the Lord. 8. Yet to this day we regret the loss of the health services which Walter clearly benHÀWHGIURPDVDVWXGHQWDW+ROEURRN3XEOLF6FKRRO$SDUWIURPWKHORVVRIWKHVHKHDOWK VHUYLFHVRXUGHFLVLRQKDVKDGRWKHUÀQDQFLDOUHSHUFXVVLRQV,QRZGULYH:DOWHUEDFN and forth to Calvin Christian School each day, a service that was previously provided by the Haldimand Board of Education. Calvin Christian School has incurred additional expenses by having Walter attend that school, such as making alterations which would make the property more wheelchair accessible and having special education teachers to meet Walter’s needs in each particular subject area. Calvin Christian School has provided all of the assistance needed for Walter at no additional charge to our family – we pay the same tuition fee, currently $5,600.00 per year, as any other family. Yet the cost to the school for educating Walter is higher than the cost of education for students ZLWKRXWH[FHSWLRQDOQHHGVDQGWKHVFKRROPXVWEHDUWKHVHFRVWVZLWKRXWDQ\ÀQDQFLDO assistance from the Province. 9. We feel very blessed to have Walter attending Calvin Christian School but we regret that our choice has cost him the availability of the health services he used to receive at Holbrook Public School. The failure of the Province to provide health services to our child simply because of the school which he attends seems to my wife and me to be obvious discrimination and does not serve our notion of public justice.  ,PDNHWKLVDIÀGDYLWLQVXSSRUWRIDQDSSOLFDWLRQFKDOOHQJLQJWKHQRQIXQGLQJRI independent Christian schools. [Editor’s note: Exhibit “A” has not been reproduced]

$)),'$9,72)+$55<3277 I, +$55<3277, of Kingston Township in the County of Frontenac, Ontario, MAKE OATH AND SAY: 1. I reside along the 5th concession of Kingston Township, Frontenac County with my wife and three children. 2. I obtained my Bachelor of Arts from the University of New Brunswick and 7HDFKHU·V&HUWLÀFDWLRQIURPWKH3URYLQFHRI1HZ%UXQVZLFN,DOVRKROGD0DVWHUVRI

795

STATE SUPPORT FOR RELIGIOUS EDUCATION

Education from Calvin College, Grand Rapids, Michigan. I have taught in Christian schools since 1973 – 17 years in Strathroy and 2 years in Kingston. 3. My wife and I have three children. Our daughter Johanna, age 13, and our son Andrew, age 7, attend the Kingston Christian School, an independent and alternative school which is a member of the Ontario Alliance of Christian School Societies. Our son Joel, who is 12 years old, is a mentally handicapped child and he presently attends Our Lady of Lourdes School of the Frontenac, Lennox and Addington Roman Catholic School Board. Joel is unable to attend the Kingston Christian School with his brother and sister because the school is not equipped to serve his special needs. 4. We have not enrolled our daughter Johanna and our son Andrew in the local public schools because of our religious beliefs. As parents my wife and I have always believed that a commitment to Jesus Christ as Lord and Saviour involves our total lives. We believe that we have a responsibility to live our basic biblical principles in our daily living as citizens, community members, parents, husband and wife and as members of community organizations such as the Association for Community Living. We believe that biblical directives must be the basis of how we interact with others in our society DQGZHDOVREHOLHYHWKDWRXUFRPPXQLWLHVDQGVRFLHW\LQJHQHUDOEHQHÀWJUHDWO\ZKHQ Christian parents and citizens use these biblical directives to carry out their various activities. 5. It is our strongly held belief that education – a key ingredient in our children’s development as citizens of worth and with positive capacity – must encourage the kind of growth which helps them to see their Christian witness in the broader context of all DFWLYLWLHVLQZKLFKKXPDQEHLQJVDUHHQJDJHG)RUXVLWLVQRWVXIÀFLHQWWRKDYHRXU children guaranteed a personal salvation; if that were the case, attendance at church would be enough. In a Christian school all subject areas explore our responsibilities as Christian, whether that be in economics, social interaction, artistic expression, respect for other cultures or other areas. Since Christian education supports the basis (sic) biblical principles which we encourage our children to follow at home, our children are happy and well adjusted individuals who increasingly make their own contributions in various community activities. 6. Because of our religious beliefs, my wife and I decided not to enroll our children in the public school system. We know that the public school system will not, and as a result of recent court decisions cannot, provide our children with an education on the basic biblical principles in which we believe, nor the continuance of a confessional base which claims that Christ should be Lord of all our activities. We recognize that public schools cannot base their educational endeavours on biblical principles since they serve a very broad and diverse community of students. 7. In order to ensure that Johanna and Andrew receive an education consistent with our religious beliefs, we must enroll them in an independent Christian school. We are members of the Kingston Christian School Society and the Quinte Christian High School Society in Belleville. At the present time we pay $5,250.00 per year as tuition for Joanna and Andrew. Next year when Johanna will attend the Quinte Christian High School, the total tuition costs for our children will be over $11,000.00 – approximately 796

6. CANADIAN JUDICIAL DECISIONS

one quarter of our family income. Although as a family we have never asked whether the costs of sending our children to Christian schools is too much, we often do without VRPHRIWKHWKLQJVZHZRXOGOLNHDQGWKHWXLWLRQLVDÀQDQFLDOEXUGHQ7KLVLVHVSHFLDOO\ GLIÀFXOWZKHQZHKDYHWRSD\HGXFDWLRQDOWD[HVWRDQRWKHUVFKRROV\VWHPZKHWKHURXU children attend or not. I personally believe that the province’s failure to fund independent Christian schools is unjust in light of the funding provided to the secular public school system and the Roman Catholic school system. 8. My wife and I are especially troubled by the fact that our son Joel cannot attend a Christian school because of his handicap. Joel is a non-verbal developmentally handicapped child with many autistic tendencies and a number of behavioural problems. Joel’s special needs are such that he often requires one on one guidance. 9. For a number of years my wife and I lobbied the Christian school in Strathroy to enroll Joel. The answer was always the same – they were not equipped nor did they have the funds to provide for Joel’s needs. As a result, despite strong disagreements with the philosophy and educational model used by the Middlesex County Board of Education, we enrolled Joel in their school for over six years in order that he could SDUWLFLSDWHLQWKHVSHFLDOSURJUDPVDQGUHFHLYHWKHEHQHÀWRIVSHFLDOKHDOWKVHUYLFHV Finally, in 1989, Joel was able to attend John Calvin Christian School on a part-time basis two days a week. Joel’s attendance at the school was a positive experience, but despite our appeal to the Ministry of Health, their school support system of the home care program was not available to Joel while in a Christian school. 10. When we moved to Kingston we decided to enroll Joel in what we consider the most community minded school and he currently attends Our Lady of Lourdes School of the Frontenac, Lennox and Addington Roman Catholic School Board. Joel is able to obtain the special health services he needs at that school. The Kingston Christian School is not equipped to serve Joel’s needs. I understand that the Kingston Christian 6FKRROKDVKDGWRWXUQGRZQDWOHDVWWZRRWKHUKDQGLFDSSHGFKLOGUHQRYHUWKHODVWÀYH years because of a lack of funding to provide specialized services. Surely funding for the special needs of students ought to be available for all educational institutions in this province regardless of their independent nature, particularly when the Ministry of Health prides itself on universal access to provincial health care programs. 11. Public and Roman Catholic boards of education across the province receive substantial sums of money to provide education to meet all special needs of students. This funding mechanism is in addition to the regular provincial funding of education. I believe it is particularly cruel and unjust to refuse special education funding to students who attend Christian schools – in essence it separates families and causes undue grief to parents such as my wife and myself. Although some Christian schools are beginning to provide education for special need students, the rising costs of regular education, and therefore family tuitions, makes this an exception rather than a rule. 12. If Joel were able to attend a Christian school he would be able to go to school each day with his brother and sister and develop a sense of belonging to his community. He would be able to receive, like his brother and sister do, an education consistent with the Christian principles at play in our home. Joel would also have more opportunities 797

STATE SUPPORT FOR RELIGIOUS EDUCATION

to interact and play with his friends which would encourage his social growth. Indeed WKLVZDVWKHDUHDRIJUHDWHVWVLJQLÀFDQFHWKDWZHQRWLFHGGXULQJ-RHO·VDWWHQGDQFHIRU two days a week at the Christian school in Strathroy. Unfortunately, because of the discriminatory effect of the law in Ontario, Joel is denied these opportunities.  )RUWKHVHUHDVRQV,PDNHWKLVDIÀGDYLWLQVXSSRUWRIDQDSSOLFDWLRQFKDOOHQJLQJ the non-funding of independent Christian schools in Ontario.

$)),'$9,72)5$<021''267$/ I, 5$<021''267$/, of the Town of Caledonia in the Regional Municipality of Haldimand-Norfolk, MAKE OATH AND SAY: 1. My wife Nancy and I have one daughter, Andrea, who attends grade 6 at the Calvin Christian School in Hamilton and one son, Jesse, who will begin to attend Calvin Christian School in September, 1992. 2. I am a pharmacist and received my Bachelor of Science and Pharmacy in 1974 from the University of Toronto. My wife and I own and operate our own business. 3. I am on the Board of the North Haldimand Christian School Society which was formed to look into the feasibility of establishing a Christian school in the Caledonia area.  7KLVLVWKHÀUVW\HDUWKDW$QGUHDKDVDWWHQGHGD&KULVWLDQVFKRROVKHSUHYLRXVO\ was enrolled at the local public school. Our son Jesse currently attends nursery school three half-days a week. 5. Our family attends the Caledonia Congregational Church which is a bible believing church. We believe that our lives should honour God and that everything we do should be centered around biblical beliefs. We want our children to attend a Christian school so that they learn these beliefs and values consistently in their life experiences. We had hoped that we could teach this at home, at church and at Sunday school but we have found from Andrea’s experience at public school that biblical principles were not stressed in the public school and instead ideas very contrary to our own beliefs were stressed. It has been very confusing to send our children to a school for 7 hours a day, 5 days a week, which contradicts a lot of the teaching which we give them at home. I believe that Jesus must be a part of our children’s lives everyday at school and, at a Christian school, God is a part of every class. 6. We have found that public schools will not provide our children with the Christian education which we believe is necessary for their proper upbringing and growth. Prayers, for example, are not allowed in public schools. We have found that Andrea has not been taught moral and ethical values which we believe are central to living her life as a Christian. 7. At the present time my wife and I have to pay tuition to send Andrea to a Christian school. In addition to tuition costs of $5,600 per year, we also have to pay bussing (sic) costs for our children to travel to attend the school which will teach them the values 798

6. CANADIAN JUDICIAL DECISIONS

that are an essential element of our religion. At the same time, we have to pay taxes to support public schools. I personally believe that a parent or taxpayer should be able to support with their taxes the type of school of their choice.  )RUWKHVHUHDVRQV,VZHDUWKLVDIÀGDYLWLQVXSSRUWRIDQDSSOLFDWLRQFKDOOHQJLQJ the non-funding of independent Christian schools.

$)),'$9,72)+$55<)(51+287 I, +$55<)(51+287, of the City of Brampton, in the Regional Municipality of Peel, MAKE OATH AND SAY: 1. My wife and I have four children, all of whom are enrolled in Christian schools. Our two oldest children, Johanna, who is 17, and Jonathan, who is 15, attend Toronto District Christian High School in Woodbridge. Our younger two children, Jeffrey, age 13, and Mari-Joy, age 9, are enrolled at John Knox Christian School in Brampton. 2. I received my Master of Arts and Ph.D. in philosophy of education from the University of Toronto. My doctoral study focused on foundational issues of moral autonomy and religious commitment. 3. I am currently the President of the Institute for Christian Studies (“ICS”), a small independent graduate school operating under a charter granted by the Province of Ontario. ICS offers masters and doctoral level studies in a variety of disciplines taught from an integral Christian perspective. ICS is part of the same educational family as the schools comprising the Ontario Alliance of Christian School Societies and ICS gives expression to the educational vision of the Alliance schools at the graduate studies level. Prior to my appointment as President I served as an assistant professor of philosophy of education at ICS. 4. I have been involved in Christian schools in various capacities for 17 years. While residing in Toronto I was elected to the Board of Trustees of Toronto Central Christian School (“TCCS”). I served terms as Secretary and Chairperson of the Board, was a member of the school’s education committee and worked for several years as the Chairperson of the Finance Committee. I have experienced both the joys and the struggles of operating an independent school without any provincial funding. I watched ZLWKLQFUHDVLQJIUXVWUDWLRQDVWKHSDUHQWVRI7&&6ZUHVWOHGZLWKWKHÀQDQFLDOEXUGHQRI maintaining a Christian day school. In 1991, this burden ultimately became too great and the school was forced to close its doors. 5. In the case of our family, the total tuition for the two schools which my children attend is approximately $11,000. Although my wife provides a second income for the IDPLO\ZHGRQRWKDYHWKHÀQDQFLDOUHVRXUFHVWRSD\WKLVDPRXQWLQIXOO2XUFKLOGUHQ·V schools both provide a measure of tuition relief. To make up for shortfalls of this kind both schools have developed a program of fund raising activities (special appeals to non-parents, special events, sales, catering services) and my wife and I participated in these activities on a volunteer basis.

799

STATE SUPPORT FOR RELIGIOUS EDUCATION

6. My wife and I have been extremely pleased with the quality of education our children have received in Christian schools. Besides offering a view of life compatible with our deepest Christian convictions, these schools have given careful attention to the LQGLYLGXDOQHHGVDQGVWUHQJWKVRIRXUFKLOGUHQ:HDUHFRQÀGHQWWKDWRXUFKLOGUHQDUH receiving the kind of education which will allow them to become active and constructive contributors to their local community and to Canadian society. 7. My support for Christian schools is not rooted in an effort to obtain special privileges for my children, nor do I ignore the needs and interests of others in the public school system. On the contrary, I have devoted time to issues of education in the public schools, and last year, I accepted an invitation from the Ministry of Education to serve on a committee charged with the task of developing a resource document for education about religion in public elementary schools. 8. My support for Christian education was nurtured and matured in the context of the reformed Christian tradition in which I was raised. Over the years I have come WRDFFHSWWZREHOLHIVZKLFKOLHDWWKHURRWRIP\HGXFDWLRQDOLQYROYHPHQWVÀUVWWKDW education always expresses, and invites learners into, a philosophy of life; and second, that one’s religious perspective is of intense relevance to the process of education.  7KHÀUVWRIWKHVHEHOLHIVWKDWHGXFDWLRQDOZD\VH[SUHVVHVDSKLORVRSK\RIOLIHLV not controversial in educational thinking today. Educators widely agree that besides teaching reading and writing, schools are inevitably in the business of helping students ÀQGDVHQVHRISHUVRQDODQGVRFLDOPHDQLQJDQGLQWKHODVW\HDUVHGXFDWRUVKDYH focused a great deal of attention on the importance of teaching values in the educational process. While in a pluralistic society it is not easy to achieve a consensus about which values should be promoted in education, it is clear that it is impossible to address value issues without reference to the philosophy of life in which the values are embedded. Invariably value issues always refer beyond themselves to ultimate questions about the nature and worth of human beings and the meaning of life. Today educational thinkers are aware of the importance of paying attention to the overall framework, or philosophy of life, which shapes education and some theorists take the further step of recognizing that the search for a unifying meaning framework is a spiritual quest. 10. This brings me to my second belief: that one’s religious life perspective is of intense relevance to the process of education. Religious traditions commonly address questions concerning the ultimate meaning and purpose of life. In my view as an HGXFDWRUUHOLJLRXVFRQYLFWLRQLVQRWVRPHWKLQJZKLFKFDQEHFRQÀQHGWRWKHSULYDWH sphere of life or which can be left out of education. My religious convictions are at the core of my philosophy of life and it is my hope and desire that my children will come to share the richness and hope of this philosophy. 11. For these reasons I have joined thousands of parents in Ontario who seek a school setting for their children which embodies a Christian perspective that permeates their entire education: curriculum, interpersonal relationships and the school’s ethos. Like many other independent school supporters I have concluded that public schools are not in a position to provide my children with a Christian philosophy of life. Public VFKRROVDUHE\GHÀQLWLRQUHOLJLRXVO\SOXUDOLVWLFDQGWKXVPXVWVXVSHQGMXGJHPHQWZKHQ 800

6. CANADIAN JUDICIAL DECISIONS

questions of ultimate values and life perspective are raised. In my view and belief, such suspensions of judgement cannot be equated with neutrality or objectivity. Instead, the effort to steer clear of a religious value framework inevitably gives pride of place to a secular world view and a secular vision of value and meaning. Because I perceive a clash of educational perspectives at this fundamental level, I have considered it necessary to seek a Christian alternative for my children. 12. Another reason for my support for Christian schools concerns my view, which is prominent in the Christian tradition from which the Ontario Alliance of Christian School Societies has emerged, that parents bear the primary responsibility for the education of their offspring. Schools, I believe, should be operated by parents and others who freely organize for the purpose of providing education consistent with their basic beliefs. In my view the state’s responsibility for schooling should be limited to matters of public welfare such as the establishment of basis educational standards and the enforcement of health and safety laws. I believe this emphasis on parental rights and responsibilities is a solid educational principle – it provides a natural and effective basis for strong and consistent parental involvement in education. The importance of parental rights and responsibility in education is widely recognized, for example, in Article 26(3) of The United Nations Universal Declaration of Human Rights which declares that “parents have a prior right to choose the kind of education that shall be given to their child”. 13. In my view the principle of parental rights and responsibilities requires government to go beyond simply acknowledging people’s legal right to opt out of public schools and pay for alternative schools. A right only has genuine value if social and economic conditions exist which allow people to exercise that right. Given the fact that the costs of education exceed most parents’ ability to pay, a genuine recognition of parental rights implies the creation, through funding mechanisms, of conditions which gives all parents an equal opportunity to exercise their right of choice if they so desire. 14. At the present time parents who are Roman Catholics may send their children to schools which conform with their religious beliefs and those schools receive government funding. Parents who send their children to Ontario Alliance of Christian School Societies schools do so on the basis of their religious convictions and yet those schools do not receive any government funding. I believe that such a distinction is unfair and discriminatory and that parents who choose to send their children to the schools of their religious faith should receive the same treatment as those who are Roman Catholics.  ,PDNHWKLVDIÀGDYLWLQVXSSRUWRIDQDSSOLFDWLRQFKDOOHQJLQJWKHQRQIXQGLQJRI independent Christian schools.

$)),'$9,72)$'5,$1*8/'(021' I, $'5,$1*8/'(021', of the Town of Ancaster, in the Regional Municipality of Hamilton-Wentworth, MAKE OATH AND SAY: 1. I am the Executive Director of the Ontario Alliance of Christian School Societies and as such have knowledge of the matters hereinafter deposed. 801

STATE SUPPORT FOR RELIGIOUS EDUCATION

I. 7+(217$5,2$//,$1&(2)&+5,67,$16&+22/62&,(7,(6 2. The Ontario Alliance of Christian Schools (hereinafter “OACSS”) was established LQ  DQG ODWHU EHFDPH LQFRUSRUDWHG LQ WKH 3URYLQFH RI 2QWDULR DV D QRQSURÀW FRUSRUDWLRQ,WVKHDGRIÀFHLVFXUUHQWO\ORFDWHGLQ$QFDVWHU2QWDULRLQWKHIDFLOLWLHV of Redeemer College. 3. OACSS has been active continuously since 1952. Its main purpose, as stated in its charter and by-laws, is to promote Christian elementary and secondary education. In the early 1960’s, it became the focus of the Protestant Christian school movement in Ontario. A regular publication was established (The Christian School Herald) as a forum for informed discussion. OACSS has continued its position of leadership into the 1990’s and provides numerous services to the cause of the promotion of Christian day schools in Ontario, in addition to performing the functions of a school board for its member school societies, as outlined in paragraphs 6 and 7 below. 4. OACSS is a federation of Christian school societies, the vast majority of which currently operate elementary and/or secondary Christian schools. OACSS is governed by a Board of Directors selected by the membership at the annual meeting. There are currently 74 member Christian school societies, all but one of which operate schools. Of the 74 societies, 2 are in the Maritimes and the rest in Ontario. There are 75 schools in operation, 73 in Ontario and 2 in the Maritimes. 5. Eleven of the 75 schools are secondary schools, all of which are located in Ontario; the rest are elementary schools. In the 1991-2 school year, there are approximately 11,614 students enrolled in OACSS schools in Ontario, almost 2,000 of whom are in secondary schools. A list of the member societies in OACSS is attached hereto as Exhibit “A1”; attached as Exhibit “A2” is a schedule listing the various independent school groups in Ontario. As shown on the list, OACSS is one of the largest independent schools associations in Ontario. 6. The OACSS and its member schools constitute a private school system. The OACSS acts as a school board in that it is a complete service organization for the member school societies. The services offered by OACSS to member societies can be summarized as follows. OACSS engages in curriculum development with a view to continuously updating instructional materials and pedagogical practices. It advises on SHUVRQQHOSODFHPHQWVDODULHVEHQHÀWVVXFKDVLQVXUDQFHDQGSHQVLRQV DQGODERXU dispute matters. It represents its members in dealings with the news media and the SURYLQFLDODQGIHGHUDOJRYHUQPHQWV,QDGGLWLRQLWFRQVXOWVRQÀQDQFHVDQGSURYLGHV promotional literature and services. If requested to do so, OACSS also acts as an ombudsman to settle disputes between and among school societies, parents and teachers. The regular staff of 9 persons provides these services on a budget of $657,300. This is possible because many members of the supporting community donate their time to assist in the promotion of Christian education. 7. The OACSS also helps set professional standards for its member schools to ensure a high quality education. In conjunction with the Ontario Christian School Teachers’ $VVRFLDWLRQWKH2$&66LVVXHVD&KULVWLDQ6FKRRO7HDFKHUV·&HUWLÀFDWHWKHIRUPDO

802

6. CANADIAN JUDICIAL DECISIONS

requirements of which exceed those set down by the Ministry of Education for a WHDFKHU·VFHUWLÀFDWHLQ2QWDULR$SSUR[LPDWHO\RIWHDFKHUVLQPHPEHU2$&66 VFKRROV KROG D &KULVWLDQ 6FKRRO 7HDFKHUV· &HUWLÀFDWH DERXW  KROG DQ 2QWDULR WHDFKHU·VFHUWLÀFDWH,QDGGLWLRQWKH2QWDULR&KULVWLDQ6FKRRO$GPLQLVWUDWRUV·$VVRFLDWLRQHQFRXUDJHVLWVPHPEHUVWRDFTXLUHWKH&KULVWLDQ6FKRRO3ULQFLSDO·V&HUWLÀFDWHLQ DGGLWLRQWRWKHUHJXODU2QWDULRTXDOLÀFDWLRQVIRUDGPLQLVWUDWLRQ  0HPEHUVKLS LQ 2$&66 LV RSHQ WR DQ\ LQFRUSRUDWHG QRQSURÀW VRFLHW\ ZKRVH purpose is to provide to children in the community a Christian education in the Calvinistic or Reformed Christian tradition. The school society must adopt the Principal Guidelines of the OACSS and pay membership dues. The OACSS budget is met from these membership dues and from proceeds from the sale of publications and services. A copy of the Principal Guidelines is attached as Exhibit “B”. 9. Similar organizations to the OACSS exist in other parts of Canada. The Society of Christian Schools in British Columbia has 34 schools with an enrolment of 6,647 students served by 456 teachers. In the Prairie provinces, CSI District XI serves 20 schools with 3,896 students. All the Canadian schools are also members of Christian Schools International. This organization, headquartered in Grand Rapids, Michigan, has schools which have been in continuous existence since 1880. CSI has 371 members serving 93,000 students in North America. The members in Canada’s Western provinces all receive direct funding from their provincial governments. In British Columbia the per pupil grant for Category 1 schools is 50% of the local district cost per pupil. The average for the 1991-2 school year is $2,668.50 for each pupil in Society for Christian Schools in British Columbia (“SCSBC”) schools. The British Columbia governmental funding levels for independent schools are set out in Exhibit “C”. In the United States &6,PHPEHUVFKRROVEHQHÀWIURPYDULRXVVWDWHVXSSRUWVHUYLFHVVXFKDVKHDOWKDQG transportation.

II. SCHOOL SOCIETIES  $OOPHPEHUVFKRROVRFLHWLHVDUHQRQSURÀWFRUSRUDWLRQVLQFRUSRUDWHGDQGRSHUDWLQJ in Ontario (except for those located in the Maritimes) and are registered charities under the Income Tax Act of Canada. 11. Each member society is typically formed by a group of interested Christian adults meeting together as a community or congregation and mutually agreeing to set up a QRQSURÀWFRUSRUDWLRQJRYHUQHGE\D%RDUGRI7UXVWHHVHOHFWHGIURPDPRQJWKHP with the aim of providing Christian education to their children. 12. Membership in each individual society is open to all active adult Christian church members who assent to the society’s aims and confessional principles, who pay the prescribed membership fee, if any, and who indicate a willingness to be actively involved in the work of the society. Non-Christians cannot be members, but over 15 Christian denominations are represented in society membership, although the overwhelming majority are Christian Reformed Church members. The average society has about 150 members.

803

STATE SUPPORT FOR RELIGIOUS EDUCATION

13. Each individual Christian school society is governed by a Board of Trustees of approximately 10 members (who are usually parents of children attending the school) HOHFWHGIRUÀ[HGUHJXODUWHUPVRIRIÀFHE\WKHJHQHUDOPHPEHUVKLSDWDQQXDOPHHWLQJV$ Board of Trustees is subject to the by-laws and regulations approved by the membership at duly constituted meetings. Membership meetings generally have a large quorum, with usually two-thirds of all members attending. 14. The Board of Trustees of each individual society is charged with the responsibility of promoting Christian education in the community, operating the Christian day school or schools, and encouraging support activities. 15. Figures for the 1990-1 school year show that the average member Christian school society obtains the funds to operate its school, or schools from the following sources: 21% of the revenue comes from community donations, 70% from parental tuition pledges, and 9% from miscellaneous fund raising activities. The funds are spent on the following costs: 73% for salaries, 15% for facilities and maintenance, 7% for supplies and administration and 5% for transportation. By way of illustration, the 1990-1 budgets for the Hamilton District Christian School and the Calvin Christian School Society are attached as Exhibits “D” and “E” respectively. 16. Tuition pledges are requested on a per family basis, not a per student basis. Thus, a family is requested to pledge the same amount if it sends one, or more than one, student WRDQ2$&66PHPEHUVFKRRORIPHPEHUVFKRROVRFLHWLHVUHTXHVWÀ[HGDQQXDO tuition pledges ranging from $3,000 to $6,000 depending on the particular society. The remaining school societies request tuition pledges geared to a range of family income as follows: from a minimum of $2,500 for yearly income below $25,000 to a maximum of IRULQFRPHVDERYH'XHWRÀQDQFLDOSUHVVXUHVPDQ\PHPEHUVRFLHWLHV KDYHDGRSWHGDSROLF\RIÀ[HGWXLWLRQSHUIDPLO\%\ZD\RIH[DPSOHWKH+DPLOWRQ District Christian High School set tuition for the 1991-2 school year at $5,000 for a family with children at the high school and the Christian elementary school and $6,145 for families who have children enrolled only at the high school (Exhibit “F”). Calvin Christian School in Hamilton set its tuition fee for the 1991-2 academic year at $5,600 per family with additional fees for transportation ranging between $450 – $900 (Exhibit “G”). 17. All member school societies have student assistance funds to help needy families. Each school society maintains a fund for needy families and also encourages such families to contact their local church for support. It is customary for other members of the community to assist needy families by paying part of their tuition.  0LQLVWU\RI(GXFDWLRQRIÀFHUVPDNHDQQXDOLQVSHFWLRQVRIDOO2$&66VHFRQGDU\ VFKRROVLQ2QWDULR7KHVHVFKRROVKDYHFRQVLVWHQWO\VDWLVÀHGWKHSURYLQFLDOFXUULFXOXP guidelines with the result that the Minister of Education issues Ontario Secondary School Graduation Diplomas to all students who successfully complete their secondDU\HGXFDWLRQDWDQ2$&66PHPEHUVFKRRO)XUWKHU2$&66VFKRROVJLYHVSHFLÀF additional religious education, including studies of the Bible and Christian theology.

804

6. CANADIAN JUDICIAL DECISIONS

III. EDUCATION PHILOSOPHY 19. The teaching of all subjects at OACSS schools is done in the context of a Christian philosophy which serves as the foundation for the teaching of discipline and morals, and which pervades the entire process of education. A copy of the Goals of Christian Education adopted and employed by our schools is attached as Exhibit “H”. In recognition of the fact that students at OACSS schools receive a fundamentally different education from students in public schools, OACSS member schools also issue their own diplomas to graduating students. 20. The religious philosophy of education which imbues our Christian schools was accurately summarized in the judgement of Mr. Justice Muldoon in McBurney v. The Queen (1984), 84 D.T.C. 6495, a case in which His Lordship had to decide whether certain payments made to three Christian schools (all members of the OACSS) were exempt from taxation as charitable donations. To decide that question, Mr. Justice Muldoon considered whether the purpose of the schools was the advancement of religion and education and, in that context, His Lordship stated: “As to the purpose, objectives, nature and quality of the education imparted in and by those particular Christian schools, much evidence was adduced, both viva voce and by documents. It warrants some more detailed consideration here, but at this VWDJHRQHVLPSOLÀHGÀQGLQJZLOOEHVXIÀFLHQW7KHSODLQWLIIDQGRWKHUVZKRDUH participating members of the three charitable school corporations are, on religious JURXQGVQRWVDWLVÀHGZLWKWKHQDWXUHRIWKHHGXFDWLRQSURYLGHGE\WKHWD[VXSSRUWHG schools of Ottawa and Toronto, respectively. Neither are those parents, who are not members of the three Christian school corporations, but whose children are enrolled in the particular schools. That is to say, the public schools providing a necessarily secular education, do not impart that hour-by hour, subject-by-subject infusion of Christian values and interpretation of subject matter which the plaintiff and his fellows seek for their children’s education. Neither do the Roman Catholic 6HSDUDWH6FKRROV$OWKRXJKWKHSODLQWLIIWHVWLÀHGWKDWRQH5RPDQ&DWKROLFIDPLO\ had enrolled their child in the OACSS school, neither the plaintiff nor the other supporters of these Christian schools is a Roman Catholic, apparently, and so the Roman Catholic Separate Schools are not ideally appropriate for their children’s education. Studies of the Bible and of the Christian religion are not merely core subjects of those schools, because, transcending the teaching of particular subjects, Christian thought, perceptions, values and works permeate the entire educational formation of the young people who are enrolled in those schools. The charitable quality of the VFKRROVRSHUDWHGE\WKHWKUHHQRQSURÀWFRUSRUDWLRQVFRXOGZHOOEHFKDUDFWHUL]HG as both educational and religious. … Read in light of each corporation’s constitution, the respective curricula demonstrate, DVWKHZLWQHVVHVWHVWLÀHGWKDWWKHVXEMHFWVRIIHUHGDUHWDXJKWDVYHKLFOHVIRUWKH expression and inculcation of religious faith.

805

STATE SUPPORT FOR RELIGIOUS EDUCATION

… $OOWKUHHZLWQHVVHVWHVWLÀHGFOHDUO\DVZDVDPSO\FRQÀUPHGRQFURVVH[DPLQDWLRQ that the curricula include, and the schools present and teach secular subjects, to be sure. But it is also clear that religious teaching was and is not kept separate and apart from the teaching of secular subjects. It was and is blended with them such that, if the secular and religious teachings were (to make an analogy) chemical elements, they would be combined in solution of varying proportions from hour to hour throughout the school year. There is no doubt that enrolled children were and are being provided with knowledge and being taught skills which will serve them well in a secular society. There is equally no doubt that at all material times WKH\ZHUHVLPXOWDQHRXVO\EHLQJLQVWUXFWHGDQGHGLÀHGLQ&KULVWLDQSUHFHSWVDQG that the teaching of secular subjects was utilized to that end.” 21. The central role played by education in the development of a Christian has been UHLWHUDWHGRQVHYHUDORFFDVLRQVE\WKH&KULVWLDQ5HIRUPHG&KXUFKDQGLQLWVRIÀFLDO commentaries. The Church Order of the Christian Reformed Church, which contains its constitution, stipulates that: “The Consistory shall diligently encourage members of the congregation to establish and maintain good Christian schools, and shall urge parents to have their children instructed in the schools according to the demands of the covenant (Article 71).” 7KHRIÀFLDOFRPPHQWDU\RQWKH&KXUFK2UGHUManual of Christian Reformed Church Government, cites two major Synodical pronouncements as interpretations of Article 71 of the Church Order: 1. Acts of Synod 1898, p. 38: ´,Q6\QRGDIÀUPHGWKHQHFHVVLW\RI&KULVWLDQ(GXFDWLRQ 1RWDJHQHUDOEXWDVSHFLÀFDOO\5HIRUPHGLQVWUXFWLRQLVWKHUHTXLUHPHQWIRURXU children. Indeed, no educational system is satisfactory, but the acknowledgement of the necessity of regeneration, and additionally the acknowledgement of the covenant relationship in which God has placed our children, are the principles from which education must proceed. Christian education according to Reformed principles is the incontrovertible duty of Reformed Christians. All ministers and elders must labour to the utmost of their power in the promotion of Christian education wherever and whenever possible. The grounds for these declarations are: (a) God’s Word requires that children be trained in the fear and admonition of the Lord. (b) Parents at the time of the baptism of the children have promised before the Lord and the Congregation to do this. (c) There may be no separation between civil, social and religious life, education and nurture.

806

6. CANADIAN JUDICIAL DECISIONS

(d) Christian education promotes the honour of our King who has been given all dominion in heaven and on earth, including the realms of education and nurture. 2. Acts of Synod 1955, pp. 193-200: Principles of Christian education. Article 71 also requires the Consistory to “urge parents to have their children instructed in the schools according to the demands of the covenant.” In 1955 Synod recommended to the churches a report entitled “Basic Commitments in Christian Education”. The main points of this report are as follows: (a) Christian education has its foundation in the Creator-creature relationship taught in Scripture. (b) The Creator-creature relationship continued though man fell in sin, but man lost true knowledge, righteousness, and holiness. (c) God gathers from a ruined human race, groping in the darkness of sin, a chosen people that they as sons by adoption may show forth “The praise of the glory of his grace.” Christian education is education of the man in Christ. (d) Man is a religious being. His deepest needs are spiritual in character. Christian education is education of the religious being in the truth in order that he may commit himself to the truth and in the truth may make him free. (e) True education has its inception in the fear of the Lord which is the beginning of wisdom. (f) Education is the nurture or bringing up of the whole man and it comprises all of life. (g) Children born of Christian parents are members of the Church of Christ. (h) The responsibility for education rests upon the parents. Parents have the right and duty to avail themselves of assistance of social institutions which are able and willing to carry forward their God given tasks. To entrust their children’s education to agencies which violate their divinely ordained task UHSUHVHQWV RQ WKH SDUW RI SDUHQWV D ÁDJUDQW YLRODWLRQ RI WKHLU VWHZDUGship.” 22. In another confessional statement of the Christian Reformed Church, Our World Belongs to God, a Contemporary Testimony, the church confesses: “In education we seek to acknowledge the Lord by promoting schools and teaching in which the light of his Word shines in all learning, where students, of whatever ability, are treated as persons who bear God’s image and have a place in his plan.” 23. I, along with the other parents and the students in our member schools, believe that human life in its entirety is religious and that God’s Word is the light on man’s path of life, giving enlightenment and meaning to all of his everyday activities. I also believe that the Scriptures mandate us to educate our children in an entirely Christian

807

STATE SUPPORT FOR RELIGIOUS EDUCATION

environment and context. Consequently, we believe that our children cannot attend public schools which are secular and contravene our religious beliefs and principles. 24. The Roman Catholic school system is equally unsatisfactory as a means of providing the Christian education we believe we must provide to our children as we deny the authority of the Pope and disagree with Roman Catholics on a number of religious issues which are the basis of instruction in separate schools. 25. Despite their religious convictions, some parents are constrained to send their FKLOGUHQWRSXEOLFVFKRROVEHFDXVHWKH\FDQQRWEHDUWKHÀQDQFLDOEXUGHQRIVHQGLQJ them to OACSS schools.  7KHÀQDQFLDOEXUGHQH[SHULHQFHGE\&KULVWLDQGD\VFKRROVXSSRUWHUVLQ2$&66 schools can be summarized as follows. On average tuition for students in elementary schools will cost the parents $4,500 per year while the average tuition for students in the high schools will cost the parents $5,500 per year. Thus families with children in both elementary and high school will spend $10,000 per year of after-tax income to support the Christian education of their children. These same families also support other charitable causes and they pay their property taxes for the local public schools in amounts ranging from $1,000 – $2,000 a year depending upon the municipality. In addition they must pay for the rest of the public school costs through general taxation. This situation is unfair and discriminatory. In light of this one can readily understand why Christian parents wish to have access to the public funds to which they contribute as citizens of this province.

IV. 6&+22/+($/7+68332576(59,&(6$1'%86,1* 27. The failure of the Ontario government, in particular the Minister of Health, to provide normal health services to handicapped students in OACSS schools is another source of frustration and expense to our parents. Under the Health Insurance Act students in public and separate schools placed in special education programs are eligible to receive, and have the government pay for, a variety of school health support services which includes services provided by a nurse, physiotherapist, occupational therapist, speech therapist or nutritionist. The School Health Support Services Program is set out in section 44a to Regulation 452 of the Revised Regulations of Ontario, 1980, a copy of which is attached as Exhibit “I”. 28. Up until 1987, several member schools were visited by health workers who provided school health support services to some students. In 1988, however, the government cut off all assistance for school health support services in OACSS schools DVSDUWRIDQRIÀFLDOSROLF\UHYLHZ 29. In 1987 Mr. Julius de Jagar, Principal of Fruitland John Knox Memorial Christian School, attempted to obtain therapy services for Clement Bezemer, a student in his school. The services were not provided to the student because John Knox Memorial Christian School is a “private school” within the meaning of the Education Act and therefore not eligible for school health support services. Copies of correspondence regarding Mr. J. de Jager’s efforts to obtain an explanation as to why handicapped

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6. CANADIAN JUDICIAL DECISIONS

children in private schools are not eligible for basic health services are attached as Exhibit “J”. 30. I have been involved since at least 1988 in efforts to ensure that school heath support services would be provided to handicapped and needy children in private schools. Copies of some of the correspondence regarding my efforts in this regard are attached as Exhibit “K”. In 1989 we successfully lobbied to have the Ontario Parliamentary Committee on Education recommend that the Ministry of Education should coordinate with the Ministry of Health and other relevant agencies to ensure that necessary health services are equally available to students in independent schools. To date, neither the Ministry of Education nor the Ministry of Health has acted on this recommendation. 31. At the present time, there are approximately 110 students enrolled in OACSS schools in need of the various school health support services provided under the Health Insurance Act. 32. Busing students to and from school is an expensive proposition for independent Christian schools. OACSS member schools spend $400.00 per students, or $829.00 per family, on transportation. This amount could be reduced or eliminated through sharing arrangements with local public or separate school boards. Such an arrangement ZRXOGEHEHQHÀFLDOWRORFDOVFKRROERDUGVE\PDNLQJPRUHHIÀFLHQWXVHRIH[LVWLQJ resources. Regretfully most public and separate school boards refuse to negotiate sharing arrangements either on the basis that the Education Act does not permit it or that Ministry of Education policy opposes it. In 1990 four Christian schools in Wellington County approached the Wellington County Board of Education requesting that the Board provide a variety of special services to the students in Christian schools. The Wellington County Board of Education refused the request and a copy of the Board memoranda explaining the refusal is attached as Exhibit “L”. 33. The OACSS considers that government funding of only the secular public school system and the Catholic separate school system discriminates in favour of those whose religious beliefs are consistent with either the public or the separate school system, and against those whose beliefs obligate them to send their children to an OACSS school as well as placing a substantial burden on parents who send their children to OACSS schools because of their religious beliefs. The OACSS therefore joins in bringing this application to secure for its member students and parents the same access to government educational funding enjoyed by parents who send their children to public and separate schools and to alleviate the burden presently placed on our member parents. [Editor’s note: Exhibits have not been reproduced]

$)),'$9,72)*$5<'87+/(5 I, *$5<'87+/(5, of the City of Edmonton, in the Province of Alberta, MAKE OATH AND SAY:

809

STATE SUPPORT FOR RELIGIOUS EDUCATION

1. I am the Executive Director of the Federation of Independent Schools in Canada (“FISC”) and of the Alberta Association of Independent Schools and Colleges (“AISCA”), and as such have knowledge of the matters to which I hereinafter depose. 2. My own educational background includes a B.A. from Calvin College in Grand 5DSLGV0LFKLJDQDWHDFKLQJFHUWLÀFDWHIURP+DPLOWRQ7HDFKHUV&ROOHJHDQGD0$LQ Canadian History from the University of Waterloo. I have been an educator and school administrator since 1966, and have taught classes over the years ranging from grade 5 through grade 12. I became Executive Director of the AISCA in 1984 and of the FISC in 1985. As Executive Director of the AISCA, I act in a policy advisory capacity for the Government of Alberta with respect to issues concerning independent schools. 3. The AISCA is a liaison, resource and informational organization funded by its members schools in Alberta. Each province has its equivalent organization representing independent schools. FISC is the overall umbrella organization for independent schools in Canada; and the various provincial organizations are its constituent members. 4. Accredited independent schools in Alberta receive from the provincial Ministry of Education 75% of the basic operating grant received by public schools in the province, which amounts to approximately 30-35% of the actual operating costs of the independent schools. This applies to, among others, the two Jewish day schools in Alberta. The Ministry’s funding operates on a per capita grant system, and the accredited independent schools are eligible for 75% of their proportionate share (on a per capita basis) of the Ministry operational grant. For the convenience of the Court, I have attached and marked DV([KLELWV´$µ´%µDQG´&µWRWKLVDIÀGDYLWVHFWLRQVRIWKHSchool Act, S.A. 1988, c. S. 3.1 and the Department of Education Act, R.S.A. 1980, c. D-17 and the regulations under those respective Acts that are relevant to the issue of school funding. 5. Each municipality in Alberta pays into the School Foundation Program Fund (the “Fund”). The Minister of Education has the power to make grants from the Fund, and it is my understanding that the criteria used by the Minister in determining whether to make grants to accredited private or independent schools is the same as the criteria used by him in determining whether to make grants to public schools. No distinction is made in the granting of monies from the Fund between privately run schools and schools run by public boards of education, except that the private schools have their share reduced to 75% of the public school grant from the fund. Moreover, private schools that have a curriculum which includes religious content are eligible for grants from the Fund, provided that they meet the accreditation criteria set out in the Acts and regulations.  ,Q%ULWLVK&ROXPELDFHUWLÀHGLQGHSHQGHQWVFKRROVLQFOXGLQJWKHWKUHH-HZLVKGD\ schools operating in the province, are eligible for funding at a rate ranging from 10% to 50% of the funding allowed for public schools. Attached hereto and marked as Exhibits ´'µDQG´(µWRWKLVDIÀGDYLWDUHFRSLHVRIWKHUHOHYDQWVHFWLRQVRIWKHIndependent School Act, S.B.C. 1989, c. 51(v) and regulations, respectively, which authorize and set out the criteria for this funding. 7. The Minister of Finance and Corporate Relations of British Columbia is empowered WRSD\DJUDQWWRHDFKLQGHSHQGHQWVFKRROKROGLQJDFHUWLÀFDWHRIJURXSFODVVLÀFDWLRQ

810

6. CANADIAN JUDICIAL DECISIONS

calculated in accordance with the regulations. It is my understanding that in order to be eligible for funding, independent schools must: (a) have no programs that would in theory or in practice promote racial or ethnic superiority or persecution, religious intolerance or persecution, social change through violent action or sedition; (b) comply with the statutes of British Columbia and the municipality in which the facilities of the independent schools are located; (c) comply with the Independent School Act and the regulations;  G  EHRSHUDWHGE\DQRQSURÀWDXWKRULW\ (e) have at least one-half of the students enrolled qualify for funding; (f) be in operation for at least one year before applying for funding; and (g) have facilities adequate for instructional purposes. 8. In addition to the above-mentioned general criteria for funding in British Columbia, to be funded at a rate of 50% of the local public school rate an independent school must have a per student operational cost for the previous school year which is the same or less than the per student operational cost of the public school district in which the independent school is situated. Further, in order to receive funding at the 50% rate an independent school must have an educational program that complies with the instructional time, program requirements and evaluation programs set out in the Act. ,WPXVWDOVREHVWDIIHGZLWKWHDFKHUVZKRDUHFHUWLÀHGLQDFFRUGDQFHZLWKWKH$FW 9. Independent schools in British Columbia that satisfy the additional requirements set out in paragraph 8 above, but that have a per student operational cost that is greater than the per student operational cost of the local public school district, receive provincial funding at a rate of 35%. Those independent schools that comply with the general requirements set out above in paragraph 7, but that do not comply with the additional requirements set out above in paragraph 8, receive provincial funding at a rate of 10% of the public school per student operating cost. 10. In Manitoba, eligible private schools, including the three Jewish day schools operating in the province, are funded at a percentage of the rate of funding allowed for public schools. Currently, the rate of funding of eligible private schools is 59% of the rate of funding allowed for public schools. By the year 1997, the rate of funding of eligible private schools will reach 80% of the rate of funding allowed for public schools. 11. It is my understanding that The Public Schools Act, and the regulations thereunder empower the Minister of Education of Manitoba to make grants to private schools (as GHÀQHGLQThe Education Administration Act), in respect of instruction and services, provided such private schools comply with the accreditation standards set out in the Act. For the convenience of the Court, I have attached hereto and marked as Exhibits ´)µ´*µDQG´+µWRWKLVDIÀGDYLWFRSLHVRIWKHPublic Schools Act, sections of the R.S.M., 1987, C. P 250, the Education Administration Act, R.S.M. 1987, C. E10 and the regulations, respectively, that are relevant to the issue of school funding. 12. Pursuant to a letter of commitment dated June 12, 1990 from the Minister of Education to the MFIS, the rate of funding of eligible private schools will be increased 811

STATE SUPPORT FOR RELIGIOUS EDUCATION

RYHUWKHQH[WÀYH\HDUVWRRIWKHIXQGLQJJLYHQWR0DQLWREDSXEOLFVFKRROVLQ accordance with an eight year incremental phase-in process which began in 1990. As set out in the Commitment Letter, these incremental funding increases are at a rate of 4.5% per year until 1995 and thereafter at a rate of 3% per year until the 80% funding WDUJHWLVUHDFKHG$WWDFKHGKHUHWRDQGPDUNHGDV([KLELW´,µWRWKLVDIÀGDYLWLVDFRS\ of the Commitment Letter from the Minister of Education. 13. In addition, the Minister of Education pays into the Manitoba Text Book Bureau an annual grant of $40.00 for each private school pupil. This textbook grant supplements the operational costs grant for the private schools, which is otherwise calculated to exclude curricular materials. 14. For the Court’s convenience, a paper recently authored by John Doornbos, the Executive Administrator of one of our constituent organizations, the Manitoba Federation of Independent Schools, is attached hereto and marked as Exhibit “J” to WKLVDIÀGDYLW7KLVSDSHUWUDFHVWKHKLVWRU\RISULYDWHVFKRROIXQGLQJLQ0DQLWREDDQG sets out the terms of the most recently implemented funding policies of the Manitoba Government. 15. There are Jewish day schools in British Columbia, Alberta, Manitoba, Ontario and Quebec. There are no Jewish day schools in any other provinces in Canada. [Editor’s note: Exhibits have not been reproduced]

812

#34 Bal v. Ontario  25G *' 'HFHPEHU 2QWDULR&RXUW*HQHUDO'LYLVLRQ  25G  (C.A.), 6 June 1997 (Ontario Court of Appeal); L.A. to S.C.C. UHI·G 15Q6&& )HEUXDU\ In December 1990 the Ministry of Education of the Province of Ontario declared that the teaching of religion in public schools must not give primacy to any particular faith. A group of Sikh, Hindu, Muslim, Mennonite and Christian Reform parents applied to the courts to strike the regulations down. They argued that the regulations were an infringement of their rights under sections 2(a), 2(b) and 15 of the Canadian Charter of Rights and Freedoms. They claimed that non-Catholic religious schools should be supported and funded within the public school system. On December 5, 1994 the Ontario Court (General Division) ruled the applications should be dismissed. The Court ruled the public school system is secular and parents seeking a non-Catholic religious education for their children must assume the cost. The applicants then went on the Ontario Court of Appeal where the case was dismissed on 6 June 1997. Leave to appeal to the Supreme Court of Canada was dismissed on 12 February 1998. Reproduced here are the decisions of the Ontario Court (General Division) and the Ontario Court of Appeal.

5(%$/(7$/$1'$77251(<*(1(5$/)25217$5,2(7$/ 217$5,2&2857*(1(5$/',9,6,21 '(&(0%(5 :,1./(5- ,,1752'8&7,21 In a landmark decision released by the Ontario Court of Appeal in January 1990 the court struck down the curriculum for religious education of the Elgin County Board of Education. The curriculum was set pursuant to the regulations under the Education Act, R.S.O. 1980, c. 129, s. 50, which required two periods of religious education in public schools each week. A student could be exempted, upon request, pursuant to an exemption provision in the regulations. The curriculum and the regulations, which UHÁHFWHGPDMRULWDULDQ&KULVWLDQIDLWKZHUHIRXQGWRYLRODWHVD RIWKHCanadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11 (“Charter”), which guarantees freedom of conscience and religion, by imposing majoritarian religious beliefs on minorities. Almost a year and a half earlier, the court had struck down a related regulation requiring opening exercises in schools in a proceeding involving the Sudbury Board of Education. The opening exercises included the recitation of the Lord’s Prayer, a Christian prayer, and a reading from the Scriptures in the Christian Bible. This regula813

STATE SUPPORT FOR RELIGIOUS EDUCATION

tion, also, was found to have infringed the Charter guarantee of freedom of conscience and religion. On December 6, 1990 the Ministry of Education responded to the decision of the court in Elgin County, infra, by issuing Policy Memorandum 112 on the subject of “Education and Religion in the Public Elementary and Secondary Schools”. This was directed to boards of education throughout the province and stated the requirements to give effect to the Elgin County decision. The memorandum stated that teaching about religion must henceforth be non-indoctrinational and must not give primacy to any particular religious faith. It stated further that the regulations under the Act would be DPHQGHGWRUHÁHFWWKLVSROLF\ It is this policy directive and the revised regulations which the applicants seek to impugn in this proceeding. The Elgin County decision and the ensuing policy memorandum and regulations VLJQLI\WKHHQGRIDQHUDRIPDMRULWDULDQ&KULVWLDQLQÁXHQFHDQGPDUNWKHEHJLQQLQJ of a period of secularism in education, based on an awareness of a changing societal fabric and Charter protection for minority rights to freedom of religion. Notwithstanding this, the applicants assert that the policy memorandum and regulations, when applied to them, infringe the Charter. The applicants are a group of parents representing a number of minority faith communities in Ontario, including the Sikh, Hindu, Muslim, Mennonite and Christian Reform communities. Certain of the applicants are involved with existing alternative religious schools, which they describe as “opt-in” schools, within the public school system. One such school, a Christian day school, known as the Sturgeon Creek Alternative Program (“SCAP”), is part of the Fort Frances-Rainy River Board of Education. The second is called the Eden Christian School in Lincoln County (“Eden”) which is exactly the same as SCAP. The application of Policy Memorandum 112 and the regulations to these existing alternative religious schools is that religious instruction and religious exercises at these schools is now prohibited during regular school hours. Also, the policy prohibits the establishment of other alternative religious schools ZLWKLQWKHSXEOLFVFKRROV\VWHPEHFDXVHVXFKVFKRROVZRXOGKDYHWKHVSHFLÀFREMHFWLYH of religious indoctrination through instruction and exercises. It is asserted by the applicants that the preclusion of the establishment, funding, or continuation of alternative religious schools as part of a public school board is discriminatory and denies to the applicants the freedom of conscience and religion and freedom of expression as members of minority faith communities and as such violates ss. 2(a), (b) and 15 of the Charter. The respondents counter by pointing out that, during the period of majoritarian &KULVWLDQLQÁXHQFHLQWKHSXEOLFVFKRROV\VWHPLQ2QWDULRDFFRPPRGDWLRQIRUDOWHUQDtive religious minority schools within the public school system was permitted. As a result of the decisions of the Court of Appeal involving the Sudbury Board of Education and the Elgin County Board of Education, religious instruction and exercises were not permitted in the public school system. The upshot of all this has been that the public school system in Ontario has been secularized. In another Court of Appeal decision

814

6. CANADIAN JUDICIAL DECISIONS

which was released recently. Adler, infra, it was held that public funding of private religious schools should not be imposed on the government. The applicants seek to retain the right to minority religious school accommodation within the public school system and thus have access to public funding. They object to the application of the policy memorandum and the regulations by the Ministry of Education to minority religious schools on Charter grounds, even though the policy DQGUHJXODWLRQVKDYHEHHQDSSOLHGWRHOLPLQDWHPDMRULWDULDQUHOLJLRXVLQÁXHQFHLQWKH public school system, also on Charter grounds. Herein, say the respondents, is the anomaly in the applicants’ position. In my opinion, Policy Memorandum 112 and ss. 28 and 29 (R.R.O. 1990, Reg. 298) of the regulations under the Education Act do not infringe the applicants’ rights under the Charter. My reasons follow.

,,%$&.*5281' This matter arises in the context of judicial pronouncement and governmental response. At the outset, therefore, it is necessary to examine the decisions, Policy Memorandum 112 and the amended regulations. Policy Memorandum 112, which is at the vortex of this dispute, was distributed after the decision in Canadian Civil Liberties Assn. v. Ontario (Minister of Education) (1990), 71 O.R. (2d) 341, 46 C.R.R. 316 (C.A.) (“Elgin County”). This decision in turn came after the decision in Zylberberg v. Sudbury Board of Education (Director) (1988), 65 O.R. (2d) 641, 34 C.R.R. 1 (C.A.) (“Zylberberg”), WKHÀUVWLQZKDW,ZLOOUHIHUWRDVWKH´WULORJ\µRIPLQRULW\UHOLJLRXVHGXFDWLRQFDVHVLQ Ontario. The last of these decisions, Adler v. Ontario, was released on July 6, 1994 by the Ontario Court of Appeal and is reported at 19 O.R. (3d) 1, 22 C.R.R. (2d) 205 (“Adler”). It is within this framework that the present application must be determined. A. The Zylberberg Decision In Zylberberg, the appellants were parents of children enroled in the public elementary school system in Sudbury. These parents sought a declaration that s. 28(1) of the regulations to the Education Act was of no force and effect because it violated the guarantee of freedom of conscience and religion in s. 2(a) of the Charter. The target of the proceeding was the religious exercises which were required by the regulations to take place at the beginning or end of every school day. These exercises included recitation of a Christian prayer (the Lord’s Prayer), and readings from the scriptures or other readings and, in some cases, the singing of hymns. There was a provision for students to be exempt from the religious exercises, if requested. The schools of the Sudbury board opened with the National Anthem, Lord’s Prayer, and, in some schools, reading from Scriptures. In arriving at its decision, the Court of Appeal applied the analytical framework set down by the Supreme Court of Canada in R. v. Oakes, [1986] 1 S.C.R. 103, 19 C.R.R. 7KDWLVDFRXUWPXVWÀUVWGHWHUPLQHLIWKHODZZKLFKLVVRXJKWWREHLPSXJQHG constitute a prima facie infringement of the Charter. Then, if this is so, a court must determine if s. 1 of the Charter saves the legislation.

815

STATE SUPPORT FOR RELIGIOUS EDUCATION

At p. 652 of the Zylberberg decision, the court considered the views of the Supreme Court of Canada concerning the freedom of conscience and religion, as stated in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, 18 D.L.R (4th) 321 (“Big M Drug Mart”): Chief Justice Dickson (then Dickson J.), speaking for the court, eloquently described the meaning of the words “freedom of conscience and religion”. In its most traditional sense, freedom of religion means the unimpeded freedom to hold, profess and manifest religious beliefs as he said at … p. 336 S.C.R.: 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. He continued by saying that “the concept means more than that” and stated that the freedom can “be characterized by the absence of coercion or restraint”. He went on to say at … p. 336 S.C.R. Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Another aspect of the Charter freedom of conscience and religion, which is of SDUWLFXODUVLJQLÀFDQFHLQWKLVFDVHLVIUHHGRPIURPFRQIRUPLW\7KHSUDFWLFHVRI majoritarian religion cannot be imposed on religious minorities. The minorities should not be subject to the “tyranny of the majority”, as Chief Justice Dickson said at … p. 337 S.C.R.: What may appear good and true to a majoritarian religious group, or the State acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view. The Charter safeguards religious minorities from the threat of “the tyranny of the majority”. The court also referred to passages in which the Supreme Court emphasized that s. 2(a) protects the freedom of non-believers as well as believers. The only limitation on one’s IUHHGRPRIFRQVFLHQFHDQGUHOLJLRQZDVLGHQWLÀHGE\WKHFRXUWDWS The only limitation upon an individual’s freedom of conscience or religion recognized by the Supreme Court of Canada is that its manifestation must not injure others or interfere with their right to manifest their own beliefs and opinions. Dickson J. said at … p. 346 S.C.R.: The values that underline 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, 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. 816

6. CANADIAN JUDICIAL DECISIONS

Finally, the court considered the Supreme Court’s recognition of a changing society with differing views of the education system. As the community’s beliefs become more varied, the place of the established Christian practices in the educational system must be re-evaluated. It was conceded that s. 28(1) of the regulations was prima facie an infringement of s. 2(a) of the Charter. However, it was argued that the provision for exemption of a student in the regulations eliminated the suggestion of pressure or compulsion on non-Christians to participate in the exercises. In response to this argument the court said, at p. 654: From the majoritarian standpoint, the respondent’s argument is understandable EXWLQRXURSLQLRQLWGRHVQRWUHÁHFWWKHUHDOLW\RIWKHVLWXDWLRQIDFHGE\PHPEHUV of religious minorities. Whether or not there is pressure or compulsion must be assessed from their standpoint and, in particular, from the standpoint of pupils in the sensitive setting of a public school. (Emphasis added) In particular the court noted the following, at p. 655: The peer pressure and the class-room norms to which children are acutely sensitive, in our opinion, are real and pervasive and operate to compel members of religious minorities to conform with majority religious practices. It was held that the right to be excused from class or to be exempt from participation does not overcome the infringement of s. 2(a) of the Charter. The court stated that the exemption provisions impose a penalty on pupils from religious minorities who rely on them by stigmatizing them as non-conformist and setting them apart from other students who are members of the dominant religion. The exemption provisions, it was concluded, fail to mitigate the infringement of freedom of conscience and religion by s. 28(1). 7KH FRXUW KHOG WKDW LW LV GLIÀFXOW WR MXVWLI\ DQ LQIULQJHPHQW RI WKLV QDWXUH EXW nevertheless, applied the test from the R. v. Oakes decision to conduct a s. 1 analysis. Rather than examine each step of the test, the most vulnerable element of the case was considered. That is, whether the right is impaired “as little as possible”. The court found that s. 28 of the regulations does not impair the right “as little as possible” and, therefore, s. 1 cannot be invoked to justify the infringement. Accordingly, s. 28(1) of the regulations was held to be of no force and effect. The opening religious exercises were struck down as infringing the Charter right to freedom of religion. B. The Elgin County Decision Pursuant to a requirement of s. 28(4) of the regulations which required two periods of religious education each week, the Elgin County board provided religious instruction by members of a county bible association. The instruction was largely from a fundamentalist Christian perspective. Midway through the litigation, the board changed the policy so that classroom religious instruction was provided by classroom teachers. Over 90 per cent of the people residing in Elgin County were, at the time, of Christian background. The appellant parents objected to the religious instruction but chose not to exempt their

817

STATE SUPPORT FOR RELIGIOUS EDUCATION

children from this religious instruction because of a concern for stigmatization and, instead, proceed through the courts. Thus the Court of Appeal, in Elgin County, was once again faced with s. 28 of the regulations to the Education Act. The court’s reasons in Zylberberg had been released when the lower court decision in Elgin County was under appeal. The court considered the constitutionality of s. 28(4) of the regulations and then turned to an examination of the constitutionality of the curriculum offered in the schools. The court framed the issue before it at p. 344: The crucial issue in this appeal is whether the purpose and the effects of the regulation and the curriculum are to indoctrinate school children in Ontario in the Christian faith. If so, the rights to freedom of conscience and religion under s. 2(a) of the Canadian Charter of Rights and Freedoms and the equality rights guaranteed under s. 15 of the Charter may be infringed. On the other hand, it is conceded that education designed to teach about religion and to foster moral values without indoctrination in a particular religious faith would not be a breach of the Charter. It is indoctrination in a particular religious faith that is alleged to be offensive. (Emphasis in original) The court summarized the decision in Zylberberg at p. 350: The majority of this court (Brooke, Blair, Goodman and Robins JJ.A) concluded that s. 28(1), on its face, infringed the freedom of conscience and religion guaranteed by s. 2(a) of the Charter. It imposed, in their opinion, Christian observances upon non-Christian pupils and religious observances on non-believers. They held that the regulation was not saved by exemption provision. This provision imposed on religious minorities a compulsion to conform to the religious practices of the majority. It discriminated against religious minorities by imposing a penalty on pupils from religious minorities who utilize it by stigmatizing them as non-conformists and setting them apart from their fellow students who are members of the dominant religion. The majority of the court held that harm to individual pupils did not need to be proved by those who objected to s. 28(1). Also, they found that the denigration of the freedoms of conscience and religion of minorities by the operation of s. 28(1) resulted in an infringement which was not insubstantial or trivial. Lastly, they held WKDWWKHLQIULQJHPHQWFUHDWHGE\V ZDVQRWFDSDEOHRIMXVWLÀFDWLRQXQGHUV 1 of the Charter. Even if s. 1 were applicable, the regulation was not a reasonable OLPLWZKLFKFRXOGEHGHPRQVWUDEO\MXVWLÀHGXQGHUVRIWKHCharter. The court referred to the decision of the Supreme Court of Canada in Big M Drug Mart to assist in determining whether s. 28 infringed s. 2(a) of the Charter. Emphasis was given to the words of Dickson J. (as he then was) and the direction contained therein to consider the purpose and effect of the legislation, since either an unconstitutional purpose or an unconstitutional effect can invalidate the legislation. Dickson J. explained at pp. 351-52 (D.L.R.): [T]he legislation’s purpose is the initial test of constitutional validity and its effects are to be considered when the law under review has passed or, at least, has purportedly passed the purpose test …[T]he effects test will only be necessary to 818

6. CANADIAN JUDICIAL DECISIONS

defeat legislation with a valid purpose; effects can never be relied upon to save legislation with an invalid purpose. In determining the purpose of the legislation, the court considered its history. It was noted that, traditionally, there have been two aspects to the role of religion in Ontario’s public schools: religious education and opening and closing religious exercises. There was little resistance to the inclusion of these aspects of religion in the school system because the population had been predominantly Christian. The use of religion in the education system was seen as a method of teaching morality or as a form of indoctrination. The court adopted the analysis of the evidence that the object of s. 28(4) was the indoctrination of schoolchildren in the Christian faith. +DYLQJLGHQWLÀHGWKLVSXUSRVHWKHFRXUWPRYHGRQWRDGHWHUPLQDWLRQRIZKHWKHU this indoctrination violates s. 2(a) of the Charter. At p. 363 the court observed: The short answer is that it must. State-authorized religious indoctrination amounts to the imposition of majoritarian religious beliefs on minorities. Although s. 2(a) of the Charter is not infringed merely because education may be consistent with the religious beliefs of the majority of Canadians (see Edwards Books, supra. p. 35), teaching students Christian doctrine as if it were the exclusive means through which to develop moral thinking and behaviour amounts to religious coercion in the class-room. It creates a direct burden on religious minorities and non-believers who do not adhere to majoritarian beliefs. That this amounts to violation of s. 2(a) of the Charter, especially when viewed in the light of s. 27 of the Charter, becomes clear from a review by this court in Zylberberg, supra (at pp. 652-3 O.R., pp. 588-9 D.L.R.), of those passages in Big M, supra, where Dickson J. dealt with the nature of the Charter freedom of conscience and religion. Given the conclusion with respect to the purpose of the legislation, there was no need for the court to consider the effect. However, in obiter, the court stated that had the ÀQGLQJUHJDUGLQJSXUSRVHEHHQGLIIHUHQWLWQHYHUWKHOHVVZRXOGKDYHUHDFKHGWKHVDPH conclusion based on the effects of the regulation. It was held that the effect of the regulation was to provide for the use of curricula and materials which constituted the basis for religious indoctrination. This was held to be unconstitutional. The court considered the constitutionality of the curriculum separately. It was decided that the curriculum should be considered government action rather than law. 7KHUHVXOWRIWKLVÀQGLQJLVWKDWWKHUHPHG\IDOOVWRV RIWKHCharter rather than s. 52(1) of the Constitution Act, 1982 which, the court stated, was in accord with the relief sought by the appellant, Corporation of the Canadian Civil Liberties Association. The relief sought was an order declaring the curriculum to be a denial of certain rights and freedoms under the Charter. The test to be applied is that s. 2(a) prohibits religious indoctrination but does not prohibit education about religion. This distinction is described in an eight part statement originating from the Public Education Religion Centre, Wright State University, and quoted in Religion in the Public Schools (American Association of School Administrators, 1986) at p. 33. This eight-part statement was subsequently adopted in Policy Memorandum 112 and is excerpted in full below.

819

STATE SUPPORT FOR RELIGIOUS EDUCATION

The court examined the curriculum and declared it to be inconsistent with s. 2(a) of the Charter. In addition to the s. 2(a) arguments, counsel argued that s. 15(1) of the Charter was infringed. The court declined to express an opinion on this point given its conclusion with respect to the s. 2(a) infringement. Further, it concluded that, as in Zylberberg, if the true purpose of the impugned regulation is to indoctrinate children in the Christian IDLWKWKHLQIULQJHPHQWRIVD FDQQRWEHMXVWLÀHGXQGHUV,QDGGLWLRQWKHFRXUW IRXQGWKDWHYHQLIWKHUHLVDEHQHÀFLDOREMHFWLYHDVFULEHGWRWKHUHJXODWLRQWKHPHDVXUHV adopted are not rationally connected to that objective. That is, if teaching proper moral standards is the objective, the indoctrination of children in the Christian religion, is not rationally connected to that objective. Also, these measures failed to impair the appellants’ freedoms as little as possible. In the result, s. 28(4) of the regulations was held to be of no force and effect. The curriculum of religious studies prescribed by the Elgin County Board of Education was said to deny the freedom of conscience and religion and the board was enjoined from continuing to require or permit the curriculum to be offered in its schools. C. Policy/Program Memorandum No. 112 and ss. 28 and 29 of R.R.O. 1990, Reg. 298 Key to the application at bar is a memorandum issued by the Ministry of Education on December 6, 1990 which became effective on January 1, 1991 dealing with “Education about Religion in the Public Elementary and Secondary Schools” and designated as Policy/Program Memorandum No. 112. It is this memorandum and the corresponding regulations that the applicants seek to have struck on the grounds that they infringe ss. 2(a), (b) and 15 of the Charter. Policy Memorandum 112 and the new regulations were a response to the Ontario Court of Appeal’s decision in Elgin County and constituted an effort, on the part of the government, to provide secular education in the public school system. ,UHSURGXFHWKHPHPRUDQGXPLQZKROHJLYHQLWVVLJQLÀFDQFHWRWKHGHWHUPLQDWLRQ of the application: [Ministry logo]

Policy/Program Memorandum No. 112

____________________________________________________________________ Date of Issue

December 6, 1990 Effective: January 1, 1991

Subject:

EDUCATION ABOUT RELIGION IN THE PUBLIC ELEMENTARY AND SECONDARY SCHOOLS

Applications:

Chairpersons of Boards of Education Directors of Education of Boards of Education, Principals of Public Elementary and Secondary Schools

____________________________________________________________________

820

6. CANADIAN JUDICIAL DECISIONS

1. Background On January 30, 1990, the Ontario Court of Appeal unanimously struck down subsection 28(4) of Regulation 262 concerning religious education in the public elementary schools. The court ruled that the subsection infringed on the freedom of conscience and religion guaranteed by section 2(a) of the Canadian Charter of Rights and Freedoms. Neither the subsection nor the court decision applied to schools operated by the Roman Catholic separate school boards. Section 29 of Regulation 262, regarding provision of religious instruction by clergy or designates in the public secondary schools, was not before the court, and the court’s ruling did not apply expressly to that section. However, subsequent advice by legal counsel indicates that the principles outlined in the decision make section 29 equally untenable. In its decision, the court made it very clear that subsection 28(4) of the regulation was invalid because it permitted the teaching of a single religious tradition as if it were the exclusive means through which to develop moral thinking and behaviour. The court also ruled that education designed to teach about religion and to foster moral values without indoctrination in a particular religious faith would not contravene the Charter [sic]. In distinguishing between religious indoctrination and education about religion, the court made the following statement: While this is an easy test to state, the line between indoctrination and education, in VRPHLQVWDQFHVFDQEHGLIÀFXOWWRGUDZ:LWKWKLVLQPLQGLWPD\EHRIDVVLVWDQFH to refer to the following more detailed statement of the distinction: – The school may sponsor the study of religion, but may not sponsor the practice of religion. – The school may expose students to all religious views, but may not impose any particular view. – The school’s approach to religion is one of instruction, not one of indoctrination. – The function of the school is to educate about all religions, not to convert to any one religion. – The school’s approach is academic, not devotional. – The school should study what all people believe, but should not teach a student what to believe. – The school should strive for student awareness of all religions, but should not press for student acceptance of any one religion. – The school should seek to inform the student about various beliefs but should not seek to conform him or her to any one belief. Subsequent to the court’s ruling, an interim policy for public elementary schools, dated February 28, 1990, was established whereby boards were permitted to provide programs in education about religion in the time previously used during the school day, as long as these programs were in accordance with the court’s ruling. Boards of education were also advised that they could continue to provide space outside the school day, as they

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do for various community-related activities, if parents requested that their children be taught religion by clergy or designates. This interim policy for elementary schools was intended to remain in effect only until policy considerations related to the public HOHPHQWDU\DQGVHFRQGDU\VFKRROVZHUHÀQDOL]HG II. Permanent Policy 7KH0LQLVWU\RI(GXFDWLRQZLOODPHQGVHFWLRQVDQG5HJXODWLRQWRUHÁHFW the following permanent policy, which will apply to public elementary and secondary schools: 1. Boards of education may provide programs in education about religion in Grades 1 to 8 during the school day for up to 60 minutes per week. 2. Boards of education may continue to provide optional credit courses in World 5HOLJLRQVLQVHFRQGDU\VFKRROVDVVSHFLÀHGLQWKHFXUULFXOXPJXLGHOLQHHQWLWOHG History and Contemporary Studies, Part C: Senior Division, Grades 11 and 12, 1987.7KHSURJUDPGHVFULEHGLQWKHJXLGHOLQHPHHWVWKHFRXUW·VGHÀQLWLRQ of permissible education about religion. 3. Schools and programs, including programs in education about religion, under the jurisdiction of boards of education must meet both of the following conditions: a) They must not be indoctrinational. b) They must not give primacy to any particular religious faith. 4. Boards of education may continue to provide space before the beginning or after the close of the instructional program of the school day for indoctrinational religious education. Given the provisions for equality of treatment in the Canadian Charter of Rights and Freedoms, boards choosing this option must make space available on an equitable basis to all religious groups. This policy will come into effect on January 1, 1991. III. Purpose The purpose of programs in education about religion is to enable students to acquire knowledge and awareness of a variety of the religious traditions that have shaped and continue to shape our world. The programs enable individuals to understand, appreciate, and respect various types of religious beliefs, attitudes, and behaviour. The purpose of these programs is not to instil the beliefs of any particular religion. It is the prerogative of individual pupils and their families to decide which religious beliefs they should hold. Indoctrinational religious education has no place in the curriculum or programs of public elementary and secondary schools of the province. IV. Content Since the world’s religions are many and varied, a particular program in education about religion cannot be expected to include every one of them. As a minimum, programs in any grade should include a balanced consideration of world religions that have FRQWLQXLQJVLJQLÀFDQFHIRUWKHZRUOG·VSHRSOH

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Both content and method should be appropriate to the ages and levels of maturity of the pupils. In developing programs of education about religion, consideration may be given to various organizational frameworks. V. Resources The Ministry of Education will develop a resource document to assist boards of education in developing programs in education about religion for elementary schools. Programs for the secondary schools will continue to be developed in accordance with History and Contemporary Studies, Part C: Senior Division, Grades 11 and 12, 1987. VI. Context This permanent policy and the forthcoming amendments to Regulation 262 are to be understood within the context of the long-established vision of the public elementary and secondary schools as places where people of diverse backgrounds can learn and grow together. The public schools are open and accessible to all on an equal basis and founded upon the positive societal values which, in general, Canadians hold and regard as essential to the well-being of our society. These values transcend cultures and faiths, reinforce democratic rights and responsibilities, and are founded on a fundamental belief in the worth of all persons. (Emphasis added) The Education Act, R.S.O. 1990, c. E.2, addresses religious instruction in the schools as follows: 51(1) Subject to the regulations, a pupil shall be allowed to receive such religious instruction as the pupil’s parent or guardian desires or, where the pupil is an adult, as the pupil desires. (2) No pupil in a public school shall be required to read or study in or from a religious book, or to join in an exercise of devotion or religion, objected to by the pupil’s parent or guardian, or by the pupil, where the pupil is an adult. The regulations which are being challenged, in addition to Policy Memorandum 112, are ss. 28 and 29 of Reg. 298 which state: 28(1) A board may provide in grades one to eight and in its secondary schools an optional program of education about religion. (2) A program of education about religion shall, (a) promote respect for the freedom of conscience and religion guaranteed by the Canadian Charter of Rights and Freedoms; and (b) provide for the study of different religions and religious beliefs in Canada and the world, without giving primacy to, and without indoctrination in, any particular religion or religious belief. (3) A program of education about religion shall not exceed sixty minute of instruction per week in an elementary school.

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29(1) Subject to subsections (2) and (3), a board shall not permit any person to conduct religious exercises or to provide instruction that includes indoctrination in a particular religion or religious belief in a school. (2) A board may enter into an agreement with a separate school board or the Roman Catholic sector of The Ottawa-Carleton French-Language School Board that permits the separate school board or the Roman Catholic sector to use space and facilities to conduct religious exercises or provide religious instruction for the purposes of the separate school board or the Roman Catholic sector. (3) A board may permit a person to conduct religious exercises or to provide instruction that includes indoctrination in a particular religion or religious belief in a school if, (a) the exercises are not conducted or the instruction is not provided by or under the auspices of the board; (b) the exercises are conducted or the instruction is provided on a school day at a time that is before or after the school’s instructional program, or on a day that is not a school day; (c) no person is required by the board to attend the exercises or instruction; and (d) the board provides space for the exercises or instruction on the same basis as it provides space for other community activities. (4) A board that permits religious exercises or instruction under subsection (3) shall consider on an equitable basis all requests to conduct religious exercises or to provide instruction under subsection (3). D. The Adler Decision The most recent case in the “trilogy” is the Adler decision which was released just prior to the argument in this matter. Counsel agree that Adler is determinative of certain issues of non-funding of independent minority religious schools raised in this proceeding which, as a result, must be decided in favour of the respondent. Accordingly, this issue was not argued here, it being understood that the applicants were preserving their position in the event of a successful appeal in Adler at the Supreme Court of Canada. The claims for relief being preserved are those requested in ss. 1(ii), (iii), and (iv) of the amended notice of application. The application of Adler to the remaining issues was, however, hotly disputed. The issue in Adler was framed as follows, at pp. 5-6: The principal issue in these appeals is whether, by reason of ss. 2(a) and 15 of the Canadian Charter of Rights and Freedoms, the Province of Ontario is now mandated through public funding to foster and facilitate religious education for all the diverse religious groups within Ontario. The essence of the Court of Appeal’s decision in Adler is that there is no obligation on the government to fund private minority religious schools. By the time Adler was argued secularization was in place in the public schools system. The public school

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V\VWHPH[FHSWIRUWKHSXEOLF5RPDQ&DWKROLFVFKRROVZKLFKDUHVSHFLÀFDOO\SURYLGHG for in s. 93 of the Constitution Act, 1867, had a secular curriculum and there were no religious exercises. Religious education was available but optional in accordance with Policy Memorandum 112. If a parent or student wanted religious education, they had recourse to the private school system, but had to pay for it. The appellants in Adler were parents who sent their children to private religiousbased independent schools. Dubin C.J.O. held that s. 2(a) was not breached by the absence of government funding of these independent religious schools. At the outset of his reasons he emphasized that it is not the role of the court to make a policy decision on public funding of religious independent schools, it is up to the legislature. The motions judge, from whose decision the appeal lay, had held that s. 21 of the Education Act made school attendance mandatory and compelled the appellants to pay tuition fees for private religious education. This, he held, in the absence of provincial funding, constituted a breach of s. 2(a) of the Charter. Dubin C.J.O. found that the motions court judge had erred by so holding. Section 21 of the Act requires a child to attend school. If the child is receiving satisfactory education elsewhere he or she is excused from attendance. There is, therefore, no requirement that the child attend public school or a separate school under the jurisdiction of the appropriate board as GHÀQHGE\WKH$FW7KHVHFWLRQGRHVQRWPDQGDWHFRPSXOVRU\DWWHQGDQFHDWDQRQ denominational school. Although no mention was made in Adler of the Elgin County case, Dubin C.J.O. does refer to Zylberberg. He reviewed the reasoning of the motions court judge that Big M Drug Mart, Edwards Books & Arts Ltd. v. R., [1986] 2 S.C.R. 713, 28 C.R.R. 1 (“Edwards Books”), and Zylberberg support the proposition that non-funding to the private religious-based independent schools constituted an infringement of s. 2(a). Dubin C.J.O. disagreed. He stated, at p. 14, that the decisions of the Supreme Court of Canada in Big M Drug Mart and Edwards Books do not support the proposition that the government is under a duty to provide funding to “such institutions”. In Zylberberg and the cases relied on for its decision, it was government action that was held to be offensive. Dubin C.J.O. distinguished the case before him at p. 18 as follows: In this case, in my opinion, there was no government action that compelled the appellants to send their children to private religious-based independent schools. They were free to send their children to secular public schools maintained at public expense. Their decision not to do so was solely a response to their religious beliefs and not a result of any government action. Dubin C.J.O. pointed out that what is being complained of is not government action but, rather, government inaction. In these circumstances this cannot be the subject of a Charter challenge. He commented at p. 18: It is not necessary in this case to determine whether it would be open to the JRYHUQPHQWLQWKHDEVHQFHRIVSHFLÀFFRQVWLWXWLRQDODXWKRULW\VXFKDVVRIWKH Constitution Act, 1982), to provide public funding for all private religious-based independent schools. This will be dealt with by the courts in the event that such a situation arises and is challenged.

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It was key to the decision of the Court of Appeal that there was no support for the proposition that a failure to fund private religious-based independent schools interfered with one’s freedom of religion. Dealing with the s. 15(1) argument, Dubin C.J.O. stated that with respect to religious and language instruction, he was of the view that s. 93(1) of the Constitution Act, 1867, and s. 23 of the CharterGHÀQHWKHH[WHQWRIWKHOHJLVODWXUH·VREOLJDWLRQVXQGHU the Constitution. Chief Justice Dubin considered the analysis in the lower court to the effect that the Act compels parents to send their children to school; because of their religion, they must go to private school; thus they cannot attend public schools. Dubin C.J.O. disagreed with the analysis. The Chief Justice opined that if the absence of funding for private schools creates a distinction, it is not one based on religion. The publicly funded school system is secular. The Education Act does not provide funding for any private school regardless of whether it is a religious school or not. The government funds the secular school system so as to provide “universally accessible education opportunities for all” (at pp. 23-24 of the decision). In order for a breach of s. 15(1) to be established, a two-part analysis is required. &KLHI-XVWLFH'XELQH[SODLQHGWKDWÀUVWLWLVQHFHVVDU\WRGHWHUPLQHWKDWWKHGLVWLQFWLRQ is one based on characteristics that are either enumerated in s. 15, or, analogous to those enumerated. Second, it must be established that the distinction is discriminatory. Discrimination occurs where legislation imposes a burden or obligation on the group WKDWLVGLVWLQFWLYHDQGQRWRQRWKHUVRUWKDWEHQHÀWVDUHEHLQJZLWKKHOGWKDWDUHDYDLODEOH to others because of the distinction. The Chief Justice held that Education Act does not GUDZDQ\GLVWLQFWLRQEDVHGRQUHOLJLRQQRUGRHVLWLPSRVHREOLJDWLRQVRUGHQ\EHQHÀWV on the basis of religion. His Lordship went on to consider whether there was adverse effect discrimination. To describe adverse effect discrimination, reference was made to the decision in Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 at p. 551, 23 D.L.R. (4th) 321, where it was explained that a rule or standard adopted by an employer may, on its face be neutral but may have the effect of imposing obligations, penalties, and restrictive conditions on one employee or group of employees because of a special characteristic but not on others. It was reiterated that the children of the appellants were sent to publicly [sic] funded schools because of their religion, not because of the statute. The Act does not impose “obligations, penalties, or restrictive conditions not imposed on others” based on a special characteristic. Dubin C.J.O. referred to and agreed with two cases decided in the United States, Brusca v. Missouri,)6XSS DIÀUPHG866&W and Norwood v. Harrison, 413 U.S. 455 (1973), which stand for the proposition that children who could attend publicly funded schools regardless of their religion, but choose to attend private schools, are not discriminated against. In the result, Dubin C.J.O., speaking for the court, Weiler J.A. dissenting on an issue not relevant to this proceeding, held that neither the appellants’ freedom of religion, nor their right to equal treatment under the law, were infringed by the Education Act by reason of their failure of the government to fund private religious schools. 826

6. CANADIAN JUDICIAL DECISIONS

III. EVIDENCE In order to better appreciate the application of the law to the circumstances underlying this application, a review of the evidence is appropriate. A. Manohar Singh Bal, Darshan Singh Mr. Bal and Mr. Singh are both members of the Sikh community in Ontario. In Toronto alone, there are approximately 100,000 Sikhs. The Sikh community has developed plans WRHVWDEOLVKD6LNKVFKRROLQ2QWDULREXWLWLVYHU\GLIÀFXOWIRUWKHFRPPXQLW\WRVXSSRUW VXFKDSODQÀQDQFLDOO\7KHUHIRUHQRVXFKVFKRROH[LVW%RWK0U%DODQG0U6LQJK have children who attend public school. Both are devout Sikhs. The manner in which secular education is provided in public schools is not conductive to encouraging Sikh children to develop and continue to practice their Sikh way of life. It was asserted that PDQ\6LNKVEHOLHYHWKDWLQRUGHUIRUWKHLUUHOLJLRQDQGFXOWXUHWRVXUYLYHÁRXULVKDQG remain strong in Ontario, it is essential to establish schools for their community. They would like to establish a Sikh school in Ontario and point to British Columbia as an example of where a Sikh school exists that is partially funded by the government. B. Dwarka Doobay, Deokaran Sharma Mr. Doobay and Mr. Sharma are members of the Hindu community in Ontario. Both have children. Mr. Doobay’s two children attend Catholic separate school. Mr. Sharma’s children attend public schools. Mr. Doobay and Mr. Sharma’s concerns resulting in the support of this application are stated in paras. 11 and 12 of the appellants’ factum as follows: 11. It is important to the members of the Hindu community for their children’s lives to have a religious dimension. The relationship between parent and child is very important and an essential feature of the education in accordance with the Hindu faith. It is also essential to emphasize the relationship between student and teacher as one with a spiritual dimension. Hindus also have a strong code of moral and religious behaviour which they feel compelled by the principles of their religion to impart to their children. This is not possible through the secular public educational system. It is also important to religious Hindus that their children learn Hindi and Sandsribt [sic] and to also learn the Hindu code of dress, code of morals and principles of behaviour. The Hindus consider that Hindi is essential and that their children learn these religious principles in school as well as learning about Hindu religious festivals, dietary practices and other spiritual matters. 12. Some members of the Hindu community do not believe that the secular public educational system meets the unique educational needs of the members of their community. They are concerned that their children who attend the public schools are losing their religious faith and that there is a dissipation of Hindu religious practice and belief within their children as a result of their exposure to a secular and materialistic culture and teaching which is pervasive in the public secular educational system. This is a case notwithstanding that over the past 15 years Hindu temples have been established in various communities throughout the province and there

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has been an attempt to provide teaching for the children of Hindu families in the temples to preserve the religion and culture of the Hindu community. It was further explained that, because of the cost, the community has not been able to establish a Hindu school. In addition, for many people the cost of tuition for a private school is prohibitive. C. Albert Dreise, Marian Heinen Kits Mr. Dreise and Ms. Kits are members of minority Protestant religious communities. %RWKWKHVHDSSOLFDQWVDUH&KULVWLDQ5HIRUPHG0U'UHLVH·VÀYHFKLOGUHQDWWHQGERWK an independent Christian school and public schools. Both of the Kits’ children attend LQGHSHQGHQW&KULVWLDQVFKRROV)RUERWKDSSOLFDQWVLWKDVPHDQWÀQDQFLDOKDUGVKLSWR send their children to independent Christian schools. The reason that they feel that this hardship is necessary was explained in para. 15 of the applicant’s factum: 15. Albert Dreise and his wife want their children to have an education which integrates biblical Christian values with the curriculum and social life at school. They believe it essential that their children attend a Christian school because it plays such a large part in the children’s life and they spend so many hours at school. They want their children to have an education which recognizes God as creator, redeemer and sustainer of life. This is not taught in the secular public schools. They believe it essential that their children attend a school which has more than simply religious opening exercises but in which all subjects are taught from a particular Christian perspective. They also want their children to learn their particular values and beliefs of their religious faith. This cannot be accomplished through teaching at home or at church on Sunday, one day a week. Rather, they believe it must be taught on a regular basis if their children are to grow up into competent, integrated citizens of Canada. They send their children to a Christian school “for positive reasons”. Mr. Dreise alleges that when his children attended in the public school system for a period of time, they did not receive an education consistent with their religious faith. It was his experience that the public schools teach and espouse their own set of secular principles and values, which are not only inconsistent with the Christian religious principles and values, but violate and undermine the beliefs in which his family wished to have their children educated. The Kits want to sent their children to an independent Christian school which promotes tolerance and respect for a pluralistic and multicultural society and which promotes the values of tolerance, respect, love and caring among the school staff and amongst others in our society. D. Sajjad Hanif and Zeyad Sakaa Mr. Hanif and Mr. Sakaa are members of the Muslim community in Ontario. Mr. Hanif’s children have attended the Islamic community school in Mississauga which provides education until grade 8. His oldest child now attends a public high school. Mr. Zeyad >VLF@ZKRKDVVLQFHVZHDULQJKLVDIÀGDYLWUHWXUQHGWRKLVQDWLYH6\ULDKDVÀYHFKLOGUHQ

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three of whom attended the Islamic community school in Mississauga. In 1992 he was UHTXLUHGWRWDNHKLVFKLOGUHQRXWRIWKHVFKRROGXHWRÀQDQFLDOGLIÀFXOWLHV These applicants’ concerns are articulated in para. 25 of the factum: 25. Like other minority faith communities in Ontario, Ontario Muslims like Mr. Hanif and Mr. Sakaa are concerned that, if their children are exposed to the LQÁXHQFHVRIWKHVHFXODUSXEOLFVFKRROV\VWHPIRUDWOHDVWKRXUVDZHHNLWZLOO KDYHDVLJQLÀFDQWLQÁXHQFHRQWKHLUVSLULWXDODQGPRUDOGHYHORSPHQWERWKEHFDXVH of the teaching provided in the school and also because of the peer pressure of other children who do not share the Islamic faith. Although parents attend mosque regularly and do everything they can to teach Islamic values to their children in WKHKRPHWKH\UHFRJQL]HWKDWWKHLUFKLOGUHQVSHQGDPRUHVLJQLÀFDQWDPRXQWRI time at the school and that this has an impact on the preservation on their Islamic faith and culture. They believe that it is essential according the principles of their Islamic faith to have their children educated at an Islamic school, especially during their formative elementary schools [sic] years. The Islamic Community School in Mississauga is operated by the Islamic Society of North America, which also operates two other Islamic schools in Ontario, one in Quebec, one in British Columbia and a number of schools in the United States. The applicants state that the schools have a non-discriminatory admission policy and promote tolerance and a respect for other faiths and other citizens in a pluralistic society. They were established to maintain and preserve the Islamic faith and culture in North America. The schools maintain a curriculum and academic standards established by the Ministry of Education. They offer fully accredited courses, in addition to Islamic religious teaching and religious practices. The entire curriculum is infused with Islamic principles. Attendance at the schools is voluntary and children who are not Muslim have attended the school and are not required to participate in religious practices. E. Philip Friesen, Marvin MacDonald – The Sturgeon Creek Alternative Programme The Friesens and the MacDonalds are devout Christians who believe it is essential for their children to be educated in a religious school in which the entire curriculum is taught IURPWKHSHUVSHFWLYHRIWKHLUIDLWK7KH\EHOLHYHWKDWWKH\FDQQRWIXOÀOWKHLUUHOLJLRXV obligations as parents by simply teaching their children about their religious faith in their home and at their place of worship and by sending them to a secular school during the week. They believe that it is vital for their children’s religious growth and for the continuation of their “faith community’, that the children be educated by teachers who share their religious principles and values in a school environment which encourages their particular faith tradition. In the 1970s Mennonite families in the Stratton area established a private Christian school known as the Stratton Christian Day School. They paid all the costs associated with establishing and running the school, notwithstanding that they were a small rural farming community. In 1977, the school entered into an agreement with the Fort Frances-Rainy River Board of Education to become an alternative Christian school operating within the local school board. This was done at the invitation of the board. The school became known as the Sturgeon Creek Alternative program (“SCAP”). The 829

STATE SUPPORT FOR RELIGIOUS EDUCATION

school functioned under the authority of the Education Act and provided religious education classes and had religious exercises. Attendance was voluntary and the admission policy non-discriminatory. There has been, according to the factum of the applicants, no history or evidence of religious coercion with respect to the running of the school. Students are not required to participate in religious exercises. The Friesens and MacDonalds both have children who attend or have attended SCAP. Both Mr. Friesen and Mr. MacDonald are members of the Parents Advisory Committee of SCAP. SCAP was functioning well within the school board until Policy Memorandum 112 was issued which ordered the school boards to stop the provision of religious education within publicly funded schools. The school had to cease its religious curriculum, stop using the Bible as a teaching tool, stop engaging in opening religious exercises or prayer, and remove any religious literature and posters from the classrooms. Notwithstanding its establishment as an independent religious school and successful history as an alternative religious school meeting a diversity of needs for the religious community in the Fort Frances-Rainy River school district, by dictate of the Ministry of Education, SCAP was required to operate as a secular public school.

III. ISSUES There were divergent positions taken by counsel as to the appropriate characterization of the issue before the court. Mr. Charney, on behalf of the respondents, asserted that the decisions in the trilogy constitute a complete answer to the issue as framed by him. Mr. Jervis, on the other hand, stated that the issue falls outside the ambit of those cases DQGLVDPDWWHURIÀUVWLPSUHVVLRQWREHGHFLGHGRQSULQFLSOHVHOLFLWHGIURPYDULRXV authorities. Mr. Jervis submitted that the issue ought to be framed as follows: Should a board of education be allowed to accommodate alternative religious schools? This is distinguishable from Adler in that the applicants seek a statement that the boards are permitted to accommodate religious minority education. There is no issue of funding, in his submission. By applying Policy Memorandum 112 across the board thereby removing from boards the discretion to allow alternative religious schools the applicants are being denied their Charter rights to freedom of conscience and religion, freedom of expression and their right to equality. 0U&KDUQH\SRLQWHGRXWWKDWDIXQGDPHQWDOÁDZZLWKWKLVSURSRVLWLRQLVWKDWERDUGV of education have no rights; they are creatures of statute and all their powers are those derived from the provincial government. The only powers inherent in the boards of education are those conferred upon them by the government. Determining what a board may do, therefore, is irrelevant. It is the parents who are the applicants in this matter; not the board or the teacher. The constitutional issue in this proceeding is as between the provincial government and the parents; no board of education is a party. Mr. Charney, therefore, submitted that the three possible issues are: 1. the government must establish publicly funded denominational public schools 2. the government may establish publicly funded denominational public schools

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3. the government cannot establish publicly funded denominational public schools Both options 1 and 3 require a determination of whether parents have a right to have publicly funded denominational public schools established for their children. This, he submits, is clearly disposed of by Elgin County and Adler. Since the decisions in Elgin County and Zylberberg, the government cannot establish denominational public schools because the public school system must be non-denominational. The government has no obligation to fund alternative or denominational schools as a result of the decision in Adler. Mr. Charney argued further that, if he is incorrect and the issue ought to be framed as option 2, that is, the government has an option to establish denominational schools, then, the government has chosen not to establish such schools, which is constitutional. In my opinion, the issue is: Does the Charter give the applicant parents the right to require the Minister of Education to provide and fund denominational religious schools for minority religious groups within the public school system? Is it a Charter infringement for the government to fail to do so? Mr. Jervis was candid to concede that, if the issue were to be crafted as above, given the decisions in the trilogy, his position could not prevail. I agree. Nevertheless, I will deal with his arguments as they were advanced.

IV. ANALYSIS Mr. Jervis, on behalf of the applicants, submitted that Policy Memorandum 112, and ss. 28 and 29 of the regulations constitute an infringement of ss. 2(a), (b) and 15(1) of the Charter because they do not make provision for minority religious education. He argued that since members of minority religious groups must pay for private religious education for their children, there is a state-imposed burden on their religious practices. The situation facing minority religious groups is analogous to the situation found to be unconstitutional in Zylberberg and Elgin County. Adler, it was argued, is distinguishable because it deals with government “inaction”. In this case, Policy Memorandum 112 and the regulations constitute government action. Also, in support of his argument, Mr. Jervis referred to the report of Dr. Shapiro, a former Deputy Minister of Education, called The Report of the Commission on Private Schools in Ontario (October 1985) (“Shapiro Report”) which recommended that independent minority religious schools be established in “association” with the school boards with at least 85 per cent funding. The issue here he asserted, is not a funding issue, and therefore, the decision in Adler is inapplicable. A. Freedom of Conscience and Religion In the Adler decision, the court contemplated whether the appellants’ freedom of conscience and religion was infringed because they had to pay for private schools in order for their children to obtain a religious education. At p. 10, Dubin C.J.O. explained the meaning of s. 2(a) rights: 831

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The right involves the freedom to pursue one’s religion or beliefs without government interference, and the entitlement to live one’s life free of state-imposed religions or beliefs. It does not provide, in my view, an entitlement to state support for the exercise of one’s religion. Thus, in order to found a breach, there must be some state coercion that denies or limits the exercise of one’s religion. (Emphasis added) Mr. Jervis argued that secularism is coercion. He suggested that, just as state-mandated majoritarian Christian beliefs were taught in the public schools prior to Elgin County, secularization means minority religious groups still do not have the opportunity to put their religious views forward as part of their education. This they ought to have a right to do through alternative religious schools. Secularism, he argued, is not neutral because the effect of the system is not value neutral when applied to minorities because it undermines their values. The current law proscribes indoctrinational teaching in the public schools. The policy states that a school is not to give primacy to any religion either in exercises or indoctrinational instruction which is exactly what the applicants wish to do in pursuance of their religious beliefs. He stressed that indoctrinational instruction is the very reason for the existence or establishment of alternative religious schools. It pervades every aspect of the school activities. Secularism is coercive, and not neutral, he submitted, because it rules out the existence of alternative religious schools. In addition, Mr. Jervis argued that neither the Act, regulations nor the policy PHPRUDQGXPFRQWDLQDGHÀQLWLRQRIDOWHUQDWLYHVFKRROV$VDUHVXOWKHFODLPHGWKH policy and regulations are excessively broad and, therefore, unconstitutional. Given the trilogy there is no support in law for Mr. Jervis’ position. The decisions in Zylerberg and Elgin County are clear as to when a person’s freedom of conscience and religion is infringed. As stated by Mr. Jervis, there must be some form of coercion. However, in Zylberberg and Elgin County there was indirect coercion compelling those children who held different beliefs from the majority to be indoctrinated with the majoritarian views. The public school system is now secular. Its goal is to educate, not indoctrinate. This is very different from the goal in place at the time that Zylberberg and Elgin County were decided. Secularism is not coercive, it is neutral. The logic is lacking to support Mr. Jervis’s contention that the secularization is a form of coercion and is not neutral. Chief Justice Dubin stated, at p. 18 of Adler: There is no provision in the Education Act which in any way interferes with the freedom of conscience and religion of the appellants. The public schools cannot accommodate the appellants because the religious instruction that they are seeking is not permissible in such institutions. What is really complained of in this case is not government action, but government inaction which in the circumstances of this case cannot be the subject of a Charter challenge. The absence of funding in the Education Act for private, religious-based independent schools does not contravene s. 2(a) of the Charter. Mr. Jervis argued that Policy Memorandum 112 constitutes government action thereby distinguishing the Adler decision which dealt with government inaction. Policy

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Memorandum 112 requires public schools to be secular. In my opinion, it does not constitute a form of government action which prefers one religion over another, nor does it represent majoritarian religious views. This policy seeks to abolish distinctions in the public school system which are based on religion. It dictates what must be done to secularize the public school system. There is no foundation for the argument that this policy constitutes government action which infringes a person’s right to freedom of conscience and religion. Rather, it evolved from judicial pronouncement concerning compliance with the Charter. Relating to Mr. Jervis’ submissions, Dubin C.J.O.’s reasons in Adler are of relevance. His Lordship stated at p. 18: In this case, in my opinion, there was no government action that compelled the appellants to send their children to private, religious-based independent schools. They were free to send their children to secular public schools maintained at public expense. Their decision not to do so was solely a response to their religious beliefs and not a result of any government action. Mr. Jervis argued that the applicants, here, do not have the choice of sending their children to private schools because such schools do not exist. The reason, he emphasized, WKDWWKH\GRQRWH[LVWLVWKDWWKHFRPPXQLWLHVDUHXQDEOHWRÀQDQFLDOO\VXSSRUWWKHLU own private religious schools. This is said to constitute coercion. On the contrary, and in any event, this argument is the equivalent of the non-funding argument put forward in Adler, the decision in which is determinative. Moreover, as discussed further below, this argument detracts from Mr. Jervis’s submission that the applicants are not seeking relief under the Charter because of non-funding. Mr. Jervis sought to narrow the focus of Adler in an effort to distinguish the present case from it, by urging that Adler only applies to funding of private religious minority schools. He underlined that the applicants are seeking a declaration that they be permitted to apply to a board of education for status as an alternative school within the public school system. He states that the decision to admit the schools is discretionary and as such, does not amount to a claim for public funding. Mr. Jervis submitted that his purpose in striking down Policy Memorandum 112 and the regulations as they pertain to the applicants is not to include religious alternative schools in the public school system de facto. Rather it is only to permit individual boards of education to receive applications from individual schools. In my opinion, this point is tangential to the issue that is at the root of this matter. Boards of education are statutory bodies which draw their jurisdiction from the empowering legislation, the Education Act, as administered by the Ministry of Education. In my opinion, this argument fails. The effect of allowing a minority religious alternative school in the public school system is government funding of minority religious schools. As the court stated in Adler, the government is not obliged to provide such funding. In recapitulation, Mr. Jervis stated that the public school system, elementary and secondary, in the period preceding the trilogy of Court of Appeal decisions on religious education, was oriented toward the Christian majoritarian religious faith. This was not LQVLGLRXVEXWUDWKHUZDVVSHFLÀFDOO\PDQGDWHGE\WKHUHJXODWLRQVWRWKHEducation 833

STATE SUPPORT FOR RELIGIOUS EDUCATION

Act. Minority alternative religious schools, such as SCAP and Eden, were accepted within the public school system and carried on in furtherance of their religious beliefs and practice, while complying with all of the requirements of the Education Act. The impact of Zylberberg and Elgin County is only to remove the majoritarian Christian LQÁXHQFHKHXUJHG He continued with reference to the Shapiro Report in support of the argument that independent minority religious schools should be “associated” with the school board in continuation of the prior government stance. However, in cross examination, Dr. Shapiro conceded that he had not re-evaluated his opinion and recommendations since the Ontario Court of Appeal’s decisions in Zylberberg and Elgin County. Dr. Shapiro’s views are, therefore, irrelevant given the subsequent pronouncements of the court. The decision in Zylberberg and Elgin County cannot be read narrowly as Mr. Jervis suggested. One reason advanced by Mr. Jervis in support of the claim that the applicants’ situation is different from Elgin County and Zylberberg is that, in those cases, the court was asked to consider non-secular regulations which provided an “opt-out” provision. He claimed that alternative religious schools in the public school system constitute an “opt-out” system, thereby rendering them constitutionally sound. This DUJXPHQWLVÁDZHG,QP\RSLQLRQWKH´RSWRXWµSURYLVLRQGHDOWZLWKLQElgin County and Zylberberg meant that students were able to obtain permission to be exempt from religious exercises and instruction pursuant to an exemption provision in the regulation. The onus was upon the parent or child to obtain the exemption and in doing so the child was set apart from his or her peers. By contrast the “opt-in” at the alternative religious schools referred to a student’s choice of enrolment. That is, a student is free to enrol in an alternative religious school or go to a public secular school. Once a student is enrolled, however, they must participate in the religious education and exercises that are part of the curriculum and they are expected, upon admission, to respect the rules of the school. To the extent that the court in Elgin County stated that it was not giving any opinion regarding “opt-in” programs, it must be pointed out that the term, as it is used in Elgin County, has no parallel to its usage in the present circumstances. Mr. Charney illustrated that “opt in” was not the true converse of “opt out” and thus lawful by the following example. If the only school, or most convenient school, in a neighbourhood is an Islamic religious school and a Christian child wished to attend, that child will be admitted but must abide by the policies of the school including religious exercises and instruction which would be implicit in the school’s every aspect. This would give rise to the exact problem that the decision in Elgin County and Zylberberg sought to rectify. Mr. Jervis’ only response to this postulation was that it would never occur. In my view, this is not a satisfactory rebuttal. Mr. Charney drew the court’s attention to the decision in Re Board of Education for the Borough of North York and Ministry of Education (1978), 19 O.R. (2d) 547, 6 M.P.L.R. 249 sub nom. Toronto Hebrew Schools v. North York Board of Education +&- DIÀUPHG$SULO2QW&$ LQZKLFKDQDSSOLFDWLRQZDVEURXJKWIRU a declaration concerning a proposal to integrate Hebrew schools into the public school system. This proposal would have the effect of establishing a school or schools within

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the school district in which religious courses would be mandatory. At pp. 559-60 J. Holland J. said: As the legislation presently stands the question propounded must be answered in the negative. While a pupil may not have a right to attend a particular school within a school district as found in Crawford, there is a clear right in each and every student in each and every school within the district, to claim exemption from any religious studies. To say that this could be overcome by grouping students who are prepared to accept instruction in a particular region in one school within a school district is illusory. Students or parents on behalf of students may elect to opt out of any religious instruction at any time and not merely prior to the commencement of a school year when under the proposal put forward the applicant board could assign students to another school. If the applicant board was correct in its proposal to overcome the problem which I have been called upon to consider, we could be faced ZLWKWKHVLWXDWLRQZKHUHZLWKLQDQ\VFKRROGLVWULFWRQHFRXOGÀQGGHQRPLQDWLRQDO schools each teaching its own special mandatory course in religion. This would be clear departure from the intention of the Legislature in my opinion. Counsel for the applicant, when this question was posed during the course of argument, stated that this was conceivable under the current legislation and that the school board would be required, if necessary, to build additional schools to so accommodate the pupils in the different groups. I am unable to accept that submission as having any persuasive force. No school board has the power under the present legislation in my opinion, to establish a mandatory course of religious instruction in any school within the school district under the board’s jurisdiction. Mr. Charney submitted that this case stands for the proposition that “opt-in” schools are unlawful. It is noteworthy, though, that this decision was rendered before the Charter was in force. I accept Mr. Charney’s submission that the characterization of the minority religious schools as “opt-in” schools, with a view to avoiding the decisions in Zylberberg and Elgin County is a misnomer. Such schools are indistinguishable from majoritarian schools except for the fact that they are described as minority schools. As such, no basis exists for their exclusion from the application of Policy Memorandum 112 and the regulations. The same principles which produced Policy Memorandum 112, that is, the decisions of the Court of Appeal in Zylberberg and Elgin County are applicable to them. These principles are the product of Charter infringement; how then can they be said, when applied uniformly, to constitute a further Charter infringement? In my opinion, such a contention is untenable. Mr. Jervis, while he conceded that Adler is determinative of the funding issue, submitted that this case cannot properly be characterized as a funding question. Consequently, he asserted, Adler is not applicable. On the other hand, Mr. Charney emphasized that the evidence before the court, submissions of counsel and the remedy sought make it apparent that the central thrust of the applicants’ position is to bring the religious minority alternative schools under

835

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WKHDJHLVRIWKHSXEOLFVFKRROERDUGVRDVWRREWDLQWKHÀQDQFLDOVXSSRUWRIWKHSXEOLF school system. Indeed, the relief requested is replete with references to funding. If there is any question concerning this, he urged that the court draw an inference to this effect. I agree with Mr. Charney’s analysis. The evidence is conclusive and, in any event, I am prepared to draw such an inference. Central to the thrust of the applicants’ position is the objective of government funding. Since this is integral to the issue, the decision in Adler is determinative of this proceeding. Chief Justice Dubin concluded his reasons on the issue regarding the non-funding of private religious schools and the appellants’ freedom of religion at p. 19: Even if it was open to the government to provide funding for private, religious-based LQGHSHQGHQWVFKRROV,ÀQGQRVXSSRUWDQ\ZKHUHIRUWKHSURSRVLWLRQWKDWWKHDEVHQFH of such funding interferes with one’s freedom of religion. In my view whether such schools are inside or outside of the public school system is immaterial. At pp. 6-7 of the Adler decision Dubin C.J.O. stated: Before detailing my reasons for arriving at that conclusion, it is important to stress that it is not the role of the court to determine whether, as a matter of policy, public funding or private, religious-based independent schools is or is not desirable. That is for the legislature to decide. The sole issue before us is whether the absence of such funding is consistent with the Constitution of Canada. The sole issue, here, is whether the failure to establish and fund religious minority schools within the public school system infringes the applicants’ freedom of conscience and religion. In my opinion, it does not. B. Freedom of Expression Mr. Jervis submitted that Policy Memorandum 112 and ss. 28 and 29 of Reg. 298 infringe s. 2(b) of the Charter. It was argued that the teachers and students are no longer, with particular reference to existing schools, allowed to express their views on religion, hang religious posters, and other forms of expression because Policy Memorandum 112 and the regulations limit what can be said in the classroom. Mr. Jervis referred to decisions of the Supreme Court of Canada on the issue of freedom of expression. He summarized a test he derived from that court’s decisions in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, 39 C.R.R. 193: Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, 4 C.R.R. (2d) 60; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, 36 C.R.R. 1, and Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084, 16 C.R.R. (2d) 240. In his factum he stated the test as follows: 7KH)LUVW6WHS (1) Does the Charter applicant’s expressive activity convey or attempt to convey meaning? [or] (2) Does the expressive activity further one of the interests underlying the right to freedom of expression being the pursuit of truth, the encouragement of

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VRFLDOFRPPXQLW\DQGSROLWLFDODFWLYLW\RUWKHIRVWHULQJRIWKHVHOIIXOÀOPHQW of the speaker or the listener? ,IHLWKHURIWKHVHWZRTXHVWLRQVLVDQVZHUHGDIÀUPDWLYHO\WKHQWKHH[SUHVVLYHFRQGXFW is prima facie protected within s. 2(b), unless it falls within one of the three narrow exclusions which exclude: (1) forms of expression that involve rape, murder, or other similar activities; and either (2) expressive activity involving the use of or access to public property that is incompatible with the “essential” or “primary” function of that public property (per Lamer C.J) or (3) the use of or access to public property for expressive purposes that does not promote the interests and principles underlying freedom of expression (per McLaughlin J. [sic]). The Second Step 128 Once a Charter applicant establishes that his or her expressive activity is protected under s. 2(b) the Court must consider in the second step of the general analytical test the purpose and effect of the law and determine: (1) whether the purpose of the impugned legislation is to restrict protected expression; or (2) whether the effect of the impugned legislation or conduct is to restrict his or her expressive activity which promotes one of the interests or values underlying freedom of expression. Without quarrelling with counsel’s statement of the test, dealing with the First Step, it is necessary to identify the applicant. In this case, the applicants are parents of FKLOGUHQDWWHQGLQJVFKRRO1H[WWKH´H[SUHVVLYHDFWLYLW\µPXVWEHGHÀQHG7KLVLVVDLG to be teachers’ and students’ expression of their religious views. Since this expressive activity does not fall within any of the three exclusions in the test, then it is necessary to consider the second step. This step involves an analysis of the purpose and effect of the law. Mr. Jervis submitted in his factum that: «)XUWKHUPRUHLWLVWKHLQWHQWLRQRIWKH3ROLF\DQG5HJXODWLRQWRVSHFLÀFDOO\ OLPLW D IRUP RI H[SUHVVLRQ ZLWK UHVSHFW WR UHOLJLRXV PDWWHUV DQG VSHFLÀFDOO\ WR limit and preclude religious teaching of an indoctrinational nature. As such, it is the intention of the Policy and Regulation to limit freedom of expression. In my opinion, the purpose of Policy Memorandum 112 and the regulations is to secularize the public school system, not to restrict protected expression. Their effect is to promote secularism in the public schools and not to restrict expressive activities which promote the interests or values underlying the freedom of expression. The stated objective is the protection of minority rights. But, in reality none of the parties to this application have had their expression restricted. A student is not prevented from speaking his or her beliefs. Indoctrination is limited but not expression. Teachers are not parties to this application but, in any event, there is nothing to preclude a teacher from expressing his or her beliefs outside 837

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of the school curriculum. The only limitation is that teachers, and the school, are not to indoctrinate or give primacy to any religion. Mr. Jervis relied heavily on R. v. Keegstra, [1990] 3 S.C.R. 697, 3 C.R.R. (2d) 193, in argument, for the proposition that a teacher’s freedom of expression is infringed if they are not able to depart from the school curriculum. This case has no application to the case at bar. Mr. Keegstra was a teacher challenging a Criminal Code provision under which he had been charged. The question before the court was whether a law which prohibited the dissemination of hate propaganda infringed his Charter rights. The court held that the section infringed Mr. Keegstra’s right to freedom of expression EXWWKDWWKHVHFWLRQLVMXVWLÀDEOHXQGHUV,QWKHSUHVHQWFDVHWKHWHDFKHUVDUHQRW applicants, the parents’ rights are not infringed and the students are restricted only by the curriculum. In my view, the Keegstra decision does not stand for the proposition which Mr. Jervis asserts: that a teacher may teach whatever he or she desires and cannot be bound by any particular curriculum. Neither Policy Memorandum 112 nor ss. 28 and 29 of Reg. 298 infringe s. 2(b) of the Charter. C. Equality Rights Mr. Jervis submitted that the applicants’ right to equality pursuant to s. 15(1) of the Charter has been breached. This claim, he urged, does not arise from the distinction between the funding of Roman Catholic schools, as juxtaposed to other minority faith communities. Rather, he argued, the distinction occurs because certain minority religious JURXSVFDQQRWEHQHÀWIURPDVHFXODUSXEOLFVFKRROV\VWHPGXHWRWKHLUUHOLJLRXVEHOLHIV Therefore, they are compelled by the regulations and Policy Memorandum 112 to fund their own religious schools because they cannot, as a result of their religious beliefs, in good faith, participate in the secular educational school system provided by the Ontario government. This denial of public funding of education for religious minority education means that minority religions must bear the costs of education compared ZLWKWKHPDMRULW\ZKRDUHDEOHWRHQMR\WKHEHQHÀWRIWKHVHFXODUSXEOLFVFKRROV7KLV gives rise to the s. 15 complaint. In Adler, Dubin C.J.O. considered the decision of the Supreme Court of Canada in Reference re Act to Amend the Education Act (Ontario), [1987] 1 S.C.R. 1148, 36 C.R.R. 305 (“Bill 30 Reference”), to be “quite decisive of the discrimination issue in these appeals.” (at p. 20). The discrimination issue before the Court in Adler was framed by the appellants as follows, at p. 19: Counsel for the Adler appellants, although not seeking to attack the full funding of Roman Catholic separate schools in the Province of Ontario, submitted that by denying funding for Jewish Day Schools while funding Roman Catholic separate schools, the AdlerDSSHOODQWVZHUHGHQLHGWKHHTXDOEHQHÀWRIWKHODZFRQWUDU\WR s. 15 of the Charter. Mr. Jervis argued that Adler is distinguishable from the case at bar in that Dubin C.J.O. held that there was no discrimination since the appellant parents had access to private religious schools. By contrast, Mr. Jervis said that for certain of the applicants here, there are no private religious schools, and so, Adler has no application. 838

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Dubin C.J.O. gave the decision in the Bill 30 Reference a broad interpretation when at p. 23, he said: In my opinion, s. 93(1) of the Constitution Act, 1867, and s. 23 of the Constitution $FWGHÀQHWKHH[WHQWRIWKHFRQVWLWXWLRQDOREOLJDWLRQVRIWKHOHJLVODWXUHZLWK respect to denominational and language instruction. Under such circumstances, no claim based on alleged unequal treatment under s. 15(1) may be asserted by an individual in the protected areas of minority language education rights and denominational education rights. (Emphasis added) The applicants’ argument overlooks the fact that there are those of the majority, in circumstances like Elgin County, who are now denied access to their religious exercises and instruction. As stated the public school system is secular. No one religion is favoured. Fundamental to the educational system is teaching without religious indoctrination. Chief Justice Dubin described the public school system, in the context of a s. 15(1) challenge at pp. 23-24: The publicly funded educational system provides universally accessible education opportunities for all, regardless of their ethnic, racial or cultural background, social or economic status, age or religious preferences. The Education Act provides access to public education without regard to religious beliefs or conviction. The public school system is solely secular and, in my view, because it is secular, it cannot found a claim of discrimination because it does not provide public funds for religious education under private auspices. The Education Act does not provide for public funding of any private school, be it denomination or otherwise. This analysis is applicable to the matter at hand. Although the Adler decision dealt with a quest to obtain public funding in private schools, the goal there was the same as it is here. That is, by seeking to place alternative minority religious schools within the public school system, the applicants are, directly or indirectly, seeking public funding for minority religious schools. Despite Mr. Jervis’ efforts to frame the question differently, that is the clear sense of what is sought in the present application. It was argued that the policy memorandum and the regulations constituted adverse effect discrimination. That is, while the government action may be neutral on its face, the effect is to discriminate against an enumerated group in s. 15(1). Hence, although the purpose of the regulations and policy memorandum are not unconstitutional, the HIIHFWVRIWKHPDUH0U-HUYLVVXEPLWWHGWKDWWKHÀQDOWHVWLVZKHWKHUWKHJRYHUQPHQW prohibition through Policy Memorandum 112 and the regulations is just, fair, and constitutional. He submitted that it was not. Dubin C.J.O. explained adverse effect discrimination and its application to the case before the court at pages 24-25: I recognize that a statute can on its face be neutral and yet can constitute adverse effect discrimination. In Ontario Human Rights Commission v. Simpson-Sears Ltd., [1985] 2 S.C.R. 536 at p. 551 23 D.L.R. (4th) 321, McIntyre J. considered adverse effect discrimination as follows:

839

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A distinction must be made between what I would describe as direct discrimination and the concept already referred to as adverse effect discrimination in connection with employment. Direct discrimination occurs in this connection where an employer adopts a practice or rule which on its face discriminate on a prohibited ground. For example, “No Catholics or no women or no blacks employed here.” … On the other hand, there is the concept of adverse effect discrimination. It arises where an employer for genuine business reasons adopts a rule or standard which is on its face neutral and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force. Again, the Education Act does not impose “obligations, penalties, or restrictive conditions not imposed on others” based on some special characteristic. As stated earlier, it was their religion, and not the statute, that caused the appellants not to send their children to the publicly funded school system. (Emphasis added by Dubin C.J.O.) Similarly, in this case, it is not the policy memorandum and regulations which impose obligations, penalties, restrictive conditions on the applicants, and not on others. Instead, it is the applicants’ choice of education for their children. The public school system is secular, it does not present the opportunity for education in any particular denomination or faith. The objective is to provide non-denominational education. Should parents desire that their children have religious education they must assume the cost. This does not mean that there is adverse effect discrimination. The government prohibition is just, fair and constitutional. D. Section 1 *LYHQWKHÀQGLQJVZLWKUHVSHFWWRVVD E DQG WKHUHLVQRQHHGWRFRQVLGHU ZKHWKHUWKHSROLF\PHPRUDQGXPDQGVVDQGRIWKHUHJXODWLRQVDUHMXVWLÀDEOH under s. 1 of the Charter.

V. CONCLUSION The seminal decisions in the trilogy are binding on this court. Although the circumstances of the applicants before the court in this case are varied, the principles in those decisions bear directly on these factual circumstances so that, given those decisions, WKHDSSOLFDQWVFDQQRWVXFFHHG,WKHUHIRUHÀQGWKDW3ROLF\0HPRUDQGXPDQGVV and 29 of the regulation do not infringe ss. 2(a), (b) and 15(1) of the Charter. To grant the relief sought in this application would require that the court undo what the Ontario Court of Appeal has decided in Zylberberg, Elgin County and Adler. The parties may make submissions regarding costs. Application dismissed

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5(%$/(7$/$1'$77251(<*(1(5$/)25217$5,2(7$/ 217$5,2&28572)$33($/ -81( %<7+(&2857: – This is an appeal from the decision of Winkler J. in which he held that ss. 28 and 29 of R.R.O. 1990, Reg. 262 (passed pursuant to the provisions of the Ontario Education Act, R.S.O. 1990, c. E.2) and Policy/Program Memorandum No. 112 do not violate the rights of a number of parent members of minority religious groups in Ontario under ss. 2(a) and (b) and 15 of the Canadian Charter of Rights and Freedoms. The regulation and policy memorandum, in essence, require that programs in religion taught in schools under the jurisdiction of public boards of education in Ontario “must not be indoctrinational” and “must not give primacy to any particular religious faith”. Those parents claiming that their Charter rights have been violated include members of Sikh, Hindu, Muslim, Mennonite and Christian Reform communities. Prior to the issuing of the policy memorandum, there had been in existence, under a number of public boards of education in Ontario, publicly funded alternative minority religious schools. The implementation of the new policy would mean that children in those schools, as in all other public schools in the province, would now receive a secular education during school hours. The positions taken by the appellants are varied but, distilled, they come down to four. First, they contend that if they are not permitted to teach their own religion in their own schools, but must rely on teaching in their homes and in their churches or temples only, the survival of their cultures and religions will be in jeopardy; second, that many parents who are members of minority religious groups cannot afford to send their children to privately funded religious schools and, therefore, are deprived of their right of freedom of religion on economic grounds; third, that if their children are required to DWWHQGSXEOLFVHFXODUVFKRROVLWZLOOKDYHDVLJQLÀFDQWGHWULPHQWDOLQÁXHQFHRQWKHLU spiritual and moral development, because of both teaching and peer pressure; fourth, that there is no discriminatory admission policy in their alternative schools, so that children of other faiths are free to attend. All of the above issues are considered in the comprehensive reasons of Winkler J. He expressed the view that the trilogy of Ontario cases – Zylberberg v. Sudbury Board of Education (Director) (1988), 65 O.R. (2d) 641, 52 D.L.R. 577 (C.A.), Canadian Civil Liberties Assn. v. Ontario (Minister of Education) (1990), 71 O.R. (2d) 341, 46 C.R.R. 316 (C.A.), and Adler v. Ontario (1994), 19 O.R. (3d) 1, 22 C.R.R. (2d) 205 (C.A.) – are dispositive of the issues in this case. We agree. Although the trial judge did not KDYHWKHEHQHÀWRIWKHGHFLVLRQRIWKH6XSUHPH&RXUWRI&DQDGDLQAdler v. Ontario, [1996] 3 S.C.R. 609, 40 C.R.R. (2d) 1, which was released after he released his reasons LQWKLVFDVHLWDIÀUPVWKHGHFLVLRQRIWKLVFRXUWLQAdler. It is not necessary to comment further on the reasons of Winkler J.: they speak for themselves, and we agree with them. We would emphasize, however, that while we V\PSDWKL]HZLWKWKHFRQFHUQVRIWKHDSSHOODQWVDERXWWKHSRVLWLYHDQGQHJDWLYHLQÁXHQFHV of the educational experience on their children, their plight is no different from that of the majority of Canadians who cannot afford, or do not wish, to send their children to 841

STATE SUPPORT FOR RELIGIOUS EDUCATION

privately funded religious schools. Although it was repeatedly denied before us, we agree with Winkler J. that this case primarily involves funding. No freedoms have been violated. The problem for these parents, and for many others, is that the province has decided not to fund religious schools. The appeal is dismissed with costs. … Application for leave to appeal to the Supreme Court of Canada was dismissed with costs on February 12, 1998 (Iacobucci, Major and Bastarache JJ.). S.C.C. File No. 26116. S.C.C. Bulletin, 1998, p. 225; 227 N.R. 151n.

842

7. United Nations Committee Decisions (a) Waldman v. Canada: The Committee Process and Decision

#35 Waldman v. Canada, Author’s initial submission and acFRPSDQ\LQJDIÀGDYLW)HEUXDU\ On 29 February 1996 a complaint was submitted to the United Nations Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights on behalf of Arieh Waldman. The complaint alleged that Canada was violating articles 2, 18(1), 18(4), 26 and 27 of the Covenant. The violations were said to be a consequence of the public funding in the province of Ontario of schools of only one religious denomination, Roman Catholics. The following documents are related to the initial submission of the complaint. Communication to: The Human Rights Committee c/o Centre for Human Rights 8QLWHG1DWLRQV2IÀFH 8-14 avenue de la Paix 1211 Geneva 10, Switzerland submitted for consideration under the Optional Protocol to the International Covenant on Civil and Political Rights.

7$%/(2)&217(176 I.

Information concerning the author of the communication

II. State concerned/articles violated/domestic remedies III. Other international procedures IV. Facts of the claim: (a) Facts of individual complaint (b) Canadian constitutional law and legislation (c) History of litigation (d) The funding of schools in Ontario V.

Admissibility considerations (a) Material facts relevant to admissibility (b) The jurisprudence of the Human Rights Committee (i) Unreasonably prolonged (ii) Domestic remedies exhausted even where ongoing litigation 843

STATE SUPPORT FOR RELIGIOUS EDUCATION

(iii) No objective chance of success VI. Merits of the case (a) Article 26 (b) Article 18(1) in conjunction with Article 2 (c) Article 18(4) in conjunction with Article 2 (d) Article 27 in conjunction with Article 2 VII. Relief sought

,,1)250$7,21&21&(51,1*7+($87+252)7+( COMMUNICATION Name:

Arieh Hollis Waldman

Nationality:

Canadian

3URIHVVLRQ

&RRUGLQDWRURIÀQDQFHVDQGDGPLQLVWUDWLRQIRUWKH2QWDULR Public Health Association

Date & place of birth:

May 9, 1952 at Assiniboia, Saskatchewan, Canada

Present address:

[Address]

Submitting the communication as the victim of the violations set forth below.

,,67$7(&21&(51('$57,&/(69,2/$7(''20(67,& 5(0(',(6 Name of the state party (country) to the International Covenant on Civil and Political Rights against which the communication is directed: Canada Articles of the International Covenant on Civil and Political Rights allegedly violated: The author alleges violation of articles 2, 18(1), 18(4), 26 and 27 of the Covenant. Domestic remedies See paragraphs 62-75

,,,27+(5,17(51$7,21$/352&('85(6 Has the same matter been submitted for examination under another procedure of international investigation or settlement (e.g. the Inter-American Commission on Human Rights,the European Commission on Human Rights)? No

844

7. UNITED NATIONS COMMITTEE DECISIONS

,9)$&762)7+(&/$,0 (a) Facts of individual complaint 1. In Ontario Roman Catholic schools are the only non-secular schools receiving full and direct public funding. Other religious schools must resort to funding through private sources, including the charging of tuition fees to parents whose religious convictions require that their children attend such institutions. Currently, members of DVLQJOHUHOLJLRXVJURXS5RPDQ&DWKROLFVDUHDFFRUGHGVSHFLDOVWDWXVDQGEHQHÀWV It is submitted that funding for religious schools, if any, must be allocated without discrimination on the basis of religion. The author therefore, seeks funding for all religious schools in Ontario which meet provincial standards at an equivalent level to the funding, if any, received by Roman Catholics in Ontario. 2. Mr. Waldman is a member of the Jewish faith, a religious minority within Canada. The tenets of Judaism are subtle and complex. Children are traditionally raised in an environment that stresses Jewish theory and practice. Because of this complexity, and because of perceived vulnerability as a minority within the Canadian multicultural context, Mr. Waldman has elected to send his two children to a private Jewish day school (Bialik Hebrew Day School of North York, Ontario). In this environment his children can be adequately educated in the Jewish faith and observe Jewish holidays. These are opportunities that are limited within the secular public school system. $IÀGDYLWRI$ULHK+ROOLV:DOGPDQ, sworn 22 February, 1996 (hereinafter “Waldman $IÀGDYLW”). Volume I, Tab 2, at pages 1-2, paragraphs 2-4. 3. Mr. Waldman believes that a religious education at a Jewish day school is extremely important and necessary for his children. The Jewish day schools are necessary in order that the full depth, complexity and appreciation of the Jewish lifestyle may be experienced. Such experiences are themselves necessary for the survival and well being of Jewish cultural life in Canada. Mr. Waldman believes that day schools are necessary, in part, due to his own experiences growing up in Vancouver, British Columbia. Mr. Waldman attended public secular school by day and a Jewish “after-day” school. There were only three Jewish students at his public school. This arrangement was damaging. (1) The “after-day” school set the Jewish students apart from fellow students with whom they were unable to participate in after-school activities. (2) Many of the students were reluctant participants in the “after-day” school because of this difference. (3) The observance of the traditional Jewish holidays meant that parts of the academic curriculum were missed and needed to be made up. (4) In Mr. Waldman’s experience, the after-day school program was simply incapable of conveying the full depth and complexity of the fully integrated Jewish lifestyle. :DOGPDQ$IÀGDYLWVXSUD, Volume I, Tab 2, at pages 2-3, paragraph 5. 4. Through their attendance at Bialik Hebrew school, Mr. Waldman’s children are fully exposed to the Jewish lifestyle. The holidays are both observed and the subject of rejoice. Children begin to learn from an early age the Hebrew language so that they

845

STATE SUPPORT FOR RELIGIOUS EDUCATION

may ultimately learn the source texts of their faith in the source language. Jewish themes are built into the academic “secular” subjects. For example, children learn to count Chanukah candles in arithmetic. A love of the faith is made part of their daily lives. Because all of the children are drawn from the same community, the isolation that Mr. Waldman was exposed to within the public school system is not experienced. Nevertheless, the program is not as a whole isolationist. The children have learned not only what it means to be Jewish within Canada, but also what it means to be a Canadian citizen. Finally, within the Jewish faith religious education is extensive and LVVRPHWKLQJWKDWPXVWEHXQGHUWDNHQE\WKRVHSURSHUO\TXDOLÀHG,WLVQRWDQRSWLRQ for the parents to try to accomplish at home all that Bialik does for the children. :DOGPDQ$IÀGDYLWVXSUD, Volume I, Tab 2, at pages 3-4, paragraph 6. 5. Bialik and other private religious schools are required to charge tuition fees to all parents because the Province of Ontario does not fully fund religious schools other than Roman Catholic schools. Roman Catholic families have full access to religious schooling that receives full public funding and charges no tuition fees. Secular public schools are also fully funded and charge no tuition fees. :DOGPDQ$IÀGDYLWVXSUD, Volume I, Tab 2, at page 4, paragraph 7. 6. For his children to attend the privately funded school, Mr. Waldman is required to pay tuition fees for each child. In 1994, Mr. Waldman paid $14,050.00 in tuition, FRPSULVLQJIRUWKHÀUVWFKLOGDQGIRUWKHVHFRQGFKLOG0U:DOGman’s before tax household income for that same year was $85,732.00. In Canada, gross household income is considerably reduced by income taxes and mandatory contributions levied by the provincial and federal governments. Mr. Waldman paid $12,364.74 in income taxes, Unemployment Insurance and Canada Pension Plan contributions in 1994. Mr. Waldman’s net household income after these taxes and contributions was $73,367.26. The $12,364.74 paid to the government is the amount paid after receiving a federal tax credit for part of the tuition fees paid in the amount of $3,239.11. The WRWDOFRVWRIWXLWLRQIRUWKH\HDUWDNLQJLQWRDFFRXQWWKLVEHQHÀWZDV :DOGPDQ$IÀGDYLWVXSUD, Volume I, Tab 2, at pages 4-5, paragraph 8. 7. There is a limited system of federal tax credits available, and the religious portion of school fees are treated as a charitable payment. This system provides only partial and limited relief for Mr. Waldman and other families similarly situated. The tax credit is not available for the secular aspect of teaching, which in Mr. Waldman’s case equals one half of the school day and one half of the tuition fees paid. In addition, the tax credit provides only partial compensation for the religious component of tuition fees, in Mr. Waldman’s case a tax credit of $3,239.11 on a total tuition of $14,050.00. Finally, the relief from the discriminatory provincial funding of schools is provided by a different level of government. The federal government could alter its policy of SURYLGLQJWKLVOLPLWHGWD[FUHGLWDWDQ\WLPH(YHQZLWKWKHOLPLWHGÀQDQFLDOUHOLHIWKDW WKHWD[FUHGLWSURYLGHVWR0U:DOGPDQKHLVIRUFHGWRVSHQGDVLJQLÀFDQWSDUWRIKLV KRXVHKROGLQFRPHRQVFKRROLQJIRUKLVFKLOGUHQVSHFLÀFDOO\RXWRIDQDIWHU tax income of $73,367.26.

846

7. UNITED NATIONS COMMITTEE DECISIONS

:DOGPDQ$IÀGDYLWVXSUD, Volume I, Tab 2, at pages 5-6, paragraph 10. 8. Mr. Waldman and other families similarly situated are additionally required to pay local property taxes to fund a public school system that they do not use. In 1994, the education component of these tax contributions for Mr. Waldman totalled $1,761.00. :DOGPDQ$IÀGDYLWVXSUD, Volume I, Tab 2, page 6, at paragraph 11. 9. By contrast, the children of a similarly situated Roman Catholic family have full access to religious schools that receive full public funding and charge no tuition fees. In Ontario, only Roman Catholic families may send their children to schools which conform to their religious beliefs free of charge. Children that attend the secular public schools also pay no tuition. These schools, however, have only limited sensitivity to religious diversity, and the results are often assimilationist. :DOGPDQ$IÀGDYLWVXSUD, Volume I, Tab 2, pages 2 and 4, at paragraphs 4 and 7.  0U:DOGPDQKDVEHHQFRPSHOOHGWRVSHQGVLJQLÀFDQWDPRXQWVRIKLVKRXVHKROG income in order to educate his children because of the funding practices of the Ontario government. He believes that other families belonging to his own and other religious PLQRULWLHVLQ2QWDULRDUHIDFHGZLWKVLPLODUÀQDQFLDOEXUGHQV :DOGPDQ$IÀGDYLWVXSUD, Volume I, Tab 2, at page 7, paragraph 13.  0U:DOGPDQEHOLHYHVWKDWWKHH[WUHPHÀQDQFLDOEXUGHQLPSRVHGRQUDLVLQJKLV children in a manner which will preserve their religious heritage and identity, as compared ZLWKWKHODFNRIÀQDQFLDOEXUGHQRQ5RPDQ&DWKROLFVVHHNLQJUHOLJLRXVHGXFDWLRQIRU their children, violates Article 18 taken together with Article 2 of the Covenant. The discrimination between Roman Catholics and other religious groups violates Article 26 of the Covenant. The threat these circumstances pose to the well being of the Jewish community in Canada in comparison with the privileges accorded the Roman Catholic community violates Article 27 taken together with Article 2 of the Covenant.

(b) Canadian constitutional law and legislation Historical context 12. The existing system of separate school funding in Ontario owes its existence to the historical circumstances of the creation of Canada in 1867. The “historic compromise” is explained by one of Canada’s foremost constitutional law experts, Professor Peter Hogg: “At the time of Confederation it was a matter of concern that the new Province of Ontario would be controlled by a Protestant majority that might exercise its power over education to take away the rights of its Roman Catholic minority. There was a similar concern that the new Province of Quebec, which would be controlled by a Roman Catholic majority, might not respect the rights of its Protestant minority. With respect to religious minorities, the solution was to guarantee their rights to GHQRPLQDWLRQDOHGXFDWLRQDQGWRGHÀQHWKRVHULJKWVE\UHIHUULQJWRWKHVWDWHRI the law at the time of Confederation. In that way, the existing denominational

847

STATE SUPPORT FOR RELIGIOUS EDUCATION

school rights of the Catholic minority in Ontario could not be impaired by the Legislature; and the Protestant minority in Quebec would be similarly protected. This is the reason for the guarantees of denominational school rights in section 93 [of the constitution].” Peter Hogg, Constitutional Law of Canada (3d) (Toronto: Carswell, 1992). Volume II, Tab 3, at page 1228.  $W WKH WLPH RI WKLV ´KLVWRULF FRPSURPLVHµ WKH UHOLJLRXV DIÀOLDWLRQ RI 2QWDULR UHVLGHQWVUHYHDOHGDELFXOWXUDOVRFLHW\WULFXOWXUDOKDGWKHÀUVWQDWLRQVEHHQLQFOXGHG  ZLWKDQRYHUZKHOPLQJ3URWHVWDQWPDMRULW\DVLJQLÀFDQW&DWKROLFPLQRULW\DQGYHU\ VPDOOPLQRULWLHVZLWKRWKHUUHOLJLRXVDIÀOLDWLRQV Total population

1,620,851

100%

Protestant

1,323,587

82%

274,162

17%

Catholic Pagan

1,884

0.17%

Jewish

518

0.03%

Muslim

13

Without a creed

4,908

0.0008% 0.3%

Not given 13,849 0.85% Census of Canada 1870-1, Vol. I. Volume II, Tab 4, at pages 142-5.  ,QWKHUHOLJLRXVDIÀOLDWLRQRI2QWDULRUHVLGHQWVUHYHDOVDPXOWLFXOWXUDOVRFLHW\ in which there is no clear majority (unless Christianity is seen as a single group) and LQZKLFKWKHUHDUHVLJQLÀFDQWPLQRULWLHV Total population

9,977,050

100%

Protestant

4,428,305

44%

Catholic

3,544,515

36%

Eastern Orthodox

187,910

2%

Jewish

175,640

2%

Muslim

145,560

2%

Hindu

106,705

1%

Buddhist

65,325

0.65%

Sikh

50,085

0.5%

1RUHOLJLRXVDIÀO   Statistics Canada. Religions in Canada. (Ottawa: Industry Science and Technology Canada, 1993). 1991 Census of Canada, cat. no. 93-319. Volume II, Tab 5, at pages 8-17.

848

7. UNITED NATIONS COMMITTEE DECISIONS

15. The rationale in 1867 for protecting the Catholic minority is thus no longer applicable to the current demographic realities. On the contrary, the statistics reveal that there are other minority religions in Ontario that are currently in a far more vulnerable position today than Roman Catholics. 16. Authority for the public funding of Roman Catholic separate religious schools is found in Canadian legislative enactments. First among these is section 93 of the Constitution Act, 1867 which states: “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: (2) All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and Schools Trustees of the Queen’s Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen’s Protestant and Roman Catholic Subjects in Quebec: (3) Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen’s Subjects in relation to Education: (4) In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this section is not made, or in case any Decisions of the Governor General in Council on any Appeal under this section is not duly executed by the proper Provincial Authority in that Behalf, then in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for their due Execution of the Provisions of this section and of any Decision of the Governor General in Council under this Section.” Constitution Act, 1867, Volume II, Tab 6. 17. Section 93 establishes the plenary power of the provinces with respect to education within the Canadian federal system. Each province has been granted exclusive jurisdiction to enact laws regarding education, this power being limited by the requirement that denominational school rights established in 1867 be respected. 18. In Ontario, the power conferred under section 93 of the Constitution Act is exercised through the Education Act. Part IV of the Act contains the relevant provisions regarding Roman Catholic separate schools. The relevant sections are reproduced below: “1. (1) “separate school board” means a board that operates a school board for Roman Catholics;…

849

STATE SUPPORT FOR RELIGIOUS EDUCATION

122. (1) Every separate school shall share in the legislative grants in like manner as a public school; (2) Every separate school is entitled to share in all grants, investments and allotments for public school purposes made by any municipal authority… … 128.(1) A Roman Catholic school is entitled to share in the legislative grants for secondary school purposes.” Education Act, RSO 1990, c. E.2. Volume II, Tab 7. 19. These provisions of the Education Act implement the province of Ontario’s powers under section 93 of the Constitution Act, 1867. They establish that Roman Catholic schools are exclusively awarded the status of “separate schools” and that, as such, are the religious schools exclusively entitled to the same large scale public funding as the public secular schools. 20. The Canadian Charter of Rights and Freedoms (which forms Schedule B of the Canadian Constitution) is the principal human rights law in Canada. Legislation that does not conform to the provisions of the Charter may be declared by the courts to be of no force and effect in accordance with section 52 of the Constitution Act, 1982. The relevant provisions of the Charter are reproduced below: “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 FDQEHGHPRQVWUDEO\MXVWLÀHGLQDIUHHDQGGHPRFUDWLFVRFLHW\ 2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; … 15. (1) Everyone is equal before and under the law and has the right to the equal SURWHFWLRQDQGEHQHÀWRIWKHODZZLWKRXWGLVFULPLQDWLRQDQGLQSDUWLFXODUZLWKRXW discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. … 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.” Canadian Charter of Rights and Freedoms, SC 1982 c.11, Schedule B. Volume II, Tab 8. 21. Religious education is approached differently in each of the various provinces and territories of Canada. Ontario is the only jurisdiction in Canada that discriminates on the basis of religion in its funding of religious schools, extending funding to only one religious group, Roman Catholics. 850

7. UNITED NATIONS COMMITTEE DECISIONS

Jewish day schools are located only in British Columbia, Alberta, Manitoba, Quebec and Ontario. In British Columbia, in addition to a publicly funded secular school system, there exists a tiered grant system providing between 0 and 50% support to independent schools EDVHGRQWKHTXDOLÀFDWLRQVRIERWKWKHVWXGHQWVDQGWHDFKHUVDQGFRPSDWLELOLW\ZLWK the public school curriculum. The independent schools include Catholic, Protestant, Mennonite, Seventh Day Adventist, Jewish and others. In Alberta, the Alberta Act guarantees public funding for both public and separate schools. The separate schools are composed of Catholic, Protestant, Mennonite, Seventh Day Adventist and Jewish schools. Saskatchewan has a publicly funded system that includes secular and independent religious schools. Like Manitoba, Saskatchewan withdrew tax support to Roman Catholic schools for grades 9-12 by legislative act in 1907. In 1964 this Act was amended and funding for separate schools at all grades was restored. Currently, funding is made available to “historical” high schools and “alternative” schools also. In Manitoba, the public secular school system receives public funding and operational support is also provided to independent schools (including religious schools) that meet teaching standards criteria. Full funding was initially provided to Roman Catholic schools but an 1890 legislative amendment abolished tax support for Catholic schools. In the Northwest Territories there exists a publicly funded system that includes secular, Roman Catholic and Protestant schools. There are no Jewish day schools in the Northwest Territories. School boards have the discretion to include religious studies in the curriculum. The Yukon Territory has a publicly funded system that includes secular, Roman Catholic, Baptist and Seventh Day Adventist schools. Quebec has a “dual-confessional” system in which Roman Catholic and Protestant schools receive public funding. Private schools, including Jewish and other religious schools, also receive funding. The New Brunswick government also formerly extended support to Catholic schools, but in 1871 created a single non-sectarian system with no provision for religious education. This continues in effect today with only the secular public school system receiving public funding. As in New Brunswick, no legally recognized separate schools exist in Nova Scotia. However, some public schools operate as Catholic schools under informal agreements and have done so since 1867. In Prince Edward Island only the public secular school system receives public funding. In Newfoundland, Roman Catholic, Protestant, Seventh Day Adventist and Pentecostal schools receive public funding. In fact, there are no strictly secular schools within the province, nor is there any provision for funding of independent schools. This system is in the process of reform. Ontario is the only jurisdiction in Canada which extends funding to only one religious group, thereby discriminating on the basis of religion in its funding of religious schools. In Ontario, full funding is extended to separate schools which are legislatively restricted 851

STATE SUPPORT FOR RELIGIOUS EDUCATION

to Roman Catholic schools. Private independent schools, as noted below in paragraph 53, receive minor forms of support, such as access to single copies of free textbooks, but are otherwise unable to share in the large scale disbursements made available to the Roman Catholic and public secular school systems. Canadian Education Association, “The Public Funding of Private Schools in Canada”, Information Note, February 1992. Volume II, Tab 9. Andrew G. Blair, The Policy and Practice of Religious Education in Publiclyfunded Elementary and Secondary Schools in Canada and Elsewhere (Ministry of Education, 1986),Volume II, Tab 10, at pages 9-27.  ,QVXPPDU\WKHUHDUHÀYHSURYLQFHVLQ&DQDGDWKDWKDYH-HZLVKGD\VFKRROV British Columbia, Alberta, Manitoba, Quebec and Ontario. Only Ontario fails to provide any government funding to these schools. There are also eight provinces and territories that have non-Catholic Christian schools: again only Ontario fails to provide funding to these schools. Only Ontario funds Roman Catholic schools to the exclusion of other private religious schools. $IÀGDYLWRI*DU\'XWKOHU, Executive Director of the Federation of Independent Schools in Canada, sworn 21 February, 1992 , in support of Adler v Ontario (G.D.). Volume II, Tab 11, at page 7, paragraph 15.

(c) History of Litigation 23. Litigation concerning the lack of funding for minority religious schools in Ontario may be said to have commenced in 1978 with the case of Re Board of Education for the Borough of North York and Ministry of Education (1978) 19 O.R. (2d) 547 (H.C.J.) aff’d April 9, 1979 (Ont. C.A.). The applicants in this case sought to integrate Hebrew schools into public schools. They applied for a declaration concerning a proposal put forth by a local school board to integrate Hebrew schools into the public school system. This proposal would have had the effect of establishing a school or schools within the school district in which religious courses would be mandatory. Holland J. stated: “As the legislation presently stands the question propounded must be answered in the negative. While a pupil may not have a right to attend a particular school within a school district as found in Crawford, there is a clear right in each and every student in each and every school within the district, to claim exemption from any religious studies. To say that this could be overcome by grouping students who are prepared to accept instruction in a particular religion in one school within a school district is illusory … No school board has the power under the present legislation, in my opinion, to establish a mandatory course of religious instruction in any school within the school district under the board’s jurisdiction.” Re Board of Education for the Borough of North York and Ministry of Education (1978) 19 O.R. (2d) 547 (H.C.J.) aff’d April 9, 1979 (Ont. C.A.). Volume II, Tab 12, at pages 559-560.

852

7. UNITED NATIONS COMMITTEE DECISIONS

24. Although this decision was rendered before the Canadian Charter of Rights and Freedoms entered into force, subsequent decisions have reached the same results. Other litigants who have attempted to draw minority religious education within the public school structure have also failed. In this regard reference is made to the recent case of Bal et al. v. Ontario (1994) 24 O.R. (3d) 681 (Ont. G.D.), which is discussed below at paragraph 43. 25. Roman Catholic separate schools have been fully funded for grades Kindergarten through Grade 10 since the mid 1800s. However, when the Ontario Legislature contemplated extending full funding through to Grade 13 by way of legislation known as “Bill 30” it was thought necessary to refer the proposed legislation to the Ontario Court of Appeal so that the Court might render a judgement on its constitutionality, particularly in light of the addition to the Canadian constitution of the 1982 Charter of Rights and Freedoms. This case was commenced in 1985. 26. The judgment of the Court of Appeal (Zuber, Cory and Tarnopolsky JJ.A.) was rendered on February 18, 1986 in Reference re An Act to Amend the Education Act (1986) 25 D.L.R. (4th) 1 (Ont. C.A.) (hereinafter the “Bill 30” case). The central issue was whether Bill 30 was inconsistent with sections 2(a) (freedom of religion) and 15 (equality rights) of the Canadian Charter of Rights and Freedoms. The majority of the Court held that Bill 30 was intra vires the Ontario Legislature under section 93 of the Constitution Act, 1867. Furthermore, the Court stated that section 93 was immune from Charter scrutiny since none of the provisions in the Constitution were paramount over any others. The Court also said that Bill 30 was immune from Charter review because the immunity of section 93 extended to any rights passed under its power including post-Confederation (1867) legislation. Therefore, the Court held that while section 93 treats Canadians unequally with respect to their religion and education rights, it cannot be subject to the Charter. In the Court’s own words: ´7KHVHHGXFDWLRQDOULJKWVJUDQWHGVSHFLÀFDOO\WRWKH3URWHVWDQWVLQ4XHEHFDQG Roman Catholics in Ontario, make it impossible to treat all Canadians equally. The country was founded upon the recognition of special or unequal educational ULJKWVIRUVSHFLÀFUHOLJLRXVJURXSVLQ2QWDULRDQG4XHEHF7KHLQFRUSRUDWLRQRIWKH Charter into the Constitution Act, 1982, does not change the original confederation bargain.” Reference Re An Act To Amend The Education Act (Ontario) (1987) 40 D.L.R. (4th) 18 (Ont. C.A.) (the Bill 30 case). Volume II, Tab 13, at page 64. 27. The minority of the Court in the Bill 30 case held that while the rights guaranteed under section 93 in 1867 were immune from Charter scrutiny, post-Confederation legislation was not. It decided that Bill 30 was a post-Confederation power exercised by the government of Ontario and therefore subject to the scrutiny of the Charter. It was felt by the minority that the litigants’ Charter rights had been violated and that this limitation could not be sustained under section 1 of the Charter (Section 1 describes the permissable limitations upon Charter rights and freedoms).

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STATE SUPPORT FOR RELIGIOUS EDUCATION

28. This decision was subsequently appealed to the Supreme Court of Canada in Reference Re An Act To Amend The Education Act (Ontario) (1987) 40 D.L.R. (4th) 18 (S.C.C.) (the “Bill 30” case) where a seven member bench was unanimous in the result, upholding on June 25, 1987 the decision of the Ontario Court of Appeal. 29. Again, at issue was whether Bill 30 was consistent with the Constitution of Canada. ,QWKHÀUVWSODFH:LOVRQ-ZULWLQJWKHPDMRULW\RSLQLRQVWDWHG “… that Roman Catholic separate school supporters had at Confederation a right…to have their children receive an appropriate education which could include instruction at the secondary school level…guaranteed under s.93(1)…[I]f the foregoing right was to be meaningful an adequate level of funding was required to support it.” Reference Re An Act To Amend The Education Act (Ontario) (1987) 40 D.L.R. (4th) 18 (S.C.C.) (the Bill 30 case). Volume II, Tab 14, at page 59. 30. The central issue then decided was the effect of the Charter of Rights and Freedoms RQRWKHUSDUWVRIWKH&RQVWLWXWLRQRI&DQDGDVSHFLÀFDOO\V7KHTXHVWLRQFRQFHUQHG the resolution of the incompatibility of section 93 with its special protection of Roman Catholics in Ontario and the equality rights and the freedom of religion provisions of the Charter. The majority held that section 93 and all the rights and privileges it afforded were immune from Charter scrutiny since no provision of the Constitution was intended to invalidate or have paramountcy over any other provision of the Constitution of Canada. Wilson, J. cited the words of the Ontario Court of Appeal (supra, paragraph 26) with approval. She also stated: “The Charter cannot be applied so as to abrogate or derogate from rights or privileges guaranteed by or under the Constitution … It was never intended, in my opinion, that the Charter could be used to invalidate other provisions of the constitution, particularly a provision such as s.93 which represented a fundamental part of the Confederation compromise.” Reference Re An Act To Amend The Education Act (Ontario) (S.C.C.), supra. Volume II, Tab 14, at pages 59-60. 31. In a concurring opinion, Estey J. similarly concluded that the equality and freedom of religion guarantees in the Charter of Rights and Freedoms could not operate in the context of the province’s section 93 powers: “Although the Charter is intended to constrain the exercise of legislative power conferred under the Constitution Act, 1867 where the delineated rights of individual members of the community are adversely affected, it cannot be interpreted as rendering unconstitutional distinctions that are expressly permitted by the Constitution Act, 1867.” Reference Re An Act To Amend The Education Act (Ontario) (S.C.C), supra. Volume II, Tab 14, at page 28.  6HFWLRQRIWKH&KDUWHUZDVQRWLQYRNHGLQMXVWLÀFDWLRQRIWKHPDMRULW\·VDUJXPHQW According to Wilson J.:

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“I believe it [section 29] was put there simply to emphasize the special treatment guaranteed by the constitution to denominational, separate or dissentient schools, even if it sits uncomfortably with the concept of equality embodied in the Charter.” Reference Re An Act To Amend The Education Act (Ontario) (S.C.C), supra. Volume II, Tab 14, at page 60. 33. In summary, a number of outcomes were available to the Court in the Bill 30 case: (i) it could have found that the exclusive and discriminatory funding of Roman Catholic schools violated the Charter and could not be upheld under the limitation clause contained in the Charter (section 1); (ii) it could have found that the exclusive funding of Roman Catholic schools violated the Charter but could still be upheld under the limitation clause (section 1); (iii) it could have found that the exclusive funding of Roman Catholic schools was shielded from Charter scrutiny by virtue of section 29 of the Charter; or (iv) it could have held that the exclusive funding of Roman Catholic schools was shielded from Charter scrutiny by virtue of the historical inequities of 1867 embedded elsewhere in the Constitution. It was the last result that obtained, one which LVDWWKHRSSRVLWHH[WUHPHIURPDÀQGLQJWKDWWKHSUDFWLFHRIH[FOXVLYHO\IXQGLQJ5RPDQ Catholic religious schools was unlawful by virtue of its discriminatory effects. The RULJLQDOKLVWRULFDOFRPSURPLVHRIWRRNSULRULW\RYHUWKHHTXDOLW\ULJKWVDIÀUPHG in the modern constitutional text of 1982. 34. The next case that brought the issue of religious school funding to the courts’ attention was Adler v. Ontario (1992) O.R. (3d) 676 (Ont. G.D.). The applicants framed the issue as whether the Education Act infringed the litigant’s section 2(a) (freedom of religion) and section 15 (equality) Charter rights. The applicants represented parents of children from a variety of religious backgrounds. The applicants argued that the Education Act, by requiring attendance at school, discriminated against those whose conscience or beliefs prevented them from sending their children to either the publicly funded secular or publicly funded Roman Catholic schools because of the high costs associated with their children’s education. An application was also made for declarations that the non-funding of a Jewish day school and a Protestant Christian day school infringed the applicants’ Charter rights. Further, a declaration was sought stating that the applicants were entitled to funding equivalent to that of public and Roman Catholic schools. Adler v Ontario (Minister of Education) (1992) 9 O.R. (3d) 676 (Ont. G.D.). Volume II, Tab 15. 35. In Adler, the applicants attempted to reopen the issue of the exclusive funding of Roman Catholic schools under section 93 of the Constitution Act and under the Education Act,QLWVGHFLVLRQWKHORZHU&RXUW2QW*' ÀUPO\GHWHUPLQHGWKDWLW was bound by the Supreme Court of Canada ruling in the Bill 30 case that funding for Roman Catholic schools pursuant to section 93 was immune from Charter scrutiny. 36. At the same time, the lower Court found that the applicants’ rights under section 15 (equality provision) of the Charter of Rights and Freedoms were infringed, not by

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another provision of the Constitution (section 93) but by the provincial statute (the Education Act). The Education Act created a distinction which resulted in a violation RIWKHDSSOLFDQWV·ULJKWWR´HTXDOEHQHÀWRIWKHODZµ7KH&RXUWIRXQGWKDWWKRVHZKRVH FKLOGUHQDWWHQGSXEOLFVFKRROUHFHLYHWKHEHQHÀWRIDQHGXFDWLRQIUHHRIDQ\GLUHFWFRVWV of that education. Those whose children do not attend public schools because of their UHOLJLRXVFRQYLFWLRQVGRQRWUHFHLYHWKDWEHQHÀW7KLVGLVWLQFWLRQLVEDVHGRQUHOLJLRQRU religious belief. The applicants’ freedom of religion guaranteed by 2(a) of the Charter was also held to have been infringed. The Court held that the Education Act makes school attendance mandatory and the price of escape from that mandatory provision is the payment of tuition fees by those parents who, by religious and conscientious belief, are precluded from taking advantage of the publicly funded school system paid for through taxes. The legislation imposed a cost or burden on the applicants in securing for their children education consistent with their religious convictions. 37. Having found that these two rights and freedoms had been violated by the Education Act, the lower Court went on to uphold the law. The law was upheld because the Court also held that the limitations or restrictions imposed on the applicants by the law ZHUHMXVWLÀHG,QWKH&KDUWHU·VWHUPVWKH&RXUWIRXQGWKDWWKHYLRODWLRQRIIUHHGRP RIUHOLJLRQDQGHTXDOLW\ULJKWVZDVQHYHUWKHOHVV´GHPRQVWUDEO\MXVWLÀHGLQDIUHHDQG democratic society” (section 1). 38. This decision was appealed to the Ontario Court of Appeal. In Adler v Ontario (Minister of Education) (1994) 19 O.R. (3d) 1 (Ont. C.A.), Dubin C.J.O. agreed with the lower Court that the crux of Adler was an attempt to revisit the issue which the Supreme Court of Canada had already disposed of in the Bill 30 case. Dubin, C.J.O. (Chief Justice of Ontario) stated: “I agree with Anderson J. that, in light of what was stated by the Supreme Court of Canada in the Bill 30 Reference, the funding of Roman Catholic separate schools, in the absence of similar funding for private, religious-based independent schools, is not a basis for holding that the Education Act contravenes s. 15 of the Charter. However, I read that judgment in a somewhat broader way and view it as really quite decisive of the discrimination issue in these appeals.” (emphasis added). Adler v. Ontario (Minister of Education) (C.A.) supra, Volume II, Tab 16, at page 20. 39. The Bill 30 case had clearly determined that Roman Catholic school funding could not be the basis of a Charter challenge. The majority in Adler held that: “There is no provision in the Education Act which in any way interferes with the freedom of conscience and religion of the appellants. The public schools cannot accommodate the appellants because the religious instruction that they are seeking is not permissible in such institutions. What is really complained of in this case is not government action, but government inaction which in the circumstances of this case cannot be the subject of a Charter challenge. The absence of funding in the Education Act for private religious based independent schools does not contravene section 2(a) of the Charter.”

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Adler v. Ontario (Minister of Education) (1994) 19 O.R. (3d) 1 (C.A). Volume II, Tab 16, at page 18. 40. The Court went on to state that even if the current policy of religious school funding did violate the Charter, any remedy should come from the legislature and not the judiciary: “The remedy being sought in these appeals is one which could completely change the nature of the Education Act … If such changes are to be made, it is for the legislature to make them and not the courts.” Adler v. Ontario (Minister of Education) (C.A.) supra, Volume II, Tab 16, at page 28. 41. The litigants in the Adler case subsequently sought leave to appeal to the Supreme Court of Canada. Leave was granted on February 2, 1995. The Supreme Court of Canada has now heard the appeal, and reserved its judgment on January 23, 1996. 42. The lone dissent in Adler at the Court of Appeal centred on the delivery and funding of health services in private schools. Weiler J.A. found that for one of the three children in the appeal, the Education Act, in so far as it dealt with health services and not education (and was therefore not covered by section 93 of the Constitution) was discriminatory. The Court was unanimous, however, in holding that the Bill 30 case was dispositive of the religious discrimination issue.  7KHPRVWUHFHQWDWWHPSWWRÀQGDMXGLFLDOUHPHG\IRUWKHGLVFULPLQDWRU\IXQGLQJ of religious education in Ontario is Bal v. Ontario (1994) 21 O.R. (3d) 681 (G. D.). In that case the litigants represented a variety of minority religious groups including the Muslim, Sikh, Hindu, Jewish and Christian Reformed communities. The applicants sought to have minority religious education brought within the public school system by challenging the policy of strict secularization of public schools. The judgment of Winkler J. was rendered on December 5, 1994. The Court rejected the applicants’ FODLPVÀQGLQJWKHFDVHLQGLVWLQJXLVKDEOHIURPAdler (which in turn referred to the Bill 30 case as “quite decisive of the discrimination issue”), supra, paragrah 38: “Central to the thrust of the applicant’s position is the objective of funding. Since this is integral to the issue, the decision in Adler is determinative of this proceeding.” Bal v. Ontario (1994) 21 O.R. (3d) 681 (Ont. G.D.). Volume II, Tab 17, at page 709. 44. In summary, the status of litigation on this issue to date is as follows: (i) in 1978 the applicants in Re Board of Education for the Borough of North York and Ministry of Education brought an application seeking to integrate Hebrew schools into the public school system. The application was dismissed at trial and this decision was upheld at the Ontario Court of Appeal; (ii) in Reference re An Act to Amend the Education Act (the Bill 30 case) in 1987 the Supreme Court of Canada unanimously upheld the constitutionality of a Bill extending the full funding of Roman Catholic schools; (iii) in 1992 in Adler v. Ontario the applicants sought a declaration that the lack of funding for a Jewish day school and a Protestant Christian day school infringed the applicants’ Charter rights. The case was dismissed by both by the trial judge and the Ontario Court 857

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of Appeal, which adopted the conclusion in the Bill 30 case that the issue of Roman Catholic separate school funding could not form the basis of a Charter challenge. The applicants have appealed to the Supreme Court of Canada. The Supreme Court of Canada has heard the appeal and reserved its judgment on January 23, 1996; and (iv) in December 1994, the Ontario Court (General Division) in Bal found that the decision in Adler was determinative of the applicant’s claim to have a right to minority religious education within the public school system.

(d) The funding of schools in Ontario 45. The statistics for enrolment in Ontario schools during the 1992-93 school year are as follows. In publicly funded public schools there were 1,411,382 students, in Roman Catholic publicly funded schools 604,086 students, and in non-publicly funded private schools 72,076 students. 1992-93 Key Statistics: Elementary and Secondary Education in Ontario (Ontario: Ministry of Education, 1994). Volume II, Tab 18, at page 7. 46. According to older statistics, in 1984 over 70% of non-publicly funded private schools (i.e. 373) accounting for 80% (i.e. 69,886) of the students in such schools were UHOLJLRXVO\GHÀQHG The Report of The Commission on Private Schools in Ontario. Bernard J. Shapiro, Commissioner (1984). Volume III, Tab 19, at page 6. 47. In 1991, there were 25 Jewish day schools in Ontario enrolling approximately 10,000 students. In the OACSS (Ontario Alliance of Christian School Societies), one of the largest independent school associations in Ontario, there were 73 schools enrolling 11,614 students in 1991. Adler v Ontario (G.D.), supra, Volume II, Tab 15, at pages 681-683. 48. There are strong quality control assurances for independent religious schools. Private schools must annually submit to the Ministry of Education a notice of intention to operate a private school and provide statistical information regarding enrollment, staff, courses of study and any other information required by the ministry. The minister PD\GLUHFWRQHRUPRUHVXSHUYLVRU\RIÀFHUVWRLQVSHFWDSULYDWHVFKRRODQGSULYDWH secondary schools that wish to award a high school diploma may have standards of instruction inspected. These private schools must follow the course credit system applied in the public secular and Roman Catholic school systems. 49. The total expenditures for publicly funded education in the province for 1993 were $14.3 billion (approximately $6.4 billion from provincial grants and $7.9 billion raised from local property taxes). These monies funded about 1.9 million Ontario students enrolled in public and Roman Catholic separate schools. Education Funding in Ontario 1993: The General Legislative Grants Regulations and A description of the Education funding Model (Ontario Ministry of Education and Training, 1993). Volume III, Tab 20, at pages 1-2.

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50. There are two types of publicly funded school boards in Ontario: public secular and 5RPDQ&DWKROLF,Q2QWDULRWKHUHVSRQVLELOLW\IRUÀQDQFLQJHOHPHQWDU\DQGVHFRQGDU\ education is shared by the province and the local school boards. School boards determine their own budgets and raise their share of costs from local revenue sources. The province approves a certain level of expenditure for each board and provides a grant to the board LQVXSSRUWRIWKLVDPRXQW6FKRROERDUGVPD\UDLVHDGGLWLRQDOWD[UHYHQXHVWRÀQDQFH spending beyond the provincially recognized expenditure level. School boards derive most of their revenues from property taxation. On average, residential taxation represents 59 per cent of a board’s total tax revenue, and non-residential taxation accounts for the other 41 per cent. 1992-93 Key Statistics: Elementary and Secondary education in Ontario, supra, Volume II, Tab 18, at page 21. 51. Private schools in Ontario also provide elementary and secondary education. These schools are independently operated and do not receive funding from the province or from municipalities. In Ontario there are schools serving the Protestant, Christian, Jewish and Muslim communities as well as secular private schools. Other religious communities have expressed the desire to establish such schools but have been forestalled owing to the high costs involved in such an endeavour: “… because of the cost, the [Hindu] community has not been able to establish a Hindu school. In addition, for many people the cost of tuition for a private school is prohibitive.” Bal v. Ontario, supra, Volume II, Tab 17, at page 699. 52. Even those communities that have been able to establish schools are increasingly SODFHGXQGHUVWUDLQE\WKHEXUGHQRIKDYLQJWRVHOIÀQDQFHWKHLUFRPPXQLW\·VVXUYLYDO The cost of education per student in the Jewish private school system is roughly comparable to the per capita cost of the public school system in Metropolitan Toronto, Ontario. In 1989, the per capita expenditures in Metropolitan Toronto were $6,446 for public elementary education and $8,801 for public secondary education, according to Surveys of the Ontario Ministry of Education, published on November 9, 1990. The cost per child in the Jewish private school system ranges from $5,000 in some schools to a high of $7,800 for high school. :DOGPDQ$IÀGDYLWVXSUD. Volume I, Tab 2, Exhibit “A”, and page 5, paragraph 9. Adler v Ontario (G.D.), supra, Volume II, Tab 15, at page 682.  7KH3URWHVWDQWFRPPXQLW\LVVLPLODUO\SODFHGXQGHUVWUDLQEHFDXVHRIWKHÀQDQFLDO burden imposed. ´7KHÀQDQFLDOEXUGHQH[SHULHQFHGE\&KULVWLDQGD\VFKRROVXSSRUWHUVLQ2$&66 [Ontario Alliance of Christian School Societies] schools can be summarized as follows. On average tuition for students in elementary schools will cost the parents $4,500 per year while the average tuition for students in the high school will cost the parents $5,500 per year … These same families also support other charitable causes and they pay their property taxes for the local public schools in amounts 859

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ranging from $1,000 – $2,000 a year depending upon the municipality. In addition they must pay for the rest of the school costs through general taxation. This situation is unfair and discriminatory.” $IÀGDYLW RI $GULDQ *XOGHPRQG, Executive Director of the Ontario Alliance of Christian School Societies, sworn January 20, 1992, in support of Adler v Ontario (G.D.) (supra), Volume III, Tab 21, at page 13, paragraph 26. 54. Particularly affected are families and schools faced with children with special needs. While the public and Roman Catholic school systems are provided with the resources to accommodate the special needs of handicapped children, private religious schools are forced to draw on already limited funds in an attempt to do so, as seen in the case of Walter Elgersma, a child of one of the families in the Adler case suffering IURPVSLQDELÀGDDQGK\GURFHSKDOXV ´>7@RWKLVGD\ZHUHJUHWWKHORVVRIWKHKHDOWKVHUYLFHVZKLFK:DOWHUFOHDUO\EHQHÀWWHG from as a student at Holbrook Public School. Apart from the loss of these health VHUYLFHVRXUGHFLVLRQKDVKDGRWKHUÀQDQFLDOUHSHUFXVVLRQV,QRZGULYH:DOWHU back and forth to Calvin Christian School each day, a service that was previously provided by the Haldimand Board of Education. Calvin Christian School has incurred additional expenses by having Walter attend that school, such as making alterations which would make the property more wheelchair accessible and having special education teachers to meet Walter’s needs in each particular subject area. Calvin Christian School has provided all of the assistance needed for Walter at no additional charge to our family – we pay the same tuition fee, currently $5,600.00 per year, as any other family. Yet the cost to the school for educating Walter is higher than the cost of education for students without exceptional needs and the school PXVWEHDUWKHVHFRVWVZLWKRXWDQ\ÀQDQFLDODVVLVWDQFHIURPWKHSURYLQFHµ $IÀGDYLWRI/HR(OJHUVPD, sworn January 17, 1992, in support of Adler v Ontario (G.D.), supra, Volume III, Tab 22, at page 4, paragraph 8. 55. Ontario private religious schools do not have access to either local education taxes or direct provincial grants for operating or capital expenses. They do however receive limited, minor forms of public assistance. For example, they have access to single copies of free textbooks under the Ministry of Education’s book purchase plan. There is also indirect aid to private schools in the form of: (a) provincial tax H[HPSWLRQVIURPSURSHUW\WD[HVRQQRQSURÀWSULYDWHVFKRROVE IHGHUDOLQFRPHWD[ deductions for tuition attributable to religious instruction; and (c) federal income tax deductions for charitable purposes. Support for Ontario private schools is therefore primarily in the form of tax exemptions as opposed to large scale disbursements from the provincial treasury in support of the schools’ operating budgets. The effect of these exemptions on the public treasury is a fraction of the large scale expenditures made for Roman Catholic schooling. The Report of The Commission on Private Schools in Ontario, supra. Volume III, Tab 19, at pages 7 and 46.

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56. In Mr. Waldman’s case, this indirect support resulted, in 1994, in a tax credit for part of the $14,050 tuition fees he paid, in the amount of $3,239.11 (see paragraph 6, above). :DOGPDQ$IÀGDYLWVXSUD. Volume I, Tab 2, at pages 4-5, paragraph 8. 57. In Ontario Roman Catholic schools are the only non-secular schools receiving full and direct public funding. Other religious schools must resort to funding through private sources, including the charging of tuition fees to parents whose religious convictions require that their children attend such institutions. 58. In the Jewish community, families such as the Waldmans spend a substantial portion of their income on tuition fees each year. Regarding the actual cost incurred for private religious school education, Mr. Waldman paid tuition for the 1994 school year in the amount of $14,050.00 (or $10,810 after taxes). In 1994, Mr. Waldman additionally paid $1,761.00 in property taxes to fund the public school system, a system that he did not make use of. :DOGPDQ$IÀGDYLWVXSUD. Volume I, Tab 2, at pages 4-5, paragraph 8.  2WKHU UHOLJLRXV PLQRULW\ JURXSV DUH IDFHG ZLWK VLPLODU ÀQDQFLDO EXUGHQV )RU example, Protestant families incur similar costs for educating their children at private religious schools in conformity with their religious convictions. As stated above, for these families, the average tuition fees in 1992 was $4,500 for students in elementary schools and $5,500 for students in high schools. $IÀGDYLW RI $GULDQ *XOGHPRQG, Executive Director of the Ontario Alliance of Christian School Societies, supra, Volume III, Tab 21, at page 13, paragraph 26.

9$'0,66,%,/,7<&216,'(5$7,216 60. Before considering any claims contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.

(a) Material facts relevant to admissibility 61. Mr. Waldman is resident in Canada. The violations complained of have occurred during the period in which the Covenant has been in effect for Canada. 62. Mr. Waldman has not submitted this matter to any other procedure of international investigation and settlement.

(b) The jurisprudence of the Human Rights Committee 63. As required under Article 2 of the Optional Protocol, all domestic remedies must be exhausted or be neither available nor effective. 64. In considering whether domestic remedies are available or effective, it is relevant to consider (a) the duration of the litigation in so far as it delays the application of domestic remedies and (b) the utility, or lack thereof, of pursuing domestic remedies.

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(i) Unreasonably prolonged 65. The Human Rights Committee has found that domestic remedies were unreasonably prolonged where there was administrative or judicial delay on the part of the state. In Eric Hammel v. Madagascar the Committee found that domestic remedies were unreasonably prolonged where there was a four year delay in processing a repeal of an expulsion order. 2IÀFLDO5HFRUGVRIWKH*HQHUDO$VVHPEO\)RUW\VHFRQGVHVVLRQ6XSSOHPHQW1R 40 (A/42/40), communication no. 155/1983, decision adopted on 3 April 1977. Volume III, Tab 23, at paragraph 17. 66. In R.T. Muñoz v. Peru the Human Rights Committee found that ten year judicial and administrative proceedings were unreasonably prolonged. 2IÀFLDO5HFRUGVRIWKH*HQHUDO$VVHPEO\)RUW\WKLUGVHVVLRQ6XSSOHPHQW1R (A/43/40), communication no. 203/1986, decision adopted on 4 November 1988. Volume III, Tab 24, at paragraph 10.2. 67. In Dunaway v. Nicaragua the Human Rights Committee found that a communication was admissible where the author had been denied access to effective domestic remedies for thirteen years. “Even if domestic remedies may now be available, the application of such remedies would entail an unreasonable prolongation of the author’s quest to be vindicated for his detention and alleged ill-treatment: the committee concludes that the optional protocol does not require the author in the circumstances of his case, to further engage the Nicaraguan courts.” 2IÀFLDO 5HFRUGV RI WKH *HQHUDO$VVHPEO\ )RUW\QLQWK VHVVLRQ 6XSSOHPHQW 1R 40 (A/49/40), communication no. 328/1988, admissibility decision adopted on 20 March 1992. Volume III, Tab 25, at paragraph 9.2. 68. With respect to the duration of domestic litigation, it is recalled that Re Board of Education for the Borough of North York and Ministry of Education began in 1978 and the Bill 30 case was commenced in 1985. As of 1996, domestic litigation on the issue of entitlement to public funding of non-Roman Catholic religious schools for people in the same position as Mr. Waldman has been going on for well over 10 years. Mr. Waldman continues to suffer the discriminatory effects of Ontario’s school funding system. This length of time in seeking a judicial remedy is unreasonably prolonged. Every year that the children of Mr. Waldman attend a non-Roman Catholic religious school in accordance with his family’s religious convictions he pays his share of public taxes, including those for education, and the costs of his own children’s education. For Mr. Waldman, his education costs were $14,050.00 before taxes, and $10,810 after taxes, for a single year. Other religious minority families incur similar costs every year to educate their children in accordance with their religious beliefs. A comparable Roman Catholic family would have incurred none of these costs, and would have received religious education free of charge.

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(ii)

Domestic remedies exhausted even where ongoing litigation

69. It is submitted that in the light of the preceding, the ongoing litigation in Adler and Bal cannot be seen as a bar to the claim of Mr. Waldman on the basis that domestic remedies have not yet been exhausted. In the case of R.T. Muñoz Hermoza v. Peru (supra) the Human Rights Committee found that even though an appeal by the author was pending, the communication was nevertheless declared admissible on the basis that judicial proceedings had been unreasonably prolonged (in that case for ten years). 70. Similarly, in John Ballantyne and Elizabeth Davidson, and Gordon McIntyre v. Canada, the Human Rights Committee declared the communication admissible even though the legislation in question continued to be challenged in the courts. The Committee noted particularly that the issues raised before the local courts were distinguishable from those raised in the communication. “As to the State party’s contention that Bill 178 can be and is being challenged before the Quebec courts, the Committee noted that the issues raised in the cases before the local courts were not the same as those before the Committee and thus could not bear upon whether the authors of the communications still had remedies to pursue.” 2IÀFLDO5HFRUGVRIWKH*HQHUDO$VVHPEO\)RUW\HLJKWKVHVVLRQ6XSSOHPHQW1R 40 (A/48/40), communications nos. 359/1989 and 385/1989, decision adopted on 31 March 1993. Volume III, Tab 26, at paragraph 7.3. 71. While to some extent the Adler and Bal cases have attempted to steer around the Bill 30 decision by emphasizing tangential issues such as health support services and the mandatory nature of school attendance or education in order to distinguish the issue of discriminatory funding of religious schools, Mr. Waldman seeks to challenge the issue already decided by the Supreme Court of Canada in the Bill 30 case by claiming a right to non-discriminatory funding of religious schools. 72. It is submitted, therefore, that for Mr. Waldman domestic remedies are neither available nor effective. Domestic litigation has proven to be fruitless and is now unreasonably prolonged. (iii) No objective chance of success 73. Moreover, the author submits that in the wake of the unanimous decision of the Supreme Court of Canada in the Bill 30 case, further domestic litigation on the issue of the discriminatory effects of the funding of Roman Catholic schools to the exclusion of all other religious schools is futile. In Yves Cadoret and Hervé Le Bihan v. France it was found that the relevant French legislation and constitutional law effectively blocked the author’s hopes of an effective domestic remedy. The Committee held that “… domestic remedies need not be exhausted if they objectively have no chance of success. This is the case where, under applicable domestic laws, the claim would inevitably be dismissed, or where positive jurisprudence of the highest domestic tribunals precluded a positive result.”

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2IÀFLDO5HFRUGVRIWKH*HQHUDO$VVHPEO\)RUW\VL[WKVHVVLRQ6XSSOHPHQW1R (A/46/40), communications nos. 221/1987 and 323/1988, decision adopted on 11 April 1991. Volume III, Tab 27, at paragraph 5.1. 74. Furthermore, in Hendricks v. the Netherlands, where the issues raised concerned access rights for a non-custodial parent, the Committee held that where an issue had been dealt with by the Netherlands Supreme Court the author “could not be expected to continue to request the same courts to issue an access order”, particularly in view of the lengthy history of litigation in that case. 2IÀFLDO5HFRUGVRIWKH*HQHUDO$VVHPEO\)RUW\WKLUGVHVVLRQ6XSSOHPHQW1R (A/43/40), communication no. 201/1985, decision adopted on 27 July 1988. Volume III, Tab 28, at paragraph 6.3. 75. It is submitted that the decision of the Supreme Court of Canada in the Bill 30 case denies Mr. Waldman an effective remedy. The highest court in Canada has decided that a violation of the Charter of Rights and Freedoms (in this case equality rights) can nevertheless be protected by other parts of the Canadian Constitution. The historical bargain struck in 1867 upon the founding of Canada takes priority over the 1982 introduction of equality rights and freedom of religion into the Constitution of Canada. In the ongoing litigation in Adler all judges in both courts have unequivocally repeated the outcome of the Bill 30 Supreme Court of Canada case (see paragraphs 35-43). Moreover, lower court judges in ongoing litigation have clearly understood subsequent cases to be futile attempts to reopen the binding decision of the earlier Supreme Court decision. For example, in Adler v. Ontario (Court of Appeal) Dubin, C.J.O. (Chief of Ontario) stated: “I agree with Anderson J. that, in light of what was stated by the Supreme Court of Canada in the Bill 30 Reference, the funding of Roman Catholic separate schools, in the absence of similar funding for private, religious-based independent schools, is not a basis for holding that the Education Act contravenes s. 15 of the Charter. However, I read that judgment in a somewhat broader way and view it as really quite decisive of the discrimination issue in these appeals.” (emphasis added). Adler v. Ontario (Minister of Education) (C.A.) supra, Volume II, Tab 16, at page 20. 76. The author submits, therefore, that domestic remedies are ineffective by virtue of the fact that domestic litigation has no objective chance for success because of the GHÀQLWLYHMXGJPHQWRIWKH6XSUHPH&RXUWRI&DQDGDLQWKHBill 30 case.

9,0(5,762)7+(&$6( 77. The author submits that the material facts disclose violations of Articles 2, 18(1), 18(4), 26 and 27 of the Covenant.

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(a) Article 26 78. Article 26 “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” 79. In order to respect Article 26, state parties must ensure that their legislation and regulations are not discriminatory. With respect to the scope and force of article 26, the Committee has stated that: “… article 26 does not merely duplicate the guarantee already provided for in article 2 but provides in itself an autonomous right. It prohibits discrimination in ODZRULQIDFWLQDQ\ÀHOGUHJXODWHGDQGSURWHFWHGE\SXEOLFDXWKRULWLHV$UWLFOH is therefore, concerned with the obligations imposed on States parties in regard to their legislation and the application thereof.” 2IÀFLDO5HFRUGVRIWKH*HQHUDO$VVHPEO\)RUW\ÀIWKVHVVLRQ6XSSOHPHQWQR (A/45/40). General Comment no. 18, adopted on 9 November, 1989. Volume III, Tab 29, at paragraph 12. 80. The Canadian and Ontario governments therefore must ensure that the content of any legislation that they adopt is not discriminatory, including legislation for the funding of education and the availability of funding for religious education. 81. Article 26 provides protection against discrimination on the basis of religion and GHÀQHVGLVFULPLQDWLRQDVLQFOXGLQJDYDULHW\RIGLIIHUHQWLDWLRQV “[T]he term discrimination as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms” (emphasis added). General Comment no. 18, supra. Volume III, Tab 29, at paragraph 7. 82. The legislative grant of power to fund Roman Catholic schools is authorized by section 93 of the Constitution Act of Canada 1867. It is actually carried out under sections 122 and 128 of the Education Act (Ontario). These discriminatory legislative provisions are not vulnerable to Canada’s strongest human rights instrument, the Canadian Charter of Rights and Freedoms (the Bill 30 case). At the same time, these sections of the Education Act clearly create a distinction or preference which is based on religion and which has the effect of impairing the enjoyment or exercise by all persons, on an equal footing, of their religious rights and freedoms.

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83. In 1994, Mr. Waldman spent $14,050.00 of his gross income, or $10,810.89 of after tax income, on religious education for his children. A similarly situated Roman Catholic would not incur any of these costs. 84. In the case of Henricus Antonius Godefriedus Maria Brinkhof v. The Netherlands, WKH&RPPLWWHHIRXQGWKDWWKHFRQIHUUDORIDEHQHÀWRQDVLQJOHUHOLJLRXVJURXSFRXOG not be sustained: “The Committee considers that the exemption of only one group of conscientious objectors and the inapplicability of exemption for all others cannot be considered reasonable. In this context, the Committee refers to its General Comment on article 18 and emphasizes that, when a right of a conscientious objection to military service is recognized by a state party, no differentiation shall be made among conscientious objectors on the basis of the nature of their particular beliefs.” Human Rights Committee, Forty-eighth session (CCPR/C/48/D/402/1990). Communication 402/1990, decision adopted on 27 July, 1993. Volume III, Tab 30, at paragraph 9.3.  6LPLODUO\KHUHZKHQDULJKWWRSXEOLFO\ÀQDQFHGUHOLJLRXVHGXFDWLRQLVUHFRJQL]HG by a state party, no differentiation shall be made among individuals on the basis of the nature of their particular beliefs. The practice of exclusively funding Roman Catholic religious education in Ontario pursuant to the Constitution Act and the Education Act therefore violates Article 26 of the Covenant.  7KH FXUUHQW UHJLPH LPSRVHV D VHYHUH ÀQDQFLDO EXUGHQ RQ PDQ\ QRQ5RPDQ Catholics. For the Jewish community, education expenditures for schools administered by the Board of Jewish Education in Metropolitan Toronto are roughly equivalent to those of public secular or separate Roman Catholic schools on a per-student basis. The average cost per child in 1990 ranged from a low of $5,000 for grade one in certain schools to a high of $7,800 for high school. Tuition fees accounted for 77% of elementary school costs and 51% of high school education costs. The remainder is raised through various fund-raising activities and other private sources of funding within the Jewish FRPPXQLW\,WLVFOHDUWKDWWKHDEVHQFHRISXEOLFIXQGLQJSODFHVDVHYHUHÀQDQFLDOVWUDLQ on the Jewish community. In the Jewish community, families such as the Waldmans spend a substantial portion of their income on tuition fees each year. :DOGPDQ$IÀGDYLWVXSUD. Volume I, Tab 2, at page 5, paragraph 9. Adler v. Ontario (G.D.), supra, Volume II, Tab 15, at page 682.  2WKHU UHOLJLRXV PLQRULW\ JURXSV DUH IDFHG ZLWK VLPLODU ÀQDQFLDO EXUGHQV )RU example, Protestant families who enrolled their children in private religious schools paid an average tuition fee in 1992 of $4,500 for elementary school and $5,500 for high school. $IÀGDYLW RI $GULDQ *XOGHPRQG, Executive Director of the Ontario Alliance of Christian School Societies, supra, Volume III, Tab 21, at page 13, paragraph 26.

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88. Some minority religious groups, such as the Sikh and Hindu communities, have been unable to establish schools because of the costs involved. Paragraph 51, supra. 89. In contrast, no tuition fees are required for students attending public secular schools or Roman Catholic schools. The Roman Catholic community experiences none of the ÀQDQFLDOVWUDLQLPSRVHGXSRQRWKHUUHOLJLRXVFRPPXQLWLHV 90. The Committee has stated that: “… not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.” General Comment No. 18, supra. Volume III, Tab 29, at paragraph 13.  ,QWKLVFDVHWKHSURYLVLRQRIWKHEHQHÀWRIIXOOIXQGLQJH[FOXVLYHO\WR5RPDQ Catholic schools cannot be considered reasonable. As mentioned in paragraphs 12-15, the historical rationale for the Ontario government’s discriminatory funding practice, that of protecting Roman Catholic minority rights from the Protestant majority, has now disappeared, and if anything has been transferred to other minority religious communities in Ontario. Some communities have been completely prevented from establishing UHOLJLRXVVFKRROVRZLQJWRWKHODUJHÀQDQFLDOEXUGHQVRIVXFKDQHQGHDYRXU)RUWKRVH FRPPXQLWLHVWKDWKDYHVXFFHVVIXOO\HVWDEOLVKHGVXFKVFKRROVWKHÀQDQFLDOEXUGHQLV extremely onerous, particularly in light of the full and complete access afforded Roman Catholic families through the public funding authorized under Canadian and Ontario law. 92. This discriminatory funding practice in Ontario is also evidently unreasonable in view of the fact that other Canadian provinces and territories do not discriminate on the basis of religion in allocating education funding. As stated in paragraphs 21 and 22, other provinces and territories have approached the funding of education in different DQGQRQGLVFULPLQDWRU\ZD\V7KHUHDUH-HZLVKGD\VFKRROVLQÀYHSURYLQFHVLQFOXGLQJ Ontario. Only Ontario fails to provide any government funding to these schools. NonCatholic Christian schools exist in eight of Canada’s provinces and territories. Again, only Ontario fails to provide funding to these schools. Only Ontario funds Roman Catholic schools to the exclusion of other private religious schools. 93. Furthermore, even Canadian judges, including members of the Supreme Court of Canada, have recognized that the principle of equality of treatment or non-discrimination on the basis of religion has been violated in these circumstances. In the Bill 30 case, the Ontario Court of Appeal, per Howland C.J.O. (Chief Justice of Ontario) and Robins J.A. (dissenting) stated: “In our opinion, Bill 30 is inconsistent with s.15(1) of the Charter which gives to HYHU\LQGLYLGXDOWKHULJKWWRHTXDOEHQHÀWRIWKHODZZLWKRXWGLVFULPLQDWLRQEDVHG on religion. If this right is to mean anything, it must mean at least that the followers RIRQHUHOLJLRQDUHQRWWREHWKHEHQHÀFLDULHVRIJUHDWHUEHQHÀWVSURYLGHGE\WKHODZ

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WKDQIROORZHUVRIRWKHUUHOLJLRQV%LOOSURYLGHVEHQHÀWVRQWKHEDVLVRIUHOLJLRQ WRRQHUHOLJLRXVJURXSRQO\DQGLVWKHUHIRUHLQGLUHFWFRQÁLFWZLWKWKLVULJKWµ Reference Re an Act to Amend the Education Act (Ont. C.A.), supra, Volume II, Tab 13, at page 9. These same judges went on to state: “Bill 30’s proposal to fully fund the schools of one religion, in the absence of any constitutional requirement that this be done, without provision for any funding of other religiously based schools, is, by any standard of scrutiny, discriminatory and violative of s. 15(1)”. … “The statute contemplated by this Bill would, if enacted, provide Roman Catholics ZLWKÀQDQFLDOEHQHÀWVRQWKHEDVLVRIWKHLUUHOLJLRQWKDWDUHQRWDYDLODEOHWRDQ\ extent to members of other religions…The Bill makes no provision whereby those of other religious persuasions would become entitled to any form of public support for schools in which their respective religions play a similarly important role… In these circumstances, without constitutional sanction for such preferential treatment, the public support intended by Bill 30 for the education of children of one selected religion, on the basis of their religion, is at odds with the letter and spirit of s. 15(1) and, in our opinion, constitutes a direct and obvious infringement of the guarantee RIHTXDOEHQHÀWRIWKHODZZLWKRXWGLVFULPLQDWLRQEDVHGRQUHOLJLRQE\WKH&KDUWHU to all Canadians.” Reference Re an Act to Amend the Education Act (Ont. C.A.), supra, Volume II, Tab 13, at pages 44-46. The majority judgment of the Ontario Court of Appeal was cited with approval in the majority opinion in the Supreme Court of Canada, where Wilson, J. repeated: ´7KHVHHGXFDWLRQDOULJKWVJUDQWHGVSHFLÀFDOO\WR«5RPDQ&DWKROLFVLQ2QWDULR make it impossible to treat all Canadians equally. The country was founded upon WKHUHFRJQLWLRQRIVSHFLDORUXQHTXDOHGXFDWLRQDOULJKWVIRUVSHFLÀFUHOLJLRXVJURXSV in Ontario …” Reference Re an Act to Amend the Education Act (Ont. C.A.), supra, Volume II, Tab 14, at page 61. In a concurring opinion in the Supreme Court of Canada, Estey J. conceded that the funding of only Roman Catholic religious schools was discriminatory: “It is axiomatic (and many counsel before this court conceded the point) that if the Charter has any application to Bill 30, this Bill would be found discriminatory and in violation of ss. 2(a) and 15 of the Charter of Rights.” Reference Re an Act to Amend the Education Act (S.C.C.), supra, Volume II, Tab 14, at page 27.

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In Adler v Ontario (Ont. G.D), Anderson J. was also of the opinion that the equality rights provision of the Charter had been infringed: “… it seems to me that a distinction has been created by the Education Act and WKDWWKLVGLVWLQFWLRQUHVXOWVLQDYLRODWLRQRIWKHDSSOLFDQWV·ULJKWVWRHTXDOEHQHÀW of the law. Those (the majority) whose children attend the public schools receive WKHEHQHÀWRIDQHGXFDWLRQIRUWKHLUFKLOGUHQIUHHRIDQ\GLUHFWFRVWVDWWULEXWDEOH to that education. Those whose children do not attend the public schools, because their religious convictions prevent them from allowing their children to do so, do QRWUHFHLYHWKDWEHQHÀWµ Adler v. Ontario (Minister of Education) (Ont. G.D.), supra, Volume II, Tab 15, at page 695. In summary, Canadian judges themselves have stated that (a) the Ontario government’s funding practices are discriminatory; (b) that this practice would violate our section 15 (equality rights) of the Charter of Rights and Freedoms; and (c) that the only reason this practice is immune to review is that it is protected by the historical bargain of 1867 (paragraphs 26-32). 94. Article 26 of the Covenant and the prohibition of discrimination has therefore clearly been violated by the exclusive funding of Roman Catholic religious education in Ontario.

(b) Article 18(1) in conjunction with Article 2 95. Article 18(1): “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in the community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.” Article 2: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” 96. The right to manifest religion in community with others includes not only the teaching of religion per se, but any act integral to the conduct of the group’s religious basic affairs. The Committee has stated: “[T]he practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as…the freedom to establish seminaries or religious schools.”

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2IÀFLDO5HFRUGVRIWKH*HQHUDO$VVHPEO\)RUW\HLJKWKVHVVLRQ6XSSOHPHQWQR 40 (A/48/40). General Comment No. 22, adopted on 20 July, 1993. Volume III, Tab 31, at paragraph 4. 97. Religious education in independent religious schools is integral to the conduct of the basic affairs of many minority religions, including Judaism. Professor Arthur Kruger, Director of the Ontario Institute for Studies in Education, explained the necessity of -HZLVKGD\VFKRROVLQKLV$IÀGDYLWLQVXSSRUWRIAdler v. Ontario: “In my view, education is not only central to Jewish religious life, but is crucial to Jewish cultural survival. As a minority religious and ethnic group within a majority culture, Jewish cultural life in Canada is dependant upon the Jewish community’s ability to immerse its children in an educational context which conveys and perpetuates the knowledge and values of our faith. … As a professional educator and the Director designate of this province’s premier institution for studies in education (not to mention the educational institution that KDVWUDLQHGVRPDQ\RI2QWDULR·VSXEOLFVFKRROWHDFKHUV ,VD\ZLWKFRQÀGHQFHWKDW WKH-HZLVKFRPPXQLW\·VYHU\VXUYLYDODVDQLGHQWLÀDEOHDQGSUDFWLVLQJUHOLJLRXV community depends on a broad access for Jewish children to the Jewish day schools. Much as I am proud to say that the public schools in Ontario are of an extremely high calibre, it is my view that Jewish cultural survival simply cannot be insured through the public school system.” $IÀGDYLWRI$UWKXU.UXJHU, sworn October 31, 1993, in support of Adler v. Ontario (G.D.). Volume III, Tab 32, at page 2, paragraphs 2-4.  6LPLODUO\ LQ KLV$IÀGDYLW IURP WKH VDPH FDVH 3URIHVVRU (PLO )DFNHQKHLP Professor Emeritus in Philosophy, University of Toronto, stated: “In my opinion, Jewish day school education is indispensable to the survival of Jewish communities in Canada and throughout the world. In the post-Holocaust era, this has become a matter of absolute urgency, as the Jews are a survivor people for whom it is necessary that they and their children understand their religious heritage. It is imperative that Jews know who they are and why they are here. It is also my view that sending children to weekend or afternoon schools to learn about their Jewish religion is not an adequate approach to Jewish education. The psychological impact of having Jewish education come after school hours rather than during the school day is such that it makes Jewish education a burden for them rather than a natural part of their life. Jewish education is intimately linked with Jewish cultural survival, and in order to be effective it must be pursued together with the secular portion of the children’s education in a full-time, day school setting.” $IÀGDYLWRI(PLO)DFNHQKHLP, sworn December 21, 1991, in support of Adler v. Ontario, (G.D.). Volume III, Tab 33, at page 2, paragraphs 2-3.

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99. The importance of religious education to the Ontario Jewish community is also aptly LOOXVWUDWHGLQWKH$IÀGDYLWRI0DUF\5DSSVXEPLWWHGLQVXSSRUWRIAdler v. Ontario: ´,DPWKHPRWKHURIDVHYHQ\HDUROGFKLOGLQJUDGHDQGDÀYH\HDUROGFKLOGLQ senior kindergarten at a Jewish day school, Netivot HaTorah. My husband and I are Orthodox Jews, and we are raising our children in the tradition of Orthodox Judaism. The rigorous practice of Orthodox Judaism makes for a spiritually and intellectually IXOÀOOLQJEXWGHPDQGLQJOLIHVW\OH)RUPDOSUD\HULVFRQGXFWHGWKUHHWLPHVGDLO\DV well as after each meal. Synagogue attendance is a constant feature of everyday life, and is a focal point not only for prayer but for continuous learning and study. In addition, all food, dish wear and eating utensils have to be strictly kosher, and children as well as adults must adhere to certain traditional dress codes. Our religious practices make it a virtual necessity that our children attend a Jewish day school. Netivot HaTorah is an Orthodox school which starts teaching children from an early age the language skills, Jewish legal codes and intricacies of Jewish tradition necessary for the pursuit of an Orthodox life. The children engage in group prayer at school and are taught to observe all the traditions surrounding each and every Jewish holiday, as well as the weekly Sabbath rituals. It is no exaggeration to say that Orthodox Judaism entails an entire lifetime of intensive and progressive learning, such that education is at the very centre of our religion. ,WZRXOGEHH[WUHPHO\GLIÀFXOWIRURXUUHOLJLRXVSUDFWLFHVWREHDFFRPPRGDWHGLQ the public schools. My children conform to the dress codes which prevail in the Orthodox Jewish community, and we take the religious-based dietary restrictions very seriously. In addition, my children are absent from school during every one of the Jewish holidays. The demands of our religious beliefs can, of course, be readily accommodated at a Jewish day school, as the demands are the same on all of the parents and the school can schedule its academic year around the Jewish holidays rather than around the Christian and secular holidays that dominate the public school calendar. Perhaps more importantly, our religion is necessarily part of our children’s educational experience. I know from personal experience that it is nearly impossible to acquire the knowledge and skills necessary to Orthodox Jewish practice if one is not immersed in a Jewish day school environment from an early age. The intellectual demands of our religion, combined with the lifestyle requirements, make Jewish day school education imperative.” $IÀGDYLWRI0DUF\5DSS, sworn 27 October 1991, in support of Adler v. Ontario (G.D.). Volume III, Tab 34, at pages 1-3, paragraphs 1-6. 100. Mr. Waldman believes that a day school education is necessary for his children in order that they may receive an adequate upbringing and education in Judaism (see paragraphs 3 and 4, above). :DOGPDQ$IÀGDYLWVXSUD, Volume I, Tab 2, at pages 2-3, paragraph 5. 871

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101. The importance of religious education has also been expressed by members of the 3URWHVWDQWFRPPXQLW\DVLOOXVWUDWHGLQWKHIROORZLQJ$IÀGDYLWVVXEPLWWHGLQVXSSRUW of Adler v. Ontario: “When we enrolled [our son] Walter at Calvin Christian School in September, 1986 WKHKHDOWKVHUYLFHV>UHODWHGWRKLVVSLQDELÀGDDQGK\GURFHSKDOXV@ZKLFKKHKDG received as a student at Holbrook Public School ceased. My wife and I felt then, and we still do today, that the Christian perspective at Calvin was worth more to Walter and to us than the services which the public school could provide. To have Walter in an environment which supports the aims and objectives of our Christian home is very valuable to us. At Calvin Christian School Walter has been exposed to what we believe are the true values for life. The school teaches him the same values which are so important to our home and church life. Walter loves to sing the bible songs he learns at school and he loves his relationships with children at Calvin Christian School. Walter is progressing very well and my wife and I believe that he is developing a valuable relation to the Lord.” $IÀGDYLWRI/HR(OJHUVPDVXSUD, Volume III, Tab 22, at pages 3-4, paragraph 7. “We believe that our lives should honour God and that everything we do should be centred around biblical beliefs. We want our children to attend a Christian school so that they learn these beliefs and values consistently in their life experiences. We had hoped that we could teach this at home, at church and at Sunday school but we have found from [our daughter] Andrea’s experience at public school that biblical principles were not stressed in the public school …. I believe that Jesus must be a part of our children’s lives everyday at school and, at a Christian school, God is a part of every class. We have found that public schools will not provide our children with the Christian education which we believe is necessary for their proper upbringing and growth. Prayers, for example, are not allowed in public schools. We have found that Andrea has not been taught moral and ethical values which we believe are central to living her life as a Christian.” $IÀGDYLWRI5D\PRQG'RVWDO, sworn January 17, 1992, in support of Adler v. Ontario (G.D.). Volume III, Tab 35, at page 2, paragraphs 5-6. “My support for Christian education was nurtured and matured in the reformed Christian tradition in which I was raised. Over the years I have come to accept two EHOLHIVZKLFKOLHDWWKHURRWRIP\HGXFDWLRQDOLQYROYHPHQWVÀUVWWKDWHGXFDWLRQ always expresses, and invites learners into, a philosophy of life; and second, that one’s religious perspective is of intense relevance to the process of education. … For these reasons I have joined thousands of parents in Ontario who seek a school setting for their children which embodies a Christian perspective that permeates their entire education: curriculum, interpersonal relationships and the school’s ethos. Like many other independent school supporters I have concluded that public schools are not in a position to provide my children with a Christian philosophy of life. Public

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VFKRROVDUHE\GHÀQLWLRQUHOLJLRXVO\SOXUDOLVWLFDQGWKXVPXVWVXVSHQGMXGJHPHQW when questions of ultimate values and life perspective are raised. In my view and belief, such suspensions of judgement cannot be equated with neutrality or objectivity. Instead the effort to steer clear of a religious value framework inevitably gives pride of place to a secular world view and a secular vision of value and meaning. Because I perceive a clash of educational perspectives at this fundamental level, I have considered it necessary to seek a Christian alternative for my children.” $IÀGDYLWRI+DUU\)HUQKRXW, sworn January 17, 1992, in support of Adler v. Ontario (G.D.). Volume III, Tab 36, at pages 4-5, paragraphs 8-11. “It is our strongly held belief that education – a key ingredient in our children’s development as citizens of worth and with positive capacity – must encourage the kind of growth which helps them to see their Christian witness in the broader context of all activities in which human beings are engaged. … In a Christian school all subject areas explore our responsibilities as Christians, whether that be in economics, social interaction, artistic expression, respect for other cultures or other areas. Since Christian education supports the basis [sic] biblical principles which we encourage our children to follow at home, our children are happy and well adjusted individuals who increasingly make their own contributions in various community activities. Because of our religious beliefs, my wife and I decided not to enroll our children in the public school system. We know that the public school system will not, and as a result of recent court decisions cannot, provide our children with an education on the basic biblical principles in which we believe, nor the continuance of a confessional base which claims that Christ should be Lord of all our activities. We recognize that public schools cannot base their educational endeavours on biblical principles since they serve a very broad and diverse community of students. In order to ensure that [our children] Johanna and Andrew receive an education consistent with our religious beliefs, we must enroll them in an independent Christian school.” $IÀGDYLWRI+DUU\3RWW, sworn January 17, 1992, in support of Adler v. Ontario (G.D.). Volume III, Tab 37, at pages 2-3. “I, along with the other parents and the students in our member schools, believe that human life in its entirety is religious and that God’s Word is the light on man’s path of life, giving enlightenment and meaning to all of his everyday activities. I also believe that the Scriptures mandate us to educate our children in an entirely Christian environment and context. Consequently, we believe that our children cannot attend public schools which are secular and contravene our religious principles.” $IÀGDYLW RI $GULDQ *XOGHPRQG, Executive Director of the Ontario Alliance of Christian School Societies, supra, Volume III, Tab 21, at page 12, paragraph 23. 102. The integral nature of religious education in religious schools to the conduct of the basic affairs of many religions is clearly recognized in Article 18(1) of the Covenant. Article 18(1) means that the right to manifest religion in community with others includes

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the right to teach religion and the right to educate one’s children in a religious school. Article 2 of the Covenant recognizes that the rights and freedoms in Article 18(1) must be respected and ensured by the government of Ontario to all persons without distinction of any kind including religion. The public funding of only Roman Catholic schools in Ontario results in discriminatory support for the teaching of the Roman Catholic religion and the establishment of Roman Catholic religious schools. 7KHÀQDQFLDOKDUGVKLSH[SHULHQFHGE\0U:DOGPDQLVFOHDU+HVSHQGV of his after tax income of $73,367.26 (or $14,050.00 before taxes), to provide his FKLOGUHQZLWKDUHOLJLRXVHGXFDWLRQ7KHÀQDQFLDOKDUGVKLSVWRRWKHUVRIWKH-HZLVK Protestant, Hindu, and Sikh communities (see paragraphs 51-59, 86-87) are also clear. 6XFKÀQDQFLDOKDUGVKLSLVQRWH[SHULHQFHGE\WKRVHRIWKH5RPDQ&DWKROLFIDLWK6XFK KDUGVKLSVLJQLÀFDQWO\LPSDLUVWKHHQMR\PHQWRIWKHULJKWWRPDQLIHVWRQH·VUHOLJLRQE\ providing a religious education for one’s children, or the freedom to establish religious schools, in a discriminatory fashion. Therefore, the current regime which permits access to funding exclusively to Roman Catholics violates article 18(1) of the Covenant taken together with Article 2. 104. This violation is not sustainable under the limitation in article 18(3). Article 18(3) permits restrictions on the freedom to manifest religion only if limitations are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others. 105. A limitation established to protect morals may not be based on a single tradition: “The Committee observes that the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition.” General Comment No. 22, supra. Volume III, Tab 31, at paragraph 8. 106. In determining the permissible scope of any limitation under 18(3), the Committee has held that: “In interpreting the scope of the permissible limitation clauses, States parties should proceed from the need to protect the rights guaranteed under the Covenant including WKHULJKWWRHTXDOLW\DQGQRQGLVFULPLQDWLRQRQDOOJURXQGVVSHFLÀHGLQDUWLFOHV and 26. Limitations imposed must be established by law and must not be applied in a manner that would vitiate the rights guaranteed in article 18.” General Comment No. 22, supra. Volume III, Tab 31, at paragraph 8. 107. Hence, regarding article 18(3), Ontario cannot in the name of freedom of religion of Roman Catholics proceed to fund religious education in a discriminatory fashion in violation of Articles 2 and 26. 108. The exclusive funding of the Roman Catholic separate school system by Ontario is not based on any grounds in article 18(3). Rather, as the Supreme Court of Canada recognized in the Bill 30 case: 874

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“The protection of minority rights was a major preoccupation during the negotiations leading to confederation because of the perceived danger of leaving the religious minorities in both Canada East and Canada West at the mercy of overwhelming majorities.” Reference Re An Act To Amend The Education Act (Ontario), (S.C.C.) supra. Volume II, Tab 14, at page 42. 109. This distinction is based on the historical circumstances of a bicultural society with a single minority that existed in 1867 (outside the aboriginal societies) and was offered as an attempt to entice people into Canadian Confederation at that time. These historic circumstances no longer apply. Exclusive public funding of Roman Catholic schools is not necessary for the protection of public safety, order, health or morals. 110. The Committee has recognized that the scope of any limitation under article 18(3) must be extremely limited: “The committee observes that article 18 paragraph 3 is to be strictly interpreted: UHVWULFWLRQVDUHQRWDOORZHGRQJURXQGVQRWVSHFLÀHG«OLPLWDWLRQVPD\EHRQO\ applied for those purposes for which they were prescribed and must be directly SURSRUWLRQDWHWRWKHVSHFLÀFQHHGRQZKLFKWKH\ZHUHSUHGLFDWHGµ General Comment No. 22, supra. Volume III, Tab 31, at paragraph 8. 6LQFH WKH OLPLWDWLRQ UHTXLUHPHQWV RI DUWLFOH   KDYH QRW EHHQ VDWLVÀHG WKH YLRODWLRQRIDUWLFOH RXWOLQHGDERYHFDQQRWEHMXVWLÀHG7KHUHIRUHWKHUHKDVEHHQ DQXQMXVWLÀDEOHYLRODWLRQRIDUWLFOH WDNHQWRJHWKHUZLWK$UWLFOHQDPHO\WKH right to manifest one’s religion without discrimination.

(c) Article 18(4) in conjunction with Article 2 112. Article 18(4) “The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.” 113. The public school system in Ontario is secular. It provides public school instruction in the general history of religions and ethics in a neutral and objective way. This is in conformity with Article 18(4) and the policy stated in A/48/40 General Comment No.22, paragraph 6. 114. However, like all articles of the Covenant, Article 18(4) must be applied in a non-discriminatory manner, in accordance with Article 2(1). 115. In the case of Henricus Antonius Godefriedus Maria Brinkhof v. The Netherlands, WKH&RPPLWWHHIRXQGWKDWWKHFRQIHUUDORIDEHQHÀWRQDVLQJOHUHOLJLRXVJURXSFRXOG not be sustained: “The Committee considers that the exemption of only one group of conscientious objectors and the inapplicability of exemption for all others cannot be considered reasonable. In this context, the Committee refers to its General Comment on article

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18 and emphasizes that, when a right of a conscientious objection to military service is recognized by a state party, no differentiation shall be made among conscientious objectors on the basis of the nature of their particular beliefs.” Communication 402/1990, supra. Volume III, Tab 30, at paragraph 9.3. 7KXVZKHQDULJKWWRSXEOLFO\ÀQDQFHGUHOLJLRXVHGXFDWLRQLVUHFRJQL]HGE\D State party, no differentiation should be made on the basis of religion. 117. In Ontario, Roman Catholic schools are the sole religious schools to receive direct and full public funding. While this respects the liberty of Roman Catholics to choose an appropriate education for their children, it does not equally respect the liberty of non-Roman Catholics to choose an education in conformity with their religious convictions. Ontario discriminates on the basis of religion in its respect for the right to choose an education in conformity with a parent’s religious convictions. 118. This is a violation of Article 18(4) taken together with Article 2.

(d) Article 27 in conjunction with Article 2 119. Article 27 “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group to enjoy their own culture, to profess and practice their own religion, or to use their own language” (emphasis added). 120. The Human Rights Committee has found that the right to practice religion in community with others includes the “… teaching of religion or belief [which] includes acts integral to the conduct by religious groups of their basic affairs, such as…the freedom to establish seminaries or religious schools.” General Comment No. 22, supra. Volume III, Tab 31, at paragraph 4. 121. Separate school systems are crucial to the practice of one’s religion and the survival of minority religious groups. See the comments of Professors Kruger and Fackenheim, in the context of Jewish day schools, quoted at paragraphs 97 and 98, above. 122. The fact that these schools form an essential link in preserving community identity was pointed out by the Canadian Jewish Congress in its factum in the Bill 30 case: “The Jewish day schools constitute a Jewish public schools system. They are open to all children in the Jewish community regardless of socio-economic background and tuition fees are geared to family income. However, because of the escalating costs of operating independent schools, families wishing to send their children to -HZLVKVFKRROVIDFHDQRQHURXVÀQDQFLDOEXUGHQ … The Jewish people have always held as an intrinsic value the perpetuation of the Jewish community. The Jewish schools of Ontario were established in order to impart

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to Jewish children a comprehensive education in Judaism and in Jewish culture and tradition. These schools have come to play a central role in the preservation of the Jewish heritage, in the continuity of the Jewish community and in the contribution of that community to Canadian society as a whole.” Factum of the Canadian Jewish Congress, in support of the Bill 30 case (S.C.C.). Volume III, Tab 38, at pages 9-10. 123. Mr. Waldman believes that religious education in independent religious schools is both essential and integral to the conduct of the basic affairs of the minority Jewish community in Ontario and for his children’s upbringing in the Jewish faith. :DOGPDQ$IÀGDYLWVXSUD. Volume I, Tab 2, at pages 2-3, paragraphs 4-6. 124. The Committee has recognized that there is a duty on the state to take positive action to enable members of religious minority groups to enjoy their rights. General Comment No. 23, states that: “Although the rights protected under article 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language or religion. Accordingly, positive measures by the States may also be necessary to protect the identity of a minority and the rights of its members to… practice their religion….” Human Rights Committee, Fiftieth session, (CCPR/C/21/Rev.1/Add.5), General Comment No. 23. Volume III, Tab 39, at paragraph 6.2. 125. In a 1981 General Comment, the Committee stated that the principle of positive state action relates to all the rights and freedoms set forth in the Covenant: “The Committee considers it necessary to draw the attention of the States parties WRWKHIDFWWKDWWKHREOLJDWLRQXQGHUWKH&RYHQDQWLVQRWFRQÀQHGWRWKHUHVSHFWRI human rights, but that States parties have also undertaken to ensure the enjoyment of these rights to all individuals under their jurisdiction. This aspect FDOOVIRUVSHFLÀF activities by the States parties to enable individuals to enjoy their rights. This is obvious in a number of articles…but in principle this undertaking relates to all rights set forth in the Covenant”(emphasis added). 2IÀFLDO5HFRUGVRIWKH*HQHUDO$VVHPEO\7KLUW\VL[WKVHVVLRQ(HRI/Gen//1/Rev.1). General Comment No. 3 (1981). Volume III, Tab 40, at paragraph 1. In relation to the principle of non-discrimination the Committee has said: “Firstly, article 3, as articles 2(1) and 26 in so far as those articles primarily deal with the prevention of discrimination on a number of grounds, among which sex is one, UHTXLUHVQRWRQO\PHDVXUHVRISURWHFWLRQEXWDOVRDIÀUPDWLYHDFWLRQGHVLJQHG to ensure the positive enjoyment of rights” (emphasis added). 2IÀFLDO5HFRUGVRIWKH*HQHUDO$VVHPEO\7KLUW\VL[VHVVLRQ (HRI//Gen/1/Rev.1), General Comment No. 4 (1981).Volume III, Tab 41, at paragraph 2.

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“The Committee wishes to draw the attention of the States parties to the fact that the Covenant sometimes expressly requires them to take measures to guarantee the equality of rights of the persons concerned. For example, article 23, paragraph 4, stipulates that States parties shall take appropriate steps to ensure the equality of rights as well as responsibilities of spouses as to marriage, during marriage, and its dissolution. Such steps may take the form of legislative, administrative or other measures, but it is a positive duty of States parties to make certain that spouses have equal rights as required by the Covenant.” General Comment No. 18, supra. Volume III, Tab 29, at paragraph 5. 126. The Committee has therefore recognized that the principle of positive action relates WRDOOWKHULJKWVVHWIRUWKLQWKH&RYHQDQWDQGVSHFLÀFDOO\WKDWSRVLWLYHVWDWHDFWLRQPD\ be required to ensure that the rights of members of religious minority groups under Article 27 are protected. 127. At the same time Article 2(1) requires, in the Committee’s words: “… article 2, paragraph 1, of the International Covenant on Civil and Political Rights obligates each State party to respect and ensure to all persons within its territory and subject to its jurisdiction the rights recognized in the Covenant without distinction of any kind, such as race, colour, sex, language, religion …” General Comment No. 18, supra. Volume III, Tab 29, at paragraph 1. 128. Therefore, taking Article 27 together with Article 2, the government of Ontario has a positive duty to support and facilitate independent minority religious schools, regardless RIWKHOHYHORIÀQDQFLDOVXSSRUWLIDQ\LQDPDQQHUFRQVLVWHQWZLWKWKHSULQFLSOHVVHW out in Article 2(1). Since Roman Catholics are the only religious minority to receive full and direct funding for religious education from the government of Ontario, Article 27 has not been applied, as required by Article 2, without distinction on the basis of religion. )XUWKHUPRUHWKLVYLRODWLRQLVQRWMXVWLÀDEOHRQWKHEDVLVWKDWIXQGLQJIRU5RPDQ Catholic schools is established as traditional. The traditional role of the Roman Catholic religion as being part of the publicly funded school system in education in the province since the beginning of Canadian public education in 1867 cannot excuse any discrimination against adherents of other religions: “The fact that a religion…is established as…traditional…shall not result in the impairment of the enjoyment of any rights in the Covenant …” General Comment No. 22, supra. Volume III, Tab 31, at paragraph 9. 130. There is therefore a violation of Article 27 taken together with Article 2.

9,,5(/,()628*+7 131. The author seeks funding for all religious schools in Ontario meeting provincial standards at an equivalent level to the funding, if any, received by Roman Catholics in Ontario. 878

7. UNITED NATIONS COMMITTEE DECISIONS

(;+,%,7´$µ In the matter of Waldman v. Canada Under the Optional Protocol to WKH,QWHUQDWLRQDO&RYHQDQWRQ&LYLODQG3ROLWLFDO5LJKWV $IÀGDYLWRI$ULHK+ROOLV:DOGPDQ I, $5,(++2//,6:$/'0$1, of the City of North York, in the Regional Municipality of Metropolitan Toronto, in the Province of Ontario, MAKE OATH AND SAY: 1. I am the complainant in these proceedings before the Human Rights Committee, and as such have knowledge of the facts hereinafter deposed to.  ,DPD\HDUROGFRRUGLQDWRURIÀQDQFHDQGDGPLQLVWUDWLRQIRUWKH2QWDULR3XEOLF Health Association. I was born in Assiniboia, Saskatchewan, Canada on May 9, 1952, and have resided in Canada at all material times. 3. I am a member of the Jewish faith, a religious minority group in Canada. The tenets of Judaism are extremely subtle and complex, and children are traditionally raised in an environment that stresses Jewish theory and practice. 4. I am married and have two children, Eitan aged 11, and Avidan aged 8, who both attend the Bialik Hebrew Day School in North York, Ontario, a Jewish Day School DIÀOLDWHGZLWKWKH%RDUGRI-HZLVK(GXFDWLRQRI*UHDWHU0HWURSROLWDQ7RURQWR,HQUROHG my children in this private religious school in order that they may obtain the necessary education and upbringing in the Jewish faith. I believe that the secular public school system in Ontario has only limited sensitivity to religious diversity, and limits both religious education and the observance of religious holidays. It is not possible for my children to receive adequate religious education through attendance at public secular schools. 5. I feel that it is important that my children receive a Jewish day school education for several reasons, many of which are based on my own experiences growing up in Vancouver, British Columbia, where I attended public secular school by day and a Jewish “after-day” school. There were only three Jewish students at my public school DQGWKLVDUUDQJHPHQWZDVGDPDJLQJLQVHYHUDOUHVSHFWV,QWKHÀUVWSODFHLWVHWXVDSDUW from our fellow students with whom we were unable to participate in after-school activities. Secondly, this arrangement made many of the students reluctant participants in the “after-day” school because of this difference. Thirdly, the observance of the traditional Jewish holidays meant that parts of the academic curriculum would be missed and needed to be made up. Finally, in my experience, the after-day school program is simply incapable of conveying the full depth and complexity of the fully integrated Jewish lifestyle. I further believe that as a minority group in Canada, the survival and well being of Jewish cultural life depends on our ability to immerse our children in an educational context that conveys and perpetuates the knowledge and values of our faith. 6. Through their attendance at Bialik, by contrast, my children are fully exposed to the Jewish lifestyle. The holidays are both observed and rejoiced in. Children begin to

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learn from an early age the Hebrew language so that they may ultimately learn the source texts of their faith in the source language. Jewish themes are built into the academic “secular” subjects, for example children learn to count Chanukah candles in arithmetic. A love of the faith is made part of their daily lives. Because all of the children are drawn from the same community, the isolation that I was exposed to within the public school system is not experienced. Nevertheless, the program is not as a whole isolationist. My children have learned not only what it means to be Jewish within Canada but also what it means to be a Canadian citizen. Finally, within the Jewish faith religious education is H[WHQVLYHDQGLVVRPHWKLQJWKDWPXVWEHXQGHUWDNHQE\WKRVHSURSHUO\TXDOLÀHG,WLVQRW an option for us to try to accomplish at home all that Bialik does for our children.  $OOVFKRROVDIÀOLDWHGZLWKWKH%RDUGRI-HZLVK(GXFDWLRQRI*UHDWHU0HWURSROLWDQ 7RURQWRDUHREOLJDWHGXQGHUWKHWHUPVRIWKHLUDIÀOLDWLRQWRFKDUJHIHHVWRDOOSDUHQWV Bialik and other private religious schools charge fees because the Province of Ontario does not fully fund religious schools other than Roman Catholic schools. Roman Catholic families have full access to religious schooling that receives full public funding and charges no tuition fees. Secular public schools are also fully funded and charge no tuition fees. 8. In 1994, the most recent year for which complete information is available, my family’s gross household income was $85,732.00, and I paid tuition fees in the amount RIIRUP\ÀUVWFKLOGDQGIRUP\VHFRQGFKLOG ,WVKRXOGEH noted immediately that gross income is considerably reduced by the income taxes levied by the provincial and federal governments. In 1994, I paid to the government $12,364.74 for Canada Pension Plan, Unemployment Insurance contributions and income tax. My family’s net household income therefore was $73,367.26. The $12,364.74 paid to the government in 1994 represents the amount paid after receiving a federal tax credit for part of the tuition fees paid in the amount of $3,239.11. Therefore, the total cost of tuition for 1994, taking into account this tax credit, was $10,810.89. 9. The per capita expenditures in Metropolitan Toronto for 1989 were $6,446 for public elementary education and $8,801 for public secondary education. The cost per child in the Jewish private school system is comparable. As noted by the Ontario Court (General Division) in the case of Adler v. Ontario (1992) 9 O.R.(3d) 676, at 682, in the Jewish private school system “the cost per child ranges from $5,000 in some schools WRDKLJKRIIRUKLJKVFKRROµ$WWDFKHGDV([KLELW´$µWRWKLVP\$IÀGDYLWDUH copies of Surveys of School Board 1989 Financial Statements, dated November 9, 1990, published by the Ontario Ministry of Education, containing the public elementary and VHFRQGDU\HGXFDWLRQÀJXUHVVWDWHGDERYH 10. As noted above, there is a limited system of federal tax credits that are intended WRRIIVHWWKHÀQDQFLDOEXUGHQRIP\FKLOGUHQ·VHGXFDWLRQE\UHGXFLQJWKHDPRXQWRI federal tax payable. However, this system provides only partial and limited relief for myself and other families that are similarly situated. A tax credit is not given for the secular aspect of teaching, which amounts to one half of the curriculum and one half of tuition fees. In addition, the tax credit represents only partial compensation for the religious component of tuition fees. It is also important to note that the relief from

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the discriminatory provincial funding of schools is provided by a different level of government. The federal government could alter its policy of providing these tax credits at any time. Even with the tax credit, a substantial amount of my household income is spent on tuition fees for my children. 11. In addition to tuition fees, local property taxes must be paid yearly toward the funding of the public secular school system, a system that I do not make use of. In 1994, the educational component of these taxes that I was required to pay totalled $1,761.00. 12. I believe that it is grossly unfair that a Roman Catholic family has their children’s religious education fully funded by the public purse. A Roman Catholic family pays no tuition fees and pays property taxes that actually go toward their children’s education. These families can send their children to schools which conform with their religious belief free of charge. 13. I hope that it is obvious from the foregoing that I believe that religious education is extremely important and necessary for my children. Nevertheless, I have for many \HDUVQRZEHHQFRPSHOOHGWRH[SHQGVLJQLÀFDQWDPRXQWVRIKRXVHKROGLQFRPHWRZDUGV this goal, thereby impacting negatively upon my ability to provide for my family in other ways, such as preparing for the costs of my children’s post-secondary education and preparing for retirement. I believe that families in other religious minority groups DUHIDFHGZLWKWKHVDPHGLVFULPLQDWRU\WUHDWPHQWDQGRQHURXVÀQDQFLDOEXUGHQV7KDW some religious communities should be faced with this burden while others are not seems to me to be an intolerable situation and unworthy of a country such as Canada. 14. Attempts at political and judicial solutions have proven fruitless. It is for this reason that I have brought the present communication forward. I have not submitted this matter for examination before any other procedure of international investigation or settlement. 15. I believe that the above discriminatory funding practices and resultant extreme ÀQDQFLDOEXUGHQVLPSRVHGIRUUDLVLQJP\FKLOGUHQLQDPDQQHUWKDWZLOOSUHVHUYHWKHLU religious heritage and identity is inconsistent with and violates articles 2, 18(1), 18(4), 26, and 27 of the International Covenant of Civil and Political Rights.  , PDNH WKLV$IÀGDYLW LQ VXSSRUW RI P\ FRPPXQLFDWLRQ WR WKH +XPDQ 5LJKWV Committee under the Optional Protocol to the International Covenant on Civil and Political Rights, and for no other or improper purpose whatsoever. >(GLWRU·VQRWH([KLELWVWRWKH$IÀGDYLWRI$ULHK:DOGPDQDQGDSSHQGLFHVWRWKH original communication have not been reproduced]

881

#36 Waldman v. Canada, Government of Canada’s initial reply regarding issues of the admissibility of the complaint, 27 June 1996 The Government of Canada responded in June 1996 to the complaint. The response focused on issues of admissibility. It argued that domestic remedies had not been exhausted because of a case dealing with this substantive issue still pending at the Supreme Court of Canada (Adler).

7+(3(50$1(170,66,212)&$1$'$727+(81,7(' NATIONS Note No. 2819 7KH3HUPDQHQW0LVVLRQRI&DQDGDWRWKH2IÀFHRIWKH8QLWHG1DWLRQVDW*HQHYDSUHVHQWV its compliments to the Secretary-General of the United Nations (Centre for Human Rights) and refers to the Centre’s note No. G/SO 215/51 CANA(80) 694/1996, dated 30 April 1996, in the matter of Communication No. 694/1994 submitted on behalf of Mr. Arieh Hollis Waldman to the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights. The Permanent Mission has the honour to submit to the Human Rights Committee on behalf of the Government of Canada the attached information and observations in respect of the question of the admissibility of Communication No. 694/1994. The appendices mentioned in the attached submission will be submitted shortly. The Permanent Mission of Canada avails itself of this opportunity to renew to the Secretary-General of the United Nations (Centre for Human Rights) the assurances of its highest consideration. Geneva, 27 June 1996

67$7(3$57<·668%0,66,21621$'0,66,%,/,7< $,QWURGXFWLRQ²&RPPXQLFDQWKDVIDLOHGWRH[KDXVWDOODYDLODEOHGRPHVWLF remedies 1. Before considering any claims contained in a communication, the Human Rights Committee must, in accordance with Rule 87 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant. 2. It is submitted that the author has failed to exhaust all available domestic remedies as required under Article 2 of the Optional Protocol. In particular, the complainant has available the following domestic remedial option: a proceeding before the Courts pursuant to the Canadian Charter of Rights and Freedoms;

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3. Since the communicant has clearly not exhausted domestic remedies, the focus of this reply is on this element of admissibility. In the event that the Committee does not accept that the communication is inadmissible for these reasons, the state party reserves the right to make arguments on other aspects of admissibility. 4. The Canadian Jewish Congress, the umbrella organization representing Canadian Jews and Jewish organizations including Jewish private schools, currently has a proceeding which has been brought pursuant to the Canadian Charter of Rights and Freedoms and has been heard and is under reserve in the Supreme Court of Canada (Adler v. Ontario). This case raises exactly the same issue as this complainant and seeks identical relief. It is submitted that this communication is inadmissible until the Supreme Court of Canada renders its decision in Adler v. Ontario.

B. Canadian Charter of Rights and Freedoms 5. The Canadian Charter of Rights and Freedoms, which is part of the Constitution Act, 1982, is the principal human rights law in Canada. Legislation that does not conform to the provisions of the Charter may be declared by the courts to be of no force and effect in accordance with s. 52 of the Constitution Act, 1982. In addition, a court is authorized to grant whatever remedy it “considers appropriate and just in the circumstances” pursuant to s. 24(1). 6. As indicated at paras. 34 – 41 of the Communication submitted by Mr. Waldman, two cases are currently under reserve in the Supreme Court of Canada which will decide whether the province of Ontario has violated the Canadian Charter of Rights and Freedoms by providing funding to Roman Catholic separate schools but not to religious based independent schools. These cases were heard together by the Supreme Court of Canada on January 23, 1996, and are currently under reserve.  7KH ÀUVW FDVH LV Adler v. Ontario, which is sponsored by the Canadian Jewish Congress, the umbrella organization representing Canadian Jews and Jewish organizations including Jewish religious schools. The courts hearing this case have reviewed VXEVWDQWLDODIÀGDYLWHYLGHQFHÀOHGRQEHKDOIRIWKH-HZLVKUHOLJLRXVVFKRROVE\SDUHQWV rabbbis, Jewish educators and lay persons responsible for the administration and operation of these religious schools. Portions of this evidence have been referred to and relied on in Mr. Waldman’s Communication (at paras. 97, 98 and 99). 8. The second case is Elgersma v. Ontario, which is sponsored by the Ontario Alliance of Christian Schools, the umbrella organization representing Protestant religious schools. 7KHFRXUWVKHDULQJWKLVFDVHKDYHUHYLHZHGVXEVWDQWLDODIÀGDYLWHYLGHQFHÀOHGE\SDUHQWV Christian educators and lay persons responsible for the administration and operation RIWKHVHUHOLJLRXVVFKRROV3RUWLRQVRIWKLVDIÀGDYLWHYLGHQFHKDYHEHHQUHIHUUHGWRDQG relied on in Mr. Waldman’s Communication (at paras. 53, 54, 59, 87, 100 and 101). 9. In addition, representatives of the Muslim, Sikh, and Hindu communities in Ontario intervened in this case and made submissions in the Court of Appeal and the Supreme Court of Canada.

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10. By order of Chief Justice Lamer dated May 16, 1995, the following constitutional questions were set by the Supreme Court of Canada. These questions effectively frame the issues on the appeal:  'RWKHGHÀQLWLRQVRI´ERDUGµDQG´VFKRROµLQVHFWLRQ RIWKHEducation Act, R.S.O. 1990, c. E.2, together with the annual General Legislative Grants promulgated under sections 11(3)(a) and 11(3)(b) thereof, infringe or deny the Appellants’ freedom of religion under section 2(a) of the Canadian Charter of Rights and Freedoms by not providing funding to religious-based independent schools? D  'RWKHGHÀQLWLRQVRI´ERDUGµDQG´VFKRROµLQVHFWLRQ RIWKHEducation Act, R.S.O. 1990, c. E.2, together with the annual General Legislative Grants promulgated under sections 11(3)(a) and 11 (3)(b) thereof, infringe or deny the Appellants’ equality rights under section 15(1) of the Canadian Charter of Rights and Freedoms by providing funding to public schools boards but not to religiousbased independent schools? E  'RWKHGHÀQLWLRQVRI´ERDUGµDQG´VFKRROµLQVHFWLRQ RIWKHEducation Act, R.S.O. 1990, c. E.2, together with the annual General Legislative Grants promulgated under sections 11(3)(a) and 11(3)(b) thereof, infringe or deny the Appellants’ equality rights under section 15(1) of the Canadian Charter of Rights and Freedoms by providing funding to Roman Catholic separate school boards but not to religious-based independent schools?  ,IWKHDQVZHUWR4XHVWLRQRULVLQWKHDIÀUPDWLYHLVWKHQRQIXQGLQJ RIUHOLJLRXVEDVHGLQGHSHQGHQWVFKRROVMXVWLÀHGDVDUHDVRQDEOHOLPLWSXUVXDQWWR section 1 of the Canadian Charter of Rights and Freedoms? The relevant sections of the Education Act are attached at Appendix 1. 11. The Appellants in the Adler and Elgersma appeals are seeking funding for Jewish and Christian religious schools on a basis of equality with Roman Catholic separate and public secular schools. This is identical to the relief requested in the Waldman Communication (at para. 131). If the Appellants in the Adler and Elgersma appeals are successful in their appeal, there is no dispute that the Supreme Court of Canada has the constitutional authority to grant the relief sought. $FRS\RIWKHIDFWXPVÀOHGE\WKH$SSHOODQWVLQWKH6XSUHPH&RXUWRI&DQDGDDUH attached at appendices 2 and 3 of this reply. These factums deals with both the freedom of religion and equality rights arguments raised by the Author of this Communication. In addition, arguments similar to those made in relation to article 27 of the Covenant were made by the Appellants under freedom of religion and equality rights guaranteed by the Charter. 13. The Author of the Communication contends that the Human Rights Committee should rule that the Communication is admissible even though the Supreme Court of Canada has not yet had an opportunity to render its decision in the Adler/Elgersma appeal. He argues that (i) the litigation has been unreasonably prolonged (ii) the issues

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are not the same and (iii) the litigation has no chance of success. (See paras. 64 – 76 of the Waldman Communication) 14. It is submitted that these arguments are wrong in fact and law, and should be rejected for the following reasons: i) Litigation is not unreasonably prolonged. 15. There has been no administrative or judicial delay on the part of the state. The Adler/Elgersma case was commenced in 1992. It was heard by the Ontario Court, General Division, in 1992, the Ontario Court of Appeal in 1994, and the Supreme Court of Canada in 1996. The Adler/Elgersma case proceeded in accordance with DWLPHWDEOHDJUHHGWRE\WKHSDUWLHVDQGFRQÀUPHGE\WKH&RXUW$VFRXQVHOIRUWKH appellants in the Court of Appeal and the Supreme Court of Canada, counsel for Adler and Elgersma had complete control over the preparation and timing of the appeals. Throughout the trial and appeal proceedings, counsel for the government of Ontario complied with all timetable and court deadlines. There have been no delays and the litigation has not been prolonged. See also para. 20 below. 16. At para. 68, the Waldman Communication alleges that domestic litigation commenced in 1978 with the Re Board of Education for the Borough of North York and Ministry of Education case. In fact, that case did not deal with or consider the Canadian Charter of Rights and Freedoms. The Charter did not even come into force until 1982, and the equality rights provisions in s. 15(1) until 1985. That case dealt with the issue of whether the secular public school system could impose mandatory religious instruction in public schools, and is of only tangential relevance to the question at issue. ii) Issues in the Adler/Elgersma case are identical to the issue raised in this Communication. 17. As can be seen from the Constitutional Questions set down by the Supreme Court of Canada and reproduced at para. 10, supra, and in particular, questions 1 and 2(b), the constitutional issue raised by the Adler/Elgersma case is identical to the substantive issue raised in Mr. Waldeman’s Communication. 18. In addition, as indicated at para. 11, supra, the relief requested by the Appellants in the Adler and Elgersma appeal is identical to the relief requested by the Author in this Communication, that is the funding of Jewish and other religious schools on a basis of equality with Roman Catholic separate and public secular schools.  ,QGHHG WKH LGHQWLFDO QDWXUH RI WKH LVVXHV LV FRQÀUPHG E\ WKH$XWKRU·V UHOLDQFH RQDIÀGDYLWVÀOHGE\WKHSDUWLHVLQWKHAdler and Elgersma litigation to support his Communication (see paras. 53, 54, 59, 87, 97, 98, 99, 100 and 101 of the Waldman Communication). iii) There is an objective chance of success 20. In Case No. 224/1987 (A. and S.N. v. Norway) the authors had not brought their case before any judicial or administrative instance in Norway, arguing that remedies would 886

7. UNITED NATIONS COMMITTEE DECISIONS

not have been effective, because the practice they were challenging was legal in Norway and because the Covenant could not be directly applied by Norwegian courts. Moreover, the authors decided to appeal directly to the Committee, arguing that the exhaustion of domestic remedies would be prolonged and be “a waste of time and money”. In declaring the communication inadmissible, the Committee found: “that the pursuit of the author’s case before Norwegian courts could not be deemed a priori futile and that the authors’ doubts about the effectiveness of domestic remedies did not absolve them for exhausting them. Thus, the requirements of art. 5, para. 2(b), of the Optional Protocol have not been met” (see Annex VIII, sect. C, HRC. 1988 Report). See also: R.T. v. France, Case No. 262/1987 – Annex XI, sect. D, para. 7.4, HRC 1989 Report. “that art. 5, para. 2(b), of the Optional Protocol, by referring to “all available GRPHVWLFUHPHGLHVµFOHDUO\UHIHUVLQWKHÀUVWSODFHWRMXGLFLDOUHPHGLHV(YHQLIWKH author’s contention were accepted that an administrative tribunal could not have ordered the educational authorities to grant him tenure as a teacher of the Breton language, the fact remains that the decision challenged by the author might have been annulled. The author has not shown that he could not have resorted to the judicial procedures that the State party has plausibly submitted were available to him, or that their pursuit could be deemed to be, a priori, futile. The Committee notes that he himself mentions that he does not rule out submitting his case to an administrative WULEXQDO,WÀQGVWKDWLQWKHFLUFXPVWDQFHVGLVFORVHGE\WKHFRPPXQLFDWLRQWKH author’s doubts about the effectiveness of domestic remedies did not absolve him from exhausting them, and concludes that the requirements of article 5, para. 2(b), have not been met” (see Annex XI, sect. D, para. 7.4 HRC 1989 Report). 21. Mr. Waldman contends that the decision of the Supreme Court of Canada in the Bill 30 Reference effectively decides the constitutional questions raised in the Adler/Elgersma case. In contrast the Adler/Elgersma appellants, who are represented by expert and experienced counsel, have argued in the Supreme Court of Canada that the Bill 30 Reference does not decide their case (see factums attached at appendices 2 and 3). 22. The Adler/Elgersma appeal could not proceed to the Supreme Court of Canada as of right, but required leave to appeal by the Supreme Court. The fact that the Supreme Court of Canada granted leave to appeal is objective evidence that the litigation has an objective chance of success. It is unlikely that the Supreme Court of Canada would have granted leave to appeal if it had been persuaded that the Bill 30 Reference dealt with all the constitutional issues conclusively. 23. In addition, the case was heard by a full panel of 9 Supreme Court judges, a practice generally reserved for only the most serious and important cases. Furthermore, the decision has been under reserve since January 23, 1996. Where a case has no objective chance of success, the Supreme Court of Canada generally will not reserve, but will dismiss the appeal from the bench, with written reasons to follow. The fact that the 887

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Court has reserved since January demonstrates that the constitutional issue is not as straight forward as Mr. Waldman contends. 24. In addition, the Adler/Elgersma litigation is sponsored by the Canadian Jewish Congress and the Ontario Alliance of Christian Schools, both broadly based community groups which represent the Jewish and Christian religious schools. It is absurd to suggest WKDWWKH\ZRXOGKDYHGHYRWHGÀQDQFLDOUHVRXUFHVWRWKHGRPHVWLFOLWLJDWLRQLIWKH\ZHUH of the opinion that it had “no objective chance of success”. 25. It is submitted, therefore, that the author of the communication has failed to exhaust domestic remedies available under the Charter of Rights and Freedoms. Domestic litigation has not been unreasonably prolonged and has an objective chance of success. Accordingly, this communication should be ruled inadmissible. However, should a contrary conclusion be reached by the Committee, the government of Canada reserves the right to make further submissions at a later date.

888

#37 Third Party Submission, Letter from Ed Morgan, Counsel for Canadian Jewish Congress, 5 July 1996 This document, a letter of July 1996 to the Human Rights Committee, is from one of the counsel involved in the Adler case, then before the Supreme Court of Canada. It supported the position of the Government of Canada that the Waldman communication was inadmissable.

'$9,(6:$5' %(&. July 5, 1996

%<&285,(5 The Human Rights Committee c/o Centre for Human Rights 8QLWHG1DWLRQV2IÀFH 8-14 Avenue De La Paix 1211 Geneva 10 Switzerland Dear Committee Members: In the Matter of Waldman v. Canada, Communication No. 694/1994 I represent the Appellants Susie Adler et al. (the “Adler Appellants”) in the case of Adler et al. v. Ontario. The Adler case has raised in the Canadian courts the identical issues to those raised by Mr. Arieh Hollis Waldman in his communication dated February 29, 1996 under the Optional Protocol to the International Covenant on Civil and Political Rights. Mr. Waldman makes numerous references to the judgments rendered by the lower courts in AdlerDVZHOODVWRWKHDIÀGDYLWHYLGHQFHDQGZLWQHVVWHVWLPRQ\ submitted by the Adler Appellants in support of their case. The appeal in Adler et al. v. Ontario was argued before the Supreme Court of Canada on January 25, 1996. The Supreme Court has reserved its decision and judgment is still pending. I am also legal counsel to Canadian Jewish Congress, Ontario Region (“Congress”), which has sponsored the Adler Appellants in their constitutional challenge. Congress is the overarching, democratic decision-making body of the Jewish community in Canada, and has participated in numerous judicial proceedings over the years and has been accepted by all levels of provincial and federal courts as representing the institutional HPERGLPHQWRIWKH-HZLVKFRPPXQLW\&RQJUHVVKDVEHHQVSHFLÀFDOO\GHOHJDWHGWKH task of instructing counsel in the Adler case and has been responsible for the overall carriage of the Adler Appellants’ case. As counsel to both the Adler Appellants and Congress, I had no advanced knowledge or notice of Mr. Waldman’s communication and was never provided a copy by Mr. 889

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Waldman or his counsel at the time it was submitted to the Human Rights Committee. I UHFHLYHGDFRS\RIWKH:DOGPDQFRPPXQLFDWLRQIRUWKHÀUVWWLPHZKHQLWZDVIRUZDUGHG to me by counsel for the Attorney General of Ontario under cover of a letter dated June 20, 1996. Having now reviewed the Waldman communication, I have been requested by Congress to provide the Human Rights Committee with relevant information about the Adler case which relates to the admissibility of the Waldman complaint. This letter will also set out the position of Congress and the Adler Appellants with respect to the non-exhaustion of domestic remedies relevant to the Waldman communication. We take issue with the timing of the Waldman complaint, not with its merits. The issue of religious discrimination raised by Mr. Waldman is premised on him being a member of the Jewish faith who has elected to send his children to a Jewish day school (Bialik Hebrew Day School of North York, Ontario) in order to educate his children in their religion and to observe religious holidays and customs. This is the precise basis for the constitutional challenge of the Adler Appellants, who are also members of the Jewish community and parents of children attending Jewish day schools. Indeed, Mr. Waldman’s children attend the very same school as Susie Adler’s own child, and therefore Ms. Adler stands in the identical relation to the Ontario legal system and its Education Act, and to the Canadian constitutional principles which govern that system and that statute, as does Mr. Waldman. The particular school attended by both Ms. Adler’s and Mr. Waldman’s children is a participating member of the Board of Jewish Education in Toronto (the “BJE”). The BJE is a community organization servicing participating Jewish day schools in Ontario and has participated in support of the Adler Appellants in their constitutional FKDOOHQJH7KH%-(DQGLWVDIÀOLDWHGVFKRROVDUHFRQVWLWXHQWPHPEHUVRI&RQJUHVV%-( and Congress personnel presented all of the evidence to the Court dealing with the HGXFDWLRQDOFRQWHQWDQGFXUULFXOXPDVZHOODVWKHÀQDQFHVDQGIXQGLQJRIWKH2QWDULR -HZLVKGD\VFKRROV7KHVZRUQDIÀGDYLWVRI6XVLH$GOHUDQGKHUFR$SSHOODQWVWDNHQ WRJHWKHUZLWKWKHDIÀGDYLWVRIWKH%-(DQG&RQJUHVVSURIHVVLRQDOVVXEPLWWHGLQVXSSRUW of the Adler court challenge, bear a remarkable but perhaps not surprising similarity WRWKHLQIRUPDWLRQFRQWDLQHGLQ0U:DOGPDQ·VDIÀGDYLWVZRUQ)HEUXDU\DQG submitted in support of his communication to the Human Rights Committee. The Adler case has been litigated at three levels of the Ontario and Canadian courts. As the judgments of the Ontario Court (General Division) and the Ontario Court of Appeal have been submitted for the Committee’s consideration, I will not review those LQDQ\GHWDLO6XIÀFHLWWRVD\WKDWWKHAdler challenge has been brought under section 2(a) (freedom of religion) and section 15(1) (equality rights) of the Canadian Charter of Rights and FreedomsWKH´&KDUWHUµ 7KHFRXUWRIÀUVWLQVWDQFHWKH2QWDULR&RXUW (General Division), found that the non-funding of Jewish day schools in Ontario constitutes a prima facie violation of both sections 2(a) and 15(1) of the Charter, but WKDWWKLVYLRODWLRQLVMXVWLÀHGXQGHUVHFWLRQDVEHLQJDUHDVRQDEOHRQHLQDIUHHDQG democratic society. While my clients disagreed with the ultimate holding under section 1 and appealed this judgment to the Ontario Court of Appeal, the case was neither frivolous, futile nor pursued in the absence of any chance of success.

890

7. UNITED NATIONS COMMITTEE DECISIONS

,QDGGLWLRQWRWKHYROXPLQRXVZULWWHQHYLGHQFHVXEPLWWHGE\ZD\RIDIÀGDYLWVRIWKH individual Appellants, Congress and BJE professionals, and numerous expert witnesses, the case entailed approximately three weeks of cross-examinations of witnesses and two weeks of oral argument by counsel. It was accompanied by a companion application brought by Leo Elgersma et al on behalf of the Ontario Alliance of Christian Schools. The application was supported by several public interest intervenor groups and was responded to by the Attorney General of Ontario who was also supported by several SXEOLFLQWHUHVWLQWHUYHQRUJURXSV7KH&RXUW·VÀQGLQJRIDprima facie violation of rights XQGHUWKH&KDUWHULVLQHIIHFWDYHULÀFDWLRQWKDWWKHAdler case and the constitutional challenge presented therein is far from a futile one on Canadian constitutional law SULQFLSOHV7KLVUXOLQJWXUQHGWKHFDVHLQWRDGHEDWHRYHUMXVWLÀDELOLW\RIDQLQIULQJHPHQW under section 1, which is in turn effectively a debate over the weight to be accorded the FRQÁLFWLQJYLHZVRIHGXFDWLRQDQGEXGJHWDU\H[SHUWV,WLVFHUWDLQO\QRWRQHZKLFKLQ principle rejects the Adler Appellants’ claims out of hand. These holdings are necessarily open to reconsideration as the case proceeds through the appellate courts. 2Q DSSHDO WR WKH 2QWDULR &RXUW RI$SSHDO WKH LQLWLDO ÀQGLQJ RI D prima facie constitutional violation was itself overturned with respect to the education funding sought by the appellants. However, there was a strong dissent by one judge on the issue of public funding for school health services in the religious-based schools. The Adler case has proceeded since its inception against both the Minister of Education and the Minister of Health. The case seeks a declaration that the non-funding of education in the Jewish day schools as well as the non-funding of health services for these schools, where Roman Catholic schools receive full funding on both accounts, LVXQFRQVWLWXWLRQDO:KLOHWKHÀQDQFLDOO\ODUJHUFODLPLVWKHFKDOOHQJHWRWKHEducation Act, the second claim challenges the school health support services regulations under the Health Insurances Act. The dissenting judge in the Ontario Court of Appeal would have granted the Appellants a complete remedy under the health services claim by H[WHQGLQJWKHGHÀQLWLRQRI´VFKRROµIRUWKHSXUSRVHVRIVFKRROKHDOWKVXSSRUWVHUYLFHV to include the schools attended by all of the Appellants’ children (including, of course, that attended by Mr. Waldman’s children). While the Adler Appellants disagreed with the Court of Appeal’s overall holding with respect to the funding of the Jewish day schools in Ontario, the case was dealt with in a way which reveals that it was never perceived as being a futile endeavour. The oral DUJXPHQWSURFHHGHGRYHUÀYHGD\VRIKHDULQJVDQGZDVSDUWLFLSDWHGLQQRWRQO\E\WKH Appellants and the Attorney General but by numerous public intervenor groups lined up on all sides of the issues. The Adler Appellants were supported by other Ontario religious communities, most notably Protestant, Hindu, Moslem and Sikh groups. The GLVVHQWRQWKHLVVXHVRIKHDOWKVHUYLFHVFRQÀUPHGWKDWDQ\RIWKHLVVXHVUDLVHGE\WKH Adler case are open to reconsideration by each successive appellate court. Upon receiving the judgment of the Ontario Court of Appeal, the Adler Appellants sought leave to appeal to the Supreme Court of Canada. Under the Rules of the Supreme Court, an appeal is not provided as of right but rather is discretionary on the part of the Court. Under the relevant test, in order to obtain leave a case must raise a contentious issue of law that is of national or public importance. Certainly, any litigation which meets the test for exhaustion of domestic remedies as set out in the Human Rights 891

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Committee’s jurisprudence – i.e. a case having no objective chance of success – would not qualify for leave to appeal to the Supreme Court of Canada. The Supreme Court considers appeals from the Federal Court of Appeal as well as from the Courts of Appeal of all ten provinces of Canada. As a consequence, it is highly selective of the cases for which it grants leave. Admittedly, one cannot interpret the granting of leave to appeal as a signal or foreshadowing of an ultimate victory for the Appellants; nevertheless, the Supreme Court would not likely grant leave where, as Mr. Waldman states at paragraph 73 of his communication, “further domestic litigation on the issues of the discrimination effects of the funding of Roman Catholic schools to the exclusion of other religious schools is futile”. This was the very issue on which the Adler Appellants sought leave to appeal. The Attorney General of Ontario, like Mr. Waldman, responded to the Adler Appellants’ application for leave by stating that the 1987 decision of the Supreme Court in the Bill 30 Reference (1987), 40 D.L.R. (4th) 18 (S.C.C.) had decided the point raised by the Adler Appellants and had foreclosed further consideration of the issue. Despite this objection by the Attorney General, leave to appeal was granted by the Supreme Court on February 2, 1995. Following the granting of leave, the Chief Justice of Canada heard a motion in chambers in which he set down a number of constitutional questions to be addressed by the Court. These questions, in turn, were disseminated to the Attorneys General of the ten provinces as well as to the federal Attorney General, all of whom have a right to participate as intervenors addressing the constitutional issues. On May 16, 1995, the Chief Justice set the following questions which framed the issues of constitutional rights on appeal to the Supreme Court of Canada:  'RWKHGHÀQLWLRQVRI´ERDUGµDQG´VFKRROµLQVHFWLRQ RIWKHEducation Act, R.S.O. 1990, c. E.2, together with the annual General Legislative Grants promulgated under sections 11(3)(a) and 11(3)(b) thereof, infringe or deny the Appellants’ freedom of religion under section 2(a) of the Canadian Charter of Rights and Freedoms by not providing funding to religious-based independent schools? 

D 'RWKHGHÀQLWLRQVRI´ERDUGµDQG´VFKRROµLQVHFWLRQ RIWKHEducation Act, R.S.O. 1990, c. E.2, together with the annual General Legislative Grants promulgated under sections 11(3)(a) and 11(3)(b) thereof, infringe or deny the Appellants’ equality rights under section 15(1) of the Canadian Charter of Rights and Freedoms by providing funding to public school boards but not to religious-based independent schools?



E 'RWKHGHÀQLWLRQVRI´ERDUGµDQG´VFKRROµLQVHFWLRQ RIWKHEducation Act, R.S.O. 1990, c. E.2, together with the annual General Legislative Grants promulgated under sections 11(3)(a) and 11(3)(b) thereof, infringe or deny the Appellants’ equality rights under section 15(1) of the Canadian Charter of Rights and Freedoms by providing funding to Roman Catholic separate school boards but not to religious-based independent schools?

892

7. UNITED NATIONS COMMITTEE DECISIONS



,IWKHDQVZHUWR4XHVWLRQRULVLQWKHDIÀUPDWLYHLVWKHQRQIXQGLQJRI UHOLJLRXVEDVHGLQGHSHQGHQWVFKRROVMXVWLÀHGDVDUHDVRQDEOHOLPLWSXUVXDQW to section 1 of the Canadian Charter of Rights and Freedoms? 4(a). Does s. 14 of Regulation 552, R.R.O. 1990 made under section 45 of the Health Insurance Act, R.S.O. 1990, c. H.6 infringe the Appellants’ freedom of religion under s. 2(a) of the Canadian Charter of Rights and Freedoms by prescribing school health support services as insured services to an insured SHUVRQZKRLVSODFHGLQDVSHFLDOHGXFDWLRQSURJUDPLQD´VFKRROµDVGHÀQHG in s. 1(1) of the Education Act, but not to an insured person in a religious-based independent school? 4(b). Does s. 14 of Regulation 552 R.R.O. 1990 made under section 45 of the Health Insurance Act, R.S.O. 1990, c. H.6 infringe the Appellants’ equality rights under s. 15(1) of the Canadian Charter of Rights and Freedoms by prescribing school health support services as insured services to an insured person who is SODFHGLQDVSHFLDOHGXFDWLRQSURJUDPLQD´VFKRROµDVGHÀQHGLQV RIWKH Education Act, but not to an insured person in a religious-based independent school?



,IWKHDQVZHUWR4XHVWLRQD RUE LVLQWKHDIÀUPDWLYHLVWKHSUHVFULELQJRI school health support services as insured services to an insured person who is SODFHGLQDVSHFLDOHGXFDWLRQSURJUDPLQD´VFKRROµDVGHÀQHGLQV RIWKH Education Act, but not to an insured person in a religious-based independent VFKRROMXVWLÀHGDVDUHDVRQDEOHOLPLWSXUVXDQWWRVRIWKHCanadian Charter of Rights and Freedoms?

After written argument was submitted by all parties, including the Adler Appellants, the Elgersma Appellants, the Attorney General of Ontario as respondent, the Attorneys General of Quebec and Saskatchewan as intervenors, and four groups of public interest intervenours, oral argument was heard by the Supreme Court on January 25, 1996. The appeal was heard by the full panel of nine judges, presided over by the Chief Justice of Canada. At the conclusion of the hearing, the Chief Justice stated that the Court would reserve its decision. It is the practice of the Supreme Court to notify the parties and the intervenors through their counsel when a judgment is ready to be rendered by the Court. To date, the decision of the Supreme Court is still under reserve and counsel KDYHQRWEHHQQRWLÀHGRIDVFKHGXOHGGDWHIRUMXGJPHQW It is the submission of the Adler Appellants as well as of Congress that the appeal to the Supreme Court of Canada is far from futile and that on accepted Canadian constitutional principles the claim for religious school funding brought by the Adler and Elgersma Appellants has a strong chance of success. Indeed, the passage of six months’ time during which the Supreme Court’s decision has been under reserve is, in our submission, indicative not of the futility of the appeal but of its seriousness and credibility. In short, until the Supreme Court rules in Adler et al. v. Ontario, domestic remedies have not been exhausted in the Canadian courts and the Waldman communication to the Human Rights Committee is premature.

893

STATE SUPPORT FOR RELIGIOUS EDUCATION

Given that the Adler Appellants await a successful result of their appeal to the Supreme Court of Canada and the consequent granting of domestic remedy to the rights violation which they have raised, it may be that the Waldman communication to the Human Rights Committee is itself a futile legal proceeding. If the Adler Appellants are granted a domestic remedy, Mr. Waldman’s identical complaint will necessarily be encompassed and resolved by that domestic remedy. The Adler Appellants and Congress are certainly of the view that it is appropriate to see the domestic judicial SURFHVV WKURXJK WR LWV ÀQDOLW\ DQG DUH VDWLVÀHG WR ZDLW XQWLO WKH 6XSUHPH &RXUW RI Canada renders its judgment. If, however, the Supreme Court’s judgment is ultimately adverse to the Adler Appellants, these individuals and the organized Canadian Jewish community represented by Congress will consider their legal options at that time. The Adler Appellants and Congress therefore reserve their rights to submit their own communication to the Human Rights Committee at some later date or to participate in the Waldman case by presenting their own communication on the merits if the Waldman case is held in abeyance until the appropriate time subsequent to a Supreme Court of Canada ruling in Adler. All of which is respectfully submitted. Ed Morgan, Counsel for Canadian Jewish Congress, Ontario Region and for the Adler Appellants in Adler et al. v. Ontario cc.

Robert E. Charney Attorney General of Ontario Constitutional Law and Policy Division Scott & Aylen Counsel for Arieh Hollis Waldman

bcc. Manuel Prutschi David M. Brown, Stikeman, Elliott

894

8QLWHG1DWLRQV+XPDQ5LJKWV&RPPLWWHH/HWWHUIURP&HQWUHIRU+XPDQ5LJKWV&RPPXQLFDWLRQV%UDQFK-XO\ This letter, written by Jacob Möller, was sent to Mr. Waldman along with the initial reply from the Government of Canada of 27 June 1996 regarding admissibility issues. It indicated the subsequent step.

81,7('1$7,2162)),&($7*(1(9$ &(175()25+80$15,*+76 12 July 1996 I have the honour to transmit to you, as representative of Mr. Arieh Hollis Waldman, a copy of a submission from the Government of Canada, dated 27 June 1996, concerning the admissibility of communication No. 694/1996, which you submitted to the Human Rights Committee for consideration under the Optional Protocol to the International Covenant on Civil and Political Rights on behalf of Mr. Waldman. Pursuant to rule 91 of the Committee’s rules of procedure, any comments which you may wish to make on the State party’s submission should reach the Committee LQFDUHRIWKH&HQWUHIRU+XPDQ5LJKWV8QLWHG1DWLRQV2IÀFHDW*HQHYDZLWKLQRQH month of the date of this letter, that is not later than 12 August 1996. Yours sincerely, Jacob Th. Möller Chief, Communications Branch Centre for Human Rights

895

#39 Waldman v. Canada, Author’s submission regarding admissibility, 24 September 1996 On 24 September 1996 Mr. Waldman’s counsel responded to the Canadian Government’s arguments concerning the admissibility of the case and disputed their submission.

5(3/<7267$7(3$57<·668%0,66,2121$'0,66,%,/,7< 1. At paragraph 3 of its submission, the state party has purported to choose only certain “aspects of admissibility” – issues relating to the exhaustion of domestic UHPHGLHV²DQGWRUHVHUYHLWVULJKWWRÀQGIXUWKHUJURXQGVRILQDGPLVVLELOLW\´LQWKH event that the Committee does not accept that the communication is inadmissible for these reasons”. Mr. Waldman submits that the state party should not be permitted to “split its case” in this way, since the procedure it has unilaterally chosen would require further reply submissions by Mr. Waldman, followed potentially by further argument E\WKHVWDWHSDUW\ZLWKRXWDQ\GHÀQHGHQGSRLQW,WLVDUHFLSHIRUGHOD\DQGDEXVHRI the Committee’s process and should not be countenanced. 2. Mr. Waldman therefore asks the Committee to rule on admissibility after consideration of the submissions set out below on exhaustion of remedies. (i) Domestic remedies unreasonably prolonged 3. The state party focuses at paragraph 15 of its submission on the sequence of proceedings in the Adler/Elgersma case since 1992. But Mr. Waldman has never asserted that that particular piece of litigation has been unreasonably prolonged; a review of his communication beginning at paragraph 65 makes clear that it is “domestic litigation on the issue of entitlement to public funding of non-Roman Catholic religious schools” that has been going on for well over 10 years. That domestic litigation began with the North York case in 1978 and the Bill 30 case in 1985. 4. With respect to the North York case, the state party asserts at paragraph 16 that it did not involve the Charter, which came into force in 1982 and its equality provisions in 1985. Yet again this is irrelevant. The question is not which domestic enactment presented the barrier to equality of public funding at any particular time. It is respectfully submitted that the question for the Committee is whether litigation over the substantive issue in this case – entitlement to public funding of non-Roman Catholic religious schools – has been ongoing for over a decade. The fact that a Canadian law did not permit a possible constitutional avenue of redress prior to the 1982 Charter is not the relevant international legal issue. Canada was obliged to conform to its international legal obligations under the Covenant on Civil and Political Rights from the time they were in force for Canada in 1976. This obligation existed regardless of whether it was met via the Canadian constitution or otherwise. The point for the issue of the exhaustion of domestic remedies is that domestic legal solutions have been tried before the

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Canadian courts since 1978, again after a new avenue of domestic redress was opened in the form of the 1982 Charter, and lost as long ago as June 1987 and the Bill 30 case. The states party’s submissions entirely ignore the fact that a constitutional Charter remedy was tried and failed over 9 years ago. (iii) No objective chance of success 5. The analogy which the state party draws between this case and A. and S.N. v. NorwayLVZKROO\XQMXVWLÀHGVLQFHLQWKDWFDVHDVVWDWHGLQWKHVWDWH·VSDUW\·VVXEPLVsions “the authors had not brought their case before any judicial or administrative instance”. In this case judicial proceedings have been undertaken over many years, and have failed. As the case of Lovelace v. Canada indicates, it is not necessary for another individual to try the same judicial path as a predecessor where the failures of WKHÀUVWOLWLJDQWZLOOFOHDUO\EHYLVLWHGXSRQVXEVHTXHQWOLWLJDQWVZKRVHHNWRUDLVHWKH same issue. Subsequent potential litigants are, by contrast, in a position to raise the issue before the Human Rights Committee where the subject matter concerns an obligation under the Covenant on Civil and Political Rights. 6. In asserting that the Adler/Elgersma appeal has an objective chance of success in spite of the Supreme Court’s 1987 decision in the Bill 30 Reference, the state party relies on four points: (a) the Adler/Elgersma appellants’ “expert and experienced counsel” have argued in the Supreme Court that the Bill 30 Reference does not decide their case; (b) the Supreme Court granted leave to the appellants; (c) the appeal was heard by a full panel of nine judges who reserved their decision; (d) the Adler/Elgersma litigation is sponsored by “broadly based community groups” ZKLFKZRXOGQRWKDYHGHYRWHGÀQDQFLDOUHVRXUFHVWRWKHFDVHLIWKH\YLHZHGLW as having no objective chance of success.  2QWKHÀUVWSRLQWWKHVWDWHSDUW\FXULRXVO\UHOLHVRQWKHDUJXPHQWVRIWKHDSSHOODQWV who could hardly be expected to have argued before the Supreme Court that their DSSHDOVKRXOGIDLO0RUHWHOOLQJLVWKHIDFWXPZULWWHQDUJXPHQW ÀOHGE\WKH$WWRUQH\ General for Ontario, the province on whose behalf the state party is responding to this communication, but that factum was not provided to the Committee by the state party. The Ontario Attorney General, stated (factum enclosed): “The [Supreme] Court unanimously held that Bill 30 was not subject to, and therefore, could not infringe, the Charter of Rights” (paragraph 50) “The arguments advanced by [the appellants] in the Bill 30 Reference relied on ss. 2(a) and 15(1) of the Charter and were very similar to the arguments advanced by the Adler Appellants in this case.” (paragraph 51) “Accordingly, this Court held that the province would not contravene the Charter of Rights by funding Catholic separate schools to the exclusion of other denominational schools. It is submitted that this holding is directly applicable to the present appeal.” (paragraph 53)

898

7. UNITED NATIONS COMMITTEE DECISIONS

“The fact that Roman Catholic separate schools have a right to public funding while the schools of other religious denominations do not is not subject to the Charter … (paragraph 58) 8. On the second and third points, the Supreme Court, in accordance with its usual practice, did not give reasons for its actions and did not express or imply any comment on the appeal’s likelihood of success. The size of the panel and the decision to reserve its decision are often a result of factors such as the Court’s timetable and have nothing to do with the objective chance of success of the appeal.  2QWKHODVWSRLQWWKHUHLVQRHYLGHQFHWKDWWKHFRPPXQLW\JURXSVGHYRWHGÀQDQFLDO resources to the litigation. Furthermore, domestic litigation is just as likely to emanate from poor knowledge and understanding of the international processess and the Optional Protocol. The fact that long years have passed while hopes have solely focused on the domestic front is only evidence of a lack of appreciation of Canadian international REOLJDWLRQVDGHÀFLHQF\ZKLFKLVQRWLQLWVHOIJURXQGVIRUGHWHUPLQLQJQRQH[KDXVWLRQ of domestic remedies. 10. The state party has also entirely ignored the fact that, contrary to their submission that there is an objective chance of success, all courts to date involved in the Adler/ Elgersma case have rejected the application, the Chief Justice of Ontario’s highest court, the Court of Appeal himself stating: “I read that judgment [the Bill 30 Reference] as really quite decisive of the discrimination issue in these appeals.” 11. It is therefore submitted that the state party’s objections to admissibility should be dismissed. All of which is respectfully submitted. …

899

8QLWHG1DWLRQV+XPDQ5LJKWV&RPPLWWHH/HWWHUIURPWKH &HQWUHIRU+XPDQ5LJKWV6XSSRUW6HUYLFHV%UDQFK2FWREHU 1996 7KLVOHWWHUZULWWHQE\+HOJD.OHLQZDVVHQWWR0U:DOGPDQFRQÀUPLQJUHFHLSW of the Author’s submission of 24 September 1996 regarding admissibility.

81,7('1$7,2162)),&($7*(1(9$ &(175()25+80$15,*+76 14 October 1996 This is to acknowledge the receipt of your letter dated 24 September 1996, in which you comment on the State party’s submission of 27 June 1996, concerning communication No. 694/1996, which you submitted to the Human Rights Committee for consideration under the Optional Protocol to the International Covenant on Civil and Political Rights, on behalf of Mr. Waldman. A copy of your submission has been transmitted to the State party, for information. Yours sincerely, Helga Klein Chief a.i., Support Services Branch 2IÀFHRIWKH+LJK&RPPLVVLRQHU Centre for Human Rights

901

#41 Waldman v. Canada, Author’s submission regarding admissibility, 17 December 1996 This letter informed the Committee that the Supreme Court of Canada, on 21 November 1996 had ruled on the Adler case and dismissed the appeal. That decision eliminated the Government of Canada’s argument that the Waldman communication should be dismissed because of the non-exhaustion of domestic remedies.

December 17, 1996 The Human Rights Committee c/o Centre for Human Rights Palais des Nations 8 14 avenue de la Paix 1211 Geneva 10 Switzerland Dear Sir/Madam: 5(&RPPXQLFDWLRQ*62&$1$ 694/1996  2XU)LOH1R I enclose a copy of the decision of the Supreme Court of Canada, released on November 21, 1996, in Adler and Elgersma v. Ontario. The Government of Canada relied upon this appeal, then pending, in support of its argument that domestic litigation, held out an objective chance of success and therefore the above-captioned communication was premature. The Supreme Court has now held, as we argued in our reply submission, that its 1987 decision in the Bill 30 Reference was determinative of the Adler/Elgersma litigation. At page 22, the majority opinion of Mr. Justice Iacobucci quotes the earlier decision of the Court to the effect that Bill 30 was “immune” from Charter review, and “this was true regardless of the fact that this unequal funding might… “sit uncomfortably with the concept of equality embodied in the Charter”. Iacobucci J. went on: In other words, Wilson J [in the Bill 30 Reference]…refused to use one part of the Constitution to interfere with rights protected by a different part of that same document: “It was never intended, in my opinion, that the Charter could be used to invalidate other provisions of the Constitution…” Following the same line of reasoning used by Wilson J in the Reference re Bill 30, ,ÀQGWKDWSXEOLFIXQGLQJIRUWKHSURYLQFH·VVHSDUDWHVFKRROVFDQQRWIRUPWKHEDVLV for the appellants’ Charter claim.

903

STATE SUPPORT FOR RELIGIOUS EDUCATION

Given that the only basis put forward by the Government of Canada to question the admissibility of Mr. Waldman’s complaint has now been put to rest by the domestic courts, I am respectfully requesting that the Committee consider joining admissibility with the merits of Mr. Waldman’s claim, in order to permit discussion of the merits of his communication as soon as possible. Thank you for your attention. Yours very truly …

904

#42 Waldman v. Canada, Author’s letter to Government of &DQDGD)HEUXDU\ This letter of 11 February 1997 requested the Government of Canada, in light of the Supreme Court’s decisions regarding Adler and Elgersma v. Ontario, to abandon its objections to admissibility, or at least to join the issues of admissibility and the merits together in order to expedite the decision-making process.

February 11, 1997 Mr. John Scratch Senior General Counsel Specialized Legal Advisory Services Department of Justice 239 Wellington Street Ottawa, ON K1A 0H8 5(&RPPXQLFDWLRQ*62&$1$ 694/1996  2XU)LOH1R Further to our letter dated December 17, 1996 to the Human Rights Committee, a copy of which I enclose for your information, I am writing to request that in light of the Supreme Court’s decision in Adler and Elgersma v. Ontario, the Government of Canada abandon its admissibility objection to Mr. Waldman’s communication, or alternatively, that it consent to the joinder of admissibility and the merits, in order to expedite the handling of this matter. Please feel free to call me about this if you wish. I look forward to your response shortly. Yours very truly, …

905

#43 Waldman v. Canada, Government of Canada reply to WaldPDQFRXQVHO·VOHWWHURI)HEUXDU\RQ$SULO On 8 April 1997 the Government of Canada agreed to join the issues of admissibility and merits.

Department of Justice Canada Specialized Legal Advisory Services 239 Wellington St., Room 601 Ottawa, Ontario K1A 0H8 April 8, 1997 5(&RPPXQLFDWLRQRI0U:DOGPDQWRWKH81+XPDQ5LJKWV&RPPLWWHH Thank you for your letter regarding the joinder of admissibility and merits arguments in the communication of Mr. Waldman before the United Nations Human Rights Committee. I am advised that the Canadian Permanent Mission to the United Nations in Geneva has informed the Secretariat for the Committee that Canada is agreeable to proceeding in this way. Please to do not hesitate to contact me if you require additional information. Yours truly, John Scratch Senior General Counsel

907

#44 Waldman v. Canada$XWKRU·VOHWWHUWRWKH+XPDQ5LJKWV Committee, 28 April 1997 This letter, on behalf of Mr. Waldman, of 28 April 1997 to the Human Rights Committee concerns the Government of Canada’s agreement to join the issues of admissibility and merits.

%<)$&6,0,/( April 28, 1997 The Human Rights Committee c/o Centre for Human Rights Palais des Nations 8-14 avenue de la Paix 1211 Geneva 10 SWITZERLAND Attention: Mr. Alfred de Zayas 5(+XPDQ5LJKWV&RPPLWWHH&RPSODLQW 
909

8QLWHG1DWLRQV+XPDQ5LJKWV&RPPLWWHH/HWWHUIURPWKH &HQWUHIRU+XPDQ5LJKWV6XSSRUW6HUYLFHV%UDQFK-XQH *RYHUQPHQWRI&DQDGDOHWWHUWR+XPDQ5LJKWV&RPPLWWHH April 1997 This letter, from the UN Center for Human Rights, was sent to Mr. Waldman on 2 June 1997. The letter referred to the attached note, dated 29 April 1997, from the 3HUPDQHQW0LVVLRQRI&DQDGDFRQÀUPLQJWKHMRLQLQJRIDGPLVVLELOLW\DQGPHULW issues. The Canadian Government undertook to submit its arguments on these PDWWHUVZLWKLQVL[PRQWKV7KHQRWHIURPWKH3HUPDQHQW0LVVLRQFRQÀUPHGWKDW its submission was due six months from the date of the Permanent Mission’s note, that is, 29 October 1997.

81,7('1$7,2162)),&($7*(1(9$ HIGH COMMISSIONER FOR HUMAN RIGHTS CENTRE FOR HUMAN RIGHTS 2 June 1997 I have the honour to acknowledge the receipt of your letter (with enclosures) of 28 April 1997 and to transmit to you herewith, in your capacity as representative of Mr. Arieh Hollis Waldman and for your information, a copy of a note from the Canadian Government, dated 29 April 1997, concerning communication No. 694/1996, which you submitted to the Human Rights Committee for consideration under the Optional Protocol to the International Covenant on Civil and Political Rights on behalf of Mr. Waldman. Yours sincerely, Helga Klein Chief a.i., Support Services Branch … [ATTACHED] The Permanent Mission of Canada to the United Nations Note No. 1221 7KH3HUPDQHQW0LVVLRQRI&DQDGDWRWKH2IÀFHRIWKH8QLWHG1DWLRQVDW*HQHYDSUHVHQWV its compliments to the Secretary-General of the United Nations (Centre for Human Rights) and refers to the Centre’s notes No. G/SO 215/51 CANA(80) 694/1996, dated 911

STATE SUPPORT FOR RELIGIOUS EDUCATION

30 April, 12 July and 30 July 1996 and 6 February 1997 in the matter of Communication No. 694/1996 submitted on behalf of Mr. Arieh Hollis Waldman to the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights. The Permanent Mission has the honour to advise the Human Rights Committee that the Government of Canada accedes to the request made by counsel for Mr. Waldman that the Committee combine its determination of the admissibility of Communication 694/1996 with its consideration of the merits of the Communication. The Government of Canada understands that it has the opportunity to further address admissibility, as appropriate, in its submission of explanations and statements addressing the merits of the Communication. The Government of Canada understands that that submission is due six months from the date of this Note. The Permanent Mission in Canada avails itself of this opportunity to renew to the Secretary-General of the United Nations (Centre for Human Rights) the assurances of its highest consideration. Geneva, 29 April 1997

912

#46 Waldman v. Canada *RYHUQPHQW RI &DQDGD ÀUVW UHSO\ UHJDUGLQJWKHPHULWVRIWKH:DOGPDQVXEPLVVLRQ)HEUXDU\ 1998 On 27 February 1998, four months after the agreed-upon submission deadline of 2FWREHUWKH*RYHUQPHQWRI&DQDGDVXEPLWWHGLWVÀUVWUHSO\UHJDUGLQJ the merits of the case. The reply was drafted by the Government of Ontario. The reply rejected the claim of religious discrimination and argued that the distinction in funding between Roman Catholic schools and the schools of other religions was properly characterized as a difference between publicly-funded schools and non-funded private schools.

7+(3(50$1(170,66,212)&$1$'$727+(81,7(' NATIONS Note No. 0261 7KH3HUPDQHQW0LVVLRQRI&DQDGDWRWKH2IÀFHRIWKH8QLWHG1DWLRQVDW*HQHYDSUHVHQWV LWVFRPSOLPHQWVWRWKH6HFUHWDU\*HQHUDORIWKH8QLWHG1DWLRQV2IÀFHRIWKH+LJK Commissioner for Human Rights) and refers to notes No. G/SO 215/51 CANA(80) 694/1996 of 30 April 1996 and 6 February 1997 from the Centre for Human Rights, and to the Mission’s note No. 1221, of 29 April 1997, in the matter of Communication No. 694/1996 submitted on behalf of Mr.Arieh Hollis Waldman to the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights. The Permanent Mission has the honour to submit to the Committee on Human Rights on behalf of the Government of Canada the attached information and observations in respect of Communication No. 694/1996 prepared by the Government of Ontario, which has competence in the matter that is the subject of the communication. The Permanent Mission of Canada avails itself of this opportunity to renew to the 6HFUHWDU\*HQHUDORIWKH8QLWHG1DWLRQV2IÀFHRIWKH+LJK&RPPLVVLRQHUIRU+XPDQ Rights) the assurances of its highest consideration. Geneva, 27 February 1998

913

STATE SUPPORT FOR RELIGIOUS EDUCATION

,17+(0$77(52):$/'0$19&$1$'$ 67$7(3$57<·668%0,66,21621$'0,66,%,/,7<$1'7+( 0(5,76 18 February 1998

7$%/(2)&217(176 I.

INTRODUCTION

II. FACTS OF THE CLAIM A. Summary of the Facts B. Public Schools C. Freedom to Establish Private Religious Schools and Freedom of Children to Attend Private Religious Schools D. Section 93 of the Constitution Act, 1867 E. Funding of Private Schools F. Other Provinces G. Adler v. Ontario – Supreme Court of Canada Decision III. ADMISSIBILITY AND MERITS OF THE CASE A. Article 18 B. Article 26 C. Article 27 IV. CONCLUSION INDEX TO AUTHORITIES

I. ,1752'8&7,21 1. Canada submits to the Human Rights Committee the following information and observations with respect to the communication received by the Committee under the Optional Protocol to the International Covenant on Civil and Political Rights from Mr. Waldman. The communication alleges that the non-funding of private Jewish religious schools by the State Party violates Articles 2, 18, 26 and 27 of the International Covenant on Civil and Political Rights and that the State Party should be required to fund private Jewish religious schools. 2. The State Party submits that this communication is inadmissible rationae materiae and does not violate the Covenant. 3. For the information of the Committee, the following documents are attached: the MXULVSUXGHQFHUHIHUUHGWRLQWKH5HVSRQVHDQGFHUWDLQDIÀGDYLWVDQGFURVVH[DPLQDWLRQV relied on by the State Party in its defence in the case of Adler v. Ontario in the Canadian 914

7. UNITED NATIONS COMMITTEE DECISIONS

courts (described in greater detail below), which involved the same issue as is being raised by the author before this Committee – the non-funding of private Jewish religious schools by the State Party.

II. )$&762)7+(&/$,0 $6XPPDU\RIWKH)DFWV 1.

The following is a summary of the State Party’s position on the facts. a) Ontario is a province in the country of Canada. b) Under the Canadian Constitution Act, 1867, the province of Ontario has legislative jurisdiction in respect of education. c) Ontario funds public schools which are open to children of all beliefs and religions. These public schools are secular and do not engage in religious instruction of the students. d) Under a provision of the Canadian Constitution Act, 1867, Ontario is obliged to fund Roman Catholic schools in the province. This provision was included in the Canadian Constitution in 1867 to protect Roman Catholics who were a religious minority in the province of Ontario at that time. The Canadian Constitution is the supreme law in the country. Ontario must abide by its provisions and has no ability to unilaterally amend its terms. e) Individuals of all faiths enjoy the freedom to establish private religious schools and to send their children to these schools instead of the public schools. f) Apart from its obligations under the Canadian Constitution Act, 1867, Ontario provides no direct funding to religious schools, whether they be Christian, Jewish, Islamic, Buddhist, Hindu or otherwise.

B. Public Schools 2. The Ontario public school system offers a tuition-free secular education to all Ontario residents without discrimination on the basis of religion or any other ground of discrimination. The Ontario Court of Appeal has held that public schools may not engage in any religious indoctrination. Zylberberg v. Sudbury Board of Education (1988), 65 O.R. (2d) 641 (Ont. C.A.) Canadian Civil Liberties Assoc. v. Minister of Education, (1990), 71 O.R. (2d) 341 (Ont. C.A.) Bal v. Attorney General of Ontario (1994), 21 O.R. (3d) 681 Ontario Court (General Division) (upheld by the Ontario Court of Appeal, Endorsement of matter heard May 5 and 6, 1997) 3. The Supreme Court of Canada has found, as a factual matter, that Ontario public schools are “not organized along religious lines”, “are open to all members of the community without distinction”, “are designed for children of all beliefs and races” and are “for all the members of the community alike, whatever their creed”. Adler v. Ontario [1996] 3 S.C.R. 609 (S.C.C.) At 647, 648, 649

915

STATE SUPPORT FOR RELIGIOUS EDUCATION

&)UHHGRPWR(VWDEOLVK3ULYDWH5HOLJLRXV6FKRROVDQG)UHHGRPRI&KLOGUHQ WR$WWHQG3ULYDWH5HOLJLRXV6FKRROV 4. The Supreme Court of Canada has found that, in Ontario, individuals enjoy the freedom to establish private religious schools and to send their children to these schools instead of the public schools. The author is free to send his child to a private Jewish school and has done so. Adler v. Ontario, supra at 700, 711 Education Act, R.S.O. 1990, s. 21 5. The only statutory requirement for opening a private school in Ontario is the submission of a “notice of intention to operate a private school”. Private schools in Ontario are neither licensed nor do they require any prior government approval. There is no requirement that the curriculum offered by private schools conform with Ministry of Education curriculum guidelines nor are private schools required to hire teachers TXDOLÀHGLQDFFRUGDQFHZLWK0LQLVWU\RI(GXFDWLRQVWDQGDUGV3ULYDWHVFKRROVPXVW provide “satisfactory instruction” for children of compulsory school age (6-16 years of age), but they choose for themselves whether or not to follow Ministry of Education FXUULFXOXPJXLGHOLQHVRUKLUH0LQLVWU\TXDOLÀHGWHDFKHUV Education Act, R.S.O. 1990, ss. 16(1), (2), 21(2) 6. As of September 30, 1989, there were 64,699 students attending 494 private schools in Ontario. Enrollment in private schools represents 3.3 percent of the total day school HQUROOPHQWLQ2QWDULR7KHVHSULYDWHVFKRROVZHUHDIÀOLDWHGZLWKDWOHDVWUHOLJLRXV denominations. $IÀGDYLWRI/HRQ%UXPHUÀOHGE\WKH*RYHUQPHQWRI2QWDULRLQWKHFDVHRI$GOHU v. Ontario, Exhibit “C”, “1989-90 Key Statistics”, at 23 $IÀGDYLWRI)+DQVRQÀOHGE\WKH*RYHUQPHQWRI2QWDULRLQWKHFDVHRI$GOHUY Ontario, Exhibit “A”, “Private Schools in Ontario”, at iii

D. Section 93 of the Constitution Act, 1867 7.

Section 93(1) of the Constitution Act, 1867 provides that: 93. In and for each Province the Legislature may exclusively make Laws in relation to Education subject and according to the following provision: (1) Nothing in any 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….

8. Because of s. 93 of the Constitution Act, 1867, Ontario is required to fund Roman Catholic separate schools in the province of Ontario. Adler v. Ontario, supra at 639 9. The Supreme Court of Canada has held that section 93 of the Constitution Act, 1867 is the product of an historical compromise which was a crucial step along the 916

7. UNITED NATIONS COMMITTEE DECISIONS

road leading to the Confederation of distinct British colonies into the nation of Canada. ,WVHUYHGWRPRGHUDWHUHOLJLRXVFRQÁLFWVZKLFKWKUHDWHQHGWKHELUWKRIWKHQDWLRQRI Canada. Without it, there would have been no country of Canada. Adler v. Ontario, supra at 640 Reference Re Education Act (Que.), [1993] 2 S.C.R. 511 at 529 Reference Re Bill 30, [1987] 1 S.C.R. 1148 at 1173-1174 10. The Supreme Court of Canada has described the history of s. 93 in the following manner: “The purpose and history of s.93 would seem to support this interpretation. The protection of minority religious rights was a major preoccupation during the negotiations leading to Confederation because of the perceived danger of leaving the religious minorities in both Canada East and Canada West at the mercy of overwhelming majorities …” Some time after Confederation in the debate re second reading of Bill No. 58, The Remedial Act (Manitoba), in Debates of the House of Commons, 6th Sess., 7th Parliament, 59 Vict., 1896, col. 2719, at 2724, March 3, 1896, Sir Charles Tupper FRQÀUPHGWKDWVZDVSDUWRIDVROHPQSDFWUHVXOWLQJIURPWKHEDUJDLQLQJZKLFK made Confederation possible: “… 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 … ,VD\WKHUHIRUHLWLVLPSRUWDQWLWLVVLJQLÀFDQWWKDWZLWKRXWWKLVFODXVHZLWKRXWWKLV guarantee for the rights of minorities being embodied in that new constitution, we should have been unable to obtain any confederation whatever. That is my reason for drawing attention to it at present.” Reference Re: Bill 30, supra at 1173-1174 11. The Roman Catholic separate school system in Ontario is not a private school system. Like the public school system it is funded through a publicly accountable, democratically elected board of education. Separate School Boards are elected by Roman Catholic ratepayers, and these school boards have the right to manage the denominational aspects of the separate schools. Unlike private schools, Roman Catholic separate schools are subject to all Ministry guidelines and regulations. Education Act, supra, s. 1 12. Neither s. 93(1) of the Constitution Act, 1867 nor the Education Act provide for public funding to Roman Catholic private/independent schools. Roman Catholic parents ZKRIRUUHOLJLRXVRURWKHUUHDVRQVDUHQRWVDWLVÀHGZLWKWKHHGXFDWLRQRIIHUHGLQWKH public separate school system may send their children to private/independent Roman 917

STATE SUPPORT FOR RELIGIOUS EDUCATION

Catholic schools. Ten private/independent Roman Catholic schools operate in Ontario. 7KHVHVFKRROVUHFHLYHQRGLUHFWSXEOLFÀQDQFLDOVXSSRUW $IÀGDYLWRI)+DQVRQ, Exhibit “A”, at pp. 4, 5, 8, 10, 11, 19, 23, 24 and 25

()XQGLQJRI3ULYDWH6FKRROV 13. Apart from the province’s obligations under the Constitution Act, 1867, the province does not directly fund any religious schools. However, private religious schools in 2QWDULR UHFHLYH ÀQDQFLDO DLG LQ WKH IRUP RI   H[HPSWLRQ IURP SURSHUW\ WD[HV RQ QRQSURÀWSULYDWHVFKRROV LQFRPHWD[GHGXFWLRQVIRUWXLWLRQDWWULEXWDEOHWRUHOLJLRXV instruction; and (3) income tax deductions for charitable purposes. In 1985, a report concluded that a conservative estimate of the level of public aid to Ontario private schools “amounts to about one-sixth of the average total in cost per pupil enrolled in a private school”, and that “there are some individual private schools where the aid level is at least twice [that] average estimate”. 5HSRUWRIWKH&RPPLVVLRQRQ3ULYDWH6FKRROVLQ2QWDULRDWWDFKHGWR$IÀGDYLW of Leon Brumer, Exhibit “B”, at pp. 7, 8, 162, 163, 176-177 14. Where a parent pays tuition to the private religious school, he or she is eligible to receive an income tax deduction for tuition attributable to religious instruction. Through this “tax expenditure” mechanism, Ontario provides indirect funding to parents whose children attend private religious schools. The indirect funding described is available to all regardless of the nature of their religious beliefs.

)2WKHU3URYLQFHV 15. Contrary to paras. 21-22 of the Communication of Mr. Waldman, there is no province in Canada in which private schools receive funding on an equal basis to public schools. Direct public funding of private schools ranges from 0% to 75% as follows: Newfoundland

0%

PEI

authorized textbooks

Nova Scotia

authorized textbooks

New Brunswick

0%

Quebec

0% – 52%

Ontario

0%

Manitoba

59% of public school rate and $40 per student for text books

Saskatchewan

59% for private secondary schools only

Alberta

75% of the Ministry of Education operational grant

British Columbia

10% – 50% of local public school rate

5HSRUWRIWKH&RPPLVVLRQRQ3ULYDWH6FKRROVLQ2QWDULRDWWDFKHGWR$IÀGDYLW of Leon Brumer, Exhibit “B”, at 11-14

918

7. UNITED NATIONS COMMITTEE DECISIONS

$IÀGDYLWRI*'XWKOHUÀOHGE\WKH*RYHUQPHQWRI2QWDULRLQWKHFDVHRI$GOHUY Ontario, at paras. 4-13 $IÀGDYLWRI$6HUYDQWÀOHGE\WKH*RYHUQPHQWRI2QWDULRLQWKHFDVHRI$GOHUY Ontario, at para. 2

G. Adler v. Ontario – Supreme Court of Canada Decision 16. The Supreme Court of Canada in its 1996 decision in Adler v. Ontario considered issues similar to those raised in this Communication before the Human Rights Committee. The case before the Supreme Court of Canada was brought by persons who, by reason of religious or conscientious beliefs, sent their children to private religious schools. The individuals were Jews and Protestants and they argued that the non-funding by the Ontario government of the private, religious schools violated their rights under the Canadian Charter of Rights and Freedoms, which is part of the Constitution of Canada. The Supreme Court of Canada found that their rights were not so violated. Adler v. Ontario, supra 17. The individuals argued that their rights under section 2(a) and 15 of the Charter of Rights and Freedoms were violated. These sections provide as follows: “s. 2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion… s. 15(1) Every individual is equal before and under the law and has the right to WKHHTXDOSURWHFWLRQDQGHTXDOEHQHÀWRIWKHODZZLWKRXWGLVFULPLQDWLRQDQGLQ particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” 18. The Supreme Court of Canada held that s. 93 of the Constitution Act, 1867 grants to the provinces the power to legislate with regard to education. This grant is subject to certain restrictive conditions among them s. 93(1) which provides that no law may prejudicially affect any right or privilege with respect to denominational schools which any class of persons had at the time of Confederation in 1867. The effect of this subsection is to entrench constitutionally a special status for such classes of persons, granting them rights which are denied to others. Adler v. Ontario, supra 19. The court considered the two CharterDUJXPHQWV7KHÀUVWZDVWKDWWKHCharter’s s. 2(a) guarantee of freedom of religion requires the province of Ontario to provide public funding for independent religious schools. The second was that, by funding Roman Catholic separate schools and secular public schools at the same time as it denies funding to independent religious schools, the province is discriminating against individuals on the basis of religion contrary to s. 15(1). The court unanimously rejected the s. 2(a) claim and concluded that the funding of Roman Catholic separate schools could not give rise to an infringement of ss. 2 or 15 of the Charter because the province of Ontario was constitutionally obligated to provide such funding.

919

STATE SUPPORT FOR RELIGIOUS EDUCATION

Adler v. Ontario, supra 20. The majority of the court found that the s. 2(a) claim failed because any claim to public support of religious education must be grounded in s. 93(1) which is a “comprehensive code” of denominational school rights. With regard to the s. 15 argument, this claim failed because the funding of Roman Catholic separate schools and public schools is within the contemplation of the terms of s. 93 and therefore immune from Charter scrutiny. Concurring judgments upheld the non-funding of private religious schools for slightly different reasons. Adler v. Ontario, supra

III. $'0,66,%,/,7<$1'0(5,762)7+(&$6( 21. The State Party denies that the material facts disclose violations of Articles 2, 18, 26 and 27 of the International Covenant on Civil and Political Rights.

A. Article 18 22. Article 18 of the International Covenant on Civil and Political Rights provides: 1. Everyone shall have the right to freedom of thought, conscience and religion. The right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals, or the fundamental rights and freedoms of others. 4. The State Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions. 23. The State Party contends that the communication is inadmissible rationae materiae with Article 18, or in the alternative, does not demonstrate a violation of that Article. 24. The complaint under Article 18 is inadmissible rationae materiae because the travaux preparatoires make it clear that Article 18 does not include a right to require the state to fund private religious schools.  'XULQJWKHGUDIWLQJRI$UWLFOHWKHTXHVWLRQVSHFLÀFDOO\ZDVDVNHGZKHWKHUXQGHU the proposed Article, states would be obliged to provide instruction in the religion of the parents’ choice. The sponsor replied in the negative and explained that states would not be committed to doing anything other than to respect the wish of parents that their children be brought up in their own religion.

920

7. UNITED NATIONS COMMITTEE DECISIONS

Third Committee, 15th Session (1960); referenced in Marc J. Bossuyt, Guide to the “Travaux Preparatoires” of the International Covenant on Civil and Political Rights (Dordecht: Martinus Nijhoff Publishers, 1987) at 369. 26. In Communication No. 118/1982 (J.B. et. al. v. Canada), the Committee held a communication inadmissible by reason of rationae materiae, based on review of the travaux preparatoires that led it to the conclusion that the right to strike was not intended to be included in the International Covenant on Civil and Political Rights. Communication No. 118/1982 (J.B. et. al v. Canada), Selected Decisions of the Human Rights Committee under the Optional Protocol, Volume 2, (Seventeenth to Thirty-second sessions – October 1982 – April 1988) (New York: United Nations, 1990) CCPR/C/OP/2 (hereinafter S.D. Vol. 2) at 34, A/41/40 (1986), at 151 27. In Communication No. 446/1991 (J.P. v. Canada), the Committee considered a claim that the payment of taxes which would be used for military and defence purposes violated an individual’s freedom of conscience and religion under article 18 of the Covenant,QÀQGLQJWKLVFODLPLQDGPLVVLEOHWKH&RPPLWWHHQRWHGWKDWWKHDXWKRUVRXJKW to apply the idea of conscientious objection to the disposition by the State of the taxes it collects from persons under its jurisdiction. Although Article 18 of the Covenant protects the right to hold, express and disseminate opinions and convictions, including conscientious objection to military activities and expenditures, the refusal to pay taxes on grounds of conscientious objection clearly falls outside the scope of protecting of this article. The Committee concluded that the author’s claim was inadmissible, pursuant to article 3 of the Optional Protocol. Communication No. 446/1991 (J.P. v. Canada), A/47/40, CCPR/11/Add. 1 at 450 See also: Communication No. 483/1991, (J.P. v. K. v. the Netherlands) A/47/40, CCPR/11/Add 1 at 444 Communication No. 185/1984 (L.T.K. v. Finland) S.D. Vol. 2 at 61, A/40/40 (1985), at 240 28. In the alternative, the policy of the State Party meets the guarantee of freedom of religion contained in Article 18 of the International Covenant on Civil and Political Rights because: a) it provides a public school system open to persons of all religious beliefs which does not provide instruction in a particular religion or belief, and b) there is freedom to establish private religious schools and parents are free to send their children to such religious schools. General Comment 22 (Article 18) A/48/40 at 208 Communication No. 40/1978 (Hartikainen and Finland), Selected Decisions of the Human Rights Committee under the Optional Protocol (Second to sixteenth sessions)United Nations, New York: United Nations, 1985) CCPR/C/OP/1) (hereinafter S.D. Vol. 1) at 74, A/36/40 (1985) at 164

921

STATE SUPPORT FOR RELIGIOUS EDUCATION

29. The right under Article 18 (4) has been described as being “of a rather modest nature” and the observation has been made that “the state parties are, of course, not obligated to subsidize private schools”. Dr. Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary. (Kehl: N.P. Engel, Publisher) at 330-333 30. Guarantees of freedom of religion do not include a right to have the state fund religious education or to take action to eliminate the natural costs of religious practices. Case “Relating to certain aspects of the laws on the use of languages in education in Belgium” (1968) Yearbook of the European Convention on Human Rights (The Hague: Martinus Nijhoff, 1968) at 832 31. The purpose of Article 18 is to ensure that religious observance, beliefs and practices remain a private matter, free from state coercion or constraint. In Ontario, parents are neither compelled nor constrained to send their children to public schools. Parents whose religious beliefs compel them to send their children to religious schools are free to do so. No governmental obstacles are placed in their path. Such parents cannot complain that their freedom of religion is infringed because the province does not subsidize their choice. 32. The State Party under Article 18 is to provide an education open and accessible to all children regardless of religion. The province has no obligation to either offer or ÀQDQFHUHOLJLRXVLQVWUXFWLRQRULQGRFWULQDWLRQ:KLOHWKHSURYLQFHPXVWHQVXUHWKDW religious freedom and religious differences are accommodated within the public school system, it has no obligation to fund individuals who, for religious reasons, exercise their freedom to opt out of the public school system. Adler v. Ontario, supra at 713 33. Failure to act in order to facilitate the practice of religion cannot be considered state interference with freedom of religion. The fact that no funding is provided for private religious education cannot be considered to infringe the author’s freedom to educate his children in accordance with his religious beliefs where there is no restriction on religious VFKRROV7KHUHDUHPDQ\VSKHUHVRIJRYHUQPHQWDFWLRQZKLFKKROGUHOLJLRXVVLJQLÀFDQFH for religious believers. It does not follow that the government must pay for the religious GLPHQVLRQVLQVSKHUHVLQZKLFKLWWDNHVDUROH,IWKLVÁRZHGIURP$UWLFOHWKHQUHOLJLRXV marriages, religious corporations, and other religious community institutions such as churches and hospitals would all have a claim to public funding. The same could also be said of the existing judicial system which is necessarily secular. The appellants’ argument would lead to an obligation by the state to fund parallel religious justice systems founded on canon law or Talmudic law, for example. These are clearly untenable suggestions. Adler v. Ontario, supra at 702-703, 705, 713 34. In the further alternative, if Article 18 does require states to fund religious schools, the limitation on this right by the State Party meets the requirements established in Article 18(3) in that limitations on the right are prescribed by law and are necessary to protect public order and the fundamental rights and freedoms of others. 922

7. UNITED NATIONS COMMITTEE DECISIONS

General Comment 22, (Article 18) A/48/40 at 208 Communication No. 208/1986, (K. Singh Bhinder v. Canada), Document A/45/40 at 50, CCPR/9/Add. 1 at 398 35. The objectives of the State Party’s education system are the provision of a tuition-free, secular public education, universally accessible to all residents without discrimination on the basis of race, national or ethnic origin, colour, religion, sex or mental or physical disability and the establishment of a public education system which fosters and promotes the values of a pluralist, democratic society, including social cohesion, religious tolerance and understanding. 36. If the State Party were required to fund private religious schools, this would have a detrimental impact on the public schools, and hence the fostering of a tolerant, multicultural, non-discriminatory society in the province. This position of the province of 2QWDULRLVVXSSRUWHGE\H[SHUWHYLGHQFHLQUHSRUWVDQGDIÀGDYLWIRUPDVFLWHGEHORZ 37. Public schools are a rational means of fostering social cohesion and respect for religious and other differences. To the extent that the public and common schools are the schools of choice for the great majority of families, these schools may be able to respect group differences while at the same time helping their students to perceive the common concerns that transcend such differences. Schools are better able to teach common understanding and shared values if they are less homogeneous and can, at least potentially, bring children of different backgrounds together. 5HSRUWRIWKH&RPPLVVLRQRQ3ULYDWH6FKRROVLQ2QWDULRDWWDFKHGWR$IÀGDYLW of Leon Brumer, Exhibit “B”, at p. 39 38. One of the strengths of a public system of education in a province and a country which are committed to a policy of multiculturalism is that it provides a venue where people of all colours, races, national and ethnic origins, and religions interact and try to come to terms with one another’s differences. Such a process is not without its problems and frictions, but the fact that the public school must deal with the varied needs and interests of the total population makes it a valuable institution for the creation of better understanding among the various groups. In this way, the public schools build social cohesion, tolerance and understanding. $IÀGDYLWRI'XQFDQ*UHHQÀOHGE\WKH*RYHUQPHQWRI2QWDULRLQWKHFDVHRI$GOHU v. Ontario, at paras. 1 and 6 39. Extending public school funding rights to private religious schools will undermine the ability of public schools to build social cohesion, tolerance and understanding. To WKHH[WHQWWKDWVSHFLÀFSRSXODWLRQVVHSDUDWHWKHPVHOYHVIURPWKHJHQHUDOPL[WKHSXEOLF system is the poorer because the opportunities for understanding and accommodating our various differences are diminished. $IÀGDYLWRI'XQFDQ*UHHQÀOHGE\WKH*RYHUQPHQWRI2QWDULRLQWKHFDVHRI$GOHU v. Ontario, at para. 6

923

STATE SUPPORT FOR RELIGIOUS EDUCATION

5HSRUWRIWKH&RPPLVVLRQRQ3ULYDWH6FKRROVLQ2QWDULRDWWDFKHGWR$IÀGDYLW of Leon Brumer, Exhibit “B”, at p. 50 40. Extending public school funding rights to private religious schools could result LQDVLJQLÀFDQWLQFUHDVHLQWKHQXPEHUDQGNLQGRISULYDWHVFKRROVDQGVFKRROV\VWHPV especially in the heterogeneous urban centres. In addition, if public funding were SURYLGHGIRUSULYDWHVFKRROVHVWDEOLVKHGIRUWKHSXUSRVHRIPHHWLQJVSHFLÀFUHOLJLRXV QHHGVLWLVGLIÀFXOWWRVHHZK\SXEOLFIXQGLQJZRXOGQRWDOVREHSURYLGHGWRSULYDWH VFKRROVHVWDEOLVKHGWRSURYLGHRWKHUVSHFLÀFQHHGVRIODQJXDJHRUHWKQLFLW\RUFXOWXUH This would have an adverse effect on the viability of the public school system, which would become the system serving students not found admissible by any other system. 7KHEHQHÀWVZKLFKVRFLHW\QRZGHULYHVIURPDSXEOLFVFKRROV\VWHPZRXOGEHUHGXFHG Such potential fragmentation of the school system is an expensive and debilitating structure for society. $IÀGDYLWRI'XQFDQ*UHHQÀOHGE\WKH*RYHUQPHQWRI2QWDULRLQWKHFDVHRI$GOHU v. Ontario, at para. 9 Case “Relating to certain aspects of the laws on the use of languages in education in Belgium” (1968) Yearbook of the European Convention on Human Rights (The Hague: Martinus Nighoff, 1968) 41. Extending public school funding rights to private religious schools could compound the problems of religious coercion and ostracism sometimes faced by minority religious groups in homogeneous rural areas of the province. Simply by joining a fully-funded private religious school, the majority religious group could reintroduce and even make compulsory the practice of school prayer and religious indoctrination. The minority religious groups would have to either conform to the majority (if they were even admitted to the school) or attend their own, virtually segregated schools. Such a situation could compound the problems of religious coercion and ostracism faced by minority religious groups. $IÀGDYLWRI'XQFDQ*UHHQÀOHGE\WKH*RYHUQPHQWRI2QWDULRLQWKHFDVHRI$GOHU v. Ontario, at para. 10 42. To the extent that full funding of private schools enables such schools to supplant public schools, the government objective of universal access to education will be impaired. Private schools frequently establish policies and/or practices that are restrictive in respect of admission of students, the employment of staff or both. $IÀGDYLWRI'XQFDQ*UHHQÀOHGE\WKH*RYHUQPHQWRI2QWDULRLQWKHFDVHRI$GOHU v. Ontario, at para. 7 43. Extending the umbrella of public funding for any geographic area can lead to the duplication of services at considerable public expense. The economies of scale achieved are lost when funding is extended to a multitude of school systems serving the same geographic area. This tendency is particularly observable in areas such as capital expenditures (i.e., the construction of school buildings), transportation (i.e. school busing) and in the expansion of the administration and supervisory structures

924

7. UNITED NATIONS COMMITTEE DECISIONS

necessary to administer and supervise the different schools of systems. Accordingly, full public funding of private religious schools is likely to lead to increased public school closings and the reduction of the range of programs and services any one public system can afford to offer. $IÀGDYLWRI'XQFDQ*UHHQÀOHGE\WKH*RYHUQPHQWRI2QWDULRLQWKHFDVHRI$GOHU v. Ontario, at paras. 12, 13 Case: “Relating to certain aspects of the laws the use of languages in Education in Belgium” (1968) Yearbook of the European Convention on Human Rights (The Hague: Martinus Nighoff, 1968) 44. As stated in Adler v. Ontario, supra by a member of the Supreme Court of Canada: “Canada in general and Ontario in particular is a multicultural, multireligious society. A multicultural, multireligious society can only work if people of all groups understand and tolerate each other. According to the Shapiro Report (Report of the Commission on Private Schools (1985)) submitted in evidence, the public school context represents … the most promising potential for realizing a more fully tolerant society. Children of all races and religions learn together and play together. No religion is touted over any other. The goal is to provide a forum for the development of respect for the beliefs and customs of all cultural groups and for their ethical and moral values. The strength of the public secular school system is its diversity – diversity which it supporters believe will lead to increased understanding and respect for different cultures and beliefs. By providing funding to secular schools where people of all religions are welcomed free of cost, the government encourages people of different cultures and creeds to educate their children together. If funding were provided for private religious schools many of those who now send their children to secular schools would instead send their children to independent religious schools. The public secular schools would lose some students from diverse backgrounds. These students instead of being educated in public multicultural multireligious schools would be educated with homogeneous groups of people of similar beliefs. In short, secular schools might become less diverse and the number of students receiving parochial educations would increase. The overall effect would be to diminish the multicultural exposure of children in schools. This lack of exposure, in turn, would diminish the mutual tolerance and understanding of Ontarians of diverse cultures and religions for one another”. Adler v. Ontario, supra at 718 – 720 45. If the province of Ontario were required to fund private religious schools, this would have a detrimental impact on the public schools, and hence the fostering of a tolerant, multicultural, non-discriminatory society in the province, thus undermining the fundamental rights and freedoms of others. The State Party has struck the appropriate balance by funding a public school system where members of all groups can learn together while retaining the freedom of parents to send children to private religious schools, at their own expense, if they do desire.

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STATE SUPPORT FOR RELIGIOUS EDUCATION

46. The author alleges that there is a violation of Article 18 if read in conjunction with Article 2 of the Covenant. It is the position of the State Party that there is no such violation. 47. Article 2 provides: “Each State party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. 48. Article 2 does not establish independent rights but instead duties of the State parties based on “the rights recognized in the present Covenant”. Article 2 of the Covenant is a general undertaking by States and cannot be invoked by individuals under the Optional ProtocolZLWKRXWUHIHUHQFHWRRWKHUVSHFLÀFDUWLFOHVRIWKHCovenant. Accordingly, Article 2 can be violated only in conjunction with some other (substantive) provision of the Covenant. General Comment 18 (non-discrimination) A/45/40, 1990 at 173, CCPR/9/Add. 1 at 377 Communication No. 398/1990, (A.M. v. Finland) Document A/47/40, CCPR/11/Add. 1 at 442 Communication No. 198/1985 (Stalla Costa v. Uruguay) S.D. Vol. 2 at 221, A/42/40 (1987) at 170 49. There can be no argument that Article 18 in combination with Article 2 has been violated if there is no such right in Article 18 itself. 50. In the alternative, there is no violation of Article 2 because a differentiation based on reasonable and objective criteria does not amount to an invidious distinction or discrimination within the meaning of article 2 of the Covenant. For substantive arguments concerning the issue of discrimination, see discussion under Article 26 below. Communication No. 198/1985 (Stalla Costa v. Uruguay) S.D. Vol. 2 at 221, A/42/40 (1987) at 170

B. Article 26 51. Article 26 of the International Covenant on Civil and Political Rights provides: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. 52. The State Party contends that the communication is inadmissible rationae materiae with Article 26 or, in the alternative, does not demonstrate a violation of that Article.

926

7. UNITED NATIONS COMMITTEE DECISIONS

53. The enjoyment of rights and freedoms on an equal footing guaranteed in Article 26 does not mean identical treatment in every instance. A differentiation in treatment based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of Article 26. Communication No. 172/1984 (Broeks v. Netherlands), S.D. Vol. 2 at 196, A/41/40 (1987) at 139 Communication No. 180/1984 (Danning v. Netherlands), S.D. Vol. 2 at 205, A/42/40 (1987) at 151 Communication No. 198/1985 (Stalla Costa v. Urguay), S.D. Vol. 2 at 221, A/42/40 (1987) at 170 General Comment 18 (non-discrimination) (A/45/40, 1990) at 173 54. In Communication No. 191/1985 (Blom v. Sweden), the Committee considered a challenge based on differing subsidies for public and private education establishments. It noted that the main issue before the Committee was whether the author of the communication is a victim of a violation of Article 26 of the Covenant because of the alleged incompatibility of the Swedish regulations on education allowances with that provision. It stated that the State Party’s educational system provides for both private and public education. The State Party cannot be deemed to act in a discriminatory fashion if it does not provide the same level of subsidy for the two types of establishment, when the private system is not subject to state supervision. Communication No. 191/1985 (Blom v. Sweden) S.D. Vol. 2 at 216, A/43/40 (1988) at 211 55. In Communications Nos. 298/1988 and 299/1988 (Lindgren v. Sweden), the Human Rights Committee considered whether the authors of the communications were victims of a violation of Article 26 of the Covenant because, as parents of children attending private school, they had been denied subsidies for the textbooks of their children and school meals, whereas parents of children who attend public schools and parents whose children DWWHQGSULYDWHVFKRROVLQRWKHUPXQLFLSDOLWLHVGRHQMR\ÀQDQFLDODVVLVWDQFHIRUWKHLU children’s textbooks and meals. In deciding whether or not the State Party has violated $UWLFOHE\QRWJUDQWLQJWKHDXWKRUVVXFKEHQHÀWVWKH&RPPLWWHHUHOLHGRQFHUWDLQ observations. The State Party’s educational system provided for comprehensive public sector schooling and allowed for private education as an alternative to public education. In this connection, the Committee observed that the State Party and its municipalities PDGHSXEOLFVHFWRUVFKRROLQJDQGDYDULHW\RIDQFLOODU\EHQHÀWVVXFKDVIUHHWUDQVSRUW by bus, free textbooks and school meals, available to all children subject to compulsory school education. The State party cannot be deemed to be under an obligation to provide WKHVDPHEHQHÀWVWRSULYDWHVFKRROVLQGHHGWKHSUHIHUHQWLDOWUHDWPHQWJLYHQWRSXEOLF sector schooling is reasonable and based on objective criteria. The parents of Swedish children are free to take advantage of the public sector schooling or to choose private schooling for their children. The decision of the author of these communications to choose private education was not imposed on them by the State Party or by the municipalities

927

STATE SUPPORT FOR RELIGIOUS EDUCATION

FRQFHUQHGEXWUHÁHFWHGDIUHHFKRLFHUHFRJQL]HGDQGUHVSHFWHGE\WKH6WDWH3DUW\DQG the municipalities. Such free decision, however, entails certain consequences, notably payment of tuition, transport, textbooks and school meals. The Committee noted that a State Party cannot be deemed to discriminate against parents who freely choose not WRDYDLOWKHPVHOYHVRIEHQHÀWVZKLFKDUHJHQHUDOO\RSHQWRDOO7KH6WDWH3DUW\KDVQRW YLRODWHG$UWLFOHE\IDLOLQJWRSURYLGHWKHVDPHEHQHÀWVWRSDUHQWVRIFKLOGUHQDWWHQGing private schools as it provides to parents of children at public schools. Further, the &RPPLWWHHIRXQGWKDWWKHIDFWWKDWGLIIHUHQWSULYDWHVFKRROVUHFHLYHGLIIHUHQWEHQHÀWV from the municipalities does not amount to a violation of Article 26. Communication Nos. 298/1988 (Lindgren v. Sweden), Document A/46/40 (1991), CCPR/10/Add.1 at 466 56. The actions of the State Party in funding public schools but not private schools should not be viewed as discriminatory. All children of every or no religious denomination have the same right to attend free secular public schools maintained with tax funds. The fact that a child or a child’s parent voluntarily chooses to forego the exercise of the ULJKWWRHGXFDWLRQDOEHQHÀWVSURYLGHGLQWKHSXEOLFVFKRROV\VWHPLVQRWDGHSULYDWLRQ by the government. 57. The State Party does not fund any private schools, whether they are religious or not. The distinction made by the State Party in the funding of schools does not amount to discrimination on the basis of religion. The only ground of distinction in this case is between public institutions, which are funded by the government, and private/independent institutions, which do not receive funding from the government. No private schools receive funding whether they are religious or secular. No religion is given preferential treatment within the system. The distinction between a private and a public institution is not a ground of discrimination within the meaning of Article 26. Adler v. Ontario, supra at 708 – 709 58. The establishment of secular public institutions open to residents is consistent with the values established in section 26 of the Covenant. Secular institutions do not discriminate against religion; they are a legitimate form of government neutrality. The fact that government may advance secular i.e. non-religious objectives, cannot be said to discriminate against individuals who favour religious objectives. Indeed, a secular system is a tool which assists in preventing discrimination among citizens on the basis of their religious faiths. 59. The State Party makes no distinctions among different religious groups in its public education. Members of all religious groups are free to receive public education which is secular in nature. 60. The State Party does not limit any religious group’s ability to establish private religious schools or to send their children to such private schools. All religious groups may do so. Adler v. Ontario, supra at 699, 700

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7. UNITED NATIONS COMMITTEE DECISIONS

61. Apart from its obligations under the Constitution Act, 1867, State Party provides no direct funding to religious schools, whether they be Christian, Jewish, Islamic, Buddhist, Hindu or otherwise. In such circumstances, it is not discriminatory within the meaning of Article 26 for the State Party to refuse to fund religious schools. Such a decision meets the requirements of Article 26. 62. As discussed in the State party’s submission under Article 18, in paras. 36 to 45, in making this decision the State Party is seeking to achieve the very values advanced by Article 26: the creation of a tolerant society where there is respect and equality for all religious beliefs. If the State Party were required to fund private religious schools, this would have a detrimental impact on the public schools, and hence the fostering of a tolerant multicultural, non-discriminatory, society in the province. 63. It would defeat the objectives of Article 26 itself, if the Committee was to hold that because of the provisions of the Constitution Act, 1867 requiring the funding of Roman Catholic schools, the State Party in 1997 must fund all private religious schools, thus undermining its very ability to create and promote a tolerant society that truly protects religious freedom, when in the absence of the 1867 constitutional provision, it would have no obligation under this Covenant to fund any religious schools at all.

C. Article 27 64. Article 27 of the Covenant provides: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language”. 65. The State Party contends that the communication is inadmissible rationae materiae under Article 27, or in the alternative, does not demonstrate a violation of that Article. 66. The complaint under Article 27 is inadmissible rationae materiae because the travaux preparatoires make it clear that Article 27 does not include a right to require the State to fund private religious schools. 67. Article 27 generally protects only against state actions of a negative character: individuals “shall not be denied the right”. In the travaux preparatoires a proposal to include an obligation to take positive state measures “[t]he States shall ensure” was defeated. The former negative formulation was intentionally chosen. Dr. Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary, (Kehl: N.P. Engel, Publisher) at 481, 504 68. The Committee has expressed the view that “although Article 27 is expressed in negative terms”, a State Party may be required to take certain positive actions. However, in light of the original intention of the drafters, as expressed in the travaux preparatoires, positive actions should only be required in rare circumstances. The government of Ontario has taken the positive actions required. It has taken “positive

929

STATE SUPPORT FOR RELIGIOUS EDUCATION

measures … to protect the identity of a minority and the rights of its members … to practice their religion, in community with other members of the group”. The government of Ontario’s legal regime contains positive measures which protect the rights of members of religious minorities to establish religious schools and to send their children to those schools. It is not further required to fund these schools. General Comment No. 23 (Article 27) CCPR/C/21/Rev.1/Add.5 69. Further, where Article 18, which itself guarantees the right to manifest religion in the community, does not guarantee a right to State funding of private religious schools, no such right can be located in Article 27. General Comment 22, Article 18, A/40/48 at 208 70. As discussed in relation to Article 18, it is submitted that the State Party does protect the right of religious groups to profess and practice their own religion in community with others. The government of Ontario has taken positive action in permitting religious schools to be established and by allowing children to attend such religious schools instead of public schools. 71. In the alternative, restrictions on the rights contained in Article 27 may occur ZKHUHWKH\KDYHDUHDVRQDEOHDQGREMHFWLYHMXVWLÀFDWLRQDQGDUHFRQVLVWHQWZLWKRWKHU provisions of the Covenant read as a whole. For the reasons given in relation to the creation of a tolerant society, Ontario’s decision not to extend funding to all private UHOLJLRXVVFKRROVPHHWVWKLVWHVWIRUMXVWLÀFDWLRQ Communication No. 24/1977 (Lovelace and Canada) S.D. Vol. 1, at 83, A/36/40 (1981), at 166 General Comment No. 23 (Article 27) CCPR/C/21/Rev.1/Add.5 72. For the reasons given earlier in respect of Article 18, there can be no argument that Article 27 in combination with Article 2 has been violated if there is no such right in Article 27 itself. In the alternative, there is no violation of Article 2 because a differentiation based on reasonable and objective criteria does not amount to an invidious distinction or discrimination within the meaning of Article 2 of the Covenant. For substantive arguments concerning the issue of discrimination see discussion under Article 26 above. Communication No. 198/1985 (Stalla Costa and Uruguay) S.D. Vol. 2 at 221

IV. CONCLUSION 73. The State Party submits that the communication is inadmissible or, in the alternative, does not demonstrate a violation of the alleged articles of the Covenant.

,1'(;72$87+25,7,(6 Zylberberg v. Sudbury Board of Education (1988), 65 O.R. (2d) 641 (Ont. C.A.) Canadian Civil Liberties Assoc. v. Minister of Education, (1990), 71 O.R. (2d) 341 (Ont. C.A.) 930

7. UNITED NATIONS COMMITTEE DECISIONS

Bal v. Attorney General of Ontario (1994), 21 O.R. (3d) 681 Ontario Court (General Division) (upheld by the Ontario Court of Appeal, Endorsement of matter heard May 5 and 6, 1997) Adler v. Ontario [1996] 3 S.C.R. 609 (S.C.C.) At 647, 648, 649 Adler v. Ontario, supra at 700, 711 Education Act, R.S.O. 1990, s. 21 Education Act, R.S.O. 1990, ss. 16(1), (2), 21(2) $IÀGDYLWRI/HRQ%UXPHUÀOHGE\WKH*RYHUQPHQWRI2QWDULRLQWKHFDVHRI$GOHUY Ontario, Exhibit “C”, “1989-90 Key Statistics”, at 23 $IÀGDYLWRI)+DQVRQÀOHGE\WKH*RYHUQPHQWRI2QWDULRLQWKHFDVHRI$GOHUY2QWDULR Exhibit “A”, “Private Schools in Ontario”, at iii Adler v. Ontario, supra at 639 Adler v. Ontario, supra at 640 Reference Re Education Act (Que.), [1993] 2 S.C.R. 511 at 529 Reference Re Bill 30, [1987] 1 S.C.R. 1148 at 1173-1174 Reference Re Bill 30, supra at 1173-1174 Education Act, supra, s. 1 $IÀGDYLWRI)+DQVRQ, Exhibit “A”, at pp. 4, 5, 8, 10, 11, 19, 23, 24 and 25 5HSRUWRIWKH&RPPLVVLRQRQ3ULYDWH6FKRROVLQ2QWDULRDWWDFKHGWR$IÀGDYLW of Leon Brumer, Exhibit “B”, at 7, 8, 162, 163, 176-177 5HSRUWRIWKH&RPPLVVLRQRQ3ULYDWH6FKRROVLQ2QWDULRDWWDFKHGWR$IÀGDYLW of Leon Brumer, Exhibit “B”, at 11 – 14 $IÀGDYLW RI * 'XWKOHU ÀOHG E\ WKH *RYHUQPHQW RI 2QWDULR LQ WKH FDVH RI$GOHU Y Ontario, at paras. 4 – 13 $IÀGDYLW RI $ 6HUYDQW ÀOHG E\ WKH *RYHUQPHQW RI 2QWDULR LQ WKH FDVH RI $GOHU Y Ontario, at para. 2 Adler v. Ontario, supra Adler v. Ontario, supra Adler v. Ontario, supra Third Committee, 15th Session (1960); referenced in Marc J. Bossuyt, Guide to the “Travaux Preparatoires” of the International Covenant on Civil and Political Rights (Dordecht: Martinus Nijhoff Publishers, 1987) at 369 Communication No. 118/1982 (J.B. et al v. Canada), Selected Decisions of the Human Rights Committee under the Optional Protocol, Volume 2, (Seventeenth to Thirty-second sessions – October 1982 – April 1988) New York: United Nations, 1990) CCPR/C/OP/2 (hereinafter S.D. Vol. 2) at 34, A/41/40 (1986), at 151

931

STATE SUPPORT FOR RELIGIOUS EDUCATION

Communication No. 446/1991 (J.P. v. Canada), A/47/40, CCPR/11/Add. 1 at 450 See also: Communication No. 483/1991, (J.P. v. K. v. the Netherlands) A/47/40, CCPR/11/Add.1 at 444 Communication No. 185/1984 (L.T.K. v. Finland) S.D. Vol. 2 at 61, A/40/40 (1985), at 240 General Comment 22 (Article 18) A/48/40 at 208 Communication No. 40/1978 (Hartikainen and Finland), Selected Decisions of the Human Rights Committee under the Optional Protocol (Second to sixteenth sessions) United Nations, New York: United Nations, 1985) CCPR/C/OP/1) (hereinafter S.D. Vol. 1) at 74, A/36/40 (1985) at 164 Dr. Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary. (Kehl: N.P. Engel, Publisher) at 330-333 Case “Relating to certain aspects of the laws on the use of languages in education in Belgium” (1968) Yearbook of the European Convention on Human Rights (The Hague: Martinus Nijhoff, 1968) at 832 Adler v. Ontario, supra at 713 Adler v. Ontario, supra at 702-703, 705, 713 General Comment 22, (Article 18) A/48/40 at 208 Communication No. 208/1986, (K. Singh Bhinder v. Canada), Document A/45/40 at 50, CCPR/9/Add.1 at 398 5HSRUWRIWKH&RPPLVVLRQRQ3ULYDWH6FKRROVLQ2QWDULRDWWDFKHGWR$IÀGDYLW of Leon Brumer, Exhibit “B”, at 39 $IÀGDYLWRI'XQFDQ*UHHQ, at paras. 1 and 6 $IÀGDYLWRI'XQFDQ*UHHQ, at para. 6 5HSRUWRIWKH&RPPLVVLRQRQ3ULYDWH6FKRROVLQ2QWDULRDWWDFKHGWR$IÀGDYLW of Leon Brumer, Exhibit “B”, at 50 $IÀGDYLWRI'XQFDQ*UHHQ, at para. 9 Case “Relating to certain aspects of the laws on the use of languages in education in Belgium” (1968) Yearbook of the European Convention on Human Rights (The Hague: Martinus Nighoff, 1968) $IÀGDYLWRI'XQFDQ*UHHQ, at para. 10 $IÀGDYLWRI'XQFDQ*UHHQ, at para. 7 $IÀGDYLWRI'XQFDQ*UHHQ, at paras. 12, 13 Case: “Relating to certain aspects of the laws the use of languages in Education in Belgium” (1968) Yearbook of the European Convention on Human Rights (The Hague: Martinus Nighoff, 1968) Adler v. Ontario, supra at 718 – 720

932

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General Comment 18 (non-discrimination) (A/45/40, 1990) at 173, CCPR/9/Add.1 at 377 Communication No. 398/1990, (A.M. v. Finland) Document A/47/40, CCPR/11/Add.1 at 442 Communication No. 198/1985 (Stalla Costa v. Uruguay) S.D. Vol. 2 at 221, A/42/40 (1987) at 170 Communication No. 198/1985 (Stalla Costa v. Uruguay) S.D. Vol. 2 at 221, A/42/40 (1987) at 170 Communication No. 172/1984 (Broeks v. Netherlands), S.D. Vol. 2 at 196, A/41/40 (1987) at 139 Communication No. 180/1984 (Danning v. Netherlands), S.D. Vol. 2 at 205, A/42/40 (1987) at 151 Communication No. 198/1985 (Stalla Costa V. Uruguay), S.D. Vol. 2 at 221, A/42/40 (1987) at 170 General Comment 18 (non-discrimination) (A/45/40, 1990) at 173 Communication No. 191/1985 (Blom v. Sweden) S.D. Vol. 2 at 216, A/43/40 (1988) at 211 Communications Nos. 298/1988 (Lindgren v. Sweden), Document A/46/40, (1991) CCPR/10/Add.1 at 466 Adler v. Ontario, supra at 708 – 709 Adler v. Ontario, supra at 699, 700 Dr. Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary, (Kehl: N.P. Engel, Publisher) at 481, 504 General Comment No. 23 (Article 27) CCPR/C/21/Rev.1/Add.5 General Comment 22, Article 18, A/40/48 at 208 Communication No. 24/1977 (Lovelace and Canada) S.D. Vol.1, at 83, A/36/40 (1981), at 166 General Comment No. 23 (Article 27) CCPR/C/21/Rev.1/Add.5 Communication No. 198/1985 (Stalla Costa and Uruguay) S.D. Vol. 2 at 221

933

#47 Waldman v. Canada, Author’s reply and second submission WRWKH+XPDQ5LJKWV&RPPLWWHH0D\ On 30 May 1998 counsel for Mr. Waldman replied to the Government of Canada’s February submission. The reply pointed out that the Supreme Court of Canada had ruled once again against any remedy for non-Catholics in the education funding issue and that all domestic remedies had been exhausted. The reply noted that the Canadian Government had admitted in its 27 February 1998 submission that there is a difference in funding arrangements for Catholics in Ontario as compared to other religious groups in the province. The reply stated that “Article 26 of the Covenant provides no exception for discriminatory Constitution Acts, 1867 or otherwise” and that the Canadian constitution could not be used to justify violating Canada’s international legal obligations. The reply also indicates the circularity of the Government of Canada’s claim that the relevant distinction was not based on religion but between publicly-funded and non-funded private schools. Two of the thirteen appendices attached to the Author’s reply were the Constitution Amendment, 1998 (Newfoundland Act) (called Tab 5) and the Constitution Amendment, 1997 (Quebec) (called Tab 7) (See supra at pp. 151-152 and 55, Documents 5(c) and 4(a)). Both these amendments to the Canadian Constitution demonstrated the ability of any province of Canada (following proper procedures) to change the educational funding system in any province.

,17+(0$77(52)WALDMAN V. CANADA, 30 MAY 1998 $GGLWLRQDO)DFWV6LQFHWKH)LOLQJRIWKH&RPPXQLFDWLRQRQ)HEUXDU\ 1. On November 21, 1996 the Supreme Court of Canada rendered a decision in the case of Adler v. Ontario (discussed at paras. 34-44 in the Communication). The decision FRQÀUPVWKH&RXUW·VHDUOLHUUXOLQJLQWKHBill 30 ReferenceDQGFRQÀUPVWKHH[KDXVWLRQ of domestic remedies by the author. Adler v. Ontario (1996) 40 C.R.R. (2d) 1 (SCC), Reply Volume, Tab 2 2. In Adler the Supreme Court of Canada considered the argument “… that by funding Roman Catholic separate schools and secular public schools at the same time as it denies funding to independent religious schools, the province is discriminating against the appellants on the basis of religion contrary to s.15(1) [of the Canadian Charter of Rights and Freedoms].” Adler v. Ontario (1996) 40 C.R.R.(2d) 1 (SCC), Reply Volume, Tab 2, p. 19 (majority opinion)

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The answer given by the majority to this attempted use of the Canadian Charter of Rights and Freedoms’ equality rights provision to invalidate Ontario’s Education Act was as follows: “With regard to the appellant’s equality argument, this claim fails because the funding of Roman Catholic separate schools and public schools is within the contemplation of the terms of s.93 [of the Constitution Act 1867] and is, therefore, immune from Charter scrutiny”. Adler v. Ontario (1996) 40 C.R.R.(2d) 1 (SCC), Reply Volume, Tab 2, p. 19 The equality provision of the Canadian Constitution is located in the Canadian Charter of Rights and Freedoms which was added in 1982. The provision relating to the funding of Roman Catholic schools in the province of Ontario, which provides constitutional authority for Ontario’s Education Act, is located in the Constitution Act 1867. The Supreme Court of Canada ruled that the Charter cannot be used to challenge, and therefore has no effect on, discriminatory provisions found in the Canadian Constitution Act 1867. 3. The author notes that in light of Adler and the Bill 30 cases, the State Party is not disputing that domestic remedies have been exhausted. In paragraph 16 the States Party admits that the Supreme Court of Canada “considered issues similar to those raised in this Communication before the Human Rights Committee” and that the Court found that the Constitution of Canada had not been violated. The States Party admits (paras. 19 & 20), that the case of Adler failed because the constitutional provision for equality in Canada is found in the Canadian Charter of Rights and Freedoms, and the Constitution Act 1867’s discriminatory provisions, according to the Supreme Court of Canada, are “immune from Charter scrutiny”. 4. The majority of the Supreme Court of Canada in Adler acknowledged the discriminatory nature of Canada’s Constitution. In the majority’s words: “Section 93(1) confers a … privileged status on those religious minorities which, at the time of Confederation, enjoyed legal rights with respect to denominational schools. In Reference re Bill 30, Wilson, J acknowledged … that this special status may “sit uncomfortably with the concept of equality embodied in the Charter”, but it must nonetheless be respected”. Adler v. Ontario (1996) 40 C.R.R.(2d) 1 (SCC), Reply Volume, Tab 2, p. 20 5. The dissenting opinion in Adler of Madam Justice L’Heureux-Dubé disagreed that the provisions of the Constitution Act 1867, and the Ontario legislation enacted pursuant to it (the Education Act), were immune from the Charter’s equality provision. She found that the discord with equality rendered the Ontario Education Act unconstitutional. She describes the denial of equality rights this way: “At issue here are the efforts of small, insular religious minority communities seeking to survive in a large, secular society. As such, the complete non-recognition of this group strikes at the very heart of the principles underlying s.15. This provision, more than any other in the Charter, is intended to protect socially vulnerable

936

7. UNITED NATIONS COMMITTEE DECISIONS

groups from the discriminatory will of the majority as expressed through state action. The distinction created under the Education Act gives the clear message to these parents that their beliefs and practices are less worthy of consideration and value than those of the majoritarian secular society. They are not granted the same degree of concern, dignity and worth as other parents.” Adler v. Ontario (1996) 40 C.R.R.(2d) 1 (SCC), Reply Volume, Tab 2, p. 69 “This case involves a severe breach of an insular minority group’s equality rights … The funding scheme created in the Education Act represents an impermissible YLRODWLRQ RI WKH DSSHOODQW·V ULJKW WR HTXDO EHQHÀW RI WKH ODZ XQGHU V RI WKH Charter.” Adler v. Ontario (1996) 40 C.R.R.(2d) 1 (SCC), Reply Volume, Tab 2, p. 77 6. Amendment of the provision of the Canadian Constitution Act 1867, which contains this historical anomaly, s. 93, requires only the agreement of the government of the province affected and the federal government. Such amendments have been passed within the last year in two Canadian provinces. s. 43, Constitution Act 1982, Reply Volume, Tab 3 With respect to Newfoundland, on 14 January 1998, through s. 43 of the Constitution Act 1982, and with the approval of only the Governments of Newfoundland and of Canada, an amendment was made which revised the terms and conditions of education in Newfoundland. This amendment repealed conditions upon which Newfoundland entered Confederation, which had divided the whole of the educational system in the province into a limited number of religious enclaves. The goals of the amendment had ÀUVWEHHQDSSURYHGE\WKHSHRSOHRI1HZIRXQGODQGLQDUHIHUHQGXP 7HUP7HUPVRI8QLRQRI1HZIRXQGODQGZLWK&DQDGDFRQÀUPHGE\WKHNewfoundland Act, 12-13 Geo. VI, c.22, (U.K.)); Constitution Amendment Proclamation, 1987 (Newfoundland Act), SI/88-11, 20 January 1988, Reply Volume, Tab 4 Constitution Amendment, 1998 (Newfoundland Act), SI/98-25, 14 January 1998, Reply Volume, Tab 5 With respect to Quebec, on 22 December 1997, through s. 43 of the Constitution Act 1982, and with the approval of only the Governments of Quebec and of Canada, an amendment was made which revoked the application of s.93 to Quebec. In the reverse historical anomaly present in Ontario, s. 93 of the Constitution Act 1867 provided special protection in Quebec for the Protestant minority and concomitant special privileges for Protestant schools. The amendment ended those privileges and the division of the school system in Quebec into Roman Catholic and Protestant schools, which had resulted from the application of s. 93 in Quebec. s. 93, Constitution Act 1867, Reply Volume, Tab 6 Constitution Amendment, 1997 (Quebec), SI/97-141, 22 December 1997, Reply Volume, Tab 7

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STATE SUPPORT FOR RELIGIOUS EDUCATION

7. By contrast to the willingness of other provinces in Canada to repeal the historical and discriminatory anomalies embodied in s. 93 of the Constitution Act 1867 as it applied in their jurisdictions, Ontario passed a new bill (Bill 160) that introduced broad-ranging amendments to Ontario’s Education Act. The Bill came into force on 8 December 1997. Nowhere in this overhaul was notice taken of the Supreme Court of Canada’s indication that although constitutional, the principle of the equality of Ontario’s religious minorities was being violated by Ontario’s Education Act. Bill 160, c. 31, Statutes of Ontario, 1997, Reply Volume, Tab 8 On 25 March 1998 the Ontario government announced the funding arrangements to accompany the legislative changes, in a so-called “new education funding model” for the distribution of money for elementary and secondary education in Ontario. According to the Ontario government’s own press release: “Ontario’s new … approach to funding will increase classroom spending by $583 million by the year 2000 … Education spending will be stable at over $13 billion for each of the next three years. When combined with current teacher pension contributions, this will total 14.4 billion in 1998-99. In addition, Ontario will provide a total of $385 million in transition and restructuring assistance, including the $215 million announced on February 23 to offset costs associated with amalgamation and start-up of new boards; and $170 million to help boards implement the new funding model.” Media Kit on “Ontario’s new education funding model”, distributed by the Government of Ontario, Reply Volume, Tab 9, pp. 2, 3 New Funding Model, Technical Paper, 31 March 1998, Reply Volume, Tab 10 In the design and introduction of “Ontario’s new approach to education funding” no provision whatsoeverZDVPDGHIRUUHGUHVVLQJWKHGLVFULPLQDWRU\ÀQDQFLDOEXUGHQ placed upon members of religious minorities, such as Mr. Waldman.

5HSO\WRWKH6WDWHV3DUW\·V6XEPLVVLRQVRQ$GPLVVLELOLW\DQGWKH0HULWVRI )HEUXDU\ 8. The facts as stated in the States Party’s submissions in themselves clearly admit the discriminatory nature of the treatment of Roman Catholics as compared to non-Roman Catholics in the province of Ontario by virtue of the Constitution of Canada and Ontario’s Education Act. In the States Party’s own words: para. 1(d) Under a provision of the Canadian Constitution Act, 1867, Ontario is obliged to fund Roman Catholic schools in the province … The Canadian Constitution is the supreme law in the country. Ontario must abide by its provisions … para. 1(f) Apart from its obligations under the Canadian Constitution Act, 1867, Ontario provides no direct funding to religious schools, whether they be Christian, Jewish, Islamic, Buddhist, Hindu or otherwise.

938

7. UNITED NATIONS COMMITTEE DECISIONS

9. The States Party admits (para. 18), with respect to religious school rights of Roman Catholics in Ontario that the Constitution of Canada “entrench[es] constitutionally a special status for such classes of persons, granting them rights which are denied to others.” The admission of discriminatory action by the States Party is again clear from its submission in para. 61, where it repeats: “Apart from its obligations under the Constitution Act 1867, State Party provides no direct funding to religious schools, whether they be Christian, Jewish, Islamic, Buddhist, Hindu or otherwise.” The point is, that the Covenant, Article 26, provides no exceptions for discriminatory Constitution Acts, 1867 or otherwise. The constitutional subservience in Canada of equality rights to hundred-year old historical anomalies at odds with modern conceptions of justice, does not similarly thwart the interpretation and application of the equality provisions of the Covenant on Civil and Political Rights. The discrimination based on religion, in violation of the Covenant on Civil and Political Rights, is not saved by the fact that the province of Ontario, according to Canadian law, has conformed to the requirements of the Canadian constitution. The requirements of the Covenant determine the international legal obligations of Canada. 10. The Canadian Constitution Act 1867 included such a provision in order to protect Roman Catholics, a religious minority in 1867. (States Party’s Submissions, para. 1(d)) The Canadian Constitution Act 1867 does not require similar protection of other religious minorities in Ontario. 11. However, the actual composition of religious minorities in Ontario has changed dramatically since Canada was founded in 1867. The Roman Catholic minority is now the second largest religious community in the province, numbering 36% of the population (see paragraph 14, Communication). Nevertheless, the historical anomaly of protecting only Roman Catholics and extending no similar provision to other religious minorities (for example, the Jewish community numbering 2% of the population), remains. (see para. 14, Communication). 12. Amendment of the provision of the Canadian Constitution Act 1867, which contains this historical anomaly, would require only the agreement of the government of the province of Ontario and the Government of Canada. s. 43 of the Constitution Act 1982, Reply Volume, Tab 3 13. The States Party submits (para. 11) that the Roman Catholic system is not a private school system because it is provided with direct public funding, and has been required to create publicly accountable mechanisms for receiving and spending public funds. Hence, the States Party submits, there is no discrimination between Roman Catholics and other religious communities, but between publicly funded and private schools. 6XFKDQDUJXPHQWLVREYLRXVO\FLUFXODU,ISXEOLFIXQGVZHUHWRÁRZWRWKHVFKRRO systems of other religious groups, then so would the concomitant public accountability. The “public”quality of Roman Catholic schools and their administration is not a genetic or inherent feature of Roman Catholic ratepayers and their school system. It is 939

STATE SUPPORT FOR RELIGIOUS EDUCATION

a bureaucratic construct which is discriminatorily assigned to one group of ratepayers EDVHGRQWKHLUUHOLJLRXVDIÀOLDWLRQWRWKHH[FOXVLRQRIDOORWKHUUDWHSD\HUV Elsewhere in its submissions the States Party repeats the argument that “the States Party does not fund any private schools, whether they are religious or not … The only ground of distinction in this case is between public institutions, which are funded by government, and private/independent institutions, which do not receive funding from the government.” (para. 57) The argument is, in essence, as follows: (a) the States party provides direct public funding only to Roman Catholic schools (States Party’s Submissions, para. 1(d) and (f)) (b) the States Party labels those schools “public” as a consequence of the public funding (States Party’s Submissions, para. 11) (c) the States Party calls the resulting distinction one between public and private schools, rather than between Roman Catholics and all other religions (States Party’s Submissions, para. 57) Such reasoning is both circular and indefensible. 14. The States Party submits that if the Human Rights Committee were to order the extension of non-discriminatory public funding to other religious denominations it would harm the goals of a tolerant, multi-cultural, non-discriminatory society. (paras. 62-63) On the contrary, the current circumstance of discriminatory and selective funding of only one religious denomination in the establishment and operation of religious schools is highly detrimental to fostering a tolerant, non-discriminatory society in the province. Public funding of religious schools predicated on privileged and exclusive UHOLJLRXVDIÀOLDWLRQHQFRXUDJHVWKHYHU\KLHUDUFKLFDOLPEDODQFHGDQGGLYLGHGVRFLHW\ along religious lines that it claims to defeat. This point was also made in the dissenting opinion in the Supreme Court of Canada case of Adler by Madame Justice L’Heureux-Dubé. Commenting on a similar argument that the Government of Ontario made in the Supreme Court of Canada, she stated: “… I note that the salutary effects of the legislation [the Ontario Education Act] do not outweigh the deleterious impact on the claimants. No evidence has been adduced by the respondents that a total denial of funding is required to further the goals of creating a large, public education system which fosters the development of social tolerance and harmony.” Adler v. Ontario (1996) 40 C.R.R.(2d) 1 (SCC), Reply Volume, Tab 2, p. 76 Rather, says Madame Justice L’Heureux-Dubé, “At issue here are the efforts of small, insular religious minority communities seeking to survive in a large, secular society … The distinction created under the Education Act gives the clear message to these parents that their beliefs and practices are less worthy of consideration and value than those of the majoritarian

940

7. UNITED NATIONS COMMITTEE DECISIONS

secular society. They are not granted the same degree of concern, dignity and worth as other parents.” Adler v. Ontario (1996) 40 C.R.R.(2d) 1 (SCC), Reply Volume, Tab 2, p. 69 15. The fact that a minuscule percentage of Roman Catholics in Ontario choose to send their children to privately-funded Roman Catholic schools instead of fully publicly-funded Roman Catholic schools (States Party’s Submissions, para. 12), is irrelevant. They have a choice between a fully publicly-funded religious education for their children, which the families on non-Roman Catholics do not. 16. According to the States Party’s own submissions (para. 13), alternative forms of public aid to private religious schools in Ontario “amount to about one-sixth of the average cost per pupil enrolled in a private school.” As detailed in the author’s FRPPXQLFDWLRQSDUDV WKLVLPSRVHVDPDMRUÀQDQFLDOKDUGVKLSRQQRQ5RPDQ Catholics choosing to send their children to religious schools, as compared to the Roman &DWKROLFIDPLO\ZKLFKLVÀQDQFLDOO\VXSSRUWHGLQWKHLUGHFLVLRQ 17. Contrary to the States Party’s submissions in para. 15, the author asserted at paras. 21-22 that Ontario is the only jurisdiction in Canada which extends funding to just one religious group. The author clearly acknowledged that other provinces have chosen to publicly fund only a secular school system. The author’s point was that in comparison with other provinces which have chosen to extend public funding to religious schools, only Ontario funds Roman Catholics to the exclusion of all other religious groups. Furthermore, the States Party’s submissions in para. 15 are confused and unreliable in view of its prior claim that religious schools become public once directly publicly funded. (See para 14 above) 18. The State Party’s submissions (paras. 23 & 24), that the complaint under Article 18 is inadmissable rationae materiae because Article 18 does not include a right to require the state to fund private religious schools, is a complete misrepresentation of the author’s submissions. The author states only: “The practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as … the freedom to establish seminaries or religious schools.” 2IÀFLDO5HFRUGVRIWKH*HQHUDO$VVHPEO\)RUWKHLJKWKVHVVLRQ6XSSOHPHQW1R 40, (A/48/40). General Comment No. 22, adopted on 20 July 1993. Volume III, Tab 31 (Communication), at paragraph 4. Article 18(1) means that the right to manifest religion in community with others includes the right to teach religion and the right to educate one’s children in a religious school. The Article 18 right is not to public funding of religious schools, but to the right to choose a religious education. If this choice is possible for some and not for others on discriminatory grounds, then Article 18 is violated in conjunction with Article 2. Article 2 of the Covenant recognizes that the rights and freedoms in Article 18(1), among others, must be respected and ensured to all persons without distinction of any kind – including religion. The author submits that in order for Article 2 to be given its

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STATE SUPPORT FOR RELIGIOUS EDUCATION

full and proper meaning it must have the effect of requiring non-discrimination on the listed grounds with respect to the rights and freedoms in the Covenant, even if in the absence of discrimination, no violation of the Covenant existed. If a violation of the Covenant was always required without the application or consideration of Article 2, $UWLFOHZRXOGEHVXSHUÁXRXV 19. A similar issue arose in the context of the meaning of Article 14 of the European &RQYHQWLRQRQ+XPDQ5LJKWV7KH(XURSHDQ&RXUWFRQÀUPHGWKDWWKHQRQGLVFULPLQDtion provision in Article 14 meant that there could be a violation of the Convention by taking Article 14 together with a right or freedom found in the Convention, even if there was no violation of the latter right considered on its own. Article 14 provides: “The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Reply Volume, Tab 11 The European Court of Human Rights has interpreted Article 14 to mean: “Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence, since it has effect solely in relation to ‘the enjoyment of the rights and freedoms’ safeguarded by those provisions. Although the application of Article 14 does not necessarily presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter.” Judgment of 28 May 1985, Abdulaziz, Cabales and Balkandali, Series A, Volume 94, para. 71, Reply Volume, Tab 12 The application of Article 14 does not require the simultaneous violation of one of the Convention’s rights or freedoms. This autonomous character of Article 14 was recognized by the European Court of Human Rights in the Belgian Linguistics Case, where it held: “While it is true that this guarantee [viz. the one laid down in Article 14] has no independent existence in the sense that under the terms of Article 14 it relates solely to ‘rights and freedoms set forth in the Convention’, a measure which in itself is in conformity with the requirements of the Article enshrining the right or freedom in question may however infringe this Article when read in conjunction with Article 14 for the reason that it is of a discriminatory nature.” Judgement of 23 July 1968, Case “Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium”, Series A, Volume 6, para 9, p. 24, Reply Volume, Tab 13; see also Judgment of 27 October 1975, National Union of Belgian Police Case, Series A, Volume 19, para. 44, Reply Volume, Tab 14

942

7. UNITED NATIONS COMMITTEE DECISIONS

20. The States Party submits that an alleged violation of Article 18 (in the form of a failure to respect an independent right to state funding of private religious schools – which in fact the author does not claim), must be determined in the absence of a consideration of Article 2. This is an improper interpretation of the Covenant. The author claims a right to non-discrimination in the context of the freedom to teach religion and to establish religious schools. The author claims that the public funding of only Roman Catholic schools in Ontario results in discriminatory support for the teaching of the Roman Catholic religion and the establishment of Roman Catholic schools. The regime which grants funding exclusively to Roman Catholics violates Article 18(1) of the Covenant taken together with Article 2, even if Article 18(1) would not be violated standing alone. Consequently, paragraphs 25-48 of the States Party’s submissions – which aim to rebut any suggestion of a violation of Article 18(1) standing alone – are not relevant, and paragraph 49 of the States Party’s submissions is an erroneous interpretation of the Covenant and of the application of Article 2. 7KH6WDWHV3DUW\PDNHVWKHVDPHHUURULQGLVPLVVLQJWKHVLJQLÀFDQFHRI$UWLFOHLQ relation to Article 27, as it did in the context of Article 18. The author argues only that a positive duty to support and facilitate independent minority schools, must be done in a manner which is consistent with the principles set out in Article 2(1). General Comment No. 23, para. 6.2, Human Rights Committee, Fiftieth session, (CCPR/C/21/Rev.1/Add.5), Volume III, Tab 39 (Communication) Since Roman Catholics are the only religious minority to receive full and direct funding for religious education from the government of Ontario, Article 27 has not been applied, as required by Article 2, without distinction on the basis of religion. 22. The author agrees with the States Party (para. 54) that the States Party cannot be deemed to act in a discriminatory fashion if it does not provide the same level of subsidy to private as compared to public education. The author agrees with the States 3DUW\SDUD WKDW$UWLFOHLVQRWYLRODWHGE\IDLOLQJWRSURYLGHWKHVDPHEHQHÀWV to parents of children attending private schools as it provides to parents of children at public schools. 23. The author acknowledges that the public school system in Ontario would have JUHDWHUÀQDQFLDOUHVRXUFHVLIWKHJRYHUQPHQWRI2QWDULRFHDVHGIXQGLQJDQ\UHOLJLRXV schools. In the absence of discrimination, the withdrawal of such funding is a policy decision which is for the government of Ontario to make. For example, steps to reduce historical commitments to publicly-funded education for selective religious denominations in the Constitution Act 1867 and the Constitution Act 1949 (the Terms of Union of Newfoundland with Canada), have been taken in relation to both the provinces of Quebec and Newfoundland within the last year. The author submits only that whenDULJKWWRSXEOLFO\ÀQDQFHGUHOLJLRXVHGXFDWLRQ is recognized by a States Party, no differentiation shall be made among individuals on the basis of the nature of their particular beliefs. The practice of exclusively funding Roman Catholic religious education in Ontario pursuant to the Constitution Act 1867 and the Education Act therefore violates the Covenant. The author, therefore, seeks

943

STATE SUPPORT FOR RELIGIOUS EDUCATION

funding for all religious schools which meet provincial standards in Ontario at a level equivalent to the funding, if any, received by Roman Catholic schools in Ontario. [Editor’s Note: Appendices have not been reproduced]

944

#48 Waldman v. Canada, Government of Canada second reply, )HEUXDU\ On 22 February 1999 the Canadian Government replied to the Waldman submission of 30 May 1998, 3 months after the six-month deadline for submitting a reply. The State Party’s reply reviewed the decision in Adler and argued that the same reasons for that judgement should hold in the Waldman case, namely, that. the lack of equal treatment for non-Catholics in the education funding formula was reasonable and objective. The State Party also reviewed the changes in the Canadian constitution referred to in the Waldman submission of 30 May 1998 relating to Newfoundland and Quebec. The Government of Canada argued that those changes were necessary to eliminate a fractured school system in Newfoundland and to substitute a denominational school system in Quebec with a language-based system.

,17+(0$77(52)WALDMAN V. CANADA)(%58$5< 67$7(3$57<·65(63216( 727+($87+25·65(3/<&20081,&$7,21 AND (9,'(1&(5(32576$57,&/(6$1'/(*,6/$7,21

7$%/(2)&217(176 1.

Introduction

2.

Section 15 of the Canadian Charter, Article 26 of the Covenant and the Adler Decision

3.

Constitutional Amendments in Quebec and Newfoundland (i) Recent Amendments in Quebec (ii) Recent Amendments in Newfoundland and Labrador

4.

Other Matters

5.

Article 2 and Article 18

6.

Conclusion

TAB 1.

State Party’s Response to the Author’s Reply Communication, dated February 22, 1999.

2.

W.J. Smith, W.F. Foster, “Section 93 of the Canadian Constitution: Is God on WKH:D\2XWRI&DQDGD·V6FKRROV"µ0F*LOO8QLYHUVLW\2IÀFHRI5HVHDUFKRQ Education Policy, 1998. 945

STATE SUPPORT FOR RELIGIOUS EDUCATION

3.

Statement by Minister Dion on the Amendment of Section 93 (Education) of the Constitution Act, 1867, in relation to Quebec, in the House of Commons on April 22, 1997.

4.

Special Joint Committee of the Senate of Canada and House of Commons, Report of the Special Joint Committee to amend Section 93 of the Constitution Act, 1867, concerning the Quebec School System, November 1997.

5.

Sections 218, 726 and 727 of the Qubec Education Act, R.S.Q. c. I-13.3, as amended.

6.

An Act Respecting Certain Declarations of Exception in Acts Relating to Education, S.Q. 1994 c. 11.

7.

Standing Senate Committee on Legal and Constitutional Affairs, Amendment to the Constitution of Canada: Term 17 of the Terms of Union of Newfoundland and Labrador, July 17, 1996.

8.

Special Joint Committee of the Senate of Canada and House of Commons, Report of the Special Joint Committee on the Amendment to Term 17 of the Terms of Union of Newfoundland, December 1997.

1. Introduction 1. The State Party has received a copy of the author’s Communication to the Committee titled “Reply to the State Party’s Submissions” which sets out “Additional Facts Since the Filing of the Communication on 29 February 1996.” The State Party seeks an RSSRUWXQLW\WREULHÁ\UHVSRQGWRSDUWVRIWKLV5HSO\&RPPXQLFDWLRQIURPWKHDXWKRU

2. Section 15 of the Canadian Charter, Article 26 of the Covenant and the Adler Decision 2. The analysis of a claim of discrimination under the Canadian Charter of Rights and Freedoms is different than the analysis conducted under Article 26 of the Covenant. 8QGHUWKH&KDUWHUWKHUHLVDWZRVWDJHSURFHVV7KH&RXUWÀUVWFRQVLGHUVZKHWKHUD law is contrary to the equality rights guarantee in section 15 of the Charter. If such DÀQGLQJLVPDGHWKH&RXUWZLOOWKHQFRQVLGHUZKHWKHUWKHODZDOWKRXJKLWKDVEHHQ IRXQGWREHFRQWUDU\WRVLVQHYHUWKHOHVVUHDVRQDEOHDQGGHPRQVWUDEO\MXVWLÀHG in a free and democratic society pursuant to section 1 of the Charter. Considerations RIUHDVRQDEOHQHVVDQGMXVWLÀFDWLRQDUHPDGHDWWKLVVHFRQGVWDJH7KXVIRUH[DPSOH in McKinney v. University of Guelph, the Court found that a rule requiring university professors to retire at the age of 65 constituted age discrimination contrary to s. 15, EXWWKDWWKHUXOHZDVUHDVRQDEOHDQGMXVWLÀHGXQGHUVVLQFHLWSHUPLWWHGQHZHQWUDQWV to gain access to the profession and older teacher’s to retire with dignity. Hence, no “violation of the Charter” was found. In contrast, in its jurisprudence this Committee has held that a distinction will not violate Article 26 where it is made on a reasonable and objective basis. McKinney v. University of Guelph, [1990] 3 S.C.R. 229 946

7. UNITED NATIONS COMMITTEE DECISIONS

Communication No. 172/1984 (Broeks v. Netherlands), S.D. Vol. 2 at 196, A/41/40 (1987) at 139 Communication No. 180/1984 (Danning v. Netherlands), S.D. Vol. 2 at 205, A/42/40 (1987) at 151 Communication No. 198/1985 (Stalla Costa v. Uruguay), S.D. Vol. 2 at 221, A/42/40 (1987) at 170 General Comment 18 (non-discrimination) (A/45/40, 1990) at 173 3. The author refers, at paragraph 4 of its Reply Communication, to the recent decision of the Supreme Court of Canada in Adler v. Ontario where the Court held that s. 93 of the Constitution Act, 1867, was immune from Charter scrutiny. The author states that the majority of the Court in Adler allegedly “acknowledged the discriminatory nature of Canada’s Constitution”. The State Party takes issue with this statement. The author refers to a passage in the Adler decision in which the Court noted that s. 93 (1) confers a “privileged status” on those religious minorities which enjoyed legal rights at the time of confederation and that, in an earlier case, Wilson J. acknowledged that this special status may “sit uncomfortably with the concept of equality embodied in the Charter.” However, this does not mean that the Supreme Court of Canada has held that s. 93 (1) of the Constitution Act, 1867, if it were found to be subject to the Charter, would be found to “violate the Charter.” Because one part of the Constitution cannot be held to infringe another part of the Constitution the Supreme Court of Canada has never had to consider whether the funding of Roman Catholic separate schools required by s. 93 (1) of the Constitution Act, 1867LV´UHDVRQDEOHDQGGHPRQVWUDEO\MXVWLÀHGµXQGHUV 1 of the Charter. 4. The State Party, in its February 18, 1998, Submissions to the Committee, set out the reasonable and objective grounds for not extending full and direct educational funding to other religious denominations wishing to operate religious schools in Ontario. The State Party pointed out that private religious schools in Ontario do receive considerable indirect funding, through tax expenditures and tax exemptions, equal to 1/6 to 1/3 of the cost of private religious education. Without repeating the detail of its earlier submission the State Party highlights some of the major reasonable and objective grounds. The State Party emphasized that to extend this partial and indirect funding to become full and direct funding of private religious schools: (a) would undermine the ability of public schools to build social cohesion, tolerance and understanding. When diverse populations separate themselves from the general mix, the public system is the poorer because the opportunities for understanding and accomodating differences are diminished. (State Party’s Submissions, paragraphs 35 to 39 and 63 to 64); (b) would result in the disruption and fragmentation of education in Ontario. If full DQGGLUHFWIXQGLQJZHUHSURYLGHGIRUSULYDWHUHOLJLRXVVFKRROVLWLVGLIÀFXOWWR see why it would not also be required for schools established on the basis of ODQJXDJHHWKQLFLW\RUFXOWXUH7KHEHQHÀWVZKLFK2QWDULRUHFHLYHVIURPDSXEOLF education system which promotes the values of pluralism, multiculturalism and

947

STATE SUPPORT FOR RELIGIOUS EDUCATION

understanding, would be diminished (State Party’s Submissions, paragraphs 35 and 40); (c) would compound the problems of religious coercion and ostracism sometimes faced by minority religious groups in homogeneous rural areas of the province who would be faced with the choice of attending a full and directly funded school of the majority religion, where compulsory prayer and indoctrination is practiced, or attend their own, virtually segregated, schools. (State Party’s Submissions, paragraph 41); (d) would undermine the goal of universal access to education as many religious schools restrict admission, and staff hiring, to only co-religionists (State Party’s Submissions, paragraph 42);  H  ZRXOGKDYHQHJDWLYHÀVFDOLPSDFWVDVWKHUHZRXOGEHDPDUNHGLQFUHDVHLQWKH duplication of services and capital costs to fund the religious schools, and a concurrent diminishment of the range of programs and services that the public system would be able to afford (State Party’s Submissions, paragraph 43 and 63). 5. The author at paragraph 5 of his Reply Communication quotes from the dissenting opinion of Madam Justice L’Heureux-Dubé. Her Ladyship was one of only two judges who was prepared to consider whether the absence of full funding to private religious schools violated the Charter. Madam Justice McLachlin also considered this issue under the Charter. However, Justice McLachlin concluded that there were reasonable DQGGHPRQVWUDEO\MXVWLÀHGJURXQGVIRUQRWH[WHQGLQJIXOOIXQGLQJFLWLQJDQXPEHURI the grounds set out in the above paragraph. The State Party submits that the reasonable JURXQGVLGHQWLÀHGE\-XVWLFH0F/DFKOLQXQGHUVRIWKHCharter would satisfy the reasonable and objective grounds required under Article 26 of the Covenant. 6. In identifying reasonable grounds under s. 1 of the Charter Justice McLachlin wrote: The Objective of the Denial of Funding 212 The decision to fully fund public secular schools while denying any funding to independent religious schools (other than the constitutionally mandated funding for Roman Catholic schools) is at base a political decision. Its objective, the record shows, is to foster a strong public secular school system attended by students of all cultural and religious groups. Canada in general and Ontario in particular is a multicultural, multireligious society. A multicultural multireligious society can only work, it is felt, if people of all groups understand and tolerate each other. According to the Shapiro Report (Report of the Commission on Private Schools in Ontario (1985)), submitted in evidence, “the public school context represents … the most promising potential for realizing a more fully tolerant society”. Children of all races and religions learn together and play together. No religion is touted over any other. The goal is to provide a forum for the development of respect for the beliefs and customs of all cultural groups and for their ethical and moral values. The strength of the public secular school system is its diversity – diversity which its supporters

948

7. UNITED NATIONS COMMITTEE DECISIONS

believe will lead to increased understanding and respect for different cultures and beliefs. … 215 I conclude that the encouragement of a more tolerant harmonious multicultural society constitutes a pressing and substantial objective capable, provided its effect is duly proportionate, of justifying the infringement of s. 15. Proportionality (i) Rational Connection  7KHÀUVWTXHVWLRQLVZKHWKHUWKHUHLVDUDWLRQDOFRQQHFWLRQEHWZHHQWKHGHQLDO of funding to independent religious schools and the ultimate goal of promoting tolerance and understanding between people of different cultural and religious groups. 217 The argument linking denial of funding for independent religious schools to the ultimate objective of a more tolerant society goes like this. By providing funding to secular schools where people of all religions are welcomed free of cost, the government encourages people of different cultures and creeds to educate their children together. If funding were provided for private religious schools many of those who now send their children to secular schools would instead send their children to independent religious schools. The public secular schools would lose some students from diverse backgrounds. These students, instead of being educated in public multicultural multireligious schools, would be educated with homogeneous groups of people of similar beliefs. In short, secular schools might become less diverse and the number of students receiving parochial educations would increase. The overall effect would be to diminish the multicultural exposure of children in schools. This lack of exposure, in turn, would diminish the mutual tolerance and understanding of Ontarians of diverse cultures and religions for one another.  6FLHQWLÀFGHPRQVWUDWLRQRIFDXVHDQGHIIHFWLVQRWQHFHVVDU\WRVDWLVI\WKH requirement of a rational connection between the objective sought and the infringing measure. Legislators can seldom demonstrate that the measures they propose for the betterment of society will inevitably have that effect. What is required is that the measure not be arbitrary, unfair or based on irrational considerations: Oakes, supra, at p. 139. As a matter of common sense, can it be said that the measure or legislative scheme in question may promote (as opposed to inevitably accomplish) the objective sought? 219 This test, in my view, is met in this appeal. The denial of funding to separate schools is rationally connected to the goal of a more tolerant society. (ii) Minimal Impairment 220 Once it is established that the infringing measure is rationally connected to the objective by which the province seeks to justify it, the enquiry moves to the question of whether the measure impairs the right or freedom as little as possible. 949

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Where social issues are at stake, courts approach the legislature’s decision as to what infringement is required to achieve the desired end with considerable deferHQFH,WLVQRWGLIÀFXOWWRFRQMXUHXSK\SRWKHWLFDOVROXWLRQVZKLFKPLJKWLQIULQJH the right in question less than the solution chosen by the legislature. This alone is LQVXIÀFLHQWWRDOORZWKHFRXUWVWRGHFODUHWKDWWKHOHJLVODWXUH·VVROXWLRQYLRODWHVWKH Charter. As long as the measure falls within a range of acceptable solutions to the problem, it will pass the minimal impairment test: Edwards Books, supra, Irwin Toy Ltd. v. Québec (Attorney General), [1989]1 S.C.R. 927; Reference re ss. 193 and 195.1 (1)(c) of the Criminal Code (Man.)[1990] 1 S.C.R. 1123; R. v. Chaulk, [1990] 3 S.C.R. 1303. Again, common sense is the guide. 221 In the appeal at bar, it is impossible to say whether a less intrusive measure, such as partial funding for private religious schools, might achieve the same objective with less infringement of the guarantee of freedom of religion. The Ontario Legislature has chosen a measure that falls within the range of reasonable responses to the problem of promoting a more tolerant multicultural society. (iii) Proportionality Between the Effect of the Infringing Measure and the Objective 222 The appellants argue that the effect of denial of funding is to infringe a right at the heart of their religious practice. This infringement is so serious that it can QHYHUEHMXVWLÀHGWKH\DVVHUW7RMXVWLI\LWZRXOGQHJDWHUDWKHUWKDQOLPLWIUHHGRPRI religion. While the argument was put forward to assert that the province’s objective was not pressing and substantial, it really amounts to an argument that the effect of the measure is so serious that it must outweigh the state’s objective of fostering a more tolerant society through multicultural education. 223 Section 1 of the Charter permits reasonable limitations of rights, not their DQQLKLODWLRQ,WLVQRWGLIÀFXOWWRFRQFHLYHRIODZVZKRVHHIIHFWZRXOGEHYLUWXDOO\ to eviscerate a particular freedom or right, creating an effect so disproportionate to WKHJRDOE\ZKLFKWKH\DUHVRXJKWWREHMXVWLÀHGWKDWWKH\FRXOGQRWEHMXVWLÀHG)RU H[DPSOHLWPLJKWEHGLIÀFXOWWRDFFHSWWKDWDODZSUHYHQWLQJ0XVOLPV&KULVWLDQV +LQGXVRUVRPHRWKHUUHOLJLRXVJURXSIURPSXEOLFZRUVKLSFRXOGEHMXVWLÀHGRQ any ground. At the same time, the Charter permits limitation of rights provided the effect is proportionate to the objective the state asserts. Virtually every aspect of human conduct is capable of being the subject of religious belief. It is inevitable that VRPHRIWKHFRQGXFWVDQFWLRQHGRUSUHVFULEHGE\UHOLJLRXVEHOLHIZLOOFRQÁLFWZLWK the legal prescriptions of society or suffer limitation as the state pursues broader goals in the interest of society as a whole, giving rise to a breach of the guarantee of religious freedom or to an unequal treatment on the ground of religion. To take an extreme example, a religious belief requiring corporal punishment of a child PLJKWFRQÁLFWZLWKDSURYLVLRQRIWKHFULPLQDOODZIRUELGGLQJSK\VLFDOYLROHQFH against children. The question in each case is whether the effect of the limitation is proportionate to the state objective. In this case the issue is whether the limitation on equality rights effected by the Education Act is disproportionate to the goal of encouraging social harmony. 950

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224 In my view, the effect of denying funding to independent religious schools is proportionate to the objective sought. The goal of fostering multiracial and multicultural harmony is of great importance in a society as diverse as ours. Against this must be weighed the effect of the measure – to impose additional burdens upon parents whose religious beliefs preclude education of children in public secular schools. The denial of funding does not strike at the heart of the religion; indeed, I have concluded that it does not violate religious freedom at all. Even though it is true that the impugned scheme discriminates on the basis of religion, the record does not establish that the denial of funding compels anyone to violate their religious beliefs in a fashion which would violate s. 2(a) of the Charter. If the Act compelled attendance at public schools, then this might be argued to be the case. But the Act permits other alternatives, including home study. Such alternatives may impose burdens not carried by parents whose children attend publicly funded schools ²WKHUHLQOLHVWKHLQHTXDOLW\WKDWUHVXOWVLQDÀQGLQJRILQIULQJHPHQWRIV²EXW it does not preclude the state from attempting to justify its program on the ground of overarching public concern. 5. Conclusion on the Issue of Constitutionality of Denial of Funding for Independent Religious Schools 225 I conclude that while denial of funding for independent religious schools infringes the equality guarantee of the CharterWKHLQIULQJHPHQWLVMXVWLÀHGXQGHU s. 1 of the Charter. Adler v. Ontario, [1996] 3 S.C.R. 609 at pp. 718 to 723 7. It is also important to highlight that Madam Justice L’Heureux-Dubé, in her dissenting reasons, held that the failure to provide full funding to other religious schools was MXVWLÀHGXQGHUVHFWLRQRQHRIWKHCharter. However, Her Ladyship held that some level of direct partial funding should be provided to private religious schools. Accordingly, Justice L’Heureux-Dubé’s judgment falls short of concluding that the private religious schools should be funded equally with the separate schools. In this regard the State Party notes that the author does not here seek direct partial funding as an alternative remedy, but, as indicated in the last line of his Reply Communication, seeks funding “at a level equivalent to the funding received by Roman Catholic schools in Ontario”. The State Party submits that Justice McLachlin was correct when she rejected the partial funding alternative (at paragraphs 220 and 221 of her reasons, cited above). Whether the appropriate level of funding is 1/6, 1/3 (as currently provided through indirect funding) or 1/2, or more, the decision involves the striking of a balance between the claims of competing groups over scarce resources. The Supreme Court of Canada recognized that “the Courts are not called upon to substitute judicial opinions for legislative ones as to the place at which to draw a precise line.” Similarly, this Committee has recognized that greater deference should be given to the State Party’s reasonable and objective grounds LQVLWXDWLRQVLQYROYLQJWKHDOORFDWLRQRIGLIIHUHQWW\SHVDQGOHYHOVRIEHQHÀWV See: Communication Nos. 406/1990 and 426/1990 (Oulajin & Kaiss v. The Netherlands) U.N. Doc. CCPR/C/46/D/406/1990 and 426/1990 (1992) at paragraphs

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²DQGWKH,QGLYLGXDO2SLQLRQÀOHGE\0HVVUV.XUW+HUQGO5HLQ0OOHUVRQ Birame N’Diaye and Waleed Sadi Communication No. 475/1991 (S.B. v. New Zealand) U.N. Doc. CCPR/C/50/ D/475/1991 (1994) at paragraph 6.2 Communication No. 191/1985 (Blom v. Sweden) S.D. Vol. 2 at 216, A/43/40 (1988) at 211 Communications Nos. 298/1988 (Lindgren v. Sweden), Document A/46/40, (1991) CCPR/10/Add.1 at 466 Communication No. 454/1991 (Garcia Pons v. Spain) U.N. Doc. CCPR/C/55/ D/454/1991 (1995) at paragraphs 9.4 – 9.5 Communication No. 608/1995 (Franz Nahlik v. Austria) U.N. Doc. CCPR/C/57/ D/608/1995 (1996) at paragraph 8.4

&RQVWLWXWLRQDO$PHQGPHQWVLQ4XpEHFDQG1HZIRXQGODQG 8. The author in his Reply Communication refers to the recent constitutional amendments affecting education for the provinces of Québec and Newfoundland. The recent changes in those provinces do not bring about the remedy sought by the author of equivalent funding for all religious schools. The changes in Québec preserve the denominational status of Catholic and Protestant schools in that province, and protect that status through an alternate constitutional means, the use of the notwithstanding clause in the Canadian Charter of Rights and Freedoms. They do not constitute a breaking of the bargain made at Confederation to protect denominational school rights. The changes in Newfoundland demonstrate a clear rejection of the very remedy sought by WKHDXWKRU1HZIRXQGODQGKDVUHSODFHGLWVLQHIÀFLHQWGXSOLFDWLYHDQGFRVWO\UHOLJLRXV based school system, where 8 different religions representing 90% of the population each had the right to set up their own schools, and replaced it with a singular public system where religious observance will be permitted at the request of parents. Indeed, the Newfoundland experience lends support to the State Party’s submission that there are reasonable and objective grounds for not providing equivalent funding to all other religious denominations. The details of the changes in these two provinces is set out in more detail below. (i) Recent Amendments in Québec 9. There has been a recent amendment to s. 93 of the Constitution Act, 1867, as it applies to the province of Québec. The new section 93A of the Constitution Act, 1867, provides: “Paragraphs (1) to (4) of section 93 do not apply to Québec.” The effect of this amendment is to take away the constitutional protection in s. 93 for Protestant and Catholic denominational school boards in order to replace them with linguistic school boards in that province. Québec has, however, provided constitutional protection for denominational school boards through an alternate method – the invocation of the notwithstanding clause in the Canadian Charter of Rights and Freedoms.

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10. It is important to emphasize that Québec has not eliminated Catholic and Protestant schools. The Education Act in Québec explicitly permits a school to designate itself Catholic or Protestant. Once the designation is made the school may operate in a religious fashion. 7KHVSHFLÀFSURYLVLRQVLQWKH4XpEHFEducation Act which permit denominational rights are section 218 (R.S.Q., chapter I-13.3) [Tab 5]. That provision allows, after consultation with the parents of the students of the school, for an application to be made for a designation of the school as a Catholic school or a Protestant school, or for the withdrawal of such a recognition. An Act Respecting Certain Declarations of Exception in Acts Relating to Education, S.Q. 1994, c.11, provides that the right to make such a designation shall operate notwithstanding the provisions of s. 2 (a) [freedom of religion] and s. 15 [equality rights] of the Canadian Charter of Rights and Freedoms [Tabs 5 and 6]. Through this extraordinary use of the Charter’s notwithstanding clause denominational school rights are retained and protected in Québec. In addition, the religious designation power is also insulated from a challenge under Québec’s Charter of Human Rights and Freedoms [Tab 5]. See: W.J. Smith, W.F. Foster, “Section 93 of the Canadian Constitution: Is God RQWKH:D\2XWRI&DQDGD·V6FKRROV"µ0F*LOO8QLYHUVLW\2IÀFHRI5HVHDUFKRQ Educational Policy, 1998, p. 20 to 23 [Tab 2] 11. Under the current scheme in Québec, linguistic school boards are to provide either Catholic or Protestant moral and religious instruction or moral instruction as each student may chose. Further, Catholic students are entitled to student services of pastoral care and guidance, and Protestant students are entitled to student services of religious care and guidance which the school boards must provide. Each school board must develop appropriate courses and provide Catholic or Protestant religious instruction, pastoral care, or religious care and guidance services in accordance with the regulations of the Catholic committee or Protestant committee established by the SURYLQFH7KHFRPPLWWHHVPXVWDSSURYHDSSURSULDWHWH[WVDQGPXVWDSSRLQWTXDOLÀHG teachers for the purpose. Schools transferred to the new linguistic boards are expected to retain their existing designation as Protestant or Catholic schools. There is provision for the recognition of other schools as Catholic or Protestant in the future, and for the withdrawal of such recognition by the Catholic and Protestant committees. 12. The reason for the recent amendment to the Constitution Act for Québec was, accordingly, not to eliminate denominational schools, or, as the author asserts at paragraph 7 of his Reply Communication “to repeal historical and discriminatory anomalies”. The purpose of the amendment was articulated well in the statement made on April 22, 1997, in the House of Commons of Canada by the Honourable Stéphane Dion, President of the Privy Council and Minister of Intergovernmental Affairs: On the Francophone side, the present organization of school boards makes it more GLIÀFXOWWRLQWHJUDWHQHZFRPHUVLQWR)UDQFRSKRQHVRFLHW\DVSURYLGHGE\SURYLQFLDO legislation. The Anglophone community long regarded Protestant school boards as an institution vital to its development. However, these school boards have never encompassed Catholic Anglophones. On the other hand, they have accepted a growing number of children whose language of instruction is French. As a result, there

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is danger that, in the medium term, the Anglophone community may lose control RIERDUGVWKDWDUHDQLQFUHDVLQJO\LQDGHTXDWHUHÁHFWLRQRIWKHLUVRFLDOUHDOLW\DQG that, in any case, cannot respond to the needs of their Catholic populations. That is why voices, both Francophone and Anglophone, Catholic as well as Protestant, have been heard over the last twenty years advocating a system based on language rather than religion. A consensus on the need to reorganize school organizations along these lines has existed in Québec for some time. Statement by Minister Dion on the Amendment of Section 93 (Education) of the Constitution Act, 1867 in the House of Commons on April 22, 1997 [Tab 3, p. 2] 13. Further evidence that the amendment was not intended to eliminate Protestant or Catholic schools in Québec is also found in Minister Dion’s speech: Although Québecers approve of secularization of school organizations, many are attached to religious instruction. Québec’s Minister of Education, Ms. Pauline Marois, has already indicated that schools that so wish may retain their denominational orientation. Furthermore the right to religious instruction is still guaranteed by section 41 of the Québec Charter of Human Rights and Freedoms. (emphasis added) [Tab 3, p. 3] 14. The Report of the Special Joint Committee of the Senate and House of Commons of Canada, released in November of 1997 [Tab 4, p. 5], highlights the retention of denominational schools in Québec following the amendment. The substance of the provisions in Québec’s Public Education Act for Roman Catholic and Protestant denominational education is similar to that of the guarantees provided by section 93 of the Constitution Act, 1867. Some, who may be uneasy about this shift from constitutional to non-constitutional education in Québec PD\ ÀQG DGGLWLRQDO VHFXULW\ LQ WKH IDFW WKDW WKH &DQDGLDQ &KDUWHU·V VHFWLRQ  notwithstanding clause has been invoked to protect parts of the Public Education Act from Charter scrutiny, provided that the Québec National Assembly continues to renew that notwithstanding provision in the Act. 15. In addition, the Special Joint Committee relied particularly on the support for the proposed amendment from the two principal groups affected, Québec Protestants and Québec Roman Catholics and found a consensus in those communities for the proposed constitutional amendment. It is important to note, however, that the consensus came about precisely because of the existence of the provisions in the Québec Education Act which retained the right for schools to designate themselves as Catholic or Protestant. 7KLVLVEHVWUHÁHFWHGLQDOHWWHUIURPWKH$VVHPEO\RI4XpEHF%LVKRSVWR0LQLVWHU'LRQ which concludes as follows: Our approval for changing the status of school boards has always been accompanied by one condition: that the denominational guarantees established by Bill 107 be maintained. The rights clearly recognized under that legislation are at the heart of our historic heritage.

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Appendix “H” to the Report of the Special Joint Committee of the Senate and House of Commons [Tab 4, pp. 31-32] 16. Accordingly, the recent constitutional amendment in Québec, which was made on the basis of the unique circumstances and in that province and which, with the use of the notwithstanding clause have preserved denominational education, do not in any way advance the author’s claim that s. 93 (1) of the Constitution Act, 1867, as it applies to Ontario, should be found to be in violation of the Covenant or that the Covenant obligates the State Party and Ontario to provide all religious denominations with direct and full educational funding. (ii) Recent Amendments in Newfoundland and Labrador 17. Unlike the amendments in Québec, the amendments affecting education in Newfoundland and Labrador were marked by controversy, legal challenges, court injunctions, social upheaval and two referendums that were required to settle the issue. 18. Upon joining Canada in 1949 Newfoundland and Labrador’s Terms of Union preserved its then existing denominational school structure. As a result, its educational system was unique as compared to all other Canadian provinces. First, Newfoundland and Labrador had no public education system. Rather, it only had denominational school boards. Second, Newfoundland’s terms of union gave educational guarantees to seven different religious denominations (Roman Catholic, Salvation Army, Seventh Day Adventist, United Church, Anglican, Congregational and Presbyterian). The Pentecostal Assemblies obtained the same rights by constitutional amendment in 1987. Thus 90% of the religious communities in the province were able to send their children to schools of their denomination. 19. However, as a result of this constitutional structure Newfoundland had an inefÀFLHQWGXSOLFDWLYHFXPEHUVRPHDQGRYHUO\FRPSOH[HGXFDWLRQV\VWHP$VLQGLFDWHG in paragraph 4, above, the State Party has submitted that a similar result would occur in Ontario if it were required to provide full funding to each religious denomination in the province that wishes to set up its own denominational schools. In short, the author’s proposed remedy would bring about the very unsatisfactory situation that had existed in Newfoundland and which resulted in the need for a constitutional amendment in that province. 20. In 1990 the Government of Newfoundland and Labrador appointed a Royal Commission. The Commission’s 1992 report “Our Children, Our Future” recommended reform of the denominational school system. Following three years of discussion a compromise proposal was developed which would have permitted the creation of interdenominational and some uni-denominational school boards, but with greater control over education being exercised by the provincial government. A referendum was held on September 5, 1997, with a majority of 55% supporting the reforms. 21. The proposed reforms were bitterly opposed by religious leaders and others, as indicated in both the majority and dissenting 1996 Reports of the Standing Senate Committee on Legal and Constitutional Affairs. In addition to holding public demonstrations,

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those opposed sought to block the changes by making representations to members of the Canadian Parliament and later by resort to the courts. Report of The Standing Senate Committee on Legal and Constitutional Affairs, July 17, 1996, Majority and Dissenting Reports [Tab 7] 22. On October 31, 1995, the Newfoundland House of Assembly passed the resolution to amend its Terms of Union. The House of Commons passed its resolution to amend on June 3, 1996. On November 27, 1996, the Senate of Canada amended the wording of the resolution. The proposed amendment by the Senate would have added the words “where numbers warrant”to clarify that there was a constitutional right to uni-denominational schools where numbers warranted. The House of Commons did not accept the proposed change to the resolution and re-passed the original resolution a second time on December 4, 1996. The constitutional amendment was then proclaimed in force on April 21, 1997, by the Governor-General of Canada. 23. The new Schools Act and Education Act came into force on January 3, 1997. This legislation replaced 27 denominational school boards with 10 interdenominational boards. Under these provisions school boards conducted a designation process to determine whether schools would become interdenominational or remain uni-denominational. Expressing strong dissatisfaction with these new provisions, representatives of the Catholic and Pentecostal denominations applied to the Newfoundland Supreme Court for an injunction. The injunction was granted on July 8, 1997, with the Court holding that the provisions were contrary to the new amendment to the Terms of Union as they did not adequately protect denominational school rights. The Court prohibited the proposed closing of Catholic and Pentecostal schools and restrained the continuation of the designation process pending a new, and more fair, procedure. Hogan v. Newfoundland School Boards '/5WK 1ÁG6& 24. Following the Court’s decision, the government of Newfoundland and Labrador announced on July 31, 1997, that it would hold a second referendum on September 2, 1997, on the following question: Do you support a single school system where all children, regardless of their UHOLJLRXV DIÀOLDWLRQ DWWHQG WKH VDPH VFKRROV ZKHUH RSSRUWXQLWLHV IRU UHOLJLRXV education and observances are provided? In late August, 1997, the text of the proposed amendment was announced: 17(1) In lieu of section ninety-three of the Constitution Act, 1867, this section shall apply in respect of the Province of Newfoundland. (2) In and for the Province of Newfoundland, the Legislature shall have exclusive authority to make laws in relation to education, but shall provide for courses in UHOLJLRQWKDWDUHQRWVSHFLÀFWRDUHOLJLRXVGHQRPLQDWLRQ (3) Religious observance shall be permitted in a school where requested by parents.

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25. The referendum was held and a substantial vote of over 72% voted in favour of the amendment. The government of Newfoundland and Labrador then approved the proposed amendment unanimously. The amendment was sent to the Parliament of Canada where a special Joint Committee of the Senate and House of Commons held hearings and received submissions for and against the proposed amendment. The amendment was passed by the House of Commons and by the Senate, following which it was given Royal Assent on January 8, 1998. Subsequently, those opposed to the amendment brought a fresh court challenge which was ultimately dismissed on December 17, 1998. Hogan v. Attorney General of Newfoundland (unreported, December 17, 1998, 1ÁG6& DWSS² 26. As a result of these at times tumultuous and complicated constitutional processes the province of Newfoundland and Labrador now has a single school system in which religious education and religious observance is permitted. As was made clear in the -RLQW6HQDWHDQG+RXVHRI&RPPRQV5HSRUWWKHVSHFLÀFSXUSRVHRIDGGLQJWKHVHFWLRQV permitting religious observance (s-s. 17 (2) and 17 (3)) “was indeed to give religious education and religious observance some Charter protection in the amended Terms of 8QLRQDQGLQWKH1HZIRXQGODQGVFKRROV\VWHPµ,QRWKHUZRUGVWKHVSHFLÀFLQFOXVLRQ of religious education and religious observance in the Terms of Union would insulate them from a challenge under the Charter brought on the ground that there should be no religious content in public schools. Report of the Special Joint Committee on the Amendment to Term 17 of the Terms of Union of Newfoundland, December 1997, at paragraph 2.4 [Tab 8] 27. In contrast to this history in Newfoundland and Labrador, the province of Ontario GRHVQRWKDYHDQLQHIÀFLHQWGXSOLFDWLYHDQGFXPEHUVRPHHGXFDWLRQDOV\VWHPZKLFK is crying out for reform. Unlike Newfoundland and Labrador, Ontario has always had a public school system which has been secular, universally accessible, and able to accommodate persons from all religious backgrounds. Unlike Newfoundland, Ontario did not have a system of eight different denominational schools. Indeed, the special circumstances in Newfoundland and Labrador were highlighted by the majority report in the Canadian Senate which considered the 1996 amendment. It stated: [t]he situation in Newfoundland is unique. There is no other province in which all publicly-funded schools are denominational. There is no other province with an analogous school system, or with the same constitutional context for that system … The Minister of Justice, the Hon. Alan Rock, told this Committee that, “Precedents, to have value, require like facts or similar, if not identical, principles. It would be YHU\GLIÀFXOWWRÀQGDIXWXUHFLUFXPVWDQFHHOVHZKHUHLQ&DQDGDWKDWZRXOGUHSOLFDWH the principles and circumstances that prevail in this instance.” Report of The Standing Senate Committee on Legal and Constitutional Affairs, July 17, 1996, Majority Report, Part IV [Tab 4, pp. 14 -15] 28. Taking into account the unique situation in Newfoundland, and the particular constitutional changes made to deal with the special history on this issue in that province, 957

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it is not reasonable to use the Newfoundland situation as being apposite to Ontario. In addition, the recent changes in Newfoundland and Labrador involved tremendous upset and disruption in the social fabric of the province. It is reasonable and objective for Ontario and the State Party and Ontario to seek to avoid the kind of disruption to its social fabric that was experienced in Newfoundland and that would arise if a constitutional amendment eliminating denominational school rights in Ontario were proposed. Finally, the amendments in Newfoundland do not support the extension of funding to other religious denominations. The amendments were necessary precisely because a system which funded all of the major religions in Newfoundland on an equal basis, as WKHDXWKRUVHHNVIRU2QWDULRSURYHGWREHKLJKO\LQHIÀFLHQWDQGXQZRUNDEOH

4. Other Matters 29. The State Party disagrees with the author’s statements at paragraphs 17 and 23 that funding in Ontario is exclusively available to Roman Catholic schools. As noted above, the indirect funding of between 1/6 and 1/3 the cost of education (and in some cases even higher) is available to persons who choose to forego the public system and send their children to private religious school. (It should be noted that s. 93 (1) of the Constitution Act, 1867, protects denominational school rights that were in place in 1867. These included, and still include Catholic and, under certain conditions, Protestant separate school boards in Ontario. At the present time there remains one Protestant separate school board in Ontario.) 30. The State Party also disagrees with the author’s statement at paragraph 18 of his Reply Submission that the right to choose a religious education is possible for some and not for others. Every person in Ontario is free to choose to send their children to the public schools, private schools, or to school their child at home. The fact that the government of Ontario does not make that choice more attractive by providing a larger tax subsidy or greater funding to private religious schools does not give rise to a breach of the Covenant.

5. Article 2 and Article 18 31. In his Reply Communication the author argues that the State Party has erroneously interpreted Article 2 of the Covenant. The author concedes that the State Party is under no obligation under any article of the Covenant to provide full and direct funding to religious schools, but argues that when the State Party does provide such funding to the existing separate schools Article 2 (in combination with Articles 18 and 27) creates an obligation to provide the same level of funding to all. 32. It is the State Party’s position that Article 2 cannot convert laws or government actions otherwise consistent with the rights and freedoms in the Covenant, into contraventions. The author, it is submitted, seeks in effect to raise equality arguments by combining Article 2 with Articles 18 and 27 respectively. It is the equality guarantee in Article 26 of the Covenant that is the proper context for raising such issues. Article 26 has no direct counterpart in the European Convention for the Protection of Human Rights and Fundamental Freedoms. Unlike Article 14 of the European Convention, which requires that discrimination be in respect of rights and freedoms in that Conven958

7. UNITED NATIONS COMMITTEE DECISIONS

tion, Article 26 of the Covenant contains no such limitation. A communicant who is unsuccessful under Article 26, should not be entitled to an identical re-examination of the issue simply by combining Article 2 with various substantive Covenant provisions. 33. In further response to the author’s submission on this point, the State Party notes that Article 2 paragraph 1 of the Covenant requires the State Party to respect and to ensure to all individuals within its territory “the rights recognized in the present Covenant” without distinction of any kind. 34. The provision of full and direct funding to Roman Catholic separate schools is not an action on the part of the State Party to respect and ensure the rights recognized in the Covenant. Nor is such funding, to use the language of Article 2, paragraph 2, “such legislative measure as may be necessary to give effect to the rights recognized in the present Covenant”. The funding of denominational separate schools in Ontario is not required to ensure, nor in conformity with, a right in Article 18 or Article 27 or any other article under the Covenant. Neither is it related to, or in addition to, the obligations created by those Articles. The funding of denominational separate schools in Ontario arises solely out of the State Party’s constitutional obligation under s. 93 (1) of the Constitution Act, 1867. It does not arise out of any obligation under, in conformity with, nor the augmenting of, any right in any of the Articles of the Covenant. 35. In the alternative, even if Article 2 combined with Articles 18 or 27 creates the obligation asserted by the author, such will be subject to reasonable and objective MXVWLÀFDWLRQVIRUWKHGLIIHUHQFHVLQWUHDWPHQW)RUWKHUHDVRQVRXWOLQHGDERYHWKH6WDWH Party asserts that it has demonstrated reasonable and objective grounds for not extending full funding to private religious schools.

6. Conclusion 36. The State Party submits that the communication is inadmissible or, in the alternative, does not demonstrate a violation of the alleged articles of the Covenant. [Editor’s Note: Appendices have not been reproduced]

959

#49 Waldman v. Canada, Author’s reply and third submission to WKH+XPDQ5LJKWV&RPPLWWHH0DUFK On 15 March 1999, 4 days after receiving the Canadian submission of 22 February 1999, counsel for Mr. Waldman submitted a brief reply. It was pointed out that the Canadian Government admitted in its submission that the current education system “discriminates on the basis of religion” and funds non-Catholics to “between 1/6 and 1/3 of the educational funding provided to Roman Catholics”. It was also argued that failure to treat the discrimination would encourage discord in society, not create “social cohesion, tolerance and understanding” as claimed by the Canadian Government. Counsel for Mr. Waldman sought the “same funding for all religious schools which meet provincial standards in Ontario at a level equivalent to the funding, if any, received by Roman Catholic schools in Ontario.” In other words, counsel did not specify whether the discrimination should be ended by extension of funding to non-Roman Catholics or by elimination of funding to 5RPDQ&DWKROLFVDORQHVLQFHHLWKHUUHPHG\ZRXOGKDYHVDWLVÀHGWKH&RYHQDQW·V international obligations. March 15, 1999 Mr. Alfred de Zayas, Secretary. Human Rights Committee, 2IÀFHRIWKH+LJK&RPPLVVLRQHUIRU+XPDQ5LJKWV c/o United Nations Headquarters, New York New York Dear Mr. de Zayas: Re: In the Matter of Waldman v. Canada, Communication No. 694/1996 3OHDVHÀQGDWWDFKHGDEULHIVXEPLVVLRQIURPWKH$XWKRURIWKH&RPPXQLFDWLRQ0U Arieh Waldman, in response to the “State Party’s Response to the Author’s Reply Communication” dated February 22, 1999 and received March 11, 1999. Please forward this submission to the Committee. Your attention is appreciated. Sincerely,

Professor A. Bayefsky

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,17+(0$77(52)WALDMAN V. CANADA0$5&+ 1. The State Party agrees that the Canadian Charter of Rights and Freedoms is impotent in this case. The State Party states that the Supreme Court of Canada could not render the “privileged status” of Roman Catholics in Ontario a violation of the Canadian Charter because, according to the State Party, “one part of the Constitution cannot be held to infringe another part of the Constitution.” State Party’s response to the Author’s Reply Communication, paragraph 3 2. The State Party admits that the special treatment of Roman Catholics and their schools is “constitutionally mandated.” State Party’s Response to the Author’s Reply Communication, paragraph 6, quoting paragraph 212 from the Supreme Court, Madam Justice McLaughlin 3. The State Party admits that “it is true that the impugned scheme discriminates on the basis of religion.” State Party’s Response to the Author’s Reply Communication, paragraph 6, quoting paragraph 224 from the Supreme Court, Madam Justice McLaughlin 4. The State Party acknowledges the discriminatory treatment. In its words, only one religious denomination has “full and direct funding,” namely, Roman Catholics. The State Party admits that public funding for non-Roman Catholic schools in Ontario amounts to “between 1/6 and 1/3” of the educational funding provided to Roman Catholics. State Party’s Response to the Author’s Reply Communication, paragraphs 4 and 29 5. The State Party argues that singling out one religious denomination, namely Roman Catholics, promotes social cohesion, tolerance and understanding among the remaining population in public schools. On the contrary, it encourages discord in a society perceived by the remainder as favouring one religious denomination based on historical anomalies which are no longer valid. Likewise, the extension of similar treatment to non-Roman Catholics would not serve as the cause of the fragmentation, religious ostracism and duplication of services. The vast bulk of any fragmentation of Ontario’s school system already exists by virtue of the division of the publicly-funded school system into Roman Catholic and non-Roman Catholic schools, and the State Party’s support of the division of the population and their entitlements into Roman Catholics and non-Roman Catholics. 6. The State Party’s stated rationale for this discriminatory treatment, the desire to foster multiracial and multicultural harmony through maximizing public funding for the secular public school system, would actually require a withdrawal of special funding for Roman Catholics. The author of the communication has stated that the remedy for the discrimination which violates the Covenant in this case may be either the withdrawal of privileges accorded to Roman Catholics, or the extension of similar treatment to non-Roman Catholics.

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7. The State Party states that recent constitutional amendments with respect to Catholic and Protestant schools in Quebec (which permit the legislative (but non-constitutional) designation of such denominational schools) are protected from legal challenge because the Quebec legislation “provides that the right to make such a designation shall operate notwithstanding the provisions of s. 2(a) [freedom of religion] and s. 15 [equality rights] of the Canadian Charter of Rights and Freedoms. An argument that the Covenant has not been violated by Ontario refusing to alter constitutional and legislative privileges for Roman Catholics, is hardly supported by pointing to Quebec legislation which allows IRUGHQRPLQDWLRQDOVFKRROVRQO\E\VSHFLÀFDOO\DYRLGLQJWKHIUHHGRPRIUHOLJLRQRU equality rights in the Canadian Charter. State Party’s Response to the Author’s Reply Communication, paragraph 10 8. The State Party admits that other provinces in Canada have amended the constitution so as to replace a “religious based school system” with other alternatives. In other provinces, this sometimes takes the form of “a single school system.” (for example, Newfoundland) State Party’s Response to the Author’s Reply Communication, paragraph 26 Contrary, therefore, to the State Party’s claim that recent constitutional amendments in the province of Newfoundland eliminating a denominational school system are irrelevant, they are indicative of the fact that constitutional change in relation to denominational schools is possible in Canada even over the objections of those with vested interests. Non-discrimination in school funding is evidently the trend in provinces in Canada other than Ontario. Constitutional amendment is therefore a possible remedy of the discrimination in Ontario and a methodology for advancing a single school system, should the province of Ontario so desire.  7KHDXWKRUUHSHDWVWKDWZKHQDULJKWWRSXEOLFO\ÀQDQFHGUHOLJLRXVHGXFDWLRQLV recognized by a State Party, the Covenant requires that no differentiation shall be made among individuals on the basis of the nature of their particular beliefs. The practice of exclusively funding Roman Catholic religious education in Ontario pursuant to the Constitution Act, 1867 and the Education Act therefore violates the Covenant. The author, therefore, seeks funding for all religious schools which meet provincial standards in Ontario at a level equivalent to the funding, if any, received by Roman Catholic schools in Ontario.

963

#50 Waldman v. Canada, Government of Canada third reply, 18 June 1999 On 18 June 1999 the Canadian Government replied to the Waldman submission of 15 March 1999. The Government of Canada told the Committee that it wanted to make further submissions and insisted that the Committee refrain from deciding Waldman until a separate case (Tadman v. Canada ZKLFKKDGVLQFHEHHQÀOHG with the Human Rights Committee, was joined and considered at the same time. The Government of Canada attached parts of its submissions in the Tadman case to its reply. UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS REFERENCE: G/SO 215/51 CANA (80) 694/1996 21 June 1999 Dear Mr. Waldman, I have the honour to transmit to you herewith, copy of a further submission from the Government of Canada, dated 18 June 1999, concerning communication No. 694/1996, which you presented to the Human Rights Committee for examination under the Optional Protocol to the International Covenant on Civil and Political Rights. Any comments you may wish to make on the State party’s submission should reach WKH&RPPLWWHHLQFDUHRIWKH2IÀFHRIWKH+LJK&RPPLVVLRQHUIRU+XPDQ5LJKWVZLWKLQ four weeks of the date of this letter, that is no later than 16 July 1999. In this connection, I have the honour to inform you that the State party has requested that the Committee join the consideration of your communication with communication No. 816/1998, submitted to the Committee on behalf of Mr. Grant Tadman et al. Yours sincerely, Francisco José Aguilar Urbina Chief Support Services Branch

67$7(3$57<·65(63216(7205:$/'0$1·65(3/< Communication of 15 March 1999, 18 June 1999 1. At paragraph 1 of his Reply Communication of 15 March 1999 (sent by the Secretariat of the United Nations (High Commissioner for Human Rights) on 14 May 1999) the author has misstated the State Party’s submissions. The author is incorrect in stating that the State Party “agrees that the Canadian Charter of Rights and Freedoms is 965

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impotent in this case.” The State Party, at paragraph 3 of its 22 February 1999 Response, noted only that the Supreme Court of Canada has not been called upon to consider the validity of s. 93 (1) of the Constitution Act, 1867, under the Canadian Charter of Rights and Freedoms (the “Charter”). However, the State Party pointed out at paragraphs 5 – 6 that Justice McLachlin of the Supreme Court of Canada did consider the issue of the failure to extend full and direct funding to other religious denominations under the CharterDQGVSHFLÀFDOO\IRXQGWKDWWKHCharter was not violated. 2. At paragraph 3 of his Reply Communication of 15 March 1999 the author has taken out of context the quotation from Justice McLachlin’s decision in Adler v. Ontario. As the State Party outlined at paragraph 2 of its 22 February 1999 Response, there is a two state [sic] process under the Canadian Charter of Rights and Freedoms. The Court may ÀUVWÀQGDQLQIULQJHPHQWRIRQHRIWKHULJKWVRUIUHHGRPVLQWKHCharter, but it will then consider whether, under section one of the Charter, that infringement is reasonable and MXVWLÀHG1 In contrast, the jurisprudence of this Committee has collapsed both stages into one. Under Article 26 of the International Covenant on Civil and Political Rights WKLV&RPPLWWHHFRQVLGHUVWKHTXHVWLRQRIMXVWLÀFDWLRQLHZKHWKHUWKHUHLVDUHDVRQDEOH and objective basis for the law) as a part of its analysis as to whether or not there is GLVFULPLQDWLRQXQGHUWKDW$UWLFOH7KHTXHVWLRQRIMXVWLÀFDWLRQLVQRWFRQVLGHUHGDVD separate step. The extensive quote from Justice McLachlin’s decision at paragraph 6 of the State Party’s 22 February 1999 Response is Her Ladyship’s “s. 1 analysis” in which VKHÀQGVWKH*RYHUQPHQW·VMXVWLÀFDWLRQXQGHUVRIWKHCharter to be reasonable and demonstrable. 3. At paragraph 5 the author has seriously misstated the State Party’s submissions. Nowhere does the State Party argue that “singling out one religious denomination” promotes social cohesion or tolerance and understanding. Rather, the State Party emphasized that to extend the partial and indirect funding of between 1/6 to 1/3 (and in some cases even higher) of the cost of private education to full and direct funding RISULYDWHUHOLJLRXVVFKRROVZRXOGKDYHWKHQHJDWLYHVRFLDODQGÀVFDOFRQVHTXHQFHV listed at paragraph 4 of the State Party’s 22 February 1999 submissions ( as was found by Justice McLachlin in the Adler case and by the Ontario Court of Appeal and the Ontario Court of Justice in the same case). Adler v. Ontario (1992), 9 O.R. (3d) 676 at 703-709 (Ont. Ct. of Justice) Adler v. Ontario (1994), 19 O.R. (3d) 1 at 25-16 (Ont. Ct. of Appeal) Adler v. Ontario, [1996] 3 S.C.R. 609 at 718 to 723 4. The existing system in Ontario is not fragmented into a large number of diverse and duplicative systems. Ontario is constitutionally required to essentially provide one

1

Section One of the Canadian Charter of Rights and Freedoms provides: 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in LWVXEMHFWRQO\WRVXFKUHDVRQDEOHOLPLWVSUHVFULEHGE\ODZDVFDQEHGHPRQVWUDEO\MXVWLÀHGLQ a free and democratic society.

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separate denominational school system.2 Breaking up the current system into eight, ten, twelve, or even more different denominational systems would, however, lead to disruption and fragmentation of education, compounding problems of religious coercion and ostracism, weakening the goal of universal access, and would result in the creation RIQHJDWLYHÀVFDOLPSDFWVZLWKGXSOLFDWLYHVHUYLFHVDQGGLPLQLVKHGSURJUDPV 5. At paragraph 7 the author has misconstrued the State Party’s submissions with respect to the use by the province of Quebec of the “notwithstanding clause” (s. 33 of the Charter3). The recent amendment to s. 93 of the Canada’s Constitution Act, 1867 with respect to Quebec took away the constitutional protection in s. 93 for Protestant and Catholic denomination school boards in order to replace them with linguistic school boards in that province. Quebec has, however, provided constitutional protection for Catholic and Protestant denominational schools through the alternate method of the notwithstanding clause. Accordingly, a public school in Quebec may continue to designate itself as Protestant or Catholic. Contrary to the author’s 15 March 1999 Communication, the State Party did not argue that Quebec’s use of the clause supports avoiding the rights in the Charter (or the Covenant). Rather, the State Party pointed to the use of the clause in Quebec to demonstrate that the issue of education funding in &DQDGDFRQWLQXHVWRLQYROYHWKHFRPSOH[EDODQFLQJRIVRFLDOÀVFDOFXOWXUDOKLVWRULFDO and educational needs and interests. These do not admit of simple solutions. Just as the Province of Quebec must balance these competing needs and interests, so too must the SURYLQFHRI2QWDULR7KHFXUUHQWV\VWHPLQ2QWDULRRIVLJQLÀFDQWSDUWLDODQGLQGLUHFW funding to private religious schools represents a reasonable and objective response to this complex issue. 6. Indeed, the recent decision by the province of Quebec to re-enact the notwithstanding clause for another two years (until 1 July 2001, in order to further study the matter) UHÁHFWWKHIDFWWKDWWKHLVVXHRIGHQRPLQDWLRQDOVFKRROIXQGLQJLVFRQWUDU\WRSDUDJUDSK 5 of the author’s Reply), not “based on historical anomalies which are no longer valid” but, in fact, continue to involve the present day complex balancing of these diverse and

2 Sections 93 (1) of the Constitution Act, 1867, provides for the protection of the denominational school rights that were in place in Ontario in 1867. These included, and still include, Roman Catholic and, under certain conditions, Protestant separate school boards in Ontario. At the present time there remains one Protestant separate school board in Ontario, and only one such school, located in Penetanguishene. 3



Section 33 of the Charter provides: 33(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.  $GHFODUDWLRQPDGHXQGHUVXEVHFWLRQ VKDOOFHDVHWRKDYHHIIHFWÀYH\HDUVDIWHULWFRPHVLQWR IRUFHRURQVXFKHDUOLHUGDWHDVPD\EHVSHFLÀHGLQWKHGHFODUDWLRQ (4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1). (5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

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STATE SUPPORT FOR RELIGIOUS EDUCATION

FRPSHWLQJQHHGVDQGLQWHUHVWV7KHVHUHÁHFWWKHUHDVRQDEOHDQGREMHFWLYHJURXQGVIRU the current system in Ontario. 7. At paragraph 8 the author has misstated the State Party’s submissions with respect to the recent constitutional amendments in Newfoundland. 4 The State Party clearly did not say that these amendments are “irrelevant”. To the contrary, the State Party stated directly at paragraphs 8 and 28 of its 22 February 1999 Response that the changes in Newfoundland were quite relevant because they demonstrated a clear rejection of the very extension remedy sought by the author. The former Newfoundland system, of funding 8 different religious denominations, led to the precise problems listed at paragraph 4 of the State Party’s 22 February 1999 Response. 8. The State Party, in a companion submission to this one, is also asking the Committee to join the Waldman Communication with the Tadman Communication or alternatively that the Communications be heard at the same time because the two communications raise the same issues. 9. That companion submission notes that in paragraphs 6, 8 and 9 of his 15 March 1999 Reply, the author, though seeking funding for all religious schools in Ontario, DOVRLQGLFDWHVIRUWKHÀUVWWLPHWKDWWKHHOLPLQDWLRQRIIXQGLQJRIWKH5RPDQ&DWKROLF separate schools could also be a remedy to the alleged discrimination. 10. If this Committee decides not to join, or hear together, the Waldman and Tadman communications, then the State Party would respectfully request that the Committee not, at this late stage, permit the author to raise the alternate issue and remedy concerning the elimination of funding to Roman Catholic separate schools. As indicated in the companion request to join the two Communications, the State Party’s entire Reply Submission, and its later State Party’s Response to the Author’s Reply Communication, were solely directed at the author’s initial claim that the failure to extend funding did not constitute a violation of the Covenant and that an extension remedy was not warranted. The State Party did not address its submissions to this new alternative argument that the failure to eliminate funding from the Roman Catholic separate school system also violated the Covenant, and as such, was subject to this alternate remedy. 11. In the alternative, the State Party respectfully submits that if the Committee decides not to join the two Communications, and not to prohibit the author from raising this alternate remedy and issue at this late stage, then the State Party be permitted to put before the Committee that portion of its Reply Submissions in the Tadman case dealing with the elimination of funding to Roman Catholic Separate Schools. The relevant portions of that submissions are attached hereto as Appendix “A”.

4 The recent constitutional amendments in both the province of Quebec and Newfoundland are discussed in some detail in the State Party’s 22 February 1999 submissions, at paragraphs 8 to 28. In Newfoundland, the Constitution was amended to eliminate a system of 8 different religious school denominations in favour of a single public system.

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$SSHQGL[´$µWR-XQH6WDWH3DUW\·V )XUWKHU5HSO\&RPPXQLFDWLRQLQWaldman v. Canada &RQVLVWLQJRIWKRVH3RUWLRQVRI6WDWH3DUW\·V)HEUXDU\ 5HSO\6XEPLVVLRQWRWKH7DGPDQ&RPPXQLFDWLRQ'HDOLQJZLWKWKH 5HDVRQDEOHDQG2EMHFWLYH*URXQGVIRU1RW(OLPLQDWLQJ)XQGLQJWR 5RPDQ&DWKROLF6HSDUDWH6FKRROV From Pages 7 to 16 of the State Party’s 22 February 1999 Response to the Tadman Submissions: (iv) Section 93 of the Constitution Act 1867 and the History of Separate Schools in Ontario. Section 93 of the Constitution Act, 1867. Section 93 of the Constitution Act, 1867 10.

Section 93(1) of the Constitution Act, 1867 provides that:

93. In and for each Province the Legislature may exclusively make Laws in relation to Education subject and according to the following provision: (1) Nothing in any 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 …. 11. Because of s. 93 of the Constitution Act, 1867, Ontario is required to fund Roman Catholic separate schools in the province of Ontario. This constitutional obligation leaves the province no choice in the matter, and the funding must be provided on the same basis as that provided to the public school system. Adler v. Ontario, supra at 639 12. The Supreme Court of Canada has held that section 93 of the Constitution Act, 1867 is the product of an historical compromise which was a crucial step along the road leading to the Confederation of distinct British colonies into the nation of Canada. ,WVHUYHGWRPRGHUDWHUHOLJLRXVFRQÁLFWVZKLFKWKUHDWHQHGWKHELUWKRIWKHQDWLRQRI Canada. Without it, there would have been no country of Canada. Adler v. Ontario, supra at 640 Reference Re Education Act (Que.), [1993] 2 S.C.R. 511 at 529 Reference Re Bill 30, [1987] 1 S.C.R. 1148 at 1173-1174 13. Roman Catholic schools had been functioning in Canada for many years before &RQIHGHUDWLRQ7KHÀUVWVXFKVFKRROXVLQJ)UHQFKDVWKHODQJXDJHRILQVWUXFWLRQKDG EHHQRSHQHGDW)RUW)URQWHQDFLQWKHÀUVW(QJOLVK&DWKROLFVFKRROZDVHVWDEOLVKHG LQDW6W5DSKDHO·VLQ*OHQJDUU\&RXQW\7KHÀUVWHOHPHQWDU\VFKRROLQ2QWDULR was French and Catholic, and was founded in 1786 in the parish of the Assumption of the Blessed Virgin Mary at what eventually became Windsor. Shortly afterwards, the Anglican clergy founded several English-language schools. In 1807, the Government

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passed an act authorizing the establishment of publicly funded schools in Upper Canada. Ontario, Ministry of Education and Training, Education About Religion in Ontario Public Elementary Schools, (Toronto, Queen’s Printer for Ontario, 1994) at p. 4 Robert M. Stamp, The Historical Background to Separate Schools in Ontario, (Toronto, Queen’s Printer for Ontario, 1985) at p. 20 14. From 1841 to 1867, under an Act of the British Parliament, the former province of Upper Canada (Ontario) was joined in a legislative union with Lower Canada (Québec) under the name the United Province of Canada. “All legislation proceeding through the Legislature of the United Province was subject to voting from both parts of the colony, regardless of whether the bill in question dealt with the entire region or only one of its parts.” Thus, on matters of education in particular, Canada East members helped determine Canada West measures. In 1841 the Solicitor General introduced a bill “to make further provision for the establishment and maintenance of common schools through the Province”. The crucial clause in the bill was a provision which made allowance for separate schools. It provided that “any number of inhabitants of a different faith from the majority in a township or parish might choose their own trustees” and “might establish and maintain one or more schools” under the same conditions as the common schools. Robert M. Stamp, The Historical Background to Separate Schools in Ontario, (Toronto, Queen’s Printer for Ontario, 1985) p. 19 15. Thus, although Roman Catholic schools had been functioning in the province for many years, the Roman Catholic minority’s efforts to obtain the legal right to establish VHSDUDWHVFKRROVZHUHÀUVWIRUPDOO\UHFRJQL]HGLQthe Common Schools Act of 1841 (4 and 5 Vict., c. 18). The statutes dealing with separate school education “were the subject of continuous controversy and agitation during the years prior to Confederation” a and were amended often. Indeed, one commentator has noted that in the period from 1852 to 1867, the issue threatened to tear apart the province.” b A protestant anti-Catholic crusade was roused by George Brown, editor of the powerful Toronto Globe newspaper, and it was warmly endorsed by the ever-increasing, largely Irish Protestant, Loyal Orange Lodge. a D. A. Schmeiser, Civil Liberties in Canada, (Oxford University Press, London, 1964) at 135 b

Robert M. Stamp, The Historical Background to Separate Schools in Ontario, (Toronto, Queen’s Printer for Ontario, 1985) p. 22 16. Then, in 1855, a crucial bill was introduced by Etienne Paschal Taché, Receiver General for Canada East (now Québec) even though the bill applied only to Canada West (now Ontario), “The bill was put to a vote so late in the session that most of the Canada West members had left Québec for home, believing that all serious legislative business was over. Despite George Brown’s violent objections, the vote was passed in WKH$VVHPEO\E\-RKQ$0DFGRQDOG>ODWHU&DQDGD·VÀUVW3ULPH0LQLVWHU@0HPEHUV

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for Canada West voted 11 to 8 against the bill; the 46 members from Canada East voted unanimously in favour.” Until 1855, Roman Catholic separate schools were only permitted to exist if there was no Roman Catholic teacher in the local common school. With the Taché Act of 1855, separate school boards achieved permanence of establishment. Robert M. Stamp, The Historical Background to Separate Schools in Ontario, (Toronto, Queen’s Printer for Ontario, 1985) p. 22  7KHÀQDOSUHFRQIHGHUDWLRQVWDWXWHZDVHQDFWHGLQ´$Q$FWWRUHVWRUHWR Roman Catholics in Upper Canada certain rights in respect to Separate Schools” (Province of Canada Statutes, 26 Vict., c. 5). It was proposed by Richard Scott, Roman Catholic member for Ottawa, who had presented his bill each year for four \HDUVXQWLOLWZDVÀQDOO\SDVVHGGXHRQO\WRWKHVROLG&DQDGD(DVWYRWH7KH&DQDGD West Protestant majority stood opposed to the bill. Following the bill separate schools could now receive a share of municipal as well as provincial grants and procedures for establishing separate schools were eased in rural areas, although such schools were now to be subject to provincial inspection and there was to be centralized control of curriculum and textbooks. This statute formed the foundation for separate school rights in Ontario. As one commentator has noted: In view of the history of separate school legislation in Upper Canada, it is fair to say that the majority of Protestants were opposed to the establishment of separate schools in that province. The gains which were made by the Catholic minority were due not so much to the good will of the Protestant majority as to the voting power of the Québec members in the combined legislature. D. A. Schmeiser, Civil Liberties in Canada, (Oxford University Press, London, 1964) at 136 to 137 18. The separate school question had emerged as a central political issue. “It was to become a major element in changing the political complexion of Upper Canada and, in creating a major division between Upper Canada and Lower Canada and become one of the causes which led statesmen to look to Confederation; the united legislature could no longer receive support from both provinces in the handling of domestic issues.” Franklin Walter, Catholic Education and Politics in Upper Canada (Toronto, J. M. Dent and Sons, 1955) p. 77 19. Notwithstanding the tremendous friction leading up to the Scott Act it was given constitutional force just four years later at the time of Confederation with the passage in the British Parliament of the British North America Act, 1867 (renamed in 1982 as the Constitution Act, 1867). The province received jurisdiction over education while the rights of separate school supporters were protected. One commentator has described this as a uniquely Canadian development in that Canada, unlike the United States, had rejected the notion of the separation of Church and State. However, the rejection was not a complete one. “Like the Confederation agreement itself, it was a compromise which required cooperation between church and state if it was to succeed.”

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Donald Swainson, “Franklin Walker, Separate Schools and the Question of Canadian Identity” Queen’s Quarterly, Vol. 96, No. 1, Spring 1989, pp. 17-18 20. Writing over 100 years later, the Supreme Court of Canada carefully reviewed this pre-confederation history in concluding that without this protection of the rights of the Roman Catholic religious minority the founding of Canada would not have been possible. In discussing s. 93 the Court stated: The purpose and history of s.93 would seem to support this interpretation. The protection of minority religious rights was a major preoccupation during the negotiations leading to Confederation because of the perceived danger of leaving the religious minorities in both Canada East and Canada West at the mercy of overwhelming majorities … Some time after Confederation in the debate re second reading of Bill No. 58, the Remedial Act (Manitoba), in Debates of the House of Commons, 6th Sess., 7th Parliament, 59 Vict., 1896, col. 2719, at 2724, March 3, 1896, Sir Charles Tupper FRQÀUPHGWKDWVZDVSDUWRIDVROHPQSDFWUHVXOWLQJIURPWKHEDUJDLQLQJZKLFK made Confederation possible: … 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 Québec 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 VLJQLÀFDQWWKDWZLWKRXWWKLVFODXVHZLWKRXWWKLVJXDUDQWHHIRUWKHULJKWVRI minorities being embodied in that new Constitution, we should have been unable to obtain any confederation whatever. That is my reason for drawing attention to it at present. Reference Re: Bill 30, supra at 1173-1174.  7KH6XSUHPH&RXUWRI&DQDGDDOVRLGHQWLÀHGWKHIXQGDPHQWDOLPSRUWDQFHRIV 93 (1) in its recent decision in Reference re Secession of Québec stating that: [T]he protection of minority religious education rights was a central consideration in the negotiations leading to Confederation. In the absence of such protection, it was felt that the minorities in what was then Canada East and Canada West would be submerged and assimilated. Reference re Secession of Québec, unreported, S.C.C. File No. 25506, August 20, 1998, at paragraph 79  $VWKH6XSUHPH&RXUWRI&DQDGDKDVQRWHGMXGLFLDODXWKRULW\DIÀUPVWKDWSURWHFWLRQ of religious educational rights was of fundamental importance: There can be no doubt that the views of the Roman Catholic inhabitants of Québec and Ontario with regard to education were shared by the members of the same com-

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munion in the territory which afterwards became the Province of Manitoba. They regarded it as essential that the education of their children should be in accordance with the teachings of their Church, and considered that such an education could not be obtained in public schools designed for all the members of the community alike, whatever their creed, but could only be secured in schools conducted under WKHLQÁXHQFHDQGJXLGDQFHRIWKHDXWKRULWLHVRIWKHLU&KXUFK. Reference Re: Bill 30, supra at 1174, citing Brophy v. Attorney General of Manitoba, [1895] A.C. 202 at 214 (Privy Council) (emphasis added by the Supreme Court of Canada) 23. The separate school issue remained a point of controversy in the post-confederation years. The Conservative opposition party campaigned vigorously against Roman Catholic schools in the elections of 1886, 1890 and 1894. “Anglo-Protestant pressure groups – the Orange Lodge, the Equal Rights Association, and the Protestant Protective Association – also joined the fray. Pressure from such extremists within his own party drove Conservative leader William Meridith toward an increasingly aggressive stance.” Robert M. Stamp, The Historical Background to Separate Schools in Ontario, (Toronto, Queen’s Printer for Ontario, 1985) p. 26 24. Funding the Roman Catholic separate schools in Ontario was provided only up to grade 10 until 1985. The constitutional validity of this restriction was upheld by the Judicial Committee of the Privy Council in the case of Tiny Separate School Trustees v. The King, [1928] A.C. 363. The case held that since prior to 1867 separate schools could not offer secondary education as a matter of right, there was no obligation on the province to fund separate schools beyond the level of elementary education. 25. The issue remained alive in the ensuing years. For example, in 1950 Mr. Justice John A. Hope headed the Royal Commission on Education. His report contained a recommendation to reorganize the grade structure such that elementary school would be reduced to six years from the traditional eight. This was strongly opposed by several members of the Commission who published a minority report arguing that the recommendation would reduce the separate school board’s sphere of operations. “The resulting politico-religious controversy overshadowed other aspects of the Hope Report and blocked the adoption of most of its basic proposals.” Robert M. Stamp, The Historical Background to Separate Schools in Ontario, (Toronto, Queen’s Printer for Ontario, 1985) p. 31 26. During the 1950’s and 60’s Catholic leaders continued to press for more equitable funding of the existing grades of the separate school system. In 1964, the Foundation Tax Plan provided greater funding allowing separate schools to include grades 9 and 10 in their curriculum. In the 1970’s and 80’s, the Catholic community decided to press DJDLQIRUSXEOLFÀQDQFLQJRIWKHDGYDQFHGJUDGHVDQGRIVHFRQGDU\VFKRRO education.

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Bernard Blishen et al., Catholic Education in the Separate School System of Ontario, Toronto, Institute for Catholic Education, 1990, pp. 12-13 27. On July 4, 1985, the government of Ontario introduced Bill 30, the Education Amendment Act, 1985, in the Legislature to extend full public funding to Roman Catholic secondary schools. The preamble to the Bill recognized that: [I]t is just and proper and in accordance with the spirit of the guarantees given in 1867 to bring the provisions of the law respecting Roman Catholic separate schools into harmony with the provisions of the law respecting public elementary and secondary schools, by providing legislative recognition of and funding for secondary education by Roman Catholic separate schools … 28. The introduction of Bill 30, as with most previous matters involving separate schools in Ontario, was a highly contentious and at times controversial issue. A number of protest rallies were undertaken by those in opposition to the Bill. One prominent religious leader gave a speech in which he compared the government’s decision to extend funding to the higher grades as being made in a manner similar to the decrees of Adolph Hitler. A number of groups announced their intention to challenge Bill 30 in the courts. The Toronto Star, February 19, 1986, “Catholics Greet Court Decision with Joy and Relief”, pp. A-1, A-19 29. The day before Bill 30’s formal introduction, the Lieutenant Governor in Council referred to the Ontario Court of Appeal the following question: Is Bill 30, an Act to amend the Education Act inconsistent with the provisions of the Constitution of Canada including the Canadian Charter of Rights and Freedoms and, if so, in what particular or particulars and in what respect? 30. A large number of opponents of the legislation appeared in Court in an effort to have it struck down. The majority of the Court of Appeal upheld the constitutional validity of Bill 30. The majority recognized that Bill 30 was an attempt “to redress a historical grievance in Ontario and to remove a continuing irritant in relations with Québec”. The Court was, no doubt, here referring to the volatile issue of minority rights in Canada’s two largest provinces, which, as at the time of Confederation, involved matters of concern for national unity in Canada. Reference Re An Act to Amend the Education Act (1985), 53 O.R. (2d) 513 at 569 (C.A.) 31. On appeal the Supreme Court of Canada unanimously upheld the constitutional validity of Bill 30. The majority overruled the Privy Council decision in the Tiny case and concluded that Ontario was obliged to fund Roman Catholic separate schools on par with the public schools in the province. The Court held that s. 93 (1) of the Constitution Act, 1867, constituted a “Confederation compromise” without Canada would never have been founded. It held that the generally worded equality guarantee in the Charter of Rights and FreedomsFRXOGQRWEHXVHGWRXQGRWKHVSHFLÀFJUDQWLQJ of denominational school rights in s. 93 (1). 974

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Reference Re An Act to Amend the Education Act, [1987] 1 S.C.R. 1148 at 1177 et seq. 32. Notwithstanding the settling of this issue by the Supreme Court of Canada, a number of groups opposed to the funding of Roman Catholic separate schools have continued their opposition to the constitutionally obligated funding of such schools in Ontario. The Roman Catholic community, on the other hand, refers to the Supreme &RXUWRI&DQDGDGHFLVLRQDVKDYLQJFRUUHFWHGDKLVWRULFDOZURQJDQGLVÀUPO\FRPPLWWHG to the maintenance of their hard won educational rights. The matter remains, as it has throughout Ontario’s history, an issue of controversy and contention, capable of creating divisiveness and social upheaval in the body politic. 33. Roman Catholics are the largest religious minority group in Ontario. Out of a total Ontario population of 9,977,050, the 1991 Census reports 3,544,515 Roman Catholics and 4,428,305 Protestants. Within the Protestant category, it enumerates 1,050,910 Anglicans, 422,160 Presbyterians and 1,410,535 adherents of the United Church. Statistics Canada (1993), Religions in Canada, Ottawa, Industry Science and Technology Canada (1991 Census of Canada, Catalogue number 93-319, Tables, 1, 3 and 6) 34. The Roman Catholic separate school system in Ontario is not a private school system. Like the public school system it is funded through a publicly accountable, democratically elected board of education. Separate School Boards are elected by Roman Catholic ratepayers, and these school boards have the right to manage the denominational aspects of the separate schools. Unlike private schools, Roman Catholic separate schools are subject to all Ministry guidelines and regulations. Education Act, supra, s. 1 35. Neither s. 93 (1) of the Constitution Act, 1867, nor the Education Act, provide for public funding to Roman Catholic private/independent schools. Roman Catholic SDUHQWVZKRIRUUHOLJLRXVRURWKHUUHDVRQVDUHQRWVDWLVÀHGZLWKWKHHGXFDWLRQRIIHUHG in the public separate school system may send their children to private/independent Roman Catholic schools. Ten private/independent Roman Catholic schools operate in 2QWDULR7KHVHVFKRROVUHFHLYHQRGLUHFWSXEOLFÀQDQFLDOVXSSRUWEXWDUHHQWLWOHGWR the indirect funding referred to above. Ontario, Ministry of Education, “Private Schools in Ontario: September 1991” (Toronto, Queen’s Printer, 1991) at pp. 4, 5, 8, 10, 11, 19, 23, 24 and 25 From Pages 18 to 20 of the State Party’s 22 February 1999 Response to the Tadman Submissions: (vii) Other Provinces and Other Countries. Other Provinces. Other Provinces 43. There is no province in Canada in which private schools receive funding on an equal basis to public schools. Direct public funding of private schools ranges from 0% to 75% as follows:

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Newfoundland – 0% PEI – authorized textbooks Nova Scotia – authorized textbooks New Brunswick – 0% Québec – 0%-52% Ontario – 0% Manitoba – 59% of public school rate and $40 per student for text books Saskatchewan – 59% for private secondary schools only Alberta – 75% of the Ministry of Education operational grant British Columbia – 10%-50% of local public school rate The Shapiro Report at pp. 11-14 44. There are a number of countries throughout the world which have provided some ÀQDQFLDOVXSSRUWWRVFKRROVRSHUDWHGE\PHPEHUVRIDUHOLJLRXVGHQRPLQDWLRQ%DVHG on data from the mid-1980’s the features of these systems were as follows: 1HZ =HDODQG ² those private schools which are integrated with the public system receive full operational funding. All Catholic schools, comprising 90% of the private schools, were integrated with the state school system by mid – 1983. (source: Bell T.H., The Education System of New Zealand, U.S. Department of Education, Washington D.C., 1981, cited at p. 15 of the Shapiro Report.) The Netherlands – the funding of public and private schools is so closely tied together that from a budgetary point of view there is really only a single system. Most private VFKRROV LQ7KH 1HWKHUODQGV DUH UHOLJLRXVO\ DIÀOLDWHG DQG WKH 'XWFK SULYDWH VFKRROV enroll in excess of two-thirds of the total student population. (source: Lawrie B.R., A Study of Private Schools in Australia, France, England, Denmark, and the Netherlands, paper prepared for the Commission of Private Schools in Ontario, February, 1985, cited at p. 15 of the Shapiro Report) )UDQFH²private schools may enter into a “contract” with the Government in exchange IRU D KLJK GHJUHH RI SXEOLF IXQGLQJ 1LQHW\ÀYH SHU FHQW RI DOO SULYDWH VFKRROV DUH Roman Catholic and all of these schools have entered into this contract with the Government. (source: Lawrie B.R., A Study of Private Schools in Australia, France, England, Denmark, and The Netherlands, paper prepared for the Commission of Private Schools in Ontario, February, 1985, cited at p. 16 of the Shapiro Report) Denmark – private schools are eligible for a subsidy of up to 85% of their instructional expenditures, based on comparable costs in the public system. Schools may be established on ideological, political, educational or religious grounds. (source: Education in Denmark: The Education System, Danish Ministry of Education, Copenhagen, 1983, cited at p. 16 of the Shapiro Report) Australia – independent, that is, private schools obtain about 65% of their operating funds from the federal Government, 20% from the state Government, and 15% from fees.

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These schools, approximately 75% of which are Roman Catholic, enrol approximately 20% of Australian school-age children. (source: Response to Government Guidelines, Commonwealth Schools Commission, Canberra, September 1984, and Lawrie, supra, cited at p. 17 of the Shapiro Report) England ² WKH PDMRULW\ RI SULYDWH VFKRROV DUH FODVVLÀHG DV FKDULWDEOH IRXQGDWLRQV qualifying for a 50% reduction in local tax rates and exemption from income or corporate taxes. In addition, needy students in private schools may apply for government funds under an Assisted Places Scheme. (source: Lawrie, supra cited at p. 17 of the Shapiro Report) Belgium – ninety nine per cent of Belgians are Roman Catholic. Church schools and religious education have been matters of controversy. The “scholastic pact” of 1958 resulted in state subsidization of church schools which, in that year, were educating 60% of the population. (source: Andrew G. Blair, The Policy and Practice of Religious Education in Publicly-Funded Elementary and Secondary Schools in Canada and Elsewhere: A search of the Literature, Toronto, Queen’s Printer, 1986, pp. 30-31) Germany – the Constitution of the Federal Republic of Germany provides for a regular course of study in religious education in the public school. The content of religious courses is determined by one or the other of the two state Churches (One state church is Catholic and the other Protestant). (source: Gerhard Schmitt, “Teaching Religion in Germany Secondary Schools”, Religious Education, 77, 1 (Jan-Feb 1982) pp. 88 -91 cited in Blair, supra, at p. 35) Scotland – there are public schools, and grant-aided schools which are often denomiQDWLRQDODQGDUHJLYHQIXOOSXEOLFÀQDQFLDOVXSSRUW (source: Andrew G. Blair, The Policy and Practice of Religious Education in Publicly-Funded Elementary and Secondary Schools in Canada and Elsewhere: A search of the Literature, Toronto, Queen’s Printer, 1986, pp. 38) From Pages 27 to 38 of the State Party’s 22 February 1999 Response to the Tadman Submissions: LL  5HDVRQDEOH DQG 2EMHFWLYH *URXQGV IRU 1RW (OLPLQDWLQJ )XQGLQJ WR 5RPDQ&DWKROLF6HSDUDWH6FKRROVLQ2QWDULR 61. The authors take the position at page 15 of their Communication that Article 26 is violated by the failure of the province of Ontario to eliminate funding to Roman Catholic Separate Schools in Ontario. The State Party submits that there are reasonable and objective grounds for not eliminating such funding. These may be summarized as follows:  D  (OLPLQDWLQJWKHKDUGZRQDQGORQJVWDQGLQJHGXFDWLRQDOULJKWVRIWKHVLJQLÀFDQW Roman Catholic minority in the province at the present time would create a 977

STATE SUPPORT FOR RELIGIOUS EDUCATION

(b)

(c)

(d)

(e)

severe rent in the social fabric of the province of Ontario. It would be seen as undoing, or reneging upon, the bargain made at Confederation to protect the interests of a vulnerable minority in the province. Recent constitutional changes for Québec and Newfoundland do not support, or otherwise pave the way for, the removal of this minority protection in Ontario. Elimination of such funding would also result in a certain degree of economic turmoil as the province may be required to expropriate separate school property or otherwise compensate long standing rights holders; In the recent Reference re Secession of Québec, the Supreme Court of Canada UHDIÀUPHGWKDWWKHSURWHFWLRQRIPLQRULW\ULJKWVLQFOXGLQJWKHPLQRULW\UHOLJLRQ and education rights which would be taken away by the authors’ proposed remedy, are themselves an independent principle underlying the Canadian constitutional order. Eliminating separate school funding in Ontario could lead to pressure on other Canadian provinces (Alberta and Saskatchewan) which also entered Confederation on the basis of protecting denominational school rights to eliminate their protections for these minorities within their border. This would add to the disruption of the Canadian social fabric on the national level; If the authors’ Article 26 analysis is correct then other nations that are signatories to the Optional Protocol may have to abandon their school systems which provide funding to different religious schools. If Article 26 mandates a single, secular, public school system there does not appear to be any basis for restricting that requirement only to the province of Ontario in Canada.

6RFLDO&RQVHTXHQFHV 62. As outlined above the historical background to separate schools in Ontario demonstrates that the issue of educational funding has long been a matter of controversy. Both prior to and following Confederation there has been strong opposition to providing funding to separate schools and constant efforts by the Roman Catholic community to retain, and extend, such funding. As recently as 1984 the issue of funding for three grades of school created social unrest within Ontario. Were the State Party and the Legislature of Ontario to proceed with the constitutional amendment that would be required to take away all separate school funding it is reasonable to expect that there would be tremendous opposition from the Catholic community in Ontario, and elsewhere in Canada. Such changes would be met with outrage and resistance. After over a century of struggle for full educational funding members of the Catholic community would take the position that their vested constitutional and legal rights were being trammeled upon. The resulting response would seriously disrupt the social fabric in Ontario. Paragraphs 10 to 35, above 63. The authors make reference to recent constitutional amendments in the provinces of Québec and Newfoundland. Neither of these constitutional changes undermines the reasonable and objective basis for the State Party and Ontario having not proceeded with a constitutional amendment that would eliminate denominational school rights in Ontario. The circumstances in both provinces are unique, and the resulting changes 978

7. UNITED NATIONS COMMITTEE DECISIONS

in their education systems do not support the proposed remedy put forward by the authors. 64. The authors refer at page 29 of their Communication to “a number of leading experts LQWKHHGXFDWLRQDOÀHOGµDQGWKHQUHO\XSRQDSDSHUZULWWHQE\/RLV6ZHHWZKLFKWKH\ refer to as the “Sweet Report”). Ms. Sweet is not an educational expert but a journalist and her so-called Report is a journalistic article in which she reports on her interviews with a number of persons involved in the educational debate in Ontario. At page 33 of their Communication the authors rely upon Ms. Sweet’s incomplete observations of, and reference to, constitutional amendments affecting denominational educational rights in Québec and Newfoundland. (a) Recent Amendments in Québec 65. There has been a recent amendment to s. 93 of the Constitution Act, 1867, as it applies to the province of Québec. The new section 93 A of the Constitution Act, 1867, provides: “Paragraphs (1) to (4) of section 93 do not apply to Québec.” The effect of this amendment is to take away the constitutional protection in s. 93 for Protestant and Catholic denominational school boards in order to replace them with linguistic school boards in that province. Québec has, however, provided constitutional protection for denominational school boards through an alternate method – the invocation of the notwithstanding clause in the Canadian Charter of Rights and Freedoms. As a result, the recent amendments in Québec do not constitute a breaking of the bargain made at Confederation to protect denominational school rights. 66. It is important to emphasize that Québec has not eliminated Catholic and Protestant schools. The Education Act in Québec explicitly permits a school to designate itself Catholic or Protestant. Once the designation is made the school may operate in a UHOLJLRXVIDVKLRQ7KHVSHFLÀFSURYLVLRQLQWKH4XpEHFEducation Act which permit denominational rights is section 218 (R.S.Q., chapter I-13.3). That provision allows, after consultation with the parents of the students of the school, for an application to be made for a designation of the school as a Catholic school or a Protestant school, or for the withdrawal of such a recognition. An Act Respecting Certain Declarations of Exception in Acts Relating to Education, S.Q. 1994, c. 11, provides that the right to make such a designation shall operate notwithstanding the provisions of s. 2 (a) [freedom of religion] and s. 15 [equality rights] of the Canadian Charter of Rights and Freedoms. Through this extraordinary use of the Charter’s notwithstanding clause denominational school rights are retained and protected in Québec. In addition, the religious designation power is also insulated from a challenge under Québec’s Charter of Human Rights and Freedoms. See: W. J. Smith, W. F. Foster, Section 93 of the Canadian Constitution: Is God on the Way Out of Canada’s Schools?0F*LOO8QLYHUVLW\2IÀFHRI5HVHDUFKRQ Educational Policy, 1998, pp. 20-23 67. Under the current scheme in Québec, linguistic school boards are to provide either Catholic or Protestant moral and religious instruction or moral instruction as each student may choose. Further, Catholic students are entitled to student services

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of pastoral care and guidance, and Protestant students are entitled to student services of religious care and guidance which the school boards must provide. Each school board must develop appropriate courses and provide Catholic or Protestant religious instructions, pastoral care, or religious care and guidance services in accordance with the regulations of the Catholic committee or Protestant committee established by the SURYLQFH7KHFRPPLWWHHVPXVWDSSURYHDSSURSULDWHWH[WVDQGPXVWDSSRLQWTXDOLÀHG teachers for the purpose. Schools transferred to the new linguistic boards are expected to retain their existing designation as Protestant or Catholic schools. There is provision for the recognition of other schools as Catholic or Protestant in the future, and for the withdrawal of such recognition by the Catholic and Protestant committees. 68. The reason for the recent amendment to the Constitution Act for Québec was, accordingly, not to eliminate religious education or the existence of denominational schools. The purpose of the amendment was articulated well in the statement made in April 22, 1997, in the House of Commons of Canada by the Honourable Stéphane Dion, President of the Privy Council and Minister of Intergovernmental Affairs: On the Francophone side, the present organization of school boards makes it more GLIÀFXOWWRLQWHJUDWHQHZFRPHUVLQWR)UDQFRSKRQHVRFLHW\DVSURYLGHGE\SURYLQFLDO legislation. The Anglophone community long regarded Protestant school boards as an institution vital to its development. However, these school boards have never encompassed Catholic Anglophones. On the other hand, they have accepted a growing number of children whose language of instruction is French. As a result, there is a danger that, in the medium term, the Anglophone community may lose FRQWURORIERDUGVWKDWDUHDQLQFUHDVLQJO\LQDGHTXDWHUHÁHFWLRQRIWKHLUVRFLDOUHDOLW\ and that, in any case, cannot respond to the needs of their Catholic populations. That is why voices, both Francophone and Anglophone, Catholic as well as Protestant, have been heard over the last twenty years advocating a system based on language rather than religion. A consensus on the need to reorganize school organizations along these lines has existed in Québec for some time. Statement by Minister Dion on the Amendment of Section 93 (Education) of the Constitution Act, 1867 in the House of Commons on April 22, 1997 69. Further evidence that the amendment was not intended to eliminate Protestant or Catholic schools in Québec or to lead to the type of singular public system that the authors advocate in their Communication is also found in Minister Dion’s speech: Although Québecers approve of secularization of school organizations, many are attached to religious instruction. Québec’s Minister of Education, Ms. Pauline Marois, has already indicated that schools that so wish may retain their denominational orientation. Furthermore the right to religious instruction is still guaranteed by section 41 of the Québec Charter of Human Rights and Freedoms. (emphasis added) 70. The Report of the Special Joint Committee of the Senate and House of Commons of Canada, released in November of 1997, highlights the retention of denominational schools in Québec following the amendment.

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The substance of the provisions in Québec’s Public Education Act for Roman Catholic and Protestant denominational education is similar to that of the guarantees provided by section 93 of the Constitution Act, 1867. Some, who may be uneasy about this shift from constitutional to non-constitutional education in Québec PD\ ÀQG DGGLWLRQDO VHFXULW\ LQ WKH IDFW WKDW WKH &DQDGLDQ Charter’s section 33 notwithstanding clause has been invoked to protect parts of the Public Education Act from Charter scrutiny, provided that the Québec National Assembly continues to renew that notwithstanding provision in the Act. 71. In addition, the Special Joint Committee relied particularly on the support for the proposed amendment from the two principal groups affected, Québec Protestants and Québec Roman Catholics and found a consensus in those communities for the proposed constitutional amendment. It is important to note, however, that the consensus came about precisely because of the existence of the provisions in the Québec Education Act which retained the right for schools to designate themselves as Catholic or Protestant. 7KLVLVEHVWUHÁHFWHGLQDOHWWHUIURPWKH$VVHPEO\RI4XpEHF%LVKRSVWR0LQLVWHU'LRQ which concludes as follows: Our approval for changing the status of school boards has always been accompanied by one condition: that the denominational guarantees established by Bill 107 be maintained. The rights clearly recognized under that legislation are at the heart of our historic heritage. Appendix “H” to the Report of the Special Joint Committee of the Senate and House of Commons. 72. In contrast, the proposed remedy of the authors would eliminate totally denominational school rights in Ontario. It would mandate a constitutional amendment in the absence of the consensus achieved in Québec. (b) Recent Amendments in Newfoundland and Labrador 73. Unlike the amendments in Québec, the amendments affecting education in Newfoundland and Labrador were marked by controversy, legal challenges, court injunctions, social upheaval and two referendums that were required to settle the issue. 74. Upon joining Canada in 1949 Newfoundland and Labrador’s Terms of Union preserved its then existing denominational school structure. As a result, its educational system was unique as compared to all other Canadian provinces. First, Newfoundland and Labrador had no public education system. Rather, it only had denominational school boards. Second, Newfoundland’s Terms of Union gave educational guarantees to seven different religious denominations (Roman Catholic, Salvation Army, Seventh Day Adventist, United Church, Anglican, Congregational and Presbyterian). The Pentecostal Assemblies obtained the same rights by constitutional amendment in 1987. As a result of WKLVFRQVWLWXWLRQDOVWUXFWXUH1HZIRXQGODQGKDGDQLQHIÀFLHQWGXSOLFDWLYHFXPEHUVRPH and overly complex education system. In 1990 the Government of Newfoundland and Labrador appointed a Royal Commission. The Commission’s 1992 report “Our Children, Our Future” recommended reform of the denominational school system. Following three

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years of discussion a compromise proposal was developed which would have permitted the creation of interdenominational and some uni-denominational school boards, but with greater control over education being exercised by the provincial government. A referendum was held on September 5, 1997, with a majority of 55% supporting the reforms. 75. The proposed reforms were bitterly opposed by religious leaders and others, as indicated in both the majority and dissenting 1996 Reports of the Standing Senate Committee on Legal and Constitutional Affairs and in the attached excerpts from newspaper articles during this time period. In addition to holding public demonstrations, those opposed sought to block the changes by making representations to members of the Canadian Parliament and later by resort to the courts. Report of The Standing Senate Committee on Legal and Constitutional Affairs, July 17, 1996, Majority and Dissenting Reports See Attached: “Newspaper Articles on Constitutional Amendment for Newfoundland and Labrador 1994 to 1997” 76. On October 31, 1995, the Newfoundland House of Assembly passed the resolution to amend its Terms of Union. The House of Commons passed its resolution to amend on June 3, 1996. On November 27, 1996, the Senate of Canada amended the wording of the resolution. The proposed amendment by the Senate would have added the words “where numbers warrant” to clarify that there was a constitutional right to uni-denominational schools where numbers warranted. The House of Commons did not accept the proposed change to the resolution and repassed the original resolution a second time on December 4, 1996. The constitutional amendment was then proclaimed in force on April 21, 1997, by the Governor-General of Canada. 77. The new Schools Act and Education Act came into force on January 3, 1997. This legislation replaced 27 denominational school boards with 10 interdenominational boards. Under these provisions school boards conducted a registration process to ascertain the wishes of parents regarding the attendance of their children at either an interdenominational or uni-denominational school. Expressing strong dissatisfaction with these new provisions, representatives of the Catholic and Pentecostal denominations applied to the Newfoundland Supreme Court for an injunction. The injunction was granted on July 8, 1997, with the Court holding that the provisions were contrary to the new amendment to the Terms of Union as they did not adequately protect denominational school rights. The Court prohibited the proposed closing of Catholic and Pentecostal schools and restrained the continuation of the registration process pending a new, and more fair, registration procedure. Hogan v. Newfoundland School Boards '/5WK 1ÁG6& 78. Following the Court’s decision, the government of Newfoundland and Labrador announced on July 31, 1997, that it would hold a second referendum on September 2, 1997, on the following question:

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Do you support a single school system where all children, regardless of their UHOLJLRXV DIÀOLDWLRQ DWWHQG WKH VDPH VFKRROV ZKHUH RSSRUWXQLWLHV IRU UHOLJLRXV education and observances are provided? In late August, 1997, the text of the proposed amendment was announced: 17 (1) In lieu of section ninety-three of the Constitution Act, 1867, this section shall apply in respect of the Province of Newfoundland. (2) In and for the Province of Newfoundland, the Legislature shall have exclusive authority to make laws in relation to education, but shall provide for courses in UHOLJLRQWKDWDUHQRWVSHFLÀFWRDUHOLJLRXVGHQRPLQDWLRQ (3) Religious observance shall be permitted in a school where requested by parents. 79. The referendum was held and a substantial vote of over 72% voted in favour of the amendment. The Government of Newfoundland and Labrador then approved the proposed amendment unanimously. The amendment was sent to the Parliament of Canada where a special Joint Committee of the Senate and House of Commons held hearings and received submissions from approximately 60 individuals and groups both for and against the proposed amendment. The amendment was passed by the House of Commons and by the Senate, following which it was given Royal Assent on January 8, 1998. Subsequently, those opposed to the amendment brought a fresh court challenge which was ultimately dismissed on December 17, 1998. Hogan v. Attorney General of Newfoundland (unreported, December 17, 1998, 1ÁG6& DWSS 80. As a result of these at times tumultuous and complicated constitutional processes the province of Newfoundland and Labrador now has a single school system in which religious education and religious observance is permitted. As was made clear in the -RLQW6HQDWHDQG+RXVHRI&RPPRQV5HSRUWWKHVSHFLÀFSXUSRVHRIDGGLQJWKHVHFWLRQV permitting religious observance (s-s. 17 (2) and 17 (3)) “was indeed to give religious education and religious observance some Charter protection in the amended Terms of 8QLRQDQGLQWKH1HZIRXQGODQGVFKRROV\VWHPµ,QRWKHUZRUGVWKHVSHFLÀFLQFOXVLRQ of religious education and religious observance in the Term of Union would insulate them from a challenge in Court brought on the ground that there should be no religious content in public schools. As a result, some level of religious observance in schools was preserved in Newfoundland and Labrador. Report of the Special Joint Committee on the Amendment to Term 17 of the Terms of Union of Newfoundland, December 1997, at paragraph 2.4 81. In contrast to this history in Newfoundland and Labrador, the province of Ontario GRHVQRWKDYHDQLQHIÀFLHQWGXSOLFDWLYHDQGFXPEHUVRPHHGXFDWLRQDOV\VWHPZKLFK is crying out for reform. Unlike Newfoundland and Labrador, Ontario has always had a public school system which has been secular, universally accessible, and able to accommodate persons from all religious backgrounds. Unlike Newfoundland, Ontario did not have a system of eight different denominational schools. Indeed, the special 983

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circumstances in Newfoundland and Labrador were highlighted by the majority report in the Canadian Senate which considered the 1996 amendment. It stated: [t]he situation in Newfoundland is unique. There is no other province in which all publicly-funded schools are denominational. There is no other province with an analogous school system, or with the same constitutional context for that system … The Minister of Justice, the Honourable Alan Rock, told this Committee that, “Precedents, to have value, require like facts or similar, if not identical, principles. ,WZRXOGEHYHU\GLIÀFXOWWRÀQGDIXWXUHFLUFXPVWDQFHHOVHZKHUHLQ&DQDGDWKDW would replicate the principles and circumstances that prevail in this instance.” Report of The Standing Senate Committee on Legal and Constitutional Affairs, July 17, 1996, Majority Report, Part IV 82. The recent changes in Newfoundland and Labrador involved tremendous upset and disruption in the social fabric of the province, as demonstrated by the vociferous opposition to the elimination of denominational school rights. In addition, the new Terms of Union for Newfoundland do permit religious instruction and religious education in Newfoundland and Labrador schools – a result which does not appear to be consistent with the proposed remedy of the authors of the Communication. (It is noted that as a result of the Court decisions in Ontario cited at paragraph 5 above, religious exercise and religious observance are not permitted in public schools in Ontario). Taking into account the unique situation in Newfoundland, and the particular constitutional changes made to deal with the special history on this issue in that province, it is not reasonable to use the Newfoundland situation as being apposite to Ontario or as justifying similar changes in Ontario. In addition, it is reasonable and objective for Ontario to seek to avoid the kind of disruption to its social fabric that was experienced in Newfoundland and Labrador which would arise if the proposed remedy of the authors were adopted. b) Economic Consequences 83. Were the State Party and Ontario to eliminate Roman Catholic separate schools, as the authors propose, the Government of Ontario will be subject to considerable claims for monies invested in facilities or lands provided for Roman Catholic schools. Some of these schools may have to be transferred to the new singular public system that the authors propose and the Government of Ontario would be subject to claims for compensation. There would be claims made by dioceses and religious orders for the return of facilities previously donated to separate school boards. Many deeds and transfers contained reversionary clauses that would come into effect when the facility LVQRORQJHUXVHGIRU5RPDQ&DWKROLFHGXFDWLRQ:KLOHLWLVGLIÀFXOWLIQRWLPSRVVLEOH to ascertain the amount of money that would be involved it is submitted that it is reasonable and objective for the Government of Ontario to seek to avoid the law suits and possible payment of compensation which would arise if the proposed remedy of the authors were adopted. See: Hogan v. Attorney General of Newfoundland (unreported, December 17, 1998, 1ÁG6& DWS

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c) Protection of Minority Rights 84. The Supreme Court of Canada recently had reason to identify the fundamental principles underlying the Canadian Constitution. In Reference re Secession of Québec RQHRIWKHSULQFLSOHVLGHQWLÀHGZDVWKHSURWHFWLRQRIPLQRULW\ULJKWV,QWKLVUHJDUGWKH &RXUWVSHFLÀFDOO\LGHQWLÀHGWKHSURWHFWLRQRIPLQRULWLHVIRXQGLQVRIWKHConstitution Act, 1867, as a central consideration in the negotiations leading to Confederation. The Court stressed that even though those provisions were the product of negotiation and political compromise, that does not render them unprincipled. The Court stated: We emphasize that the protection of minority rights is itself an independent principle underlying our constitutional order … The concern of our courts and governments to protect minorities has been prominent in recent years, particularly following the enactment of the Charter. Undoubtedly, one of the key considerations motivating the enactment of the Charter, and the process of constitutional judicial review that it entails, is the protection of minorities. However, it should not be forgotten that the protection of minority rights had a long history before the enactment of the Charter. Indeed, the protection of minority rights was clearly an essential consideration in the design of our constitutional structure even at the time of Confederation: Senate Reference, supra, at p. 71. Although Canada’s record of upholding the rights of minorities is not a spotless one, that goal is one towards which Canadians have been striving since Confederation, and the process has not been without successes. The principle of protecting minority ULJKWV FRQWLQXHV WR H[HUFLVH LQÁXHQFH LQ WKH RSHUDWLRQ DQG LQWHUSUHWDWLRQ RI RXU Constitution. Reference re Secession of Québec, supra at paragraphs 80 and 81 85. The State Party and Ontario not introducing a constitutional amendment to eliminate the minority rights enshrined in s. 93 (1) of the Constitution Act, 1867, for Ontario, is consistent with this fundamental principle of the Canadian constitutional order and as such is a reasonable and objective ground under Article 26 of the Covenant. d) Impact on Other Provinces 86. The authors have submitted that the constitutional changes in Québec and Newfoundland support their argument that Ontario cannot rely on its constitutional obligation in s. 93 of the Constitution Act, 1867, to fund Roman Catholic separate schools. They submit that Article 26 requires a singular public school system and that Ontario should change its Education Act to bring this about. To make this change to the Education Act WKH6WDWH3DUW\DQG2QWDULRZRXOGEHFRPSHOOHGWRÀUVWDPHQGWKH&DQDGLDQ&RQVWLWXWLRQ in order to eliminate the obligation to provide separate school funding in Ontario. The State Party has submitted in reply that the circumstances and history in Québec and Newfoundland are unique and that the recent constitutional changes in those provinces do not undermine the reasonable and objective basis for Ontario’s retention of its current system. Other provinces, such as Alberta and Saskatchewan, have also had a unique history leading up to their joining the Canadian confederation in 1905. As with

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Ontario, protection of Roman Catholic denominational schools was a critical factor in the negotiations leading to their entry. As with Ontario, there is a strong basis for retaining denominational school rights in those provinces. However, if the authors are correct then it would follow that Article 26 requires a singular public school system and the elimination of all denominational school boards across Canada, as the unique KLVWRU\GHPRJUDSKLFVDQGFLUFXPVWDQFHVRIHDFKSURYLQFHZRXOGQRWEHDVXIÀFLHQW MXVWLÀFDWLRQ(OLPLQDWLQJVHSDUDWHVFKRROIXQGLQJLQ2QWDULRFRXOGOHDGWRSUHVVXUHRQ other Canadian provinces that also entered Confederation on the basis of protecting denominational school rights, such as Alberta and Saskatchewan, to eliminate their protections for these minorities within their borders. This would add to the disruption of the Canadian social fabric on the national level. D.A. Schmeiser, Civil Liberties in Canada, (Oxford University Press, London, 1964) at 169 to 182 e) Impact on Other Nations 87. If the authors’ Article 26 analysis is correct then other nations that are signatories to the Optional Protocol may have to abandon their school systems which provide funding to religious schools. If Article 26 mandates a single, secular, public school system, and the unique history, demographics, and circumstances of a region are not a VXIÀFLHQWMXVWLÀFDWLRQIRUIXQGLQJWKHVFKRROVRIDVLJQLÀFDQWUHOLJLRXVPLQRULW\WKHQ there would not appear to be any basis for limiting that mandate to the province of Ontario in Canada. 88. The information set out at paragraph 44 above demonstrates that Canada is not alone in the world in providing educational funding to denominational schools. 6LJQLÀFDQW5RPDQ&DWKROLFPLQRULWLHVLQDQXPEHURIMXULVGLFWLRQVKDYHREWDLQHGD level of educational support and accommodation, which in many cases are similar or comparable to Ontario. It is respectfully submitted that Article 26 was not intended to undo, at an international level, the unique arrangements and accommodations which YDULRXV QDWLRQV KDYH PDGH FRQFHUQLQJ WKH HGXFDWLRQ ULJKWV RI VLJQLÀFDQW UHOLJLRXV minorities within their borders. [Editor’s Note: Attachment has not been reproduced]

986

#51 Waldman v. Canada, Author’s reply and fourth submission WRWKH+XPDQ5LJKWV&RPPLWWHH-XQH On 25 June 1999, 4 days after receiving the Canadian submission of 18 June 1999, Mr. Waldman submitted a brief reply. The Author pointed out that the Waldman case had been on the Human Rights Committee agenda for both the March and July 1999 sessions. The Canadian government had chosen to send additional submissions just prior to each of these sessions. The last minute submission, the Author said, “was clearly designed to delay the Committee’s consideration of my communication”. The Author also opposed the Canadian Government’s request to make further submissions and to join his case with the Tadman case.

June 25, 1999 United Nations High Commissioner For Human Rights Chair of Secretariat Cecila Medina C/O Secretary of Committee Palais des Nations CH-1211 Geneve 10 Switzerland Dear Ms. Medina Sent by Fax [fax number] Sent by e-mail [email address] ,DPWKHDXWKRURIFRPPXQLFDWLRQ:DOGPDQ 7KLVFDVHZDVÀUVWVXEPLWted in February 1996 to the Committee. The Canadian government was given ample opportunity to respond, and in fact only submitted its response to [sic] in February 1998. The case was fully prepared and on the agenda for the Human Rights Committee meeting of March 1999. However, the Canadian government chose to send an additional submission (despite the fact that there were essentially no new facts) at the last minute three weeks prior to the session. This was also despite the fact that the Canadian government had been silent for 12 months since their submission. This last minute submission was clearly designed to delay the Committee’s consideration of my communication. In fact, my communication was not considered at the March session. I also note that through my counsel I submitted an extremely brief response prior to the session, which indicated, among other things, that no new substantive material had EHHQSUHVHQWHGRIVLJQLÀFDQWFRQVHTXHQFHWRWKHFRPPXQLFDWLRQ Canada has known full well that the Committee has scheduled the communication for the July session. Having done nothing in the intervening three (3) months, the 987

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Government of Canada, once again, has attempted to avoid consideration of the communication by another last-minute submission. I have waited three and a half years to have my case considered by the Human Rights Committee. The Canadian Government has been given repeated and lengthy opportunities to make any submission it chose, with all the resources that this government has to bring to bear. It should be unacceptable to the Human Rights Committee to delay this case any longer. No further submissions are necessary. With respect to the Canadian government’s sudden and new request to join my case with another case brought some years later, having a different context and agenda, I ÀQGWKHUHTXHVWWRWDOO\XQDFFHSWDEOH)XUWKHUPRUHLWLVLQFRQVLVWHQWZLWKWKHSUDFWLFH RIWKH+XPDQ5LJKWV&RPPLWWHH,IWKHFDVHZHUHWRKDYHVLJQLÀFDQWRYHUODSWKHUH is no reason why the Committee’s determination of my case would not simply be applicable to the next case. In due course, when the Tadman materials were ripe for consideration, the decision taken in my case would be brought to bear – if and when WKH FRPPLWWHH VKRXOG GHWHUPLQH WKDW WKHUH ZHUH VLJQLÀFDQW VLPLODULWLHV 7KLV YHU\ sensible and defensible practice of the Committee ensures that individual victims are not kept waiting either by government delaying strategies, by individuals who may have divergent and opposing claims, or the mere existence of any other individuals with similar problems. Therefore, the Committee should not delay any longer the consideration of my case past the July session: The case has been fully prepared by the Secretariat, The documentation has been in the Committee’s hands for a considerable length of time, My case is already three and a half years old, The substance of the case turns on legal questions and not on facts, and There is absolutely no reason why I should be made to wait because of the existence of another individual who some years later has decided to avail himself of the Committee’s process. &RXOG\RXSOHDVHUHDIÀUPWKHIROORZLQJ" 1.

You will not wait for any further submissions before considering my case;

2.

The case will be considered in the July session as scheduled; and

3.

My case will not be joined with Tadman (816/1998)

Sincerely yours …

988

#52 Ontario Catholic School Trustees’ Association Proposed Intervention, 7 July 1999 On 7 July 1999 counsel for the Ontario Catholic School Trustees’ Association (OCSTA) attempted to intervene in the Waldman and Tadman cases. The submission was devoted mainly to arguing against the claim in the Tadman case that funding for Roman Catholic schools in Ontario should be eliminated and only one publicly funded secular system in the province be instituted. The submission gives the religious educational and funding issues in the view of Roman Catholics. This submission concludes by asking the Committee to refrain from specifying a remedy in either Waldman or Tadman. It added that if the Committee must specify a remedy, it should recommend extending funding to non-Catholic schools and not recommend the elimination of funding to Catholic schools. In response the Human Rights Committee did not allow the Ontario Catholic School Trustees’ Association to intervene in the Waldman case. MILLER THOMSON LLP Barristers & Solicitors July 7, 1999 Via: Courier Ms. Carla Edelenbos Human Rights Committee Palais des Nations, Genève 2IÀFH1R$ Dear Ms. Edelenbos: Re: Tadman et al-816/1998 Waldman – Human RightsCommittee I am counsel for the Ontario Catholic Schools Trustee’s Association (“OCSTA”). I enclose four bound and one unbound copies of the Submission of the OCSTA on both of these Communications. I understand that the Waldman Communication is scheduled to be heard by the Human Rights Committee in the session commencing Monday and that the State Party has requested that the Waldman Communication and the Tadman Communication be considered together. I would be grateful if you would lay this Submission before the Human Rights Committee at the same time as it is considering the two Communications. I have provided copies to the individuals listed below. If you or the Committee require anything further, please do not hesitate to contact me. Yours very truly, Peter D. Lauwers

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,17+(0$77(52)7$'0$1(7$/9&$1$'$$1',17+( 0$77(52):$/'0$1(7$/9&$1$'$-8/< 68%0,66,2162)7+(352326(',17(59(1257+( 217$5,2 &$7+2/,&6&+22/75867((6·$662&,$7,21 Introduction 1. The Ontario Catholic School Trustees’ Associations (“OCSTA”) submits to the Human Rights Committee the following information and observations with respect to the Communication received by the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights from Tadman et al, the State Party’s Submissions, and the Reply Submissions of Tadman et al. The Communication alleges that the funding of separate schools for the Roman Catholic minority in Ontario (and elsewhere in Canada) violates articles 2 and 26 of the International Covenant on Civil and Political Rights. It requests the ruling of the Committee that the State Party should be required to cease all such funding in favour of a single secular public school system. 2. This may be contrasted with the Communication from Waldman et al in which the remedy sought is not a cessation of such funding but its extension on some basis to schools sponsored by other faiths. (OCSTA does not have the documentation concerning the Waldman case and is unable to provide further particulars of that claim).  7KHVHVXEPLVVLRQVDUHGLYLGHGLQWRÀYHSDUWV (i) OCSTA’s standing to address the Committee on both the Tadman and the Waldman Communications; (ii) position on the merits; (iii) position on remedy;  LY  UHVSRQVHWRWKH6XEPLVVLRQVÀOHGE\WKH3DUWLHV (v) relief requested.

1. OCSTA’s Standing 4. OCSTA respectfully requests that it be accorded the status of Intervenor before the Human Rights Committee in respect of both the Tadman Communication and the Waldman Communication, and that this Submission be received and considered by the Committee. The genesis of the request and the explanation of its late arrival is set RXWLQWKH$IÀGDYLWRI2&67$·VUHSUHVHQWDWLYH'HQQLV-0XUSK\([KLELW´$µ 3DJH 3-5. 5. OCSTA is aware that the present Rules of Procedure of the Committee do not appear to permit interventions by affected third parties. 6. The Human Rights Committee, however, has the authority to establish its own Rules of Procedure under article 42 of the International Covenant on Civil and Political Rights. OCSTA therefore respectfully requests that its intervention be accepted on an ad hoc basis. Alternatively, OCSTA requests that these matters be adjourned sine die until the Rules of Procedure have been amended to permit interventions in appropri990

7. UNITED NATIONS COMMITTEE DECISIONS

ate cases and until OCSTA’s application for intervention status has been considered thereunder. 7.

The grounds for this request, elaborated more fully below, are as follows: (i) the legal rights and interests of the Roman Catholic Class of Persons in Ontario represented by OCSTA may be prejudicially affected by the decision of the Human Rights Committee; (ii) there is no party to either the Waldman or the Tadman Communication that speaks for or represents the Roman Catholic Class of Persons; (iii) the fundamental principles of justice require that a person or persons whose interests may be affected by a judicial or quasi-judicial proceeding be given an opportunity to hear and respond; (iv) OCSTA is the appropriate representative of the Roman Catholic Class of Persons in Ontario and has been so recognized by numerous Courts in Canada including the Supreme Court of Canada.

8. The Tadman Communication concerns section 93 of the Constitution Act, 1867 of Canada which provides: “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 or Persons have by Law in the Province at the Union.” 9. In the Reference Re Bill 30 (1987), 40 D.L.R. (4th) 18 at p. 59, the Supreme Court of Canada noted the “clear purpose of section 93, namely that the denominational minority’s interest in a separate but Catholic education for its children be protected into the future.” In other words, section 93 (1) protects minority rights. 10. In the Reference Re Secession of Quebec (1998), 161 D.L.R. (4th) 385 the Supreme &RXUWRI&DQDGDLGHQWLÀHG´IRXUIXQGDPHQWDOFRQVWLWXWLRQDOSULQFLSOHVµEHLQJ´IHGHUDOism, democracy, constitutionalism and the rule of law, and respect for minority rights” (para 49). The Court elaborated on the need for protection of minority rights: [74] First, a constitution may provide an added safeguard for fundamental human rights and individual freedoms which might otherwise be susceptible to government interference. Although democratic government is generally solicitous of those rights, there are occasions when the majority will be tempted to ignore fundamental rights in order to accomplish collective goals more easily or effectively. Constitutional entrenchment ensures that those rights will be given due regard and protection. Second, a constitution may seek to ensure that vulnerable minority groups are endowed with the institutions and rights necessary to maintain and promote their identities against the assimilative pressures of the majority. And third, a constitution may provide for a division of political power that allocates political power amongst different levels of government …” [p.419]

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The Court elaborated: “As this Court observed in re Bill 30 the protection of minority religious education rights was a central consideration in the negotiations leading to Confederation. In the absence of such protection, it was felt that the minorities in what was then Canada East and Canada West would be submerged and assimilated [para 79]. We emphasize that the protection of minority rights is itself an independent principle underlying our constitutional order [para 80]. 7KHSULQFLSOHRISURWHFWLQJPLQRULW\ULJKWVFRQWLQXHVWRH[HUFLVHLQÁXHQFHLQWKH operation and interpretation of our Constitution” [para 82]. (emphasis added)

Prejudicial Effect 11. Section 93(1) provides constitutional protection for Catholic Schools in Ontario. If the remedy sought by Tadman (and, apparently, the alternative remedy proposed by Waldman) is obtained and implemented then the Roman Catholic minority in Ontario could lose its publicly funded Catholic schools. 12. At the present time there are more than 600,000 children educated in Catholic schools in the English and French language. There are 1,227 English Catholic elementary schools and 279 French Catholic elementary schools, 211 English Catholic secondary schools and 54 French Catholic secondary schools and 11 other Catholic schools in the Province of Ontario, all of which would be affected by a decision on the part of the Ontario Government to cease funding.  $IÀGDYLWRI'HQQLV-0XUSK\$SSHQGL[´$µSDJH, para 4

The State Party Does Not Represent the Minority 13. There is no party to this proceeding that represents the Roman Catholic Class of Persons who are protected by section 93(1) of the Constitution Act, 1867. It is respectIXOO\VXEPLWWHGWKDWWKH6WDWH3DUW\FDQQRWEHFRQVLGHUHGWREHVXIÀFLHQWO\FDSDEOHRI defending the constitutional rights of the minority. This is because it is the legislative acts of the government itself that are sought to be constrained by the constitutional protection. The judicial history of section 93(1) of the Constitution Act provides ample evidence that only the minority can be relied upon to protect its own interests. (a) For example, at the beginning of the 20th Century the Ontario Government enacted legislation intended to prevent Catholic school boards from providing high school education as they had previously done. This led to the famous case of Tiny Separate School Trustees v. The King (1926), 59 O.L.R. 96; (1926) 60 O.L.R. 15 (C.A.); [1927] S.C.R. 637; [1928] A.C. 363 in which the Privy Council upheld the legislation. This case was only overruled by the Supreme Court of Canada in the Reference Re Bill 30, an Act to amend the Education Act (1987) 40 D.L.R. (4th) 18. (b) While in recent years the Ontario Government has been more supportive of the denominational rights of Roman Catholics in education than in the past, some ambivalence remains. For example, in the recent case of Daly v. A.G. Ontario

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 25G *HQ'LY DIÀUPHG&RXUWRI$SSHDOXQUHSRUWHG$SULO 27, 1999), the Applicants including OCSTA sought to have section 136 of the Education Act struck out as unconstitutional because it would have prevented Catholic boards from taking matters of faith into account in the employment, advancement and promotion of teachers. At the lower Court level, the Attorney General defended the legislation which was nonetheless found to be unconstitutional. The Attorney General did not, however, appear at the Court of Appeal, ZKLFKDIÀUPHGWKHGHFLVLRQ (c) In addition, in Ontario English Catholic Teachers’ Association v. The Attorney General of Ontario (1998), 162 D.L.R. (4th) 257 (Ont. Ct. Gen. Div.); Court of Appeal (unreported April 27, 1999) the position of the Attorney General and of OCSTA concerning the extent of the right of Catholic boards to tax ratepayers for the support of their schools is different, although both successfully defended the constitutionality of the legislation at issue in the case. (d) Finally, the position of the State Party in the Waldman and Tadman CommunicaWLRQVLVGLIÀFXOW The position of the State Party in Waldman is in many respect similar to the position of the complainants in Tadman, leaving the position of the Roman Catholic minority in Ontario at risk. It is the opinion of Dennis J. Murphy of the OCSTA, that the constitutional rights of Roman Catholics in Ontario require independent support from OCSTA, which has the freedom to make submissions and arguments that the Attorney General of Ontario and the State Party have been unable or unwilling to make. $IÀGDYLWRI'HQQLV-0XUSK\$SSHQGL[´$µ SDJH, para 12

Audi Alteram Partem 14. From the view point of natural justice, it is unthinkable that the Human Rights Committee of The United Nations would adjudicate these cases without hearing from the protected minority. The basic common law proposition is that “no man shall be condemned unheard (audi alteram partum)” Halsbury’s Laws of England (4th Edition), “Administrative Law” paragraph 84. 15. As was noted by DeSmith, Woolf and Jowell in Judicial Review of Administrative Action, 5th Edition (1995) page 378: “That no man is to be judged unheard was a precept known to the Greeks, inscribed in ancient times upon images in places where justice was administered, proclaimed in Seneca’s Medea, enshrined in the scriptures, mentioned by St. Augustine, embodied in Germanic as well as African proverbs, ascribed in the Year Book to the law of nature, asserted by Coke to be a principle of divine justice, and traced by an eighteen-century judge to the events in the Garden of Eden.” 16. In continental countries the maxim is called “audiatur et altera pars.” In explaining the principle in General Principles of Law as Applied by International Courts and Tribunals (1953) Professor Bin Cheng said at page 291: “Attention may also be drawn to the Arakas Case (1927) already cited at the beginning of Part IV, which when mentioning that “it is necessary that a judicial 993

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procedure should be followed,” added, as a matter to logical sequence, “in the course of which both parties are heard.” This feature of judicial proceedings has long been expressed in the well-known maxim audiatur et altera pars or audi alteram partem, which may be regarded as a general principle of law translating into practice the fundamental requirement of equality between the parties in judicial proceedings. Actual refusal to hear one of the parties in an international judicial proceedings may be said never to have happened.” 17. Most judicial and quasi-judicial systems permit some form of intervention by third parties whose interests may be affected in a particular proceeding. For example, Articles 62 and 63 of the Statute of the International Court of Justice (elaborated in article 81 and following of the Rules of Court) permit intervention by States whose legal interests may be affected by the decision. Further, even though under article 34 of the Statute only States may be parties in cases before the Court, article 34(2) obliges the Court to receive information from public international organizations on their own initiative. Article 34(3) obliges the Registrar to notify a public international organization concerned: “Whenever the construction of the constituent instrument of a public international organization or of a international convention adopted thereunder is in question in the case before the Court …” 18. It is respectfully submitted that these international precedents establish two principles. 7KHÀUVWLVWKDWWKHUHDUHLQWHUHVWVEH\RQGWKRVHRID6WDWH3DUW\ZKLFKRQRFFDVLRQ ought to be considered by the Court. Second, the Court ought to hear submissions by intervenors whose legal interests may be affected by the decision. It is respectfully submitted that these principles ought to apply mutatis mutandis to proceedings before the Human Rights Committee.

2&67$,V$Q$SSURSULDWH,QWHUYHQRU 19. It is respectfully submitted that the Ontario Catholic School Trustees’ Association is the appropriate person to represent the Roman Catholic Class of Persons in the proceeding. OCSTA has, as its members, twenty-nine English-language Catholic district school boards and six English Catholic school authorities that are democratically elected by the Roman Catholic Class of Persons. Together they educate almost 600,000 students in the Province of Ontario. As such, OCSTA is the largest provincial association representing the interests of Roman Catholic separate school electors, the “Class of Persons”, who have the constitutional rights referred to in Section 93(1) of the Constitution Act, 1867, of Canada.  2&67$ZDVRIÀFLDOO\RUJDQL]HGRQ$SULODQGZDVLQFRUSRUDWHGXQGHU the Corporations Act (Ontario) by letters patent dated July 30, 1969. Its objects, as expressed in supplementary letters patent July 11, 1979, are, inter alia: To maintain the constitutional rights of Roman Catholic separate school boards and their supporters.

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To recommend improvements in the legislation and regulations affecting Roman Catholic separate schools of Ontario. 21. OCSTA’s standing both to prosecute cases and to intervene on issues of concern to the “Class of Persons” has been recognized by numerous Canadian courts, including the Supreme Court of Canada. $IÀGDYLWRI'HQQLV-0XUSK\$SSHQGL[´$µ SDJHSDUD

2. The Position of OCSTA on the Mertis 22. Our position is clearly congruent with that of the State in rejecting any claim that Ontario’s constitutionally guaranteed Catholic school system is in violation of the International Covenant. Our position diverges from that of the State Party in a number of important respects that must be brought to the attention of this Honourable Committee. 23. In a fundamental way, the dispute in this case concerns both the nature of education itself, and the proper interest of the State in education. 24. There is no reasonable doubt that the right to an education is now understood as a basic human right. Article 26 of the Universal Declaration of Human Rights (1948) provides: “(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. (2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. (3) Parents have a prior right to choose the kind of education that shall be given to their children” The European Convention on Human Rights (1952) in Article 2 provides: “No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions” The Declaration of the Rights of a Child (1959) in Principle 7 para 2 provides: “The best interests of the child shall be the guiding principle of those responsible IRU KLV HGXFDWLRQ DQG JXLGDQFH WKDW UHVSRQVLEO\ OLHV LQ WKH ÀUVW SODFH ZLWK KLV parents”

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25. The International Covenant on Economic, Social and Cultural Rights (1976) echoes these principles in Article 13, as does Article 5 para 1 and 2 of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981), and as do Articles 28, 29, and 30 of the Convention on the Rights of the Child (1989). 26. The right to an education is closely linked with a recognition that “parents have a prior right to chose the kind of education that will be given to their children”, that education must be directed “to the full development of the human personality” and that such development is well recognized to include a religious and spiritual dimension. 27. In this respect a positive obligation may be imposed on the State, consistent with paragraph 6.2 of General Comment 23 (1994): “Although the rights protected under Article 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language or religion. Accordingly, positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practice their religion, in community with other members of the group …” 28. To be meaningful, the right of parental choice in the education of children must LQFOXGHWKHÀQDQFLDODVVLVWDQFHRIWKH6WDWH OCSTA’s position in this respect is well encapsulated in Article 5 of the Charter of the Rights of the Family issued by the Holy See (1983), which provides: Since they have conferred life on their children, parents have the original, primary and inalienable right to educate them; hence they must be acknowledged as the ÀUVWDQGIRUHPRVWHGXFDWRUVRIWKHLUFKLOGUHQ (a) Parents have the right to educate their children in conformity with their moral and religious convictions, taking into account the cultural traditions of the family which favour the good and the dignity of the child; they should also receive from society the necessary aid and assistance to perform their educational role properly. (b) Parents have the right to freely choose schools or other means necessary to educate their children in keeping with the convictions. Public authorities must ensure that public subsidies are so allocated that parents are truly free to exercise this right without incurring unjust burdens. Parents should not have to sustain, directly or indirectly extra charges which would deny or unjustly limit the exercise of this freedom. (c) Parents have the right to ensure that their children are not compelled to attend classes which are not in agreement with their own moral and religious convictions. In particular, sex education is a basic right of the parents and must always be carried out under their close supervision, whether at home or in educational centers chosen and controlled by them.

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(d) The rights of parents are violated when a compulsory system of education is imposed by the State from which all religious formation is excluded. (e) The primary right of parents to educate their children must be upheld in all forms of collaboration between parents, teachers and school authorities, and particularly in forms of participation designed to give citizens a voice in the functioning of schools and in the formulation and implementation of educational policies. (f) The family has the right to expect that the means of social communication will be positive instruments for the building up of society, and will reinforce the fundamental values of the family. At the same time the family has the right to be adequately protected, especially with regard to its youngest members, from the negative effects and misuse of the mass media” 29. OCSTA therefore asserts that the right of Catholic parents to choose to provide Catholic education to their children in publicly funded Catholic schools in Ontario should continue to be protected. OCSTA is on record with the government of Ontario and the recent Provincial Royal Commission on Learning that all parents, where numbers warrant, must enjoy these same rights. This position was well stated by the Ontario Conference of Catholic Bishops in This Moment of Promise (1998): “Our commitment to the best education for all students impels us to respect and support the wishes of parents in other faith communities for religious education in WKHSXEOLFVFKRROV\VWHPRUIRUDOWHUQDWLYHVFKRROVZKLFKZLOOUHÁHFWWKHLUYDOXHV and beliefs. The primacy of parental rights and education is a value which should be realized not only by Catholic parents but also by others” 30. OCSTA asserts, on the one hand, that education necessarily contains a religious dimension. Secular education includes inferentially a negative message about religion and its importance in human life. OCSTA therefore rejects categorically the idea that secular education is “neutral” in the way asserted by the Tadman et al and by the State Party in both Communications. OCSTA asserts, on the other hand, that education, properly understood, is aimed at the formation of the whole person of the child which necessarily includes a spiritual dimension. Education that purposefully excludes religious instruction or the inculcation of religious faith is not truly education and does not satisfy the State’s obligation. The purpose and nature of Catholic Education are HODERUDWHGLQWKH$IÀGDYLWRI'HQQLV-0XUSK\$SSHQGL[´$µ SDJHSDUD The points made in this paragraph will be further elaborated below in responding to the Submissions of the Parties.  $OWKRXJK LW LV QRW HYLGHQW IURP WKH PDWHULDOV ÀOHG E\ WKH SDUWLHV WKXV IDU DW bottom this case turns in part on which of two approaches to liberal democracy the Human Rights Committee will endorse as required by the International Covenant, the procedural liberal or American approach on the one hand, or the approach that takes cognizance of the rights of minority groups as well, on the other hand. This discussion is developed more fully below in the section on the Bill 30 Reference and in the section RQWKHSKLORVRSKLFDOMXVWLÀFDWLRQIRUHOLPLQDWLQJIXQGLQJIRU&DWKROLFVFKRROV 997

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3. 2&67$·V3RVLWLRQRQ5HPHG\ 32. If this Honourable Committee is persuaded that current arrangements for publicly funded education in the province of Ontario contravene the International Covenant, WKHQ2&67$VXEPLWVWKDWWKH&RPPLWWHHVKRXOGPDNHWKDWÀQGLQJEXWVKRXOGUHIUDLQ from prescribing a remedy. The Communication in Tadman, (and undoubtedly also in Waldman), suggests that a breach of the Covenant could be remedied in one of two ways: (a) the extension of funding to other religious or conscience based schools or; (b) the elimination of funding for Catholic schools. 33. It is respectfully submitted that the choice of remedy is essentially a political choice which should be left to the relevant jurisdiction in Canada. Under the Constitution of &DQDGDH[FOXVLYHMXULVGLFWLRQRYHUHGXFDWLRQLVFRQÀGHGWRWKH3URYLQFHRI2QWDULR The Province could well choose, despite the submissions of the Applicants in Tadman, to extend funding in some reasonable way to other schools as other provinces in Canada and as many other jurisdictions around the world have done. It is respectfully submitted that it is not the place of this Honourable Committee to direct public spending in Ontario. 34. Further, it is respectfully submitted that the Communication of Tadman et al on the issue of remedy effectively concedes the point. There is nothing in the Covenant that compels the cessation of funding to religious schools as a matter of human rights. There is nothing in the Covenant or in the general understanding of human rights that would compel any State to eliminate funding for religiously-based schools and to provide public funding only to secular schools. 35. If, despite the submissions in paragraphs 33 – 34, this Honourable Committee decides that it will prescribe a remedy, then OCSTA respectfully submits that the remedy should be the extension of funding to schools of other faiths on some reasonable basis to be determined by the Government of Ontario. Such an outcome is more consistent with the principles of human rights set out in the previous section of this Submission.

4. 2&67$·V5HVSRQVHWRWKH&RPPXQLFDWLRQRI7DGPDQDQGHWDO7KH 6XEPLVVLRQRIWKH6WDWH3DUW\DQGWKH5HSO\RI7DGPDQDQGHWDO 36. OCSTA wishes to respond particularly to a number of matters raised by Tadman et al, some of which may be echoed in the position of the State Party in Waldman: (a) facts; (b) the decision of the Supreme Court of Canada in the Bill 30 Reference and its relevance; F  WKHÀQDQFLDOMXVWLÀFDWLRQIRUWKHHOLPLQDWLRQRIIXQGLQJIRU&DWKROLFVFKRROV G  WKH SKLORVRSKLFDO MXVWLÀFDWLRQ IRU WKH HOLPLQDWLRQ RI IXQGLQJ RI &DWKROLF schools; (e) the Committee’s jurisprudence on “ongoing or continuing violation.”

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(a) Facts 37. In general terms, OCSTA accepts the factual corrections submitted by the State Party to the factual assertions made by Tadman et al and the added facts submitted by the State Party in paragraphs 3 – 44.  2&67$VXEPLWVWKHIROORZLQJDGGLWLRQDOUHOHYDQWIDFWVGUDZQIURPWKH$IÀGDYLW of Dennis J. Murphy (Appendix “A”) Page 8 – 12) set out below: The History of Catholic Education in Ontario 39. Egerton Ryerson, the founder of Ontario’s state school system, believed in the concept of one Christian non-denominational and universally accessible school system. Such a system, he said, would be an effective antidote to crime, poverty, and class and VHFWDULDQFRQÁLFWDQGZRXOGSURWHFWUHSUHVHQWDWLYHJRYHUQPHQWHQKDQFHSURGXFWLYLW\ and knit the country together. 40. Roman Catholics believed that one of the essential goals of education was handing on to their children the gift of their Roman Catholic faith and tradition. They believed that the successful accomplishment of this goal depended on the existence of separate schools guided by the Church, fully free and able to provide instruction by Catholic teachers, to teach religion and to teach secular subjects permeated with the teachings and values of the Roman Catholic Church, and to conduct liturgical and other Roman Catholic religious celebrations in the school. 41. Ryerson believed that the common school curriculum should offer a blend of religious and secular education satisfactory to all the citizens of Christian Canada West based on universally accepted Christian principles. The church and home would supplement this “common basis” of Christianity with any elements they considered missing. The overwhelming value inculcated by the system was uniformity. 42. The fundamental disagreement between the proponents of common schools and the Catholic community was over whether it was possible, desirable and necessary to have a neutral, non-sectarian Christianity as the foundation of public education. Ryerson readily acknowledged that his model would require “sects” to forego their “peculiarities” during school hours, in deference to a “common basis of Christianity” which would be taught in the schools. Roman Catholics considered the “common basis of Christianity” to be incomplete, either “godless” or effectively Protestant in nature. They feared that the faith they were teaching their children would be undermined if they were exposed to a neutral non-sectarian Christianity. They insisted on separate schools as the logical extension of parental rights to choose and control the education of their children, and saw Ryerson’s vision as a gross violation of those rights. 43. History records that the differences between Ryerson and the Catholic community proved to be irreconcilable. The result was the Roman Catholic separate school system in Ontario. This basic design was repeated in English Canada, particularly in Alberta and Saskatchewan. 44. The Protestant nature of the public system eventually waned. The secularization of the public system began in earnest just after the Report of Royal Commission on

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Education (the Hope Commission) in 1950, which had, ironically, adopted a clear indoctrinational approach: Honesty and Christian love are the absolutes of a free society. They may therefore be taught by the strongest means at the school’s command – and explicit acceptance that they are right. If this be indoctrination we accept the stricture. (Page 27-29) 45. The Report of the Committee on Religious Education in the Public Schools of the Province of Ontario in 1969 addressed the 1944 Ontario regulation which required religious education and concluded that it was a “vehicle leading to religious FRPPLWPHQWµWKDWZDV´GHÀQLWHO\&KULVWLDQDQG3URWHVWDQWLQFRQWHQWµDPRXQWLQJWR “Christian indoctrination throughout the elementary grades.” It recommended a change from traditional religious education to moral education and an academic study of world religions. By 1980 the 1944 regulation had been largely abandoned in practice. A Ministerial review in that year revealed that in 71% of the public schools surveyed there was no religious education on a formal basis. Dr. Glenn Watson, The Report of the Ministerial Inquiry on Religious Education in Ontario Public Elementary Schools (Toronto: Ontario Ministry of Education, 1990), p. 13. 46. Presently there is little attempt to introduce the recommendations of this Report. The lesson of history in the province of Ontario has been that as the public system has become increasingly secularized, the religious faith of students has been increasingly PDUJLQDOL]HGDVDVLJQLÀFDQWGLPHQVLRQRIWKHLUHGXFDWLRQ 47. There have been changes in Ontario society since Confederation. What began as a thinly populated, relatively homogeneous agrarian society, has been transformed by immigration and industrialization into a wealthier and more populous multicultural society largely urban in nature. 48. The views of Ontario’s Catholic leaders throughout the twentieth century have been consistent with those held by Catholics before Confederation, particularly with regard to the need for the integration of religious and secular teaching. In 1988, the &RPSOHWLRQ2IÀFH Separate Schools, in a document entitled Catholic Education and Separate School Boards in Ontario said: From a Catholic perspective, the purpose of education is not only the transmission of knowledge, but also the formation of the whole person of the students through bringing them to the personal integration of faith and life. Separate schools are responsible for imparting Christian doctrine in an organic and systematic way, in order to initiate students into the fullness of Christian life and to elicit in response a personal commitment to that way of life. Catholic parents send their children to separate schools expecting them to experience education permeated with religious values, including religious instruction, to see Catholic values held, modelled, expressed and taught by teachers, to participate in the sacramental life of the Church carried out in the school, to receive career counselling and academic planning in the framework of vocation, and to enjoy an atmosphere in which values taught at home are supported.

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49. As these excerpts show, the basic purposes of Roman Catholic separate schools have not changed since Confederation. The philosophical differences between the public and separate branches of the system of education have not abated. Instead, the gulf between the two branches has grown wider with the increasing secularization of the public branch. The pervading secularism of Ontario’s modern society has reinforced the conviction of the Catholic community that separate schools are needed in order to continue to provide education that is imbued with a perspective on life and learning which arises from religious conviction. Catholic Schools are necessary to create and SUHVHQWDFXUULFXOXPWKDWLWLVVKDSHGE\WKHLQÁXHQFHRI5RPDQ&DWKROLFSKLORVRSK\ theology and practice and is therefore quite different from the secular curriculum of the public schools.

(b) The Bill 30 Reference 50. At pages 15 – 17 of the Communication, Tadman et al ridicule the “torturous analysis” of the Supreme Court of Canada in the Bill 30 Reference, supra. This critique misconceives the constitutional context in which the Supreme Court of Canada was operating and its relevance. The Bill 30 Reference was about the protection of minority rights and the relationship between group rights on the one hand, and individual rights on the other hand. 51. In 1985 the Government of Ontario decided to restore public funding to Catholic high schools. As noted above, this funding had been cut early in the century leading to the Tiny Separate School Trustees’ series of cases. The Supreme Court of Canada overruled these earlier decisions in 1986. The majority of the Court concluded: “I would therefore conclude that Roman Catholic separate school supporters had at Confederation a right or privilege, by law, to have their children receive an appropriate education which could include instruction at the secondary school level and that such right or privilege is therefore constitutionally guaranteed under section 93(1) of the Constitution Act, 1867 … I would therefore conclude (subject to the comments that follow on the applicability of the Charter of Rights) that Bill 30, which returns rights constitutionally guaranteed to separate schools by section 93(1) of the Constitution Act, 1867 is intra vires the provincial Legislature” (Page 58, 59) 52. The Court was unanimous in its approach to the relationship between the Canadian Charter of Rights and Freedoms, enacted in 1982, and the Constitution Act, 1867. The issue concerned the application of the non-discrimination provision in section 15 of the Charter to the funding of Catholic schools. 53. The Supreme Court quite rightly said that section 15 of the Charter did not touch the funding of Catholic schools provided for under section 93(1) of the Constitution Act, 1867. One part of the Constitution could not be held to have implicitly repealed another part of the Constitution. This is the meaning of the words of Mr. Justice Estey quoted by Tadman et al in the Communication at page 17.

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54. This result is quite appropriate, given the Supreme Court’s awareness of the co-existence of the communitarian and group rights in the Canadian Constitution with individual rights protected by the Charter. 55. In the early days of the Charter, Professor John Whyte set out two theoretical models for describing the modern democratic state: “One derives from the political philosophy of liberalism under which society is arranged without a particular conception of the good and in which individuals have claims of right to equal regard and respect. The other might be labelled the organic society in which the primary focus is not the autonomy of the individual but the importance of nurturing communities or corporate life. Such a society adheres to a conception of the good in the the sense that it accepts that the superior condition for individual well-being is not the maximization of personal autonomy but the growth of strong communities formed around common interests. The interests of individuals are best vindicated not through the recognition of each person’s formal equality but through the joining together of those with similar interests to create nurturing, supportive, normative communities.  +HDGGHGWKDW´WKHSURFHVVRIÀQGLQJPHDQLQJVWUHQJWKDQGIXOÀOPHQWLQFRUSRUDWH existence should not be shut down in favour of an atomistic conception of rights under which persons are simultaneously offered perfect freedom and perfect impotence”.2 57. There is an important social balance at the heart of the Constitution, which is Canada’s social contract. On the one hand it respects individuals by recognizing their claims to personal autonomy. On the other hand it respects communities by recognizing that “the interests of individuals are best vindicated … through the joining together of those with similar interests to create nurturing, supportive, normative communities”. Professor Whyte has urged a recognition, “… that the tension between liberal values and the idea of the organic state which has been with us since Confederation is perpetuated in the Charter of Rights”.3 He added that “… it is impossible to discern in the constitutional text either the clear direction to promote liberal values as wholeheartedly as possible or the direction to sustain communitarian values to the greatest extent possible.”4 58. Communitarian or group rights protected by the Constitution include aboriginal or native rights,5 language rights,6 minority-language education rights7 and denominational

2 Whyte, John D., “Is the Private Sector Affected by the Charter?” in Righting the Balance: Canada’s New Rights, L. Smith, Ed. p.145 at pp.174-175, 177. 3

Ibid p. 176.

4

Ibid p. 177.

5 The Royal Proclamation of 1763, s.25 of the Canadian Charter of Rights and Freedoms and II, IV, IV.1 of the Constitution Act, 1982. 6

Sections 16-21 of the Charter.

7

Section 23 of the Charter.

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education rights.8 Further recognition of the value of communities and their role in Canadian society is found in the guarantees of freedom of religion,9 and of association,10 the recognition of legal or customary rights or privileges with respect to language,11 and of the multicultural heritage of Canada.12 Even the structure of the federation itself, with provincial and federal governments possessed of distinct powers, was intended to foster local autonomy and community building, as was the equalization obligation.13  ,QWKHIDFHRIWKLVFRQVWLWXWLRQDOFRQWH[WLWLVGLIÀFXOWWRLPDJLQHWKDWLQWKHBill 30 Reference the Supreme Court of Canada would have accepted the invitation to use section 15 of the Charter to cut like a scythe through minority rights such as those protected by section 93(1) of the Constitution Act, 1867. It is respectfully submitted that this Honourable Committee should resist the invitation of Tadman et al for similar reasons.

(c) 7KH)LQDQFLDO-XVWLÀFDWLRQ)RU(OLPLQDWLQJ)XQGLQJ)RU&DWKROLF Schools 60. Two reasons are given by Tadman and et al for proposing the elimination of funding for Catholic schools. First, they claim inferentially that doing so would ipso facto result LQPRUHPRQH\ÁRZLQJWRWKHVHFXODUSXEOLFV\VWHP3DJHV  This result ignores the continuing power of the Province of Ontario to direct its own expenditures. If, as LVOLNHO\DVLJQLÀFDQWSURSRUWLRQRIWKH&DWKROLFVFKRROV\VWHPGRHVQRWPHUJHZLWK the public system but instead goes private, the more reasonable outcome in view of WKH´ÀVFDOUHVWUDLQWVDQGEXGJHWDU\FRQVWUDLQWVIDFLQJIHGHUDOSURYLQFLDODQGPXQLFLSDO government in Canada” which Tadman and et al acknowledge at page 26, is that the province of Ontario would divert any savings elsewhere and would not simply permit a windfall to accrue to public schools. There is evidence that larger systems are more expensive to operate.

(d) 7KH3KLORVRSKLFDO-XVWLÀFDWLRQ)RU(OLPLQDWLQJRI)XQGLQJ)RU&DWKROLF Schools 61. The second reason given by Tadman et al for eliminating funding to Catholic schools turns on the notion that the extension of funding to other denominations “would be socially divisive in the extreme” (Page 26). They rely on the dissenting judgement of Madam Justice McLachlin in Adler v The Queen (1996) 140 D.L.R. 4th (385) (S.C.C.) quoted at length at page 27-28 of the Communication, and on the recommendations

8 Section 93 of the Constitution Act, 1867, s.17 of the Saskatchewan Act, Act and s.17 of the Alberta Act, s.29 of the Charter. 9

Section 2(a) of the Charter.

10 Section 2(d) of the Charter. 11 Section 22 of the Charter. 12 Section 27 of the Charter. 13 Section 36 of the Constitution Act, 1982.

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of the Task Force on the Place of Religious in Schools in Quebec (1999) (“The Proulx Report”) quoted at length in the Reply of Tadman et al. The American Approach 62. The approach of Tadman et al attempts to import into the debate, wholesale and ZLWKRXWUHÁHFWLRQWKH$PHULFDQ´PHOWLQJSRWµDSSURDFKWROLEHUDOGHPRFUDF\SDUWLFXODUO\DVUHÁHFWHGLQWKHVHSDUDWLRQRIWKH&KXUFKDQGWKH6WDWHDQGWKHUROHRISXEOLF schools. The American approach to liberal democracy may also be called “procedural liberalism.” ,WÀQGVLWVEHVWH[SUHVVLRQLQIRUH[DPSOH5RQDOG'ZRUNLQTaking Rights Seriously (London: Dockworth 1977); and “Liberalism” in Stuart Hamsphire (ed.), Public and Private Morality (Cambridge University Press 1978). 63. Professor Charles Taylor has contrasted the procedural liberal approach to an older and more accommodating view of liberalism.14 His approach echoes that of Professor Whyte referred to above. At the risk of over simplifying, on the one side he placed procedural liberalism, which is characterized by an emphasis on the absolute equality of individuals, their legal autonomy and state neutrality. “A liberal society must remain neutral on the good life, and restrict itself to ensuring that however they see things, citizens deal fairly with each other and the state equally with all.”15 Such “a liberal society cannot accommodate publicly-espoused notions of the good.”16 64. Procedural liberalism rejects the notion that government should recognize and support certain groups of individuals or that it should facilitate the achievement of group goals. On this view of liberal democracy, it is not up to government to preserve French language and culture, aboriginal communities, or denominational schools, to use some pertinent Canadian examples. If people want these things, they must provide them personally. 65. On the other side, Professor Taylor posits a vision of a liberal democratic society as one that would permit the achievement of collective goals with the assistance of government, recognizing that certain groups need help if they are to survive and to make their particular contribution to society. As he explains: ´2Q WKLV YLHZ D VRFLHW\ FDQ EH RUJDQL]HG DURXQG D GHÀQLWLRQ RI WKH JRRG OLIH without this being seen as a depreciation of those who do not personally share this GHÀQLWLRQ Where the nature of the good requires that it be sought in common, this is the reason for its being an object of public policy. According to this conception, a liberal society singles itself out as such by the way in which it treats minorities, LQFOXGLQJWKRVHZKRGRQRWVKDUHSXEOLFGHÀQLWLRQVRIWKHJRRGDQGDERYHDOOWKH rights it accords to all its members.”

14 Charles Taylor, “Shared and Divergent Values” in Watts and Brown, eds., Options for a New Canada (1991), p. 53. 15 Taylor, ibid, p. 69. 16 Taylor, ibid, p. 69.

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66. This view of liberal democracy would permit government to support group goals such as the preservation of French language and culture, aboriginal communities, denominational schools, and multiculturalism. So long as the rights of individuals are respected, the state can act in a way that protects the aspirations of groups. 67. Such motivation undoubtedly underlies the widespread funding of religious schools across Canada and around the world. Further, what European democracy does not work to ensure survival of its unique language and culture in the international context? Such liberal democracies are not rare. Indeed, they are more prevalent internationally than those taking the American approach. 68. In a more recent work Professor Taylor has drawn a distinction between the mutually exclusive “politics of equal dignity” and the “politics of difference”, both of which are based on the notion of equal respect. “With the politics of equal dignity, what is established is meant to be universally the same, an identical basket of rights and immunities; with the politics of difference, what we are asked to recognize is the unique identity of this individual or group, their distinctness from everyone else. The idea is that it is precisely this distinctness that has been ignored, glossed over, assimilated to a dominant or majority identity. And this assimilation is the cardinal sin against the ideal of authenticity.”17  3URIHVVRU7D\ORUH[SODLQVKRZWKHVHWZRDSSURDFKHVFRPHLQWRFRQÁLFW “For one, the principle of equal respect requires that we treat people in a difference-blind fashion. The fundamental intuition that humans command this respect focuses on what is the same in all. For the other, we have to recognize and even foster particularity. 7KHUHSURDFKWKHÀUVWPDNHVWRWKHVHFRQGLVMXVWWKDWLWYLRODWHV the principle of nondiscrimination. The reproach that the second [politics of GLIIHUHQFH@PDNHVWRWKHÀUVW>SROLWLFVRIHTXDOGLJQLW\@ is that it negates identity by forcing people into a homogeneous mold that is untrue to them. This would be bad enough if the mold were itself neutral – nobody’s mold in particular. But the complaint generally goes further. The claim is that the supposedly neutral set RIGLIIHUHQFHEOLQGSULQFLSOHVRIWKHSROLWLFVRIHTXDOGLJQLW\LVLQIDFWDUHÁHFWLRQ of one hegemonic culture. As it turns out, then, only the minority or suppressed cultures are being forced to take alien form. Consequently, the supposedly fair and difference-blind society is not only inhuman (because suppressing identities) but also, in a subtle and unconscious way, itself highly discriminatory.”18 70. The proponents of procedural liberalism such as Tadman et al seem to have failed to recognize the coercive nature of their approach. They use the language of individual equality and like the ideology of the melting pot. They argue that individuals are always free to associate for the purposes of preserving and perpetuating their culture, language or religion. But this is an empty opportunity. The assimilating characteristics

17 Multiculturalism (1994), pp. 41, 42, 38. 18 Ibid, p. 43.

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of mainstream culture are so relentless that, in reality, there is a hint of coerciveness in this position, perhaps even social Darwinism. 71. It is clear that in the sphere of education, the proponents of secular public schools such as Tadman et al aim, in adopting the American model of liberal democracy and individual rights, at some form of assimilation as a public good. 72. The ideological basis of the religious sterilization of public schools is perhaps best put by Larry Taman, who has appeared for the Canadian Civil Liberties Association in a number of education cases. +LVLVGHÀQLWHO\QRWDSRVLWLRQEDVHGRQQHXWUDOLW\ He aims at integration: “Civil libertarians seek a neutral state in matters of religious education. They believe in a secular school system as the best means of fostering the values of religious tolerance which are critical to the maintenance of personal liberty in our multi-cultural society. They oppose the balkanization of the public school system into state funded enclaves of private religious education – Catholic children with Catholic, Protestants with Protestants, Sikhs with Sikhs, Ismailis and Ismailis, and so on. They view the preferred status of some as unjust history, not to be repeated or extended and certainly not to be remedied by extending the same rights to all comers in the name of a formal equality which would ultimately be corrosive of religious tolerance. I share these views.”19 This logic was invoked by the Ontario Court of Appeal in Adler.20 73. This may be contrasted with the view of Professor Mark Holmes of the Ontario Institute for Studies in Education (OISE). In an extraordinarily acerbic article entitled “Religion and the Restructuring of Schools” (1992) he wrote: 7KH6WDWH·VUHVSRQVLELOLW\LQHGXFDWLRQLVWRHQVXUHWKDWIRUPDOHGXFDWLRQLVHIÀFLHQWO\ conducted, that is offered equitably, that it at least maintains minimum standards of quality, and that it is not inconsistent with the fundamental values intrinsic to the society concerned. Its responsibility does not extend to ensuring that the world view of choice (intellectual and moral autonomy) should be imposed and that spiritual world views be proscribed. The core of the case against religious education is that it entails an exclusive and prescriptive world view, as distinct from the autonomous world view of secular

19 “Caring Neutrality in Religious Education”, CAPSLE Conference, April, 1993. 20 In Adler the Court of Appeal cited McCollum v. Board of Education (1948) 333 U.S. 203 (U.S.S.Ct.) p.231 where the Court said: “Separation means separation, not something less. Jefferson’s metaphor in GHVFULELQJWKHUHODWLRQEHWZHHQ&KXUFKDQG6WDWHVSHDNRID´ZDOORIVHSDUDWLRQ´QRWRIDÀQHOLQHHDVLO\ overstepped. The public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny. In no activity of the State is it more vital to keep out divisive forces that in its school, to avoid confusing, not to say fusing, what the Constitution sought to keep strictly apart. “The great American principle of eternal separation” – Elihu Root’s phrase bears repetition – is one of the vital reliances of our Constitutional system for assuring unities among our people stronger than our diversities. It is the Court’s duty to enforce this principle in its full integrity.” It is instructive that the majority of the Supreme Court of Canada did not endorse this view on the Adler appeal.

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society. The irony is that the liberal idea of autonomy is being imposed in the name of such idea as openness, freedom and tolerance. But what kind of openness it is that is closed to those millions of believers – Muslims, Jews, Pentecostal Christians, Seventh Day Adventist, Sikhs – throughout the world, and that relegates religious parents to second class citizenship, whose world views have no place in the educational monopoly? What kind of freedom it is that permits parents only to educate children within the categories of freedom favoured by the secular elite? What kind of tolerance it is that will only tolerate the liberal world view, and will permit no other to be taught in the public schools? But, secular liberals will object, many church people are perfectly happy with a secular school system. So they are. We live in a liberal, secular world in North America; no one is untouched by the prevailing dogma. It is interesting that such calumny should fall on those who advocate an apparently benign idea – that parents should be able to choose the spiritual direction of their FKLOGUHQ·V HGXFDWLRQ SURYLGHG WKDW LW GRHV QRW FRQÁLFW ZLWK WKH ODUJHU VRFLHW\·V fundamental values. No one is asking that children be forced into different schools by religious apartheid. Formal religion is at such low ebb that it may be that comparatively few parents will take advantage of the opportunity. Should it therefore be denied? Perhaps religious schools will compete effectively with public schools and, as in the Netherlands, will become major competitors. Should religious schools be denied because they may prove popular? Popularity or unpopularity is irrelevant; HGXFDWLRQVKRXOGVLPSO\UHÁHFWLQODUJHPHDVXUHWKHZLVKHVRISDUHQWV It is perhaps the supreme irony of the late twentieth century that secular hegemony is being imposed in such a heavy handed way. George Orwell was strangely unprophetic. He foresaw a totalitarian, egalitarian world enforcing conformity and terrorizing the intellectuals on behalf of big brother. Instead, we have an intellectual elite benevolently imposing a liberal educational tyranny. (pp.18-20) (emphasis added) Catholic Schools and Tolerance 74. Proponents of one secular school system often argue that it is particularly advantageous for school systems in the multicultural jurisdictions of pluralistic societies. Having all students attend the same schools together, it is argued, assures a greater sense of respect for difference and acceptance of the wide variety of cultures and even languages found in many contemporary North American school systems. Secular systems, it is claimed, are best positioned to decrease levels of prejudice and bias towards other groups which can often develop in school systems responsible for students from a wide variety of ethnic and cultural backgrounds. 75. The argument, however is both theoretical and gratuitous. It rests on no empirical evidence. The reality is that precious little research has been done in this whole area. Whatever research does exist, leads to conclusions which are quite contrary to this assumption. In research done by the U.S. National Opinion Research Council

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on Catholic schools in 1966 and 1976 quite the contrary conclusions were reached. Evidence from this longitudinal research indicated that Catholic school students who KDGDWWHQGHG&DWKROLFVHFRQGDU\VFKRROVKDGVLJQLÀFDQWO\JUHDWHUUDFLDOWROHUDQFHWKDQ their counterparts who attend the public schools. More recent research in the United 6WDWHVKDVFRQÀUPHGWKHVHVDPHFRQFOXVLRQV To argue, therefore, that a supposedly neutral secular school system should be favoured because of its supposed development of racial and religious tolerance is an assumption that is not borne out in fact. The Myth of Neutrality 76. There is a strong streak of ideology in the cases, one that accepts as a truism that pluralism in education must mean secularism. Closely linked to this is the concept that secularism is religiously neutral. 7KLVZDVPRVWFOHDUO\UHÁHFWHGLQWKH&RXUWRI Appeal decision in Adler v. The Queen, 116 D.L.R. (4th) 1 in the words of Chief Justice Dubin: “The public school system is solely secular and, in my view, because it is secular, it cannot found a claim of discrimination because it does not provide public funds for religious education under private auspices.” 77. Further, the Court endorsed as “fairly set forth” one of the objectives of the system of education set out in the Attorney General’s factum: The establishment of a public education system which fosters and promotes the values of a pluralist, democratic society, including social cohesion, religious tolerance and understanding.21 78. In Re Bal and Attorney General for Ontario Justice Winkler rejected the argument of counsel that secularism is coercion. He responded that “Secularism is not coercive, it is neutral.” He added that he saw secularism as a protection for minority rights.22 79. Reality is, however, quite different. There is no evidence to support the Court’s assertion that “secularism is not coercive, it is neutral.” In the Report of the Ministerial Inquiry on Religious Education in Ontario Public Elementary Schools (1990), Dr. Glenn Watson pointed out the basic conundrum: “An educational system cannot be neutral. If there is no religious education or any form of religion in the schools, then secular humanism, by default, becomes the basic belief system. Secular humanism does not represent a neutral position.” Dr. Watson Explained: “In every relationship, and especially in that between a teacher and a student, there is something that can be referred to as religious education. It is the transmission RILGHDVRUDQVZHUVWRVLJQLÀFDQWOLIHUHODWHGLVVXHVRULWLVWKHH[HPSOLÀFDWLRQRI

21 (1994), 19 O.R. (3d) 1 at p.24, 27; appeal dismissed, (1996), 140 D.L.R. (4th) 385 (S.C.C.). It is instructive that the majority of the Supreme Court of Canada did not endorse these views on appeal. 22 (1994), 21 O.R. (3d) 681 (Ont. Gen. Div.) at p.705, 711; appeal dismissed, (1997), 34 O.R. (3d) 484.

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values by ‘precept and example.’ There is no way to avoid such an interaction and the learning experience associated with that relationship over a period of time.”23 80. The Ontario Teachers’ Federation for example recognized that teaching by its very nature imparts values: “Ontario teachers have chosen their profession well aware that they serve as rolemodels as described in Section [264] of the Education Act. Willingly and daily they impart values by precept and example to their charges; this is all the more VLJQLÀFDQWZKHQZHFRQVLGHUWKDWRIWHQLWLVWKHWHDFKHUZKRLVZLWKWKHFKLOGIRU the greater portion of the day.”24 The system of public education has, in fact, been an engine for the devitalization of religion in society.25 81. It is simply not correct to say that a secular school system is religiously neutral or benign. What Tadman et al have endorsed and asked the Committee to adopt is the myth of neutrality. It is a myth because it does not bear close scrutiny; there is no neutral position. Secularization and secularism are not benign forces in their effects on religious faith and practice. What is being created in public education as a consequence is “the culture of disbelief”, in the apt expression of Professor Stephen Carter.26 Professor M. H. Ogilvy has described the system of public education as “a spiritual wasteland, devastated by the Courts and the educational establishment.”27 82. The Proulx Report, referred to by Tadman et al in the reply advocates the secularization of schools in the Province of Quebec. Before recent reforms to educate system in Quebec school boards were either Protestant or Catholic. Recent reform has

23 Dr. Watson’s observations echo the dissent of Mr. Justice Stewart in the American Bible Reading Cases:  ,WPLJKWDOVREHDUJXHGWKDWSDUHQWVZKRZDQWWKHLUFKLOGUHQH[SRVHGWRUHOLJLRXVLQÁXHQFHV FDQDGHTXDWHO\IXOÀOOWKDWZLVKRIIVFKRROSURSHUW\DQGRXWVLGHVFKRROWLPH:LWKDOOLWVVXUIDFH SHUVXDVLYHQHVVKRZHYHUWKLVDUJXPHQWVHULRXVO\PLVFRQFHLYHVWKHEDVLFFRQVWLWXWLRQDOMXVWLÀFDtion for permitting the exercises at issue in these cases. For a compulsory state educational system so structures a child’s life that if religious exercises are held to be an impermissible activity in VFKRROVUHOLJLRQLVSODFHGDWDQDUWLÀFLDODQGVWDWHFUHDWHGGLVDGYDQWDJH9LHZHGLQWKLVOLJKW permission of such exercises for those who want them is necessary if the schools are truly to be neutral in the matter of religion. And a refusal to permit religious exercises thus is seen, not as the realization of state neutrality, but rather as the establishment of a religion of secularism, or at the least, as government support of the beliefs of those who think that religious exercises should be conducted only in private (374 U.S. at 313). And see Cornelius F. Murphy, Junior: “Is the Parental Right to Educate Protected by International Law?”. In Robert F. Drinan, ed. The Right to Be Educated (1968). 24 Ontario Teachers’ Federation, Values Education, Religious Education and the Ontario Curriculum, (1990), 1-2, p. 22. 25 Reginald Bibby, Sociologist, in Mosaic Madness, p. 71. 26 S. Carter, The Culture of Disbelief, (1995). 27 “Overcoming” The Culture of Disbelief (1996), 2 Journal of Church Law Association of Canada 5 at p. 10.

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resulted in school boards that are organized along linguistic lines, English and French. But the denominational nature of these schools and their ability to acquire and release denominational identity has remained intact. It is noteworthy that the architect of the new organization of school boards along linguistic lines, Claude Ryan has issued a statement strongly condemning the proposal in the Proulx Report. It was not his intention, as Minister of Education, to expunge the religious identities of schools. His response is attached as Appendix “B”.

(e) “Ongoing or Continuing Violation” of the Covenant 83. At page 23 and following of the Communication, Tadman et al cite the jurisprudence of this Committee concerning “ongoing or continuing violation” of the International Covenant. It is respectfully submitted that the application of this jurisprudence must be carefully considered in respect of the protection of minority rights. 84. First, it is quite evident that in subscribing to the International Covenant, the Government of Canada did not intend to prejudicially affect denominational rights in HGXFDWLRQLQ&DQDGDJHQHUDOO\RULQ2QWDULRVSHFLÀFDOO\ When the Government of Canada subscribed to the International Protocol in 1976, section 93(1) of the Constitution Act, 1867 and similar constitutional protections in Canada existed. When the Canadian Charter of Rights and Freedoms was enacted in 1982, it contained section 29 which provided as follows: “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” 85. It is quite evident that in 1982 the Government of Canada remained committed to the protection of denominational rights in education. Thus, the Government of Canada had no intention of exposing to risk these or other minority rights protected by the Constitution of Canada when it subscribed to the International Covenant in 1986. (Sic) 86. Second, it is submitted that the International Covenant was never intended by its drafters to apply to the protection of minorities under national constitutions, where that protection was extended precisely because of the minority status of the affected religion or group. In 1867 protection was extended to the Roman Catholic minority in Ontario so that it could avoid assimilation by the Protestant majority. Although Catholic schools existed for positive reasons and not just as “protection from insult for Catholics” (Communication Page 5) there is no doubt that Catholic schools served that purpose. Tadman et al effectively concede that the establishment of the minority right in the 1867 was legitimate, noting that it “began innocently enough” (Communication Page 5) in view of the overwhelming Protestant minority in Ontario and the fact that the public school system was Protestant and so remained for a considerable period of time. 87. On the evidence this continued to be a valid concern on a practical level well after the adoption of the International Covenant. While it is true that the education system in Ontario has now become secular in nature and has largely lost its Protestant character, it 1010

7. UNITED NATIONS COMMITTEE DECISIONS

LVHTXDOO\WUXHWKDWVHFXODUYDOXHVDUHVLJQLÀFDQWO\PRUHLQLPLFDOWR&DWKROLFHGXFDWLRQ WKDQ3URWHVWDQWYDOXHVDFFRUGLQJWRWKH$IÀGDYLWRI'HQQLV0XUSK\$SSHQGL[´$µ  page 37. 88. Third, it is no small irony that Tadman et al at page 10 cite as a fact that “A majority of citizens in the province of Ontario wish to have one public school board in their school governance district. In a survey commissioned by the Ontario Secondary Schools Federation 71% of those surveyed preferred the option to “merge all different existing boards into one”. It is respectfully submitted that it was never the intention of the drafters of the International Covenant that it be used by majorities to prejudicially affect the constitutional protection afforded to minorities. This is quite evident from language of General Comment 23 (1994) referred to in paragraph 26 above. 89. Fourth, it is clear on the evidence that the publicly funded Catholic school system is an integral part of the publicly funded system of education in Ontario. It is noted in the Submissions of the State Party that the Catholic community has made substantial ÀQDQFLDOFRQWULEXWLRQVWRWKHH[LVWHQFHRIWKHV\VWHPWKURXJKWKHGRQDWLRQVRIODQGDQG buildings by Dioceses, Religious Orders and individuals who made their contributions of service and property in the expectation that Catholic education would continue to be publicly funded. There is an institutional structure in place which is part of the heritage DQGFXOWXUHRIDVLJQLÀFDQWQXPEHURI2QWDULRFLWL]HQV 90. It is respectfully submitted that it was never the intention of the International Covenant that institutional structures that were intended to protect minorities be dismantled. The Committee’s jurisprudence on “ongoing or continued violation” should not be extended to compel this result. The Committee ought to be very circumspect before requiring that an institutional structure established legitimately in order to protect a minority and which still discharges that function be dismantled. Instead, it is respectfully submitted that the appropriate response of this Honourable Committee would be establish a principle that would shield such institutions from that result. 91. OCSTA agrees with the Submission of the State Party at paragraph 62 that dismantling the Catholic system will cause social unrest in Ontario.

5. 5HOLHI5HTXHVWHG 92. The proposed Intervenor, OCSTA, respectfully requests that: (a) it be granted leave to intervene on an ad hoc basis; (b) alternatively, the Tadman Communication and the Waldman Communication be adjourned sine die until the Rules of Procedure of the Committee have been amended to permit interventions in appropriate cases and until OCSTA’s application for intervention status has been considered thereunder; (c) this Honourable Committee receive and consider this Submission; (d) if this Honourable Committee is persuaded that current arrangements for publicly funded education in the province of Ontario contravene the International &RYHQDQWWKDWWKH&RPPLWWHHVRÀQGEXWRWKHUZLVHUHIUDLQIURPVSHFLI\LQJD remedy;

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(e) if this Honourable Committee decides that it will prescribe a remedy, that the remedy be the extension of funding to schools of other faiths on some reasonable basis to be determined by the Government of Ontario consistent with the principles in the Committee’s decision. All of which is respectfully submitted this 7th day of July, 1999 _____________________________________________________ PETER D. LAUWERS Counsel for the Ontario Catholic School Trustees’ Association [Editors note: Appendices have not been reproduced]

1012

8QLWHG1DWLRQV+XPDQ5LJKWV&RPPLWWHH1RYHPEHU )LQDO9LHZV Waldman v. Canada, Communication No. 694/1996, $YRO,,$QQH[,;+ $QQXDO5HSRUWRIWKH8QLWHG 1DWLRQV+XPDQ5LJKWV&RPPLWWHH On 3 November 1999 the United Nations Human Rights Committee adopted its decision on the merits of Waldman v. Canada. The Views of the Committee summarize the arguments put forward by both the Author and the State Party and then proceed to give reasons for the decision of the Committee. The Committee unanimously agreed that the facts disclosed a violation of the non-discrimination provisions of the International Covenant on Civil and Political Rights (Article 26). It held that the funding of the religious education of Roman Catholics to the exclusion of all other religious groups was a violation of Canada’s international obligations under the Covenant. While the Committee did not suggest a remedy, one of its members wrote a concurring opinion suggesting that funding should be extended to other religious groups in order to eliminate the discrimination. The Committee asked Canada to respond within 90 days with an “effective remedy”.

UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS 5 November 1999 Dear Mr. Waldman, I have the honour to transmit to you herewith, the text of the Views, adopted by the Human Rights Committee on 3 November 1999, concerning communication No. 694/1996, which you submitted to the Committee for consideration under the Optional Protocol to the International Covenant on Civil and Political Rights. In accordance with established practice, the text of the Views will be made public. Yours sincerely, Hamid Gaham Chief a.i., Support Services Branch

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+80$15,*+76&200,77(( Arieh Hollis Waldman v. Canada Communication No. 694/1996 3 November 1999 &&35&' VIEWS Submitted by: Arieh Hollis Waldman (represented by counsel) Alleged victim: The author State party: Canada Date of communication: 29 February 1996 The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights, Meeting on 3 November 1999 Having concluded its consideration of communication No.694/1996 submitted to the Human Rights Committee on behalf of Arieh Hollis Waldman, under the Optional Protocol to the International Covenant on Civil and Political Rights, Having taken into account all written information made available to it by the author of the communication, his counsel and the State party, Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol 1.1 The author of the communication is Mr. Arieh Hollis Waldman, a Canadian citizen residing in the province of Ontario. He claims to be a victim of a violation of articles 26, and articles 18(1), 18(4) and 27 taken in conjunction with article 2(1).* 1.2 The author is a father of two school-age children and a member of the Jewish faith who enrols his children in a private Jewish day school. In the province of Ontario Roman Catholic schools are the only non-secular schools receiving full and direct public funding. Other religious schools must fund through private sources, including the charging of tuition fees. 1.3 In 1994 Mr. Waldman paid $14,050 in tuition fees for his children to attend Bialik Hebrew Day School in Toronto, Ontario. This amount was reduced by a federal tax credit system to $10,810.89. These tuition fees were paid out of a net household income of $73,367.26. In addition, the author is required to pay local property taxes to fund a public school system he does not use.

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The facts 2.1 The Ontario public school system offers free education to all Ontario residents without discrimination on the basis of religion or on any other ground. Public schools may not engage in any religious indoctrination. Individuals enjoy the freedom to establish private schools and to send their children to these schools instead of the public schools. The only statutory requirement for opening a private school in Ontario is the submission of a “notice of intention to operate a private school”. Ontario private schools are neither licensed nor do they require any prior Government approval. As of 30 September 1989, there were 64,699 students attending 494 private schools in Ontario. Enrolment in private schools represents 3.3 percent of the total day school enrolment in Ontario. 2.2 The province of Ontario’s system of separate school funding originates with provisions in Canada’s 1867 constitution. In 1867 Catholics represented 17% of the population of Ontario, while Protestants represented 82%. All other religions combined represented .2% of the population. At the time of Confederation it was a matter of concern that the new province of Ontario would be controlled by a Protestant majority that might exercise its power over education to take away the rights of its Roman Catholic minority. The solution was to guarantee their rights to denominational education, and WRGHÀQHWKRVHULJKWVE\UHIHUULQJWRWKHVWDWHRIWKHODZDWWKHWLPHRI&RQIHGHUDWLRQ 2.3 As a consequence, the 1867 Canadian constitution contains explicit guarantees of denominational school rights in section 93. Section 93 of the Constitution Act, 1867 grants each province in Canada exclusive jurisdiction to enact laws regarding education, limited only by the denominational school rights granted in 1867. In Ontario, the section 93 power is exercised through the Education Act. Under the Education Act HYHU\VHSDUDWHVFKRROLVHQWLWOHGWRIXOOSXEOLFIXQGLQJ6HSDUDWHVFKRROVDUHGHÀQHG as Roman Catholic schools. The Education Act states: “1. (1) “separate school board” means a board that operates a school board for Roman Catholics; … 122. (1) Every separate school shall share in the legislative grants in like manner as a public school”. As a result, Roman Catholic schools are the only religious schools entitled to the same public funding as the public secular schools.

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2.4 The Roman Catholic separate school system is not a private school system. Like the public school system it is funded through a publicly accountable, democratically elected board of education. Separate School Boards are elected by Roman Catholic ratepayers, and these school boards have the right to manage the denominational aspects of the separate schools. Unlike private schools, Roman Catholic separate schools are subject to all Ministry guidelines and regulations. Neither s.93 of the Constitution Act 1867 nor the Education Act provide for public funding to Roman Catholic private/independent schools. Ten private/independent Roman Catholic schools operate in Ontario and these VFKRROVUHFHLYHQRGLUHFWSXEOLFÀQDQFLDOVXSSRUW 3ULYDWHUHOLJLRXVVFKRROVLQ2QWDULRUHFHLYHÀQDQFLDODLGLQWKHIRUPRI H[HPSWLRQIURPSURSHUW\WD[HVRQQRQSURÀWSULYDWHVFKRROV LQFRPHWD[GHGXFWLRQVIRU tuition attributable to religious instruction; and (3) income tax deductions for charitable purposes. A 1985 report concluded that the level of public aid to Ontario private schools amounted to about one-sixth of the average total in cost per pupil enrolled in a private school. There is no province in Canada in which private schools receive funding on an equal basis to public schools. Direct funding of private schools ranges from 0% (Newfoundland, New Brunswick, Ontario) to 75% (Alberta). 2.6 The issue of public funding for non-Catholic religious schools in Ontario has been WKHVXEMHFWRIGRPHVWLFOLWLJDWLRQVLQFH7KHÀUVWFDVHEURXJKW)HEUXDU\ VRXJKWWRPDNHUHOLJLRXVLQVWUXFWLRQPDQGDWRU\LQVSHFLÀFVFKRROVWKHUHE\LQWHJUDWLQJ H[LVWLQJ+HEUHZVFKRROVLQWRSXEOLFVFKRROV2Q$SULODIÀUPHG$SULO Ontario courts found that mandatory religious instruction in public schools was not permitted. 2.7 In 1982 Canada’s constitution was amended to include a Charter of Rights and Freedoms which contained an equality rights provision. In 1985 the Ontario government decided to amend the Education Act to extend public funding of Roman Catholic schools to include grades 11 to 13. Roman Catholic schools had been fully funded from kindergarten to grade 10 since the mid 1800’s. The issue of the constitutionality of this law (Bill 30) in view of the Canadian Charter of Rights and Freedoms, was referred by the Ontario government to the Ontario Court of Appeal in 1985. 2.8 On 25 June 1987 in the Bill 30 case the Supreme Court of Canada upheld the constitutionality of the legislation which extended full funding to Roman Catholic schools. The majority opinion reasoned that section 93 of the Constitution Act 1867 and all the rights and privileges it afforded were immune from Charter scrutiny. Madam Justice Wilson, writing the majority opinion stated: “It was never intended … that the Charter could be used to invalidate other provisions of the constitution, particularly a provision such as s.93 which represented a fundamental part of the Confederation compromise.” 2.9 At the same time the Supreme Court of Canada, in the majority opinion of Wilson, -DIÀUPHG´7KHVHHGXFDWLRQDOULJKWVJUDQWHGVSHFLÀFDOO\WR«5RPDQ&DWKROLFVLQ Ontario, make it impossible to treat all Canadians equally. The country was founded XSRQWKHUHFRJQLWLRQRIVSHFLDORUXQHTXDOHGXFDWLRQDOULJKWVIRUVSHFLÀFUHOLJLRXVJURXSV in Ontario …” In a concurring opinion in the Supreme Court, Estey J. conceded: “It is 1016

7. UNITED NATIONS COMMITTEE DECISIONS

axiomatic (and many counsel before this court conceded the point) that if the Charter has any application to Bill 30, this Bill would be found discriminatory and in violation of ss. 2(a) and 15 of the Charter of Rights.” 2.10 In a further case, Adler v. Ontario, individuals from the Calvinistic or Reformed Christian tradition, and members of the Sikh, Hindu, Muslim, and Jewish faiths challenged the constitutionality of Ontario’s Education Act, claiming a violation of the Charter’s provisions on freedom of religion and equality. They argued that the Education Act, by requiring attendance at school, discriminated against those whose conscience or beliefs prevented them from sending their children to either the publicly funded secular or publicly funded Roman Catholic schools, because of the high costs associated with their children’s religious education. A declaration was also sought stating that the applicants were entitled to funding equivalent to that of public and Roman Catholic schools. The Ontario Court of Appeal determined that the crux of Adler was an attempt to revisit the issue which the Supreme Court of Canada had already disposed of in the Bill 30 case. Chief Justice Dubin stated that the Bill 30 case was “really quite decisive of the discrimination issue in these appeals.” They also rejected the argument based on freedom of religion. 2.11 On appeal, the Supreme Court of Canada by judgement of 21 November 1996, FRQÀUPHGWKDWLWVGHFLVLRQLQWKHBill 30 case was determinative in the Adler litigation, and found that the funding of Roman Catholic separate schools could not give rise to an infringement of the Charter because the province of Ontario was constitutionally obligated to provide such funding.

The complaint 3.1 The author contends that the legislative grant of power to fund Roman Catholic schools authorized by section 93 of the Constitution Act of Canada 1867, and carried out under sections 122 and 128 of the Education Act (Ontario) violates Article 26 of the Covenant. The author states that these provisions create a distinction or preference which is based on religion and which has the effect of impairing the enjoyment or exercise by all persons, on an equal footing, of their religious rights and freedoms. He DUJXHVWKDWWKHFRQIHUUDORIDEHQHÀWRQDVLQJOHUHOLJLRXVJURXSFDQQRWEHVXVWDLQHG :KHQDULJKWWRSXEOLFO\ÀQDQFHGUHOLJLRXVHGXFDWLRQLVUHFRJQL]HGE\D6WDWHSDUW\ no differentiation should be made among individuals on the basis of the nature of their particular beliefs. The author maintains that the provision of full funding exclusively to Roman Catholic schools cannot be considered reasonable. The historical rationale for the Ontario government’s discriminatory funding practice, that of protection of Roman Catholic minority rights from the Protestant majority, has now disappeared, and if anything has been transferred to other minority religious communities in Ontario. A 1991 census is quoted as indicating that 44% of the population is Protestant, 36% LV&DWKROLFDQGKDYHRWKHUUHOLJLRXVDIÀOLDWLRQV,WLVDOVRXQUHDVRQDEOHLQYLHZRI the fact that other Canadian provinces and territories do not discriminate on the basis of religion in allocating education funding.

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3.2 The author also claims that Ontario’s school funding practices violate Article 18(1) WDNHQLQFRQMXQFWLRQZLWK$UWLFOH7KHDXWKRUVWDWHVWKDWKHH[SHULHQFHVÀQDQFLDO hardship in order to provide his children with a Jewish education, a hardship which is not experienced by a Roman Catholic parent seeking to provide his children with a 5RPDQ&DWKROLFHGXFDWLRQ7KHDXWKRUFODLPVWKDWVXFKKDUGVKLSVLJQLÀFDQWO\LPSDLUV in a discriminatory fashion, the enjoyment of the right to manifest one’s religion, including the freedom to provide a religious education for one’s children, or to establish religious schools. 3.3 The author further points out that this violation is not sustainable under the limitation provisions of article 18(3), which only permits those limitations which are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedom of others. According to the author, a limitation established to protect morals may not be based on a single tradition. 7KHDXWKRUIXUWKHUDVVHUWVWKDWZKHQDULJKWWRSXEOLFO\ÀQDQFHGUHOLJLRXVHGXFDtion is recognized by a State party, no differentiation should be made on the basis of religion. The full and direct public funding of Roman Catholic schools in Ontario does not equally respect the liberty of non-Roman Catholics to choose an education in conformity with a parent’s religious convictions, contrary to Article 18(4) taken together with Article 2. 3.5 The author states that Article 27 recognizes that separate school systems are crucial to the practice of religion, that these schools form an essential link in preserving community identity and the survival of minority religious groups and that positive action may be required to ensure that the rights of religious minorities are protected. Since Roman Catholics are the only religious minority to receive full and direct funding for religious education from the government of Ontario, Article 27 has not been applied, as required by Article 2, without distinction on the basis of religion.

State party’s observations 4.1 By note of 29 April 1997, the State party agrees to the combined consideration of admissibility and merits of the communication by the Committee. 4.2 In its submission of February 1998, the State party denies that the facts of the case disclose violations of articles 2, 18, 26 and 17 of the Covenant. 4.3.1 With regard to the alleged violation of article 26, the State party contends the communication is inadmissible ratione materiae, or, in the alternative, does not constitute a violation. The State party recalls that a differentiation in treatment based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26. It refers to the Committee’s jurisprudence in communication No. 191/1985 Blom v. Sweden, Views adopted on 4 April 1988, selected decisions volume 2, CCPR/C/OP/2, where the Committee found that the State party was not violating article 26 by not providing the same level of subsidy for private and public education, when the private system was not subject to State supervision. It also refers to the Committee’s Views in communications Nos. 298/1988 and 299/1988 Lindgren and Lundquist v. Sweden, Views adopted on 9 November 1990 (CCPR/C/40/D/2981018

7. UNITED NATIONS COMMITTEE DECISIONS

299/1988), where the Committee decided that the State party could not be deemed to be XQGHUDQREOLJDWLRQWRSURYLGHWKHVDPHEHQHÀWVWRSULYDWHVFKRROVDVWRSXEOLFVFKRROV and that the preferential treatment given to public sector schooling was reasonable and based on objective criteria. The Committee also considered that the State party could not be deemed to discriminate against parents who freely choose not to avail themselves RIEHQHÀWVZKLFKDUHJHQHUDOO\RSHQWRDOO 4.3.2 The State party argues that its funding of public schools but not private schools is not discriminatory. All children of every or no religious denomination have the same right to attend free secular public schools maintained with tax funds. According to the State party, it is not a deprivation by the Government that a child or a parent voluntarLO\FKRRVHVWRIRUHJRWKHH[HUFLVHRIWKHULJKWWRHGXFDWLRQDOEHQHÀWVSURYLGHGLQWKH public school system. The State party emphasizes that the province of Ontario does not fund any private schools, whether they are religious or not. The distinction made in the funding of schools is based not on religion, but on whether or not the school is a public or a private/independent institution. 4.3.3 According to the State party, the establishment of secular public institutions is consistent with the values of article 26 of the Covenant. Secular institutions do not discriminate against religion, they are a legitimate form of Government neutrality. According to the State party, a secular system is a tool which assists in preventing discrimination among citizens on the basis of their religious faiths. The State party makes no distinctions among different religious groups in its public education and does not limit any religious group’s ability to establish private schools. 4.3.4 Apart from its obligations under the Constitution Act 1867, the State party provides no direct funding to religious schools. In such circumstances, the State party argues that it is not discriminatory to refuse funding for religious schools. In making its decision, the State party seeks to achieve the very values advanced by article 26, the creation of a tolerant society where there is respect and equality for all religious beliefs. The State party argues that it would defeat the purposes of article 26 itself if the Committee was to hold that because of the provisions in the Constitution Act 1867 requiring the funding of Roman Catholic schools, the State party now must fund all private religious schools, thus undermining its very ability to create and promote a tolerant society that truly protects religious freedom, when in the absence of the 1867 constitutional provision, it would have no obligation under the Covenant to fund any religious schools at all. 4.4.1. In relation to article 18, the State party refers to the travaux préparatoires which make it clear that article 18 does not include the right to require the State to fund private religious schools. During the drafting the question was expressly raised and answered in the negative. See Bossuyt, Guide to the Travaux Préparatoires of the ICCPR, 1987, at 369. As a consequence, the State party argues that the author’s claim under article 18 is inadmissible ratione materiae. In the alternative, the State party argues that its policy meets the guarantee of freedom of religion contained in article 18, because it provides a public school system which is open to persons of all religious beliefs and which does not provide instruction in a particular religion or belief, and because there

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is freedom to establish private religious schools and parents are free to send their children to such religious schools. The State party denies that paragraph 4 of article 18 obligates States to subsidize private religious schools or religious education. The State party makes reference to Nowak, UN Covenant on Civil and Political Rights, CCPR commentary, at 330-333. According to the State party, the purpose of article 18 is to ensure that religious observance, beliefs and practices remain a private matter, free from State coercion or restraint. It is the State’s obligation to provide an education open and accessible to all children regardless of religion. There is no obligation to either offer RUÀQDQFHUHOLJLRXVLQVWUXFWLRQRULQGRFWULQDWLRQ:KLOHWKHSURYLQFHPXVWHQVXUHWKDW religious freedom and religious differences are accommodated within the public school system, it has no obligation to fund individuals who, for religious reasons, exercise their freedom to opt out of the public school system. 4.4.2 The State party argues that failure to act in order to facilitate the practice of religion cannot be considered state interference with freedom of religion. It points out WKDWWKHUHDUHPDQ\VSKHUHVRIJRYHUQPHQWDFWLRQZKLFKKROGUHOLJLRXVVLJQLÀFDQFH for religious believers and the State party rejects the suggestion that it must pay for religious dimensions in spheres in which it takes a role, such as religious marriages and religious community institutions such as churches and hospitals. 4.4.3 In the alternative, if the Committee were to interpret article 18 as requiring States to fund religious schools, the State party argues that its limitation meets the requirements of paragraph 3 of article 18 as it is prescribed by law and is necessary to protect public order and the fundamental rights and freedoms of others. The objectives of the State party’s education system are the provision of a tuition-free, secular public education, universally accessible to all residents without discrimination and the establishment of a public education system which fosters and promotes the values of a pluralist, democratic society, including social cohesion, religious tolerance and understanding. The State party argues that if it were required to fund private religious schools, this would have a detrimental impact on the public schools and hence the fostering of a tolerant, multicultural, non-discriminatory society in the province. 4.4.4 Public schools, in the State party’s opinion, are a rational means of fostering social cohesion and respect for religious and other differences. Schools are better able to teach common understanding and shared values if they are less homogeneous. The State party submits that one of the strengths of a public system of education is that it provides a venue where people of all colours, races, national and ethnic origins, and religions interact and try to come to terms with one another’s differences. In this way, the public schools build social cohesion, tolerance and understanding. Extending public school funding rights to private religious schools will undermine this ability and may UHVXOWLQDVLJQLÀFDQWLQFUHDVHLQWKHQXPEHUDQGNLQGRISULYDWHVFKRROV7KLVZRXOG have an adverse effect on the viability of the public school system which would become the system serving students not found admissible by any other system. Such potential fragmentation of the school system is an expensive and debilitating structure for society. Moreover, extending public school funding rights to private religious schools could compound the problems of religious coercion and ostracism sometimes faced by minor-

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ity religious groups in homogeneous rural areas of the province. The majority religious group could reintroduce and even make compulsory the practice of school prayer and religious indoctrination and minority religious groups would have to conform or attend their own, virtually segregated schools. To the extent that full funding of private schools enables such schools to supplant public schools, the government objective of universal access to education will be impaired. Full public funding of private religious schools is likely to lead to increased public school closings and to the reduction of the range of programs and services a public system can afford to offer. 4.4.5 The State party concludes that if the province of Ontario were required to fund private religious schools, this would have a detrimental impact on the public schools, and hence the fostering of a tolerant, multicultural, non-discriminatory society in the province, thus undermining the fundamental rights and freedoms of others. According to the State party it has struck the appropriate balance by funding a public school system where members of all groups can learn together while retaining the freedom of parents to send children to private religious schools, at their own expense, if they do desire. 4.5.1 As to the author’s allegation that he is a victim of a violation of article 18 in conjunction with article 2 of the Covenant, the State party recalls that article 2 does not establish an independent right but is a general undertaking by States and cannot be LQYRNHGE\LQGLYLGXDOVXQGHUWKH2SWLRQDO3URWRFROZLWKRXWUHIHUHQFHWRRWKHUVSHFLÀF articles of the Covenant. It cannot be argued that article 2 in combination with article 18 has been violated if there is no such right in article 18 itself. 4.5.2 Alternatively, the State party rejects a violation of article 2 because a differentiation based on reasonable and objective criteria does not amount to a distinction or discrimination within the meaning of article 2 of the Covenant. For substantive arguments concerning the issue of discrimination, it refers to its arguments relating to the alleged violation of article 26. 4.6.1 In respect to the alleged violation of article 27, the State party contends that the communication is inadmissible ratione materiae or in the alternative does not demonstrate a violation. According to the State party, the travaux préparatoires make it clear that article 27 does not include a right to require the State to fund private religious schools. The article only protects against State actions of a negative character: individuals “shall not be denied the right”. A proposal to include an obligation to take positive measures was defeated. Nowak, UN Covenant on Civil and Political Rights, CCPR commentary at 481, 504. Although under article 27 a State party may be required to take certain positive actions, in the light of the intention of the drafters positive actions should be required only in rare circumstances. According to the State party, the province of Ontario has taken positive measures which protect the right of members of religious minorities to establish religious schools and to send their children to those schools. It is not further required to fund those schools. 4.6.2 In the alternative, restrictions on the rights contained in article 27 may occur ZKHUHWKH\KDYHDUHDVRQDEOHDQGREMHFWLYHMXVWLÀFDWLRQDQGDUHFRQVLVWHQWZLWKWKH provisions of the Covenant read as a whole. For the reasons given in relation to the

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creation of a tolerant society, Ontario’s decision not to extend funding to all private UHOLJLRXVVFKRROVPHHWVWKLVWHVWIRUMXVWLÀFDWLRQ 4.6.3 The State party refers to its arguments in relation to article 18 and reiterates that there can be no argument that article 27 in combination with article 2 has been violated if there is no such right in article 27 itself. In the alternative, there is no violation of article 2 because a differentiation based on reasonable and objective criteria does not amount to an invidious distinction or discrimination within the meaning of article 2. The State party refers to its arguments concerning article 26 above.

Author’s comments 5.1 Counsel submits that the State party has admitted the discriminatory nature of the educational funding, and based this on a constitutional obligation. Counsel argues that article 26 of the Covenant does not allow exceptions for discriminatory constitutional laws and that historical anomalies cannot thwart the application of the equality provisions of the Covenant. Counsel rejects as circular the State party’s argument that the difference between the funding of Roman Catholic schools and other religious schools is one between public and private schools. Counsel notes that the public quality of Roman Catholic schools is a bureaucratic construct assigned to one group of ratepayers based RQWKHLUUHOLJLRXVDIÀOLDWLRQWRWKHGLVFULPLQDWRU\H[FOXVLRQRIDOORWKHUUDWHSD\HUV 5.2 Counsel rejects the State party’s argument that the extension of non-discriminatory public funding to other religious schools would harm the goals of a tolerant, multi-cultural, non-discriminatory society, and argues that on the contrary, the current circumstance of discriminatory and selective funding of only one religious denomination in the establishment and operation of religious schools is highly detrimental to fostering a tolerant, non-discriminatory society in the province and encourages the divided society among religious lines that it claims to defeat. 5.3 According to counsel, the State party’s argument that the claim under article 18 is inadmissible ratione materiae because article 18 does not include a right to require the State to fund public schools, is a misrepresentation of the author’s submissions. Counsel argues that article 18(1) includes the right to teach religion and the right to educate one’s children in a religious school. If this is possible for some and not for others on discriminatory grounds, then article 18 is violated in conjunction with article 2. According to counsel, in order to give article 2 its full and proper meaning, it must have the effect of requiring non-discrimination on the listed grounds with respect to the rights and freedoms in the Covenant, even if in the absence of discrimination, no violation of the Covenant existed. If a violation of the Covenant was always required ZLWKRXWWKHDSSOLFDWLRQRUFRQVLGHUDWLRQRIDUWLFOHDUWLFOHZRXOGEHVXSHUÁXRXVLQ counsel’s opinion. Counsel refers to the jurisprudence of the European Court of Human Rights in relation to article 14 of the European Convention on Human Rights, which recognizes that a measure which in itself is in conformity with the requirements of the article enshrining the right or freedom in question may however infringe this article when read in conjunction with article 14 for the reason that it is of a discriminatory nature. (Judgement of 23 July 1968, relating to certain aspects of the laws on the

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XVHRIODQJXDJHVLQHGXFDWLRQLQ%HOJLXP &RXQVHOFODULÀHVWKDWKHGRHVQRWFODLPD violation of article 18 on its own, but only in conjunction with article 2, because the funding of only Roman Catholic schools results in discriminatory support for Roman Catholic education. 5.4 According to counsel, the State party makes the same error in replying to his claims under article 27 in conjunction with article 2. He argues that, since Roman Catholic schools are the only religious minority to receive full and direct funding for religious education from the Government of Ontario, article 27 has not been applied, as required by article 2, without distinction on the basis of religion. 5.5 Counsel agrees with the State party that the fact alone that it does not provide the same level of funding for private as for public schools cannot be deemed to be discriminatory. He acknowledges that the public school system in Ontario would have greater resources if the Government would cease funding any religious schools. In the absence of discrimination, the withdrawal of such funding is a policy decision which is for the Government to take. Counsel notes that the amendment of the provision of the Canadian Constitution Act 1867 requires only the agreement of the Government of the province affected and the federal Government. Such amendments have been recently passed in Quebec and Newfoundland to reduce historical commitments to publicly-funded education for selective religious denominations. &RXQVHOPDLQWDLQVWKDWZKHQDULJKWWRSXEOLFO\ÀQDQFHGUHOLJLRXVHGXFDWLRQLV recognized by States parties, no differentiation shall be made among individuals on the basis of the nature of their particular beliefs. The practice of exclusively funding Roman Catholic religious education in Ontario therefore violates the Covenant. Counsel therefore seeks funding for all religious schools which meet provincial standards in Ontario at a level equivalent to the funding, if any, received by Roman Catholic schools in Ontario.

State party’s further observations 6.1 In a further reply, the State party emphasizes that the recent constitutional amendments affecting education in Quebec and Newfoundland do not bring about the remedy sought by the author of equivalent funding for all religious schools. The changes in Quebec preserve the denominational status of Catholic and Protestant schools in that province, and protect that status through an alternate constitutional means, by way of the notwithstanding clause in the Charter. The changes in Newfoundland demonstrate a clear rejection of the very remedy sought by the author, since it has replaced its religious based school system, where 8 different religions representing 90% of the population each had the right to set up their own publicly funded schools, with a singular public system where religious observance will be permitted at the request of parents. 6.2 In respect of counsel’s argument concerning article 2 of the Covenant, the State party rejects his suggestion that article 2 can convert laws or Government actions otherwise consistent with the rights and freedoms of the Covenant, into contraventions. In the State party’s opinion, the author seeks to raise equality arguments by combining article 2 with articles 18 and 27 respectively. It is the equality guarantee in article 26

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of the Covenant that is the proper context for raising such issues. The State party notes that article 26 has no equivalent in the European Convention for the Protection of Fundamental Human Rights and Fundamental Freedoms. The State party argues that a complainant who is unsuccessful under article 26 should not be entitled to an identical reexamination of the issue simply by combining article 2 with various substantive Covenant provisions. 6.3 The State party further observes that article 2 of the Covenant requires the State to respect and ensure to all individuals within its territory the rights recognized in the present Covenant. The funding of denominational separate schools in Ontario is not required to ensure the rights contained in articles 18 and 27 of the Covenant, neither is it related to, or in addition to, the obligations created by those articles. The funding arises solely out of the constitutional obligation under section 93(1) of the Constitution Act 1867, not out of any obligation under, in conformity with, nor the augmenting of any right in any of the articles of the Covenant.

Author’s further comments 7. By submission of 15 March 1999, the author notes that the State party’s rationale for the discriminatory treatment of religious schools, the desire to foster multiracial and multicultural harmony through maximizing public funding for the secular school system, would actually require the withdrawal of special funding for Roman Catholic separate schools. He further points out that the fact that Quebec had to resort to the notwithstanding clause in the Charter in order to preserve its funding for separate schools indicates that this system is in violation of the equality rights contained in the Charter, and by consequence of article 26 of the Covenant. The author refers to the constitutional changes in respect of the education system in Newfoundland and states that it is indicative of the fact that constitutional change in relation to denominational schools is possible even over the objections of those with vested interests.

State party’s further observations 8.1 In a further reply to the author’s comments, the State party contests the author’s interpretation of the use of the notwithstanding clause in Quebec. According to the State party, the amendment to section 93 of the Constitution Act, 1867, took away the constitutional protection for Protestant and Catholic denominational schools in Quebec in order to replace them with linguistic school boards. Continued constitutional protection for the denominational schools, however, is provided through the alternate method of the notwithstanding clause. According to the State party, this shows that the issue of denominational school funding continues to involve the present day complex balancing of diverse needs and interests. 7KH6WDWHSDUW\QRWHVWKDWLQKLVFRPPHQWVWKHDXWKRUIRUWKHÀUVWWLPHLQGLFDWHVWKDW a possible remedy for the alleged discrimination would be the elimination of funding for the Roman Catholic separate schools. So far, the State party’s reply to the author’s communication has focussed on his claim that the failure to extend funding constituted a violation of the Covenant, not on a claim that the failure to eliminate funding from the Roman Catholic separate school system is violative of the Covenant. The State party 1024

7. UNITED NATIONS COMMITTEE DECISIONS

notes that in another communication (No. 816/1998, Tadman et al. v. Canada) presented to the Committee under the Optional Protocol this question has been addressed and therefore it requests the Committee to consider jointly the two communications. 8.3 In case the Committee does not join the consideration of the two communications, the State party provides further arguments concerning this matter. In this context, the State party explains that without the protection of the rights of the Roman Catholic minority, the founding of Canada would not have been possible and that the separate school system remained a controversial issue, at times endangering the national unity in Canada. The State party explains that the funding is seen by the Roman Catholic community as correction of a historical wrong. 8.4 The State party submits that there are reasonable and objective grounds for not eliminating funding to Roman Catholic separate schools in Ontario. The elimination would be perceived as undoing the bargain made at Confederation to protect the interests of a vulnerable minority in the province and would be met with outrage and resistance by the Roman Catholic community. It would also result in a certain degree of economic turmoil, including claims for compensation of facilities or lands provided for Roman Catholic schools. Further, the protection of minority rights, including minority religion and education rights, is a principle underlying the Canadian constitutional order and militates against elimination of funding for the Roman Catholic separate schools. Elimination of funding for separate schools in Ontario would further lead to pressure on other Canadian provinces to eliminate their protections for minorities within their border.

,VVXHVDQGSURFHHGLQJVEHIRUHWKH&RPPLWWHH 9.1 Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant. 9.2 The Committee notes that the State party has challenged the admissibility of the communication ratione materiae. The Committee, however, considers that the author’s claim of discrimination, in itself and in conjunction with articles 18 and 27, is not incompatible with the provisions of the Covenant. The State party has not raised any RWKHUREMHFWLRQVDQGDFFRUGLQJO\WKH&RPPLWWHHÀQGVWKHFRPPXQLFDWLRQDGPLVVLEOH 7KH&RPPLWWHHGRHVQRWFRQVLGHUWKDWWKHUHZRXOGEHDQ\GLIÀFXOW\RUGLVDGYDQWDJHWR the parties in proceeding to consider this case on its own without joinder as requested by the State party. 10.1 The Human Rights Committee has considered the present communication in the light of all the information made available to it by the parties, as provided in article 5, paragraph 1, of the Optional Protocol. 10.2 The issue before the Committee is whether public funding for Roman Catholic schools, but not for schools of the author’s religion, which results in him having to meet the full cost of education in a religious school, constitutes a violation of the author’s rights under the Covenant.

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10.3 The State party has argued that no discrimination has occurred, since the distinction is based on objective and reasonable criteria: the privileged treatment of Roman Catholic schools is enshrined in the Constitution; as Roman Catholic schools are incorporated as a distinct part of the public school system, the differentiation is between private and public schools, not between private Roman Catholic schools and private schools of other denominations; and the aims of the public secular education system are compatible with the Covenant. 10.4 The Committee begins by noting that the fact that a distinction is enshrined in the Constitution does not render it reasonable and objective. In the instant case, the distinction was made in 1867 to protect the Roman Catholics in Ontario. The material before the Committee does not show that members of the Roman Catholic FRPPXQLW\RUDQ\LGHQWLÀDEOHVHFWLRQRIWKDWFRPPXQLW\DUHQRZLQDGLVDGYDQWDJHG position compared to those members of the Jewish community that wish to secure the education of their children in religious schools. Accordingly, the Committee rejects the State party’s argument that the preferential treatment of Roman Catholic schools is nondiscriminatory because of its Constitutional obligation. 10.5 With regard to the State party’s argument that it is reasonable to differentiate in the allocation of public funds between private and public schools, the Committee notes that it is not possible for members of religious denominations other than Roman Catholic to have their religious schools incorporated within the public school system. In the instant case, the author has sent his children to a private religious school, not because he wishes a private non-Government dependent education for his children, but because the publicly funded school system makes no provision for his religious denomination, whereas publicly funded religious schools are available to members of the Roman Catholic faith. On the basis of the facts before it, the Committee considers that the differences in treatment between Roman Catholic religious schools, which are publicly funded as a distinct part of the public education system, and schools of the author’s religion, which are private by necessity, cannot be considered reasonable and objective. 10.6 The Committee has noted the State party’s argument that the aims of the State party’s secular public education system are compatible with the principle of nondiscrimination laid down in the Covenant. The Committee does not take issue with this argument but notes, however, that the proclaimed aims of the system do not justify the exclusive funding of Roman Catholic religious schools. It has also noted the author’s submission that the public school system in Ontario would have greater resources if the Government would cease funding any religious schools. In this context, the Committee observes that the Covenant does not oblige States parties to fund schools which are established on a religious basis. However, if a State party chooses to provide public funding to religious schools, it should make this funding available without discrimination. This means that providing funding for the schools of one religious group and not for another must be based on reasonable and objective criteria. In the instant case, the Committee concludes that the material before it does not show that the differential treatment between the Roman Catholic faith and the author’s religious

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denomination is based on such criteria. Consequently, there has been a violation of the author’s rights under article 26 of the Covenant to equal and effective protection against discrimination. 10.7 The Committee has noted the author’s arguments that the same facts also constitute a violation of articles 18 and 27, read in conjunction with article 2(1) of the Covenant. The Committee is of the opinion that in view of its conclusions in regard to article 26, no additional issue arises for its consideration under articles 18, 27 and 2(1) of the Covenant. 11. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of article 26 of the Covenant. 12. Under article 2, paragraph 3(a), of the Covenant, the State party is under the obligation to provide an effective remedy, that will eliminate this discrimination. 13. Bearing in mind that, by becoming a State party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within ninety days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the Committee’s Views. _________________ * The following members of the Committee participated in the examination of the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr. Prafullachandra N. Bhagwati, Ms. Christine Chanet, Lord Colville, Ms. Elizabeth Evatt, Mr. Louis Henkin, Mr. Eckart Klein, Mr. David Kretzmer, Mr. Rajsoomer Lallah, Ms. Cecilia Medina Quiroga, Mr. Fausto Pocar, Mr. Martin Scheinin, Mr. Hipólito Solari Yrigoyen, Mr. Roman Wieruszewski and Mr. Abdallah Zakhia. Pursuant to rule 85 of the Committe’s rules of procedure Mr. Maxwell Yalden did not participate in the examination of the case. ** The text of an individual opinion by member Martin Scheinin is appended to this document.

Appendix Individual opinion by member Martin Scheinin (concurring) :KLOH,FRQFXUZLWKWKH&RPPLWWHH·VÀQGLQJWKDWWKHDXWKRULVDYLFWLPRIDYLRODWLRQ of article 26 of the Covenant, I wish to explain my reasons for such a conclusion. 1. The Covenant does not require the separation of church and state, although countries WKDWGRQRWPDNHVXFKDVHSDUDWLRQRIWHQHQFRXQWHUVSHFLÀFSUREOHPVLQVHFXULQJWKHLU compliance with articles 18, 26 and 27 of the Covenant. Varying arrangements are in place in states parties to the Covenant, ranging from full separation to the existence of a constitutionally enforced state church. As the Committee has expressed in its General Comment No. 22 [48] on article 18, the fact that a religion is recognized as a state

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UHOLJLRQRUWKDWLWLVHVWDEOLVKHGDVRIÀFLDORUWUDGLWLRQDORUWKDWLWVIROORZHUVFRPSULVHWKH majority of the population, “shall not result in any impairment of the enjoyment of any of the rights under the Covenant, including articles 18 and 27, nor in any discrimination against adherents to other religions or non-believers” (para. 9). 2. The plurality of acceptable arrangements in the relationship between state and religion relates also to education. In some countries, all forms of religious instruction or observance are prohibited in public schools, and religious education, protected under article 18 (4), takes place either outside school hours or in private schools. In VRPHRWKHUFRXQWULHVWKHUHLVUHOLJLRXVHGXFDWLRQLQWKHRIÀFLDORUPDMRULW\UHOLJLRQLQ public schools, with provision for full exemption for adherents of other religions and non-religious persons. In a third group of countries instruction in several or even all religions is offered, on the basis of demand, within the public system of education. A fourth arrangement is the inclusion in public school curricula of neutral and objective instruction in the general history of religions and ethics. All these arrangements allow IRUFRPSOLDQFHZLWKWKH&RYHQDQW$VZDVVSHFLÀFDOO\VWDWHGLQWKH&RPPLWWHH·V*HQHUDO Comment No. 22 [48], “public education that includes instruction in a particular religion or belief is inconsistent with article 18 (4) unless provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents and JXDUGLDQVµSDUD 7KLVVWDWHPHQWUHÁHFWVWKH&RPPLWWHH·VÀQGLQJVLQWKHFDVHRI Hartikainen et al. v. Finland (Communication No. 40/1978). 3. In the present case the Committee correctly focussed its attention on article 26. Although both General Comment No. 22 [48] and the Hartikainen case are related to article 18, there is a considerable degree of interdependence between that provision DQGWKHQRQGLVFULPLQDWLRQFODXVHLQDUWLFOH,QJHQHUDODUUDQJHPHQWVLQWKHÀHOGRI religious education that are in compliance with article 18 are likely to be in conformity with article 26 as well, because non-discrimination is a fundamental component in the test under article 18 (4). In the cases of Blom v. Sweden (Communication No. 191/1985) and Lundgren et al. and Hjord et al. v. Sweden (Communications 288 and 299/1988) the Committee elaborated its position in the question what constitutes discrimination LQWKHÀHOGRIHGXFDWLRQ:KLOHWKH&RPPLWWHHOHIWRSHQZKHWKHUWKH&RYHQDQWHQWDLOV in certain situations, an obligation to provide some public funding for private schools, it concluded that the fact that private schools, freely chosen by the parents and their children, do not receive the same level of funding as public schools does not amount to discrimination. 4. In the Province of Ontario, the system of public schools provides for religious instruction in one religion but adherents of other religious denominations must arrange for their religious education either outside school hours or by establishing private religious schools. Although arrangements exist for indirect public funding to existing private schools, the level of such funding is only a fraction of the costs incurred to the families, whereas public Roman Catholic schools are free. This difference in treatment between adherents of the Roman Catholic religion and such adherents of other religions that wish to provide religious schools for their children is, in the Committee’s view, GLVFULPLQDWRU\:KLOH,FRQFXUZLWKWKLVÀQGLQJ,ZLVKWRSRLQWRXWWKDWWKHH[LVWHQFH

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of public Roman Catholic schools in Ontario is related to a historical arrangement for minority protection and hence needs to be addressed not only under article 26 of the Covenant but also under articles 27 and 18. The question whether the arrangement in question should be discontinued is a matter of public policy and the general design of the educational system within the State party, not a requirement under the Covenant. 5. When implementing the Committee’s views in the present case the State party should in my opinion bear in mind that article 27 imposes positive obligations for States to promote religious instruction in minority religions, and that providing such education as an optional arrangement within the public education system is one permissible arrangement to that end. Providing for publicly funded education in minority languages for those who wish to receive such education is not as such discriminatory, although care must of course be taken that possible distinctions between different minority languages are based on objective and reasonable grounds. The same rule applies in relation to religious education in minority religions. In order to avoid discrimination in funding religious (or linguistic) education for some but not all minorities States may legitimately base themselves on whether there is a constant demand for such education. For many religious minorities the existence of a fully secular alternative ZLWKLQWKHSXEOLFVFKRROV\VWHPLVVXIÀFLHQWDVWKHFRPPXQLWLHVLQTXHVWLRQZLVKWR arrange for religious education outside school hours and outside school premises. And if demands for religious schools do arise, one legitimate criterion for deciding whether it would amount to discrimination not to establish a public minority school or not to provide comparable public funding to a private minority school is whether there is DVXIÀFLHQWQXPEHURIFKLOGUHQWRDWWHQGVXFKDVFKRROVRWKDWLWFRXOGRSHUDWHDVD viable part in the overall system of education. In the present case this condition was met. Consequently, the level of indirect public funding allocated to the education of the author’s children amounted to discrimination when compared to the full funding of public Roman Catholic schools in Ontario.

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#54 Government of Ontario Correspondence with the Government of Canada, 13 January 2000 On 13 January 2000 Ontario Minister of Education, Janet Ecker, wrote to the Canadian Minister of Foreign Affairs, Lloyd Axworthy. She stated that the Government of Ontario is “not prepared to adopt the alternatives suggested by the UN Human Rights Committee for complying with the decision, namely 1) to provide direct funding to private religious schools; 2) to eliminate funding separate schools; or 3) to provide religious instruction in the public schools.” In fact, the Committee GLGQRWVXJJHVWDQ\VSHFLÀFDOWHUQDWLYHVEXWVLPSO\GLUHFWHG&DQDGDDVD6WDWH Party to the Covenant, to provide an “effective remedy.”

Ministry of Education 2IÀFHRIWKH0LQLVWHU Mowat Block Queen’s Park Toronto, ON M7A 1L2 Telephone (416) 325-2600 Facsimile (416) 325-2608 January 13, 2000 The Honourable Lloyd Axworthy Minister of Foreign Affairs and International Trade 125 Sussex Drive Ottawa, Ontario K1A 0G2 Dear Minister Axworthy: I am writing with respect to the November decision of the United Nations Human Rights Committee (UNHRC) against Canada, regarding the Waldman complaint where the UNHRC expressed the view that Canada is in violation of Article 26 of the Covenant. Although you have not contacted me to discuss this matter, it is my understanding that the federal government is required to respond to the decision. I wish to inform you that our position on this matter remains unchanged. The Government of Ontario is not prepared to adopt the alternatives suggested by the UNHRC for complying with the decision, namely 1) to provide direct funding to private religious schools; 2) to eliminate funding separate schools; or 3) to provide religious instruction in the public schools. 1031

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We believe that our commitment and resources must continue to focus on preserving and improving the quality of our publicly funded system. While the Government of Ontario recognizes the right of parents to choose alternative forms of education for their children, it continues to have no plans to provide funding to private religious schools or to parents of children that attend such schools. As was set out in the submission to the UNHRC, extending funding to religious private schools would result in fragmentation of the education system in Ontario and undermine the goal of universal access to education. The Government of Ontario’s policy of not funding private religious schools has been thoroughly examined and considered by Canadian courts, including Canada’s highest court – the Supreme Court of Canada. As you know, in the Adler case (1996), the Supreme Court of Canada ruled that there is no constitutional requirement to fund private religious schools. As you know, according to Canada’s constitution, Ontario is legally obligated to fund Roman Catholic schools. This is the law by which the Government of Ontario is bound and to which it will continue to adhere. As you are also aware, according to the Ontario Court of Appeal, under the Canadian Charter of Rights and Freedoms, the Government of Ontario is precluded from providing religious instruction during the school day in the public school system. We trust that the Government of Ontario’s position, as outlined in this letter, is clear, and that you will proceed to draft Canada’s response to the UNHRC in keeping with this position. I was somewhat surprised to read the comments attributed to you in the Toronto Sun today, given the position presented to the UNHRC and the fact I have not yet received any communication from you indicating the contrary. If you have any concerns with respect to Ontario’s position, I would appreciate it if you contact me directly. I look forward to receiving the Government of Canada’s formal position with respect to this matter. Yours truly,

Janet Ecker Minister

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#55 Government of Canada Correspondence with the GovernPHQWRI2QWDULR)HEUXDU\ On 1 February 2000 Minister of Foreign Affairs, Lloyd Axworthy, wrote to Ontario Minister of Education, Janet Ecker. He stated that the Human Rights Committee had found “there had been a violation of Mr. Waldman’s rights under Article 26 of the Covenant” and he encouraged the Government of Ontario to “give consideration to the views of the Committee”.

0LQLVWHURI)RUHLJQ$IIDLUV February 1, 2000 The Honourable Janet Ecker Ministry of Education Mowat Block Queen’s Park Toronto, ON M7A 1L2 Dear Minister Ecker: I am writing in response to your letter of January 13, 2000, regarding the Government of Ontario’s position with respect to the views of the United Nations Human Rights Committee on the communication of Mr. Arieh Waldman. The Government of Canada recognizes that the Committee’s views in the Waldman communication raise complex issues that require careful study and deliberation. We also recognize and respect that this matter falls within your Government’s jurisdiction over HGXFDWLRQ,XQGHUVWDQGWKDWRXURIÀFLDOVKDYHEHHQZRUNLQJWRJHWKHURQWKLVPDWWHU Canada acceded to the International Covenant on Civil and Political Rights (“Covenant”) and its Optional Protocol in 1976 after consulting with and receiving the support of the provinces, including Ontario. Indeed, in 1969 the Premier of Ontario, the Honourable John P. Robarts, wrote to the Prime Minister of Canada, the Right Honourable Pierre E. Trudeau, expressing the Government of Ontario’s wholehearted support for Canada to enter into the Covenant and the Optional Protocol to the Covenant. By becoming a party to both agreements, Canada submitted itself to the advisory jurisdiction of the United Nations Human Rights Committee. As you know, following written arguments from both the complainant and your Government, the Committee found there had been a violation of Mr. Waldman’s rights under Article 26 of the Covenant to equal and effective protection against discrimination. The Committee observed: “… the Covenant does not oblige States parties to fund schools which are established on a religious basis. However, if a State party chooses to provide public funding to religious schools, it should make this funding available without discrimination.”

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The Committee also requested that it be informed, by February 3, 2000, of the measures WDNHQWRJLYHHIIHFWWRWKH&RPPLWWHH·VYLHZV7RWKLVHQGRIÀFLDOVRIERWKWKHIHGHUDO and Ontario governments have been in contact to discuss the views of the Committee and their implications. Acknowledging the support expressed by the Government of Ontario for the Covenant, and in recognition of your government’s authority over education, we would encourage the Government of Ontario to continue to give consideration to the views of the Committee. In addition, we look forward to continuing cooperation between our governments in responding to international communications of this nature. In that light, consistent with the Federal, Provincial and Territorial Modalities and Mechanisms for implementing the Covenant, approved by Ministers at the 1975 Federal Provincial Conference on Human Rights, we look forward to cooperating with your RIÀFLDOVLQWKHLUSUHSDUDWLRQRIDUHVSRQVHDQGWRWUDQVPLWWLQJLWWRWKH&RPPLWWHHLQ WKHQHDUIXWXUH,QWKLVUHJDUGWRSURYLGHVXIÀFLHQWWLPHIRUWKHSUHSDUDWLRQRIWKLV response, we will be requesting a short extension from the Committee. Sincerely Lloyd Axworthy CC: The Hon. Stephane Dion The Hon. Anne McLellan

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#56 Government of Ontario Correspondence with the GovernPHQWRI&DQDGD)HEUXDU\ On 1 February 2000 Ontario Minister of Education, Janet Ecker, responded to the letter of the same date from the Canadian Minister of Foreign Affairs, Lloyd Axworthy. She reiterated that Ontario “has no plans to extend funding to private religious schools or to parents of children that attend such schools” and informed the Minister that no more time was needed for Canada to draft a response to the Human Rights Committee by its 3 February 2000 deadline.

Ministry of Education 2IÀFHRIWKH0LQLVWHU Mowat Block Queen’s Park Toronto, ON M7A 1L2 Telephone (416) 325-2600 Facsimile (416) 325-2608 February 1, 2000 The Honourable Lloyd Axworthy Minister of Foreign Affairs Lester B. Pearson Building 125 Sussex Drive Ottawa, ON K1A 0G2 Dear Minister Axworthy: I am writing in response to your letter of February 1, 2000, concerning Canada’s response to the views expressed by the United Nations Human Rights Committee (UNHRC) in November 1999 in Waldman v. Canada. Thank you for bringing the Government of Canada’s perspective on the UNHRC’s views to my attention. However, I would like to remind you that Ontario’s position on this question is clearly set out in my letter of January 13, 2000. The position remains that Ontario has no plans to extend funding to private religious schools or to parents of children that attend such schools, and intends to adhere fully to its constitutional REOLJDWLRQWRIXQG5RPDQ&DWKROLFVFKRROV:HUHDIÀUPWKDWRXUFRPPLWPHQWLVWR providing an excellent public education system that is open to all students regardless of religious or cultural background. I would add that there is no reason to seek an extension to the February 3 deadline for a response to the UNHRC. The Ontario position that I have set out for you is clear and ÀQDO,QWKHYLHZRIWKH*RYHUQPHQWRI2QWDULRWKH*RYHUQPHQWRI&DQDGDKDVVXI-

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ÀFLHQWLQIRUPDWLRQIURP2QWDULRWRGUDIW&DQDGD·VUHVSRQVHZLWKRXWIXUWKHUDVVLVWDQFH in keeping with the UNHRC’s deadline. Sincerely, Janet Ecker Minister cc. The Premier Hon. Norm Sterling Hon. Stéphanie Dion Hon. Ann McLellan

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#57 Government of Canada Correspondence with the Human 5LJKWV&RPPLWWHH)HEUXDU\ On 3 February 2000 the Government of Canada responded to the Human Rights Committee concerning Waldman v. Canada. The response quotes the position of the provincial government of Ontario which refused to extend funding to “private religious schools”, his description of non-Catholic religious schools.

The Permanent Mission of Canada to the United Nations Note No. 0164 The Permanent Mission of Canada to the United Nations presents its compliments to WKH2IÀFHRIWKH+LJK&RPPLVVLRQHUIRU+XPDQ5LJKWVRIWKH8QLWHG1DWLRQVDQG has the honour to submit the following response in relation to Communication number 694/1996. Canada has been a party to the International Covenant on Civil and Political Rights since 1976 and takes the rights set out in that treaty very seriously. Similarly, Canada gives great credence to the views of the Committee expressed pursuant to the Covenant’s Optional Protocol. The present communication concerns matters of education, which under Canada’s Constitution Act, 1867, fall within the exclusive jurisdiction of the provinces. Consequently, in the course of addressing this communication, the Government of Canada has sought the co-operation of the province of Ontario in conveying Ontario’s views and seeking a satisfactory resolution to this matter. However, as indicated, within Canada, decisions regarding education are ultimately for the provinces to resolve in accordance with their constitutional authority. In light of the above, the Government of Canada wishes to convey the position of the Government of Ontario as communicated to it in a letter of February 1, 2000: The position remains that Ontario has no plans to extend funding to private religious schools or to parents of children that attend such schools, and intends to adhere IXOO\WRLWVFRQVWLWXWLRQDOREOLJDWLRQWRIXQG5RPDQ&DWKROLFVFKRROV:HUHDIÀUP that our commitment is to providing an excellent public education system that is open to all students regardless of religious or cultural background. ,QFORVLQJWKH*RYHUQPHQWRI&DQDGDDIÀUPVLWVFRPPLWPHQWWRWKHLQWHUQDWLRQDOKXPDQ rights regime, and will continue to work with the provinces to this end. Geneva, 03 February 2000

1037

#58 Government of Canada Correspondence with Ontario 3DUHQWVIRU(TXDOLW\LQ(GXFDWLRQ)XQGLQJ)HEUXDU\ On 4 February 2000 Minister of Immigration, Elinor Caplan, wrote to Georgeanne Burke of Ontario Parents for Equality in Education Funding (OPEEF), a non-governmental organization based in Ontario, on behalf of the Government of Canada. She stated that “ultimately … this matter falls within the Government of Ontario’s constitutional jurisdiction” and quoted the provincial response used in the Canadian government letter of 3 February 2000 to the Human Rights Committee.

HOUSE OF COMMONS The Hon. Elinor Caplan, P.C., M.P. Thornhill February 4, 2000 Georganne Burke Director Ontario Parents for Equality in Education Funding Dear Mrs. Burke: Thank you for your invitation to attend the Multi-Faith Rally for Equal Education Funding on February 5, 2000. I have great respect for the Ontario Parents for Equality in Education Funding and its efforts to extend public funding to private religious schools in Ontario. As a former Member of Provincial Parliament and Provincial Cabinet Minister, I have been a strong advocate for a reasonable solution to this important equality of funding issue. Since the United Nations Human Rights Committee issued its views in the case of Waldman v. Canada on November 5, 1999 the Government of Canada has engaged in careful study and deliberation over the complex issues that were raised. Indeed, I can assure you that members of my staff worked diligently and in close co-operation with their counterparts in several other federal government departments in an attempt to work with the Government of Ontario to achieve a positive response to the United Nations Human Rights Committee. ,DPLQIRUPHGWKDWVWDIILQWKH0LQLVWHUV·2IÀFHVRIWKHVHIHGHUDOGHSDUWPHQWVNHSW in close communication with all the major stakeholder organizations and appreciated the value of their contributions. I am also aware of the dedicated efforts of many IHGHUDORIÀFLDOVLQYDULRXVGHSDUWPHQWVLQWKLVPDWWHUDVWKH\XQGHUWRRNGLVFXVVLRQV with their Ontario counterparts to encourage Ontario to consider ways to comply with the Committee’s views.

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Ultimately, we recognized and respected that this matter falls within the Government of Ontario’s constitutional jurisdiction over education. Although the views of the United Nations Human Rights Committee are not legally binding, Canada takes the opinions of the expert international body very seriously. The Government of Canada has been a party to the International Covenant on Civil and Political Rights and its Optional Protocol since 1976, after receiving support from all provinces, including Ontario. In the past, when the Committee found Canada in violation of the ICCPR in areas of federal jurisdiction, the Government of Canada has complied with the Committee’s views. The most widely known case was in 1981, Lovelace v. Canada, in which the federal government amended the Indian Act so that Aboriginal women would not lose their Indian status upon marrying a non-Indian. When the Committee’s views address an area of provincial jurisdiction, the Government of Canada seeks to work with the province or provinces in question to achieve a satisfactory result. In the case of Waldman v. Canada, it is only the province that can choose to comply with the Committee’s views. On February 3, 2000 the Permanent Mission of Canada to the United Nations responded to (sic)2IÀFHRIWKH+LJK&RPPLVVLRQHUIRU+XPDQ5LJKWVRIWKH8QLWHG Nations. The response stated that matters of education, under Canada’s Constitution Act, 1867 fall within the exclusive jurisdiction of the provinces, and conveyed the position of the Government of Ontario, as communicated in a letter from the Ontario Minister of Education to the Minister of Foreign Affairs, dated February 1, 2000 as follows: “The position remains that Ontario has no plans to extend funding to private religious schools or to parents of children that attend such schools, and intends to adhere IXOO\WRLWVFRQVWLWXWLRQDOREOLJDWLRQWRIXQG5RPDQ&DWKROLFVFKRROV:HUHDIÀUP that our commitment is to providing an excellent public education system that is open to all students regardless of religious or cultural background.” The response of the Permanent Commission of Canada to the United Nations further LQGLFDWHGWKDWWKH*RYHUQPHQWRI&DQDGDDIÀUPVLWVFRPPLWPHQWWRWKHLQWHUQDWLRQDO human rights regime, and its determination to continue working with the provinces to this end. Sincerely, Elinor Caplan, MP Thornhill

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#59 Correspondence of the Author, Mr. Waldman, with the HuPDQ5LJKWV&RPPLWWHH)HEUXDU\ On 16 February 2000 a further submission was made to the Chair of the Human Rights Commitee, Ms. Cecilia Medina Quiroga, urging the Committee to vigorously follow-up on the Views of the Committee in the Waldman case, in light of the response by the Government of Canada on 3 February 2000. Mr. Waldman’s letter was accompanied by a substantive submission responding to the abdication of responsibility by the Government of Canada regarding the Committee’s Views. The submission also pointed out how the Government of Canada could provide a remedy to the Views of the Committee without encroaching upon the jurisdiction of the province of Ontario. Numerous press clippings indicating the importance of the issue to Canadians were also included.

February 16, 2000 Ms. Cecilia Medina, Chair, Human Rights Committee, FR2IÀFHRIWKH+LJK&RPPLVVLRQHUIRU+XPDQ5LJKWV Palais Wilson, Geneva Switzerland Dear Ms. Medina: Re: Waldman v. Canada, Communication No. 694/1996, adopted November 3, 1999 I am writing to you in response to the Government of Canada’s reply to the Human Rights Committee’s request for “information about the measures taken to give effect to the Committee’s views.” The Committee found that the facts disclosed a violation of my rights under article 26 of the Covenant to equal and effective protection against discrimination. The difference in treatment between the public funding of Roman Catholic religious schools and schools of my religion, was not considered reasonable or objective. 7KH&RPPLWWHHVSHFLÀFDOO\QRWHGWKHQDWXUHRI&DQDGD·VUHVXOWLQJREOLJDWLRQ,Q the Committee’s words: … by becoming a State party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken … to provide an effective and enforceable remedy in case a violation has been established …

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However, the Government of Canada’s response exhibits a profound disregard of the Committee’s views and Canada’s international obligations. Instead of fashioning a remedy to the violation of the Covenant, the Government of Canada has: – stressed that in its opinion the Committee’s views are not binding, (Minister of Citizenship and Immigration Elinor Caplan, 4 February 2000, Attachment A), – and that its obligations consist merely of asking the province of Ontario “to give consideration to the views of the Committee”. (letter of Minister of Foreign Affairs Lloyd Axworthy to the Minister of Education of Ontario (Janet Ecker), 1 February 2000, Attachment B) Instead of complying with its international obligations, the Government of Canada has chosen to completely abdicate its responsibilities. In the words of the Minister of Citizenship and Immigration: “In the case of Waldman v. Canada, it is only the province that can choose to comply with the Committee’s views.” In Canada’s response to the Committee, it states that it is not obligated to do more because “decisions regarding education are ultimately for the provinces to resolve in accordance with their constitutional authority.” This reply makes a mockery of Canada’s UDWLÀFDWLRQRIQRWRQO\WKH&RYHQDQWRQ&LYLODQG3ROLWLFDO5LJKWVEXWWKHHQWLUHUDQJH of human rights and other treaties. Clearly, – the Covenant says: “The provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions.” (Article 50) – Canada has made no reservations to the Covenant, and in particular, no reservations concerning any limitations of its obligations as a consequence of being a federal state with divided constitutional domestic jurisdiction. )RU&DQDGDWRFODLPDIWHUWKHÀQGLQJRIDYLRODWLRQUHVXOWLQJIURPSURYLQFLDOSROLF\WKDW its international legal obligations do not extend to providing a remedy in any matters within provincial jurisdiction is false. Furthermore, even within Canadian constitutional divisions, the Government of Canada has legal authority to provide a remedy. The real source of Canada’s refusal to comply with the Committee’s views is the federal government’s unwillingness to pay for the remedy. The Federal Spending Power Under the Canadian constitution the federal government has, what is known as, a spending power. It is the ability of the federal government to spend the money which its taxes yield and to dispose of its own property, for any purpose it chooses including for objects which are outside federal legislative competence. The only political, and non-legal, fetter on the spending power was adopted in an agreement between the federal government and all provinces except Quebec on 4 February 1999. (Attachment C) The Social Union Despite some political limitations on the spending power, this agreement called the Social Union, explicitly permits the use of the federal spending power in making transfers to individuals and to organizations for the purposes of new Canada-wide initiatives after three months’ notice and an offer to consult with the provinces. (Attachment D) 1042

7. UNITED NATIONS COMMITTEE DECISIONS

Further, if the federal spending remedy in my context was not by way of a Canada-wide LQLWLDWLYHEXWGLUHFWHGVSHFLÀFDOO\DW2QWDULRWKH6RFLDO8QLRQDJUHHPHQWZRXOGQRW even be engaged. In addition, the Social Union agreement in Article 1 announces a set RI3ULQFLSOHVZKLFKDUHWRJXLGHLWVRSHUDWLRQDQGÀUVWDQGIRUHPRVWDUHWKHZRUGV´$OO Canadians are equal”, and governments are committed to “Respect the equality, rights and dignity of all Canadian women and men and their diverse needs”. The Federal Income Tax Act As an alternative to the use of the direct federal spending power by transfers to individuals or organizations, the system of credits under the federal Income Tax Act also permits DQHTXDOL]DWLRQRIP\ÀQDQFLDOEXUGHQDVFRPSDUHGWRP\&DWKROLFQHLJKERXUV Consequently, if the federal government wanted to provide a remedy for the violation of the Covenant, there is no legal impediment to their doing so. No doubt, the provincial government of Ontario also recognizes the ability of the federal government, through federal expenditures, to provide a remedy for me. Hence, they unfortunately believe that they can simply refuse to accept any provincial responsibility for the violation. According to the Constitution of Canada, education itself is a provincial power. Although the federal government has been, and is, involved – through funding – in matters of education, it is the case that in all other provinces in Canada which choose to provide public funding for religious schools, provincial public funding is made available to a range of religions. Furthermore, in general, the provinces prefer the federal government to avoid involvement in matters within provincial jurisdiction. $VDFRQVHTXHQFHWKHIHGHUDOJRYHUQPHQWRQO\UDWLÀHGWKH&RYHQDQWDQGWKH2SWLRQDO Protocol after seeking Ontario’s permission and receiving its assurances “that the Ontario Government supports wholeheartedly the principles contained in these documents and has no objection whatsoever to the Federal Government entering into such agreements.” (Attachment E) The federal government therefore wants the province of Ontario to accept responsibility for funding non-Catholic religious schools. The Premier of the Province of Ontario and the Minister of Education have exhibited total contempt for the Committee and Canada’s international obligations under the Covenant. Within hours of the release of the Committee’s decision, the Minister of Education announced to the press that the provincial government “had no intention of changing the current system”. (Attachment F) On a major open-line radio programme from Toronto on 15 November 1999, the Premier told listeners that a funding remedy IRUPHZRXOGEHQHÀW´VRPHDPD]LQJVWUDQJHUHOLJLRQVWKDWFDQFRPHIRUZDUGDQGZH do not plan to do that. We actually disagree with the UN ruling.” (Attachment G) On another open-line Canadian Broadcasting Corporation radio programme from Ottawa on 1 December 1999, the Minister of Education was asked by the host: “How does it make you feel, then, personally, to basically ignore a statement from the United Nations saying you’re discriminating against certain residents of this province?” The Minister replied: “Well … the U.N. is entitled to its views, and the federal government deals with international bodies – that is their responsibility – and they will continue to do that.” (Attachment H)

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This leaves me in an untenable and inexcusable position, in direct contradiction of the Covenant. Both levels of government in Canada refuse to accept responsibility for violations of the Covenant. Both refuse to provide a remedy. 2YHUDOO&DQDGDUDWLÀHGWKH&RYHQDQWZLWKRXWDQ\UHVHUYDWLRQV$UWLFOHFOHDUO\ extends the provisions of the Covenant to all parts of federal states without any limitaWLRQVRUH[FHSWLRQV,WLVWRWDOO\XQMXVWLÀDEOHIRUWKH*RYHUQPHQWRI&DQDGDWRVKLUN its international obligations by claiming that a remedy for a violation of the Covenant will not be instituted because of ever-present domestic bickering over constitutional MXULVGLFWLRQDQGÀQDQFLDOUHVSRQVLELOLW\ The response of the Government of Canada is even more objectionable because of Canada’s hitherto leading role in the General Assembly and the UN Commission on Human Rights concerning the resolutions on the effective implementation of the human ULJKWVWUHDWLHV&DQDGDVSHFLÀFDOO\ZDVWKHOHDGVSRQVRURIWKHPRVWUHFHQWUHVROXWLRQ of the UN Commission on Human Rights 1998/27 on “Effective implementation of international instruments on human rights, including reporting obligations under international instruments on human rights”, which states for example, 5HDIÀUPLQJWKDWWKHIXOODQGHIIHFWLYHLPSOHPHQWDWLRQRI8QLWHG1DWLRQVKXPDQ rights instruments is of major importance to the efforts of the Organization, pursuant to the Charter of the United Nations and the Universal Declaration of Human Rights, to promote universal respect for and observance of human rights and fundamental freedoms, (Attachment I) Canada also joined the consensus on the most recent resolution of the General Assembly (A/RES/54/157, adopted 17 December 1999) which states: The General Assembly: 4. Emphasizes the importance of the strictest compliance by States parties with their obligations under … the International Covenant on Civil and Political Rights and, where applicable, the Optional Protocols to the International Covenant on Civil and Political Rights. (Attachment J) $VDUHVXOWRI&DQDGD·VVLJQLÀFDQWUROHLQWKHLQWHUQDWLRQDODGYRFDF\RIWKHHIIHFWLYH implementation of the Covenant, it is especially important that Canada’s disregard of its obligations under the Covenant and the Optional Protocol be the subject of strong objection and commentary by the Committee. Note that the Canadian press have closely followed the case, the decision and the role of the UN Human Rights Committee, and hence a clear and early reply of the Committee is especially important for the status of the Covenant and the Committee process in the eyes of Canadians. For example, headlines read (Attachment K): Separate school funding unfair, United Nations rules: Ontario says it will ignore decision Toronto Star, 6 November 1999; UN slams Tory school funding: Province rejects order to subsidize all religions The Saturday Sun, 6 November 1999 1044

7. UNITED NATIONS COMMITTEE DECISIONS

2QWDULR·V&DWKROLFVFKRROIXQGLQJYLRODWHVULJKWV815XOHG8QIDLUWR2WKHU )DLWKV3URYLQFHYRZVWRFRQWLQXHZLWKFXUUHQWV\VWHP National Post, 6 November 1999; Ontario school funding ruled discriminatory by United Nations: Education PLQLVWHUTXLFNO\UHMHFWVQRQELQGLQJGHFLVLRQ The Ottawa Citizen, 6 November 1999; Ontario refuses to end Catholic school support The Globe and Mail, 6 November 1999; Ontario snubs UN ruling The Canadian Jewish News, 11 November 1999; +DUULV%ODVWV81RQ6FKRRO)XQGLQJ The North Bay Nugget, 16 November 1999; Not our problem, Ottawa responds to ruling of bias Globe and Mail, 4 February 2000. I therefore call upon the Human Rights Committee to: (1) formulate in the immediate future a written response to Canada’s reply to the &RPPLWWHH·VVSHFLÀFUHTXHVWIRULQIRUPDWLRQDERXWWKHPHDVXUHVWDNHQWRJLYH effect to the Committee’s views; (2) arrange a meeting between the Special Rapporteur on Follow-up and Canadian JRYHUQPHQWRIÀFLDOVLQWKHLPPHGLDWHIXWXUHDQG (3) should the Government of Canada not be prepared to institute a remedy for the violation of the Covenant, schedule a formal open meeting during the session with the Government of Canada, at the next session of the Committee. The credibility of the effective implementation of the Committee’s Views depends on VLJQLÀFDQWWLPHO\DQGIRUFHIXOIROORZXSUHSOLHVE\WKH+XPDQ5LJKWV&RPPLWWHHWR GHÀDQWDQGGLVUHVSHFWIXOUHVSRQVHVE\JRYHUQPHQWVVXFKDV&DQDGDWRWKHYLRODWLRQRI their human rights obligations. Sincerely, Mr. Arieh Waldman cc. Members of the United Nations Human Rights Committee List of attachments: A letter of Minister of Citizenship and Immigration, Elinor Caplan, 4 February 2000 B letter of Minister of Foreign Affairs, Lloyd Axworthy, 1 February 2000 C excerpt from Constitutional Law of Canada, (Loose-leaf edition), 1999, P.W. Hogg, re: federal spending power D The Social Union Agreement

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E letter of Ontario Premier John P. Robarts to Prime Minister Trudeau, 30 May 1969 F excerpts from press reports, National Post, Ottawa Citizen, 6 November 1999 G transcript of CFRB radio broadcast and Premier Harris of Ontario, from Toronto, 15 November 1999 H transcript of CBC radio broadcast with Minister of Education Ecker, from Ottawa, 1 December 1999; additional letters (13 January 2000 and 1 February 2000) from Minister of Education Ecker on that subject. I UN Commission on Human Rights Resolution, 1998/27 J General Assembly, A/RES/54/157, adopted 17 December 1999 K press clippings from across Canada concerning the case [Editor’s note: Attachments not reproduced]

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#60 Government of Canada Correspondence with the Author, Mr. Waldman, 5 May 2000 On 5 May 2000 Minister of Justice and Attorney General of Canada, A. Anne McLellan, wrote to Mr. Waldman on behalf of the Government of Canada. She stated that issues of education are “a matter within the exclusive constitutional jurisdiction of the province” (of Ontario) and “I can only encourage you to speak with representatives of the provincial Government”.

Minister of Justice and Attorney General Canada The Honourable A. Anne McLellan Ottawa, Canada K1A 0H8 May 5, 2000 Mr. Arieh Waldman [Address] Dear Mr. Waldman: 7KHRIÀFHRIWKH3ULPH0LQLVWHUKDVIRUZDUGHGWRPHFRSLHVRI\RXUFRUUHVSRQGHQFH UHJDUGLQJWKHFRPPXQLFDWLRQ\RXÀOHGZLWKWKH8QLWHG1DWLRQV+XPDQ5LJKWV&RPmittee pursuant to the Optional Protocol to the International Covenant on Civil and Political Rights. I apologize for the delay in responding. ,XQGHUVWDQGWKDWP\RIÀFLDOVFRQWDFWHG\RXRQ)HEUXDU\WRDGYLVH\RXWKDW a response to the views of the Committee had been transmitted to the Committee, and that you were provided with copies of that response by facsimile and electronic mail. As you know, your communication to the Committee concerned education in Ontario – a matter within the exclusive constitutional jurisdiction of the province. After the &RPPLWWHHLVVXHGLWVYLHZVODVW1RYHPEHUIHGHUDORIÀFLDOVFRQWDFWHGWKHLU2QWDULR counterparts to discuss those views and their implications. The Government of Canada encouraged the Government of Ontario to consider the comments of the Committee, recognizing however that it was for the Government of Ontario to determine the substantive nature of the response. While I realize that the outcome of your communication to the United Nations is not what you would have hoped for, I can only encourage you to speak with representatives of the provincial Government, in light of Ontario’s exclusive constitutional authority over education. Yours sincerely, A. Anne McLellan

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#61 Correspondence of the Author, Mr. Waldman, with the Government of Canada, 1 October 2002 On 1 October 2002 Mr. Waldman wrote to the Canadian Minister of Foreign Affairs, Mr. Bill Graham. The letter repeated the information in the letter of 18 February 2000 sent to the Human Rights Committee and reiterated that the Federal *RYHUQPHQWVWLOOKDGQRWIXOÀOOHGLWVREOLJDWLRQVXQGHUWKHInternational Covenant on Civil and Political Rights. The letter also suggested available mechanisms to provide a remedy to the violation in Waldman v. Canada. On 1 November 2002 the substance of this letter was repeated in a letter from the author to the Canadian 0LQLVWHURI)LQDQFH0U-RKQ0DQOH\DWWKHVXJJHVWLRQRIRIÀFLDOVLQWKH'HSDUWment of Foreign Affairs. They asked Mr. Waldman to draw the attention of the Finance Minister to the issues concerning tax matters. October 1, 2002 Right Honourable William Graham Minister of Department of Foreign Affairs House of Commons Ottawa, Ontario K1A 0A6

5(81,7('1$7,216+80$15,*+76&200,77(( COMMUNICATION NO. 694/1996 WALDMAN VS. CANADA Dear Minister Graham: It is now approaching three years since Canada was found in violation of the International Covenant on Civil and Political Rights regarding the above-noted case. This is the same treaty which you are quoted as referring to on September 21, 2002 (See attached photocopy). Since November, 1999 the Federal government of Canada has done nothing except write 3 or 4 letters in early 2000 to Ontario Minister of Education Ecker telling her to solve the problem. This is entirely unacceptable, just as it is unacceptable for the Nigerian Federal government to abdicate its responsibilities under the ICCPR in the case quoted. ,QSUHYLRXVFRUUHVSRQGHQFHIURP\RXURIÀFHWKHDUJXPHQWKDVEHHQKHDUGWKDW´%HFDXVH the discrimination manifests itself in education and education is a Provincial jurisdiction, the Federal government has no obligation or ability to remedy the situation”. This is a deplorable and a totally false argument. The issue at hand is religious discrimination DQGWKDWLVZKDWWKH8QLWHG1DWLRQV+XPDQ5LJKWV&RPPLWWHHUHIHUUHGWRLQLWVÀQGLQJ of a violation of Article 26 of the Covenant.

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Regarding Canada’s international obligations: (a) the Covenant obligations are binding upon Canada; (b) the Human Rights Committee is the only body interpreting those obligations, DQG&DQDGDWKLQNVLWVZLVGRPLVVXIÀFLHQWWRSODFHD&DQDGLDQRQWKDWERG\  F  WKH&RPPLWWHHGHFLVLRQVD\VWKDWLQLWVYLHZUDWLÀFDWLRQRIWKH2SWLRQDO3URWRFRO PHDQVVWDWHVSDUWLHVDJUHHWRSURYLGHDQHIIHFWLYHUHPHG\IRU&RPPLWWHHÀQGLQJV of a violation; (d) Canada is well aware of the Committee’s views of Canada’s (and every other states parties’) responsibilities and has never objected to that articulation; (e) on the contrary Canada has supported the GA resolution on the Status of the Covenants (as recently as December 1999) which calls for strict compliance with the Optional Protocol; this does not mean just listening to the Committee’s ´RSLQLRQµDERXWDZLVKOLVWIRUZKDWDVWDWHSDUW\VKRXOGGRLQDVSHFLÀFFRQWH[W but implementing their considered views as to what the Civil and Political Covenant requires; anything short of that undermines the credibility of the Committee, undercuts the authority of the Covenant and challenges the rule of international law. Regarding the constitutional/domestic issue of responsibility:  D  &DQDGDUDWLÀHGWKH&RYHQDQWLQDIWHUREWDLQLQJWKHH[SOLFLWFRQVHQWRI Ontario in 1969; (b) it is totally unacceptable for that consent to be meaningless when it comes to responsibility for implementing international legal obligations of Canada; (c) while it may be preferable for a solution to be given by the provinces, the fact is that the international legal obligation binds Canada as a state, which means that if the province refuses to act, Canada is still bound and it is a federal responsibility WRHQVXUHWKDW&DQDGD·VLQWHUQDWLRQDOOHJDOREOLJDWLRQVDUHVDWLVÀHG (d) furthermore, it is not true that the Federal government has no domestic or constitutional jurisdiction to provide a solution; you can (i) alter the system of federal tax credits to render the non-Catholic parents’ situation the same as for Catholics (i.e. $0 cost), or (ii) provide direct funding through the use of the spending power (like you do with Millennium Scholarships). In the latter case, the Social Union is not violated since it explicitly retains this kind of authority (in fact it does not address primary and secondary school education). Therefore, the federal government is on the hook like a joint line of credit; both the province and the federal government are on the hook for 100% and if the province won’t pay the federal government must. /DVWO\VLQFHWKLVÀHOGLVQRUPDOO\RQHIRUWKHSURYLQFHVDQGLVDFFRPSOLVKHGE\ other provinces, I understand why the federal government would prefer not to act, even though you have (a) an international obligation and (b) a constitutional ability. However, it still means some level of government is required to provide a solution. Any short-term avoidance of that requirement in order to obtain a provincial remedy means that the federal government must use every means available to it in order to insist that the province act. Clearly the federal government has not made compliance 1050

7. UNITED NATIONS COMMITTEE DECISIONS

with the Committee’s views (and ending religious discrimination in Canada) a priority in terms of Federal-Ontario relations. This is a total abdication of federal responsibility to ensure adherence with international human rights law, preserve Canada’s reputation LQWKLVÀHOGDQGGRWKHULJKWWKLQJ Mr. Graham, I refer you to a book entitled “None is Too Many”. It documents Canada’s shameful history regarding immigration in the 1920s, 30s, 40s and 50s. For the simple reason some people from Europe were of the Jewish faith, they were not allowed into Canada. The consequences were disastrous. The book proves, without a shadow of a doubt, that the rationale of that policy was anti- Semitism at both the political and civil service level. Please understand that I am in no way calling anyone or any level of government (political or civil service) anti-Semitic. I am simply pointing out the similarities of the ACTIONS, not the rationale. Because I am Jewish, I do not receive funding for the religious education of my children. If I became Catholic tomorrow, my children could receive a religious education paid for by tax dollars. That is religious discrimination. It does not matter how it manifests itself. It has no place in Canada in the 21st century. When and how will the Federal government end it? Thank you for your prompt attention to this matter. I look forward to hearing from you shortly and meeting you soon thereafter to discuss the steps Canada will take to end religious discrimination in Ontario. Sincerely, Arieh Waldman

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#62 Government of Canada correspondence with the Author, Mr. Waldman, 1 April 2003 On 1 April 2003 Minister of Finance, Mr. John Manley, responded to the Author’s letter of 1 November 2002. The Minister repeated the argument of a separation of powers under the Canadian Constitution regarding education funding. In addition, the letter also claimed that “using the federal spending power or income tax system WRÀQDQFHUHOLJLRXVVFKRROVZKHWKHUGLUHFWO\RULQGLUHFWO\ZRXOGLQWHUIHUHZLWK the exercise of provincial authority …”

0LQLVWHURI)LQDQFH Ottawa, Canada K1A 0G5 April 01, 2003 Mr. Arieh Waldman [Address] Dear Mr. Waldman: Thank you for your letter of November 1, 2002, asking that the federal government ÀQDQFHWKURXJKWKHXVHRILWVVSHQGLQJSRZHURUWKHWD[V\VWHPWKHFRVWVRISURYLGLQJ religious schooling to Jewish children, outside the public school system in Ontario. I appreciate the opportunity to reply. Foremost, it is important to recognize that, under our Constitution, provinces exercise very broad discretion over the design and operation of their elementary and secondary education systems. This discretion extends to all matters of education policy, including IXQGLQJOHYHOVFXUULFXOXPDJHRIPDQGDWRU\DWWHQGDQFHDQGÀQDQFLQJRISULYDWHRU independent schools outside the public education system. Using the federal spending SRZHURULQFRPHWD[V\VWHPWRÀQDQFHUHOLJLRXVVFKRROVZKHWKHUGLUHFWO\RULQGLUHFWO\ would interfere with the exercise of provincial authority in this area. The federal government does provide funding to First Nation governments in order for them to provide elementary and secondary education services to the children of their members who reside on reserve, just as school boards receive funding from provinces. Federal funding is provided because the federal government has responsibility to do so under the Constitution and the Indian Act. The federal government also provides support to post-secondary education “through programmes such as the Millennium Scholarships and through the tax system” as part of its role in fostering a skilled workforce and sound national labour market. Finally, your letter refers to the views of the United Nations Human Rights Committee on Communication No. 694/1996 of February 29, 1996 (Waldman v. Canada). The scope of Canada’s obligations with respect to this body is an issue that falls under the responsibility of the Honourable Bill Graham, Minister of Foreign Affairs. I 1053

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understand you have already written to Minister Graham, and that he will be responding separately. Thank you for bring this issue to my attention. Yours very truly, John Manley cc. The Honourable Bill Graham, P.C., M.P.

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#63 Government of Canada correspondence with the Author, Mr. Waldman, 23 April 2003 On 23 April 2003 Minister of Foreign Affairs, Mr. Bill Graham, responded to the $XWKRU·VOHWWHURI2FWREHU7KH0LQLVWHUUHIHUVWRWKHGLIÀFXOW\RILPSOHmenting international human rights obligations within the context of the Canadian constitutional framework and its federal division of powers. Notwithstanding these GLIÀFXOWLHVWKHOHWWHUWKHQGHWDLOVKRZWKH)HGHUDO*RYHUQPHQWGRHVKHOSLQSDUWLDO funding of non-Catholic religious schools in Ontario. Finally, it repeats the language of 3 February 2000: “it is ultimately for Ontario to take action in response to the Committee’s views in Waldman v. Canada”.

0LQLVWHURI)RUHLJQ$IIDLUV Ottawa, Canada K1A 0G2 7KH+RQRXUDEOH%LOO*UDKDP3&4&03 April 23, 2003 Mr. Arieh Waldman [Address] Dear Mr. Waldman: Thank you for your letter dated October 1, 2002 regarding the views of the United Nations Human Rights Committee on Communication No. 694/1996 of February 29, 1996 (Waldman v. Canada). Please appreciate that the delay in replying to you is due to the extensive consideration my Department has given to the serious issues you raise. Canada attaches great importance to advancing human rights generally through the multilateral system of the United Nations, and we have accordingly issued a standing invitation to all special mechanisms of the UN Commission on Human Rights. This means that Canada is opening itself to the full range of the Commission’s monitoring, reporting, and complaint functions. Such a move, together with the efforts of citizens such as yourself, keeps the pressure on Canada to live up to our international human ULJKWVREOLJDWLRQV:HDUHDFXWHO\DZDUHRIWKHVLJQLÀFDQFHRI&DQDGD·VUROHLQVHWWLQJDQ international example with respect to the situation of human rights in our own country. Certainly much work remains to be done on this front. Domestic implementation of international human rights obligations continues to be one of the central challenges facing the international human rights community. For Canada, this includes the additional challenge presented by our constitutionally created division of powers. Concern regarding implementation was a main reason that the Government of Canada conducted thorough consultations with the provinces over a ten

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year period, including extensive consultations with Ontario whereby Ontario consented to acceding to the International Covenant on Civil and Political Rights (ICCPR). Following the ruling by the UN Human Rights Committee on your case, the federal government wrote to Ontario Education Minister Janet Ecker, acknowledging Ontario’s support for the ICCPR, recognizing provincial jurisdiction over education, and encouraging the Government of Ontario to continue to give consideration to the views of the Committee. On February 1, 2000, Ontario responded that its position on this issue remains unchanged. The federal government, after noting that matters of education fall within the exclusive jurisdiction of the provinces and that, consequently, decisions regarding education are ultimately for the provinces to resolve in accordance with their constitutional authority, transmitted Ontario’s response to the Committee on February 3, 2000. The situation in the provinces varies considerably on this question. Research has shown a wide range of situations. Three jurisdictions fund both a separate system and independent schools (Alberta, Saskatchewan, and Quebec). At the other end of the spectrum, the four Atlantic provinces provide funding to neither (although this is a relatively new development in Newfoundland, which previously has a system of denominational school boards). Two provinces do not have a separate school system but fund independent schools, including denominational ones (British Columbia and Manitoba). Religious schools in British Columbia tend either to be funded at 50% of the public school rate, or to fall within a category of schools that receive no public funding. Alberta has a largely funded private school sector in addition to a school system comprising public and separate school boards, and the country’s only set of charter schools. In Quebec, Protestant and Roman Catholic schools are funded as carryover from the original system of religious schools boards, and other religious schools may be funded as accredited private schools at a reduced rate. New Brunswick funds only its public nondenominational school system. Private schools (and therefore denominational schools) in the province do not receive public funding. Newfoundland has gone, in a short time, from being a province where virtually all publicly funded schools were denominational, to one where no religious schools receive public funds. As these examples demonstrate, the approach to funding for denominational schools varies widely from province to province. The federal government does not play a role in these funding decisions. I believe it is important to also recognize that important steps, within the bounds of federal constitutional authority, have been taken to help parents who send children to non-publicly funded denominational schools. For example, if a school teaches religion exclusively, payments for students attending that school are not considered to be tuition fees but are considered to be charitable donations. Provided that the school is a registered Canadian charity, tax receipts for charitable donations may be issued for such payments. Schools which operate in a dual capacity providing both secular and religious education may also qualify to issue charitable donation receipts for the portion of the tuition that relates to religious education. In addition, as you may be aware, the Ontario government announced in its 2001 EXGJHWWKRVHWD[FUHGLWVWREHSKDVHGLQRYHUDÀYH\HDUSHULRG ZRXOGEHPDGHDYDLO1056

7. UNITED NATIONS COMMITTEE DECISIONS

able to cover a portion of the cost of tuition fees to parents who send their children to private schools. Finally, in response to your comments on anti-Semitism, I would like to emphasize that this policy is not a result of present anti-Semitism but rather of historical realities and their constitutional legacies. While I understand the frustration of parents who send their children to religious schools in Ontario, it is ultimately for Ontario to take action in response to the Committee’s views in Waldman v. Canada. I would also like to take this opportunity to highlight the active role Canada has played on the international stage in working to combat anti-Semitism. Canada fought for inclusion of language to combat anti-Semitism in particular at the World Conference against Racism. The Prime Minister has also spoken out strongly against anti-Semitism, UHDIÀUPLQJ WKDW GLVFULPLQDWLRQ DJDLQVW &DQDGLDQV IRU UHDVRQV RI UDFH IDLWK RU IRU EHORQJLQJ WR DQ\ LGHQWLÀDEOH JURXS DUH XQDFFHSWDEOH7KH *RYHUQPHQW RI &DQDGD has and will continue to make a concerted effort in speaking against anti-Semitism at multilateral fora including at the United Nations General Assembly and the United Nations Commission on Human Rights. Sincerely W.C. Graham

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#64 Correspondence of the Author, Mr. Waldman, with the Government of Canada, 11 May 2003 On 11 May 2003, Mr. Waldman again wrote to the Canadian Minister of Finance, Mr. John Manley. The letter repeated that the “Federal Government has the capability, through the federal tax system, to end discrimination against non-Catholics in Ontario”, and that through the income tax credit system, “for the last 28 years the Federal government has in fact indirectlyXVHGWKHLQFRPHWD[V\VWHPWRÀQDQFH privately supported religious and dual capacity schools throughout Canada.” The author requested that the Canadian government use the tax system to uphold its international legal obligations under the International Covenant on Civil and Political Rights. May 11, 2003 Right Honourable John Manley Minister of Department of Finance House of Commons Ottawa, Ontario K1A 0A6

5(81,7('1$7,216+80$15,*+76&200,77(( COMMUNICATION NO. 694/1996 WALDMAN VS. CANADA Dear Minister Manley: Thank you very much for your letter of April 1, 2003 in which you responded, in a substantive way, to my letter of November 1, 2002. I appreciate the effort you and your GHSDUWPHQWRIÀFLDOVKDYHWDNHQWRDGGUHVVWKHLVVXHVUDLVHGLQP\OHWWHU The proposals in my letter were not attempting to erode or encroach upon any Constitutional authority a province may have. They simply were demonstrating to \RXDQG\RXURIÀFLDOVWKDWWKH)HGHUDOJRYHUQPHQWKDVWKHFDSDELOLW\WKURXJKWKHWD[ system, to end religious discrimination against non-Catholics in Ontario. If the Federal government truly wanted to uphold its international treaty commitments, it could do VR0RUHVSHFLÀFDOO\KHUHLVRQHPHWKRG In the second paragraph of your response you stated, “Using the federal spending SRZHURULQFRPHWD[V\VWHPWRÀQDQFHUHOLJLRXVVFKRROVZKHWKHUGLUHFWO\RULQGLUHFWO\ would interfere with the exercise of provincial authority in this area.” I refer you to Canada Customs and Revenue Agency Information Circular 75-23 entitled: Tuition Fees and Charitable Donations Paid to Privately Supported Secular and Religious Schools. A copy is attached for your convenience. Thankfully, this circular dated September 29, 1975 (almost 28 years ago) is still in effect.

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Information Circular 75-23 deals with the tax treatment of tuition fees paid to privately supported religious schools and privately supported schools that operate in a dual capacity as religious and secular educational institutions. Section 3 of the circular says that those schools which are solely religious, and registered as Canadian charitable RUJDQL]DWLRQVDUHDEOHWRLVVXHRIÀFLDOUHFHLSWVIRUFKDULWDEOHGRQDWLRQVIRUWKHSD\PHQWV received from parents for the advancement of religion. For those schools that operate in a dual capacity, Section 6 of the circular refers to “certain circumstances” that “charitable donations may be issued for a portion of an amount paid to attend schools … which operate in this dual capacity.” Section 5 of the circular even refers to the fact that schools operating in this dual capacity “are subject to the inspection of provincial educational authorities”. Thus, for the last 28 years the Federal government has, in fact, indirectlyXVHGWKHLQFRPHWD[V\VWHPWRÀQDQFHSULYDWHO\VXSSRUWHGUHOLJLRXVDQGGXDO capacity schools throughout Canada. Furthermore, the circular itself implies that, as a condition for the issuing of charitable donation receipts, these schools are inspected by provincial education authorities. Therefore, Information Circular 75-23, quite openly and with full knowledge of all the provinces, allows the Federal government to use the tax system to fund privately supported religious schools and has not caused a constitutional crisis for the last 28 years. If Information Circular 75-23 can be used to partially offset the costs of privately supported religious education, it surely can be improved to offset the costs even more and eliminate religious discrimination against non-Catholics in Ontario. All I am asking is that the Federal government uphold its international obligations under the International Covenant on Civil and Political Rights. As demonstrated, the ability and the authority to do so already exist in the tax system. All that is lacking is the will to do what is right. Thank you for your prompt attention to this matter. I look forward to hearing from you shortly and meeting you and Minister Graham soon thereafter to discuss the steps Canada will take to end religious discrimination in Ontario. Sincerely, Arieh Waldman cc. The Honourable Bill Graham, Minister of Foreign Affairs

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#65 Government of Canada correspondence with the Author, Mr. Waldman, 20 June 2003 On 20 June 2003, the Minister of Finance, Mr. John Manley, responded to the Author’s letter of 11 May 2003. The Minister focused on the existing partial income tax credit offered by the Federal Government. Mr. Manley stated “As indicated in my previous correspondence, using the federal spending power or income tax V\VWHPWRÀQDQFHUHOLJLRXVVFKRROVE\ZKLFK,PHDQDFDGHPLFWUDLQLQJLQUHOLJLRXV schools, would interfere with the exercise of provincial authority in this area.” Minister of Finance Ottawa, Canada K1A 0G5 June 20, 2003 Mr. Arieh Waldman [Address] Dear Mr. Waldman: Thank you for your letter of May 11, 2003, which follows up on our earlier correspondence, and in which you suggest that the federal government use the tax system WRÀQDQFHWKHFRVWVRIUHOLJLRXVVFKRROLQJSURYLGHGRXWVLGHWKHSXEOLFVFKRROV\VWHP in Ontario. As you correctly indicate, in limited circumstances a contribution made to certain religious schools, or a portion of the contribution, is considered to be a charitable donation. As such, these contributions would qualify for the charitable donations tax credit, including a federal credit of 16% on donations up to $200, and 29% on amounts in excess of $200. When provincial tax assistance is taken into account, taxpayers can receive an average of about 44% tax assistance on their charitable donations over $200. The circumstances under which contributions to a religious school qualify for the charitable donations credit are set out in Information Circular IC75-23 – “Tuition Fees and Charitable Donations Paid to Privately Supported Secular and Religious Schools” – which is published by the Canada Customs and Revenue Agency (CCRA). As indicated in the Information Circular, in order for the charitable donations credit to be claimed, the school must be a registered Canadian charitable organization. In addition, only the portion of the payment that relates to religious training, and not to academic tuition, can qualify for the charitable donations credit. The method of calculating the allowable credit for religious training, where a school provides both religious and DFDGHPLFWUDLQLQJLVVSHFLÀHGLQWKH,QIRUPDWLRQ&LUFXODU For further clarity, an amount paid to a school for academic tuition is not considered to be a charitable donation under the Income Tax Act. As indicated in my previous FRUUHVSRQGHQFHXVLQJWKHIHGHUDOVSHQGLQJSRZHURULQFRPHWD[V\VWHPWRÀQDQFH

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religious schools, by which I mean academic training in religious schools, would interfere with the exercise of provincial authority in this area. The CCRA is responsible for administering the Income Tax Act, including determinLQJZKHWKHUDSD\PHQWTXDOLÀHVDVDFKDULWDEOHGRQDWLRQ$FFRUGLQJO\LI\RXQHHG IXUWKHULQIRUPDWLRQDVWRZKHWKHUDVSHFLÀFSD\PHQWWRDUHOLJLRXVVFKRROLVHOLJLEOH for the charitable donations tax credit, I would suggest you contact the Honourable Elinor Caplan, Minister of National Revenue. Thank you for bring this matter to my attention. Yours very truly, John Manley cc. The Honourable Bill Graham, P.C., M.P. The Honourable Elinor Caplan, M.P., P.C.

1062

(c) Grant Tadman et al. v. Canada

8QLWHG1DWLRQV+XPDQ5LJKWV&RPPLWWHH2FWREHU Admissibility Decision: Tadman et al. v. Canada, Communication 1R$YRO,,$QQH[;* $QQXDO5HSRUW RIWKH+XPDQ5LJKWV&RPPLWWHH On 19 October 1999 the United Nations Human Rights Committee adopted a decision on the admissibility of Tadman et al. v. Canada. The Tadman case claimed that the International Covenant on Civil and Political Rights’ provision on nondiscrimination was violated because Roman Catholics receiving funding for the religious education of their children, while the complainants did not. Tadman et al. did not seek funding for the religious education of their own children. They sought the elimination of funding for Catholic religious education altogether. The Committee ruled, in a 8-4 opinion, that the case was inadmissible and need not be considered on the merits. In the Committee’s view, if funding to Roman Catholics was eliminated the authors’ situation would not necessarily improve. The Committee added that the authors DOVR ´GLG QRW VXIÀFLHQWO\ VXEVWDQWLDWH KRZ WKH SXEOLF IXQGLQJ JLYHQ WR 5RPDQ Catholic separate schools … affects them adversely.”

+80$15,*+76&200,77(( Grant Tadman et al v. Canada Communication No. 816/1998 29 October 1999 &&35&' ADMISSIBILITY Submitted by: Grant Tadman et al (represented by Mr. Brian Forbes from Forbes Singer 6PLWK6KRXOGLFHDODZÀUPLQ2WWDZD2QWDULR  Alleged victim: The authors State party: Canada Date of communication: 11 April 1997 The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights, Meeting on 29 October 1999 1063

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Adopts the following:

Decision on admissibility 1.1 The authors of the communication are Grant Tadman, Sandra Johnstone, Nick Krstanovic and Henry Beissel, all Canadian citizens residing in the province of Ontario. They claim to be victims of a violation of articles 26, and articles 2(1)(2) and (3) and 50 of the International Covenant on Civil and Political Rights. They are represented by Mr. %ULDQ)RUEHVIURP)RUEHV6LQJHU6PLWK6KRXOGLFHDODZÀUPLQ2WWDZD2QWDULR 1.2 In the province of Ontario Roman Catholic schools are the only non-secular schools receiving full and direct public funding. The authors, however, belong to different religious denominations, i.e. United Church of Canada, Lutheran Church, Serbian Orthodox Church and Humanist. They all have children in the school going age and their children are being educated in the public school system. The facts 2.1 The Ontario public school system offers a free education to all Ontario residents without discrimination on the basis of religion or on any other ground. Public schools may not engage in any religious indoctrination. Individuals enjoy the freedom to establish private schools and to send their children to these schools instead of the public schools. The only statutory requirement for opening a private school in Ontario is the submission of a “notice of intention to operate a private school”. Ontario private schools are neither licensed nor do they require any prior Government approval. As of 30 September 1989, there were 64,699 students attending 494 private schools in Ontario. Enrolment in private schools represents 3.3 percent of the total day school enrolment in Ontario. 2.2 The province of Ontario’s system of separate school funding originates with provisions in Canada’s 1867 constitution. In 1867 Catholics represented 17% of the population of Ontario, while Protestants represented 82%. All other religions combined represented .2% of the population. At the time of Confederation it was a matter of concern that the new province of Ontario would be controlled by a Protestant majority that might exercise its power over education to take away the rights of its Roman Catholic minority. The solution was to guarantee their rights to denominational education, and WRGHÀQHWKRVHULJKWVE\UHIHUULQJWRWKHVWDWHRIWKHODZDWWKHWLPHRI&RQIHGHUDWLRQ 2.3 As a consequence, the 1867 Canadian constitution contains explicit guarantees of denominational school rights in section 93. Section 93 of the Constitution Act, 1867 grants each province in Canada exclusive jurisdiction to enact laws regarding education, limited only by the denominational school rights granted in 1867. In Ontario, the section 93 power is exercised through the Education Act. Under the Education Act HYHU\VHSDUDWHVFKRROLVHQWLWOHGWRIXOOSXEOLFIXQGLQJ6HSDUDWHVFKRROVDUHGHÀQHG as Roman Catholic schools. The Education Act states: “1. (1) “separate school board” means a board that operates a school board for Roman Catholics; … 122. (1) Every separate school shall share in the legislative grants in like manner as a public school”.

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As a result, Roman Catholic schools are the only religious schools entitled to the same public funding as the public secular schools. 2.4 The Roman Catholic separate school system is not a private school system. Like the public school system it is funded through a publicly accountable, democratically elected board of education. Separate School Boards are elected by Roman Catholic ratepayers, and these school boards have the right to manage the denominational aspects of the separate schools. Unlike private schools, Roman Catholic separate schools are subject to all Ministry guidelines and regulations. According to counsel, the additional costs to maintain the separate system next to the public school system have been calculated as amounting to $ 200 million a year for secondary schools alone. Neither s.93 of the Constitution Act 1867 nor the Education Act provide for public funding to Roman Catholic private/independent schools. Ten private/independent Roman Catholic schools RSHUDWHLQ2QWDULRDQGWKHVHVFKRROVUHFHLYHQRGLUHFWSXEOLFÀQDQFLDOVXSSRUW 3ULYDWHUHOLJLRXVVFKRROVLQ2QWDULRUHFHLYHÀQDQFLDODLGLQWKHIRUPRI H[HPSWLRQIURPSURSHUW\WD[HVRQQRQSURÀWSULYDWHVFKRROV LQFRPHWD[GHGXFWLRQVIRU tuition attributable to religious instruction; and (3) income tax deductions for charitable purposes. A 1985 report concluded that the level of public aid to Ontario private schools amounted to about one-sixth of the average total in cost per pupil enrolled in a private school. There is no province in Canada in which private schools receive funding on an equal basis to public schools. Direct funding of private schools ranges from 0% (Newfoundland, New Brunswick, Ontario) to 75% (Alberta). 2.6 The issue of public funding for non-Catholic religious schools in Ontario has been WKHVXEMHFWRIGRPHVWLFOLWLJDWLRQVLQFH7KHÀUVWFDVHEURXJKW)HEUXDU\ VRXJKWWRPDNHUHOLJLRXVLQVWUXFWLRQPDQGDWRU\LQVSHFLÀFVFKRROVWKHUHE\LQWHJUDWLQJ H[LVWLQJ+HEUHZVFKRROVLQWRSXEOLFVFKRROV2Q$SULODIÀUPHG$SULO Ontario courts found that mandatory religious instruction in public schools was not permitted. 2.7 In 1982 Canada’s constitution was amended to include a Charter of Rights and Freedoms which contained an equality rights provision. In 1985 the Ontario government decided to amend the Education Act to extend public funding of Roman Catholic schools to include grades 11 to 13. Roman Catholic schools had been fully funded from kindergarten to grade 10 since the mid 1800’s. The issue of the constitutionality of this law (Bill 30) in view of the Canadian Charter of Rights and Freedoms, was referred by the Ontario government to the Ontario Court of Appeal in 1985. 2.8 On 25 June 1987 in the Bill 30 case the Supreme Court of Canada upheld the constitutionality of the legislation which extended full funding to Roman Catholic schools. The majority opinion reasoned that section 93 of the Constitution Act 1867 and all the rights and privileges it afforded were immune from Charter scrutiny. Madam Justice Wilson, writing the majority opinion, stated: “It was never intended … that the Charter could be used to invalidate other provisions of the constitution, particularly a provision such as s.93 which represented a fundamental part of the Confederation compromise.”

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2.9 At the same time the Supreme Court of Canada, in the majority opinion of Wilson, -DIÀUPHG´7KHVHHGXFDWLRQDOULJKWVJUDQWHGVSHFLÀFDOO\WR«5RPDQ&DWKROLFVLQ Ontario, make it impossible to treat all Canadians equally. The country was founded XSRQWKHUHFRJQLWLRQRIVSHFLDORUXQHTXDOHGXFDWLRQDOULJKWVIRUVSHFLÀFUHOLJLRXVJURXSV in Ontario …” In a concurring opinion in the Supreme Court, Estey J. conceded: “It is axiomatic (and many counsel before this court conceded the point) that if the Charter has any application to Bill 30, this Bill would be found discriminatory and in violation of ss. 2(a) and 15 of the Charter of Rights.” 2.10 In a further case, Adler v. Ontario, individuals from the Calvinistic or Reformed Christian tradition, and members of the Sikh, Hindu, Muslim, and Jewish faiths challenged the constitutionality of Ontario’s Education Act, claiming a violation of the Charter’s provisions on freedom of religion and equality. They argued that the Education Act, by requiring attendance at school, discriminated against those whose conscience or beliefs prevented them from sending their children to either the publicly funded secular or publicly funded Roman Catholic schools, because of the high costs associated with their children’s religious education. A declaration was also sought stating that the applicants were entitled to funding equivalent to that of public and Roman Catholic schools. The Ontario Court of Appeal determined that the crux of Adler was an attempt to revisit the issue which the Supreme Court of Canada had already disposed of in the Bill 30 case. Chief Justice Dubin stated that the Bill 30 case was “really quite decisive of the discrimination issue in these appeals.” They also rejected the argument based on freedom of religion. 2.11 On appeal, the Supreme Court of Canada by judgement of 21 November 1996, FRQÀUPHGWKDWLWVGHFLVLRQLQWKHBill 30 case was determinative in the Adler litigation, and found that the funding of Roman Catholic separate schools could not give rise to an infringement of the Charter because the province of Ontario was constitutionally obligated to provide such funding. The complaint 3.1 The authors argue that the fact that no religious denomination other than Roman Catholic has the right to government funding in the province of Ontario for the purposes of education constitutes a form of discrimination with reference to all other religious GHQRPLQDWLRQVZKLFKDUHSUHFOXGHGIURPVXFKVSHFLÀFJRYHUQPHQWIXQGLQJ,QWKLV context, counsel argues that the Human Rights Committee is not bound by the Canadian constitutional intricacies which led to the Supreme Court’s conclusions. 3.2 Counsel further claims that the consequence of the Supreme Court of Canada MXGJPHQWVLVWKDWVSHFLÀFUHOLJLRXVGHQRPLQDWLRQVKDYHEHHQGHSULYHGRIDUHPHG\LQ addressing the discriminatory and unequal provisions of the current Ontario Education Act. 3.3 According to counsel, two alternative solutions can be found to the existing discrimination. One, the Province of Ontario could extend government funding, on an equal basis, to all those religious/denominational groups with a substantial presence LQ2QWDULR+RZHYHUFRXQVHOFRQVLGHUVWKDWVXFKDVFKHPHZRXOGQRWEHÀQDQFLDOO\

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viable and would be socially divisive. He therefore proposes a second solution, that the province create a singular public system, open to all and without distinction, thereby eliminating the present inequality. In this connection, he argues that a singular public V\VWHPZRXOGEHKLJKO\EHQHÀFLDOWR2QWDULR·VSOXUDOLVWLFDQGGLYHUVHVRFLHW\ State party’s observations 4.1 By submission of 22 February 1999, the State party addresses both the admissibility and the merits of the authors’ claim. 4.2 First, the State party argues that the communication is inadmissible because the authors are no [sic] victims of a violation of the Covenant. According to the State party this is illustrated by the remedy they are seeking: removal of public funding for Roman Catholic separate schools. In this context, the State party also notes that the authors have IDLOHGWRSURYLGHVSHFLÀFLQIRUPDWLRQDERXWWKHLUFKLOGUHQDQGKRZWKHFXUUHQWV\VWHP violates their rights. Moreover, the authors’ children already have access to the publicly funded school system, which is what they seek as a remedy. There is no evidence that they cannot be accommodated within the existing system, and it has not been shown how they are victimized or personally affected by Ontario’s constitutional obligation to provide funding to Roman Catholic separate schools. If the authors claim that the separate school system is unnecessary costly and that by eliminating it more funds would become available for students in the public system, the State party argues that this is by no means certain and that in any event, an absence of possible additional funds being LQYHVWHGJHQHUDOO\LQWKHSXEOLFV\VWHPLVQRWLQLWVHOIVXIÀFLHQWWRPDNHWKHDXWKRUV RUWKHLUFKLOGUHQYLFWLPVRIDYLRODWLRQDVGHÀQHGXQGHUWKH2SWLRQDO3URWRFRO 4.3 As to the authors’ allegation under article 2 of the Covenant, the State party recalls that article 2 does not establish an independent right but is a general undertaking by States and cannot be invoked by individuals under the Optional Protocol without UHIHUHQFHWRRWKHUVSHFLÀFDUWLFOHVRIWKH&RYHQDQW 4.4 Alternatively, the State party rejects a violation of article 2 because a differentiation based on reasonable and objective criteria does not amount to a distinction or discrimination within the meaning of article 2 of the Covenant. For substantive arguments concerning the issue of discrimination, it refers to its arguments relating to the alleged violation of article 26 (see below). 4.5 With regard to the alleged violation of article 26, the State party contends the communication is inadmissible ratione materiae, or, in the alternative, does not constitute a violation. The State party recalls that a differentiation in treatment based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26. The State party notes that the authors themselves argue that the extension of public funding to more denominational schools would not be a proper solution, because of budget constraints and because such a scheme would be socially divisive. In the 6WDWHSDUW\·VRSLQLRQWKHDXWKRUV·DFNQRZOHGJHPHQWRIDÀVFDODQGVRFLDOMXVWLÀFDWLRQ serves to underscore some of the reasonable grounds for concluding that the absence of full and direct funding to all religious groups does not violate article 26.

1067

STATE SUPPORT FOR RELIGIOUS EDUCATION

4.6 According to the State party, the establishment of secular public institutions is consistent with the values of article 26 of the Covenant. Secular institutions do not discriminate against religion, they are a legitimate form of Government neutrality. According to the State party, a secular system is a tool which assists in preventing discrimination among citizens on the basis of their religious faiths. Public schools build social cohesion, tolerance and understanding, and the extension of public funding to all denominational schools would undermine this ability. The State party makes no distinctions among different religious groups in its public education and does not limit any religious group’s ability to establish private schools. 4.7 The State party submits that there are reasonable and objective grounds for not eliminating funding to Roman Catholic separate schools in Ontario. The elimination would be perceived as undoing the bargain made at Confederation to protect the interests of a vulnerable minority in the province and would be met with outrage and resistance by the Roman Catholic community. It would also result in a certain degree of economic turmoil, including claims for compensation of facilities or lands provided for Roman Catholic schools. Further, the protection of minority rights, including minority religion and education rights, is a principle underlying the Canadian constitutional order and militates against elimination of funding for the Roman Catholic separate schools. Elimination of funding for separate schools in Ontario would further lead to pressure on other Canadian provinces to eliminate their protections for minorities within their border. Counsel’s comments 5.1 In his comments on the State party’s submission, counsel submits that the State party KDVDGPLWWHGWKHGLVFULPLQDWLRQZKLFKLWMXVWLÀHVRQO\RQWKHEDVLVRILWVFRQVWLWXWLRQ Counsel submits that the Human Rights Committee is not bound by the constitution of Canada, and that the public funding of only Roman Catholic schools, to the exclusion of all other denominational schools, constitutes a violation of article 26. In this context, counsel states that the multicultural fabric of current Canadian society strongly VXJJHVWVWKDWQRORQJHUDQ\UDWLRQDOHH[LVWVIRUWKHIRUPRIÁDJUDQWGLVFULPLQDWLRQLQ the educational laws of the Province of Ontario vis à vis one religious denomination over all other denominations. 5.2 Counsel refers to recent constitutional changes in Quebec and Newfoundland concerning educational laws. Especially, with regard to Quebec, counsel argues that its constitutional revision opens the way for constitutional change in Ontario as well. Counsel notes that the changes in Quebec did not create social tension and discord. With regard to the use by Quebec of the notwithstanding clause in the Charter in order to continue limited denominational schooling, counsel submits that this implicitly recognizes that any form of denominational schooling is effectively discriminatory. Counsel rejects the State party’s claim of possible social disruption as a consequence of removing public funding for Roman Catholic separate schools, as unsubstantiated, based on Canada’s history as a civilized nation. Moreover, counsel argues that economic and social factors are irrelevant for the determination of discrimination.

1068

7. UNITED NATIONS COMMITTEE DECISIONS

5.3 With regard to the State party’s argument that the authors are no [sic] victims within the meaning of the Optional Protocol, counsel recalls that the authors represent LQGLYLGXDOV ZKR DUH PHPEHUV RI VSHFLÀF UHOLJLRXV GHQRPLQDWLRQV ZKR UHFHLYH QR government funding from the Province of Ontario to educate their children in accordance with their religious beliefs. Counsel rejects the State party’s suggestion that they are no [sic] victims because they seek as remedy a singular public system open to all without discrimination. He recalls that in the communication two solutions were proposed, one being the extension of funding to all denominations, the other being the elimination of the present inequality by creating a singular public system. Even though the authors prefer the second solution, counsel points out that it is within the jurisdiction of the Human Rights Committee to determine the remedy for the discrimination. The authors of the communication are victims because they are being denied parallel government funding to educate their children in accordance with their religious beliefs. &RXQVHOVWDWHVWKDWWKHÀJXUHVRIWKHÀQDQFLDOLPSOLFDWLRQVRIVHSDUDWHVFKRROLQJWR which he referred in his communication, originate from public reports of the Ministry of Education, and that there can be no doubt about it that the separate system creates DQH[WUDÀQDQFLDOEXUGHQ 5.5 Counsel takes issue with the State party referring to the Roman Catholic community as a minority. He points out that the Catholic religious group is the largest in the Province of Ontario, being approximately two and a half times larger than the next faith, the United Church of Canada. In this context, counsel recalls that there is no Protestant Church or organization to parallel the Roman Catholic structure, since the denomination generally called Protestant consists of many small denominations which each have their own structure. Counsel submits therefore that the publicly funded separate schools for Roman Catholic citizens in Ontario represent in real terms a privilege to the largest religious organization in Ontario. 5.6 As regards the freedom to establish a private religious school, counsel argues that this is a hollow right unless one is comparatively wealthy and is prepared to pay taxes under the educational levy while at the same time paying for one’s own children from one’s own pocket. In practical terms, it is also often impossible to attend a private school, since other faith groups are far fewer in number than Roman Catholics and have their SULYDWHVFKRROVRQO\LQODUJHFLWLHVZKHUHWKHUHDUHVXIÀFLHQWVWXGHQWV 5.7 With regard to the claim under article 2 of the Covenant, counsel submits that the authors have claimed a violation of this article together with article 26 of the Covenant. He reiterates his position that the State party has failed to satisfy the legal obligations under article 2 to remove the discrimination. In this context, he underlines that pursuant to article 2(2) the Covenant contemplates that ‘constitutional processes’ may be undertaken in order to give effect to the rights recognized in the Covenant and in remedying the violation in question. 5.8 Counsel contests the State party’s argument that the differentiation in treatment between Roman Catholic schools and other denominational schools is based on reasonable and objective grounds. He reiterates that the current demographic and ethno-cultural makeup of Ontario does not support the discriminatory treatment of all 1069

STATE SUPPORT FOR RELIGIOUS EDUCATION

other religious denominations, save and except the Roman Catholic denomination. What may have been a reasonable and objective ground in 1867 is no longer applicable in current society. Issues and proceedings before the Committee 6.1 Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant. 6.2 The State party has challenged the admissibility of the communication on the basis that the authors cannot claim to be victims of a violation of the Covenant. In this context, the Committee notes that the authors while claiming to be victims of discrimination, do not seek publicly funded religious schools for their children, but on the contrary seek the removal of the public funding to Roman Catholic separate schools. Thus, if this were to happen, the authors’ personal situation in respect of funding for religious HGXFDWLRQZRXOGQRWEHLPSURYHG7KHDXWKRUVKDYHQRWVXIÀFLHQWO\VXEVWDQWLDWHGKRZ the public funding given to the Roman Catholic separate schools at present causes them any disadvantage or affects them adversely. In the circumstances, the Committee considers that they cannot claim to be victims of the alleged discrimination, within the meaning of article 1 of the Optional Protocol. 7. Accordingly, the Human Rights Committee decides: a) that the communication is inadmissible under article 1 of the Optional Protocol; b) that this decision shall be communicated to the State party, the authors and their counsel. ________________ * The following members of the Committee participated in the examination of the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr. Prafullachandra N. Bhagwati, Ms. Christine Chanet, Lord Colville, Ms. Elizabeth Evatt, Mr. Louis Henkin, Mr. Eckart Klein, Mr. David Kretzmer, Ms. Cecilia Medina Quiroga, Mr. Martin Scheinin, and Mr. Abdallah Zakhia. Pursuant to rule 85 of the Committee’s rules of procedure, Mr. M. Yalden did not participate in the examination of the case. ** The text of one individual opinion signed by four Committee members is appended to the present document.

Appendix Individual opinion of Committee members P. Bhagwati, E. Evatt, L. Henkin and C. Medina Quiroga I am unable to agree with the view of the Committee that this case is inadmissible. The VLWXDWLRQLVWKDWWKH3URYLQFHRI2QWDULRSURYLGHVDEHQHÀWWRWKH&DWKROLFFRPPXQLW\ by incorporating their religious schools into the public school system and funding them LQIXOO7KLVEHQHÀWLVGLVFULPLQDWRU\LQQDWXUHDVLWSUHIHUVRQHJURXSLQWKHFRPPXQLW\ on the ground of religion. Those whose religious schools are not funded in this way are clearly victims of this discrimination (as in the Waldman case).

1070

7. UNITED NATIONS COMMITTEE DECISIONS

But that does not exhaust the scope of those who may claim to be victims. Parents who desire religious education for their children and are not provided with it within the school system and who have to meet the cost of such education themselves may also be considered as victims. The applicants in this case include such persons, and the claims of at least those persons should, in my view, be considered admissible.

1071

8. Legislative Developments in Ontario Post Waldman v. Canada #67(a) Responsible Choices for Growth and Prosperity Act (2001 Budget), S.O. 2001, c. 8 On 9 May 2001, Ontario Minister of Finance, James M. Flaherty presented the budget of the Government of Ontario. It contained a new tax credit entitled “Equity in Education Tax Credit”. This Act would give a refundable tax credit to taxpayers who sent their child(ren) to independent schools (non-public schools). The tax credit criteria did not differentiate between types of independent schools, religious or otherwise, and was to be phased in over 5 years starting on 1 January 2002. The tax credit would start at 10% and increase by 10% per year to a maximum of 50% of fees paid. The maximum dollar amount of tax credits envisioned in the legislation was to be $3,500 per year per child (50% of $7,000). In 2001, the EXGJHWWKDWZDVSDVVHGHVWDEOLVKHGWKHDPRXQWIRUWKHÀUVWWZR\HDUVRIWKHWD[ credit: for the 2002 taxation year the credit was to be 10% of fees paid, and for the 2003 taxation year the credit was to increase to 20% of fees paid. The budget received royal assent on 29 June 2001.

&+$37(5 An Act to implement measures contained in the 2001 Budget and to amend various statutes Received Royal Assent June 29, 2001 Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows: … PART VII INCOME TAX ACT … 40. Section 8 of the Act, as amended by the Statutes of Ontario, 1992, chapter 18, section 55, 1992, chapter 25, section 3, 1993, chapter 29, section 6, 1994, chapter 17, section 99, 1996, chapter 1, Schedule C, section 8, 1996, chapter 24, section 13, 1996, chapter 29, section 9, 1997, chapter 19, section 9, 1997, chapter 43, Schedule B, section 4, 1998, chapter 5, section 3, 1998, chapter 9, section 81, 1998, chapter 34, section 69,

1073

STATE SUPPORT FOR RELIGIOUS EDUCATION

1999, chapter 9, section 120 and 2000, chapter 42, section 55, is further amended by adding the following subsection: Equity in education tax credit (15.5) An individual who is a qualifying taxpayer for the purposes of section 8.4.2 for a taxation year ending after December 31, 2001, may deduct from tax otherwise payable under this Act for the taxation year the total of all amounts each of which is the qualifying taxpayer’s share of the equity in education tax credit for an eligible child as determined under that section. 41. The Act is amended by adding the following section: Equity in education tax credit 8.4.2 (1) In this section, ´HOLJLEOHFKLOGµPHDQVLQUHVSHFWRIDTXDOLI\LQJWD[SD\HUDQLQGLYLGXDOZKRVDWLVÀHV the rules prescribed by the regulations; (“enfant admissible”) “eligible course of study” means an elementary or secondary school course of study, (a) that is provided by an eligible independent school to a pupil enrolled in the school,  E  WKDW VDWLVÀHV WKH UXOHV SUHVFULEHG E\ WKH UHJXODWLRQV ´SURJUDPPH G·pWXGHV admissible”) “eligible fees” means the amount determined under the rules prescribed by the regulations; (“frais admissibles”) ´HOLJLEOH LQGHSHQGHQW VFKRROµ PHDQV D VFKRRO WKDW VDWLVÀHV WKH UXOHV SUHVFULEHG E\ the regulations or a school that is designated by regulation as an eligible independent school; (“école indépendante admissible”) “qualifying taxpayer” means, in respect of a taxation year, a person, (a) who is an individual for the purposes of section 8, (b) who is resident in Ontario on the last day of the taxation year, and  F  ZKR VDWLVÀHV WKH UXOHV SUHVFULEHG E\ WKH UHJXODWLRQV ´FRQWULEXDEOH DGPLVsible”) Amount of tax credit (2) The amount of the equity in education tax credit in respect of an eligible child for a taxation year is the amount calculated using the formula, AxB in which, “A” is the appropriate percentage for the taxation year as determined under subsection (3), and “B” is the lesser of, (a) the prescribed monthly amount for the taxation year or, if no amount is prescribed for the taxation year, the amount, not exceeding $7000, that is determined by multiplying $700 by the number of months in the taxation year in which the 1074

8. LEGISLATIVE DEVELOPMENTS IN ONTARIO POST WALDMAN v. CANADA

eligible child was enrolled in an eligible independent school as a full-time pupil and attending classes at the school in the taxation year in an eligible course of study, and (b) the amount of eligible fees reasonably attributable to the taxation year that were paid by a qualifying taxpayer to an eligible independent school in respect of an eligible child who was enrolled in the school during the taxation year as a full-time pupil and attending classes at the school during the taxation year in an eligible course of study. Appropriate percentage (3) For the purposes of “A” in subsection (2),the appropriate percentage for a taxation year is determined as follows: 1. If the taxation year commences after December 31, 2001 and ends before January 1, 2003, the appropriate percentage is 10 per cent. 2. If the taxation year commences after December 31, 2002, the appropriate percentage is 20 per cent. Qualifying taxpayer’s share (4) The amount of a qualifying taxpayer’s share of the equity in education tax credit in respect of an eligible child for a taxation year is the amount of the credit determined under subsection (2) as apportioned in accordance with the rules prescribed by regulation. Regulations (5) The Minister may make regulations,  D  SUHVFULELQJUXOHVIRUWKHSXUSRVHVRIWKHGHÀQLWLRQVLQVXEVHFWLRQ  (b) designating particular schools as eligible independent schools for the purposes RIWKHGHÀQLWLRQ  F  GHÀQLQJWHUPVXVHGLQWKLVVHFWLRQWKDWDUHQRWDOUHDG\GHÀQHGLQWKH$FW (d) prescribing rules for the purposes of determining a qualifying taxpayer’s share of an equity in education tax credit under subsection (4). Same, eligible independent schools  $ UHJXODWLRQ SUHVFULELQJ UXOHV IRU WKH SXUSRVHV RI WKH GHÀQLWLRQ RI ´HOLJLEOH independent school” may establish different classes of schools and prescribe different rules for each class. Commencement 42. (1) Subject to subsections (2), (3) and (4), this Part comes into force on the day this Act receives Royal Assent. Same (2) Subsections 37 (5) and (6) and section 39 shall be deemed to have come into force on January 1, 2000. Same

1075

STATE SUPPORT FOR RELIGIOUS EDUCATION

(3) The following provisions shall be deemed to have come into force on January 1, 2001: 1. Section 35. 2. Subsections 36 (2) to (5) and 37 (1) to (4) and (7) to (10). 3. Section 38. Same (4) Subsections 36 (1) and sections 40 and 41 come into force on January 1, 2002. … PART XXIII COMMENCEMENT AND SHORT TITLE … Short title 256. The short title of this Act is the Responsible Choices for Growth and Accountability Act (2001 Budget), 2001.

1076

#67(b) Equity in Education Tax Credit Regulations (EETC), O. 5HJ'HFHPEHU 7KHVH UHJXODWLRQV GHÀQHG LQ GHWDLO KRZ WKH (TXLW\ LQ (GXFDWLRQ 7D[ &UHGLW (EETC) would work. They dealt with such matters as which children and schools are eligible, who receives the tax credit, how the tax credit will be calculated, and the issue of “double dipping” in relation to the tax deduction given by the Federal government for religious studies. These regulations were approved on 3 December 2001, to take effect on 1 January 2002.

217$5,25(*8/$7,21 made under the INCOME TAX ACT Made: December 3, 2001 Filed: December 17, 2001 Printed in The Ontario Gazette: January 5, 2002 EQUITY IN EDUCATION TAX CREDIT Eligible child 1. For the purposes of subsection 8.4.2 (1) of the Act,  D  DQLQGLYLGXDOZKRLVDWOHDVWÀYH\HDUVRIDJHWKURXJKRXWWKHWD[DWLRQ\HDUEXW is not 21 years of age or older at any time in the taxation year is an eligible child throughout the taxation year; (b) an individual who attains the age of four years in a taxation year is an eligible child for the period from September 1 to December 31 in the year; and (c) an individual who attains the age of 21 years in a taxation year is an eligible child for the period from January 1 to June 30 in the year. Eligible course of study  )RU WKH SXUSRVHV RI FODXVH E  RI WKH GHÀQLWLRQ RI ´HOLJLEOH FRXUVH RI VWXG\µ LQ subsection 8.4.2 (1) of the Act, an eligible course of study must be an elementary or secondary course of study that complies with any requirements with respect to the length of the instructional program of each school day, as may be prescribed in regulations made under the Education Act. Eligible fees 3.

(1) For the purposes of subsection 8.4.2 (1) of the Act,

“eligible fees” means, in respect of an eligible child for a taxation year, (a) the amount determined under subsection (2), if the eligible child is less than six years of age throughout the taxation year, or

1077

STATE SUPPORT FOR RELIGIOUS EDUCATION

(b) the sum of all net tuition fees reasonably attributable to the taxation year paid by one or more qualifying taxpayers to an eligible independent school in respect of the enrolment of the eligible child in one or more eligible courses of study at the school during the taxation year, if the eligible child is at least six years of age at any time in the taxation year.  )RUWKHSXUSRVHVRIFODXVHD RIWKHGHÀQLWLRQRI´HOLJLEOHIHHVµLQVXEVHFWLRQ  the amount in respect of the eligible child for a taxation year is the least of, (a) $3,500; (b) the amount equal to $350 multiplied by the number of months in the taxation year the eligible child is enrolled in one or more eligible courses of study at an eligible independent school; and (c) the sum of all net tuition fees reasonably attributable to the taxation year paid by one or more qualifying taxpayers to an eligible independent school in respect of the enrolment of the eligible child in one or more eligible courses of study at the school during the taxation year. (3) In this section, “net tuition fees” means, in respect of an eligible child, the tuition fees paid less the sum of the following amounts: 1. The sum of all amounts, each of which is the value of a scholarship or bursary available to any person in respect of the eligible child, to the extent the value of the scholarship or bursary has not been deducted in determining the amount of the tuition fees. 2. The sum of all amounts, each of which is paid in consideration for ancillary goods or services in respect of the eligible child, including amounts paid for meals, computers, books, clothing, travel, sports and equipment, if those amounts are VHSDUDWHO\LGHQWLÀHGRULQFOXGHGLQDVHSDUDWHFKDUJH 3. The sum of all amounts, each of which is paid in consideration for accommodation in respect of the eligible child. 4. The sum of all amounts, each of which is an amount included in determining the amount of the tuition fees, i. that is paid to the eligible independent school in respect of the eligible child, and ii. that may be taken into consideration in determining the amount of a deduction to which an individual is entitled under section 63 of the Federal Act for the taxation year. 5. The sum of all amounts, each of which is equal to 40 per cent of an amount included in determining the amount of the tuition fees, i. that is paid to an eligible independent school in respect of an eligible child, and ii. that may be taken into consideration in determining the amount of a deduction for a taxation year under subsection 118.1 (3) of the Federal Act or under paragraph 18 of subsection 4 (3.1) of the Act. 6. The amount, if any, calculated using the formula, A x B in which, “A” is the sum of all amounts, if any, each of which is, (a) included in determining the amount of the tuition fees, 1078

8. LEGISLATIVE DEVELOPMENTS IN ONTARIO POST WALDMAN v. CANADA

(b) paid to an eligible independent school in respect of the eligible child, and (c) described in paragraph 118.2 (2) (e) of the Federal Act as a medical expense that is deductible by an individual in the taxation year under subsection 118.2 (1) of the Federal Act and under paragraph 17 of subsection 4 (3.1) of the Act, and “B” is the percentage equal to the sum of the lowest rate of tax payable by an individual under subsection 118 (2) of the Federal Act for the taxation year DQGWKHORZHVWWD[UDWHDVGHÀQHGLQVXEVHFWLRQ RIWKH$FWIRUWKH\HDU Eligible independent school 4. (1) For the purposes of subsection 8.4.2 (1) of the Act, a school is an eligible LQGHSHQGHQWVFKRROIRUDWD[DWLRQ\HDULILWVDWLVÀHVDOORIWKHIROORZLQJFRQGLWLRQV 1. The school is not a school, other than a private school, for the purposes of the Education Act.   7KHVFKRROKDVDWOHDVWÀYHSXSLOVHDFKRIZKRPLVDQHOLJLEOHFKLOGGXULQJ each school term in which it operates in the taxation year. 3. The school’s principal places of instruction are in Ontario. 4. The school requires every pupil to take not less than 75 per cent of the pupil’s normal course of study at locations in Ontario. 5. The school carries out a criminal reference check of every individual associated with the school who comes into regular contact with pupils of the school, i. by January 1, 2003 in the case of individuals currently associated with the school or who becomes associated with the school in 2002, or ii. before the individual becomes associated with the school, in any other case. 6. The school provides to every parent or legal guardian who is considering enrolling or has enrolled a child at the school the information listed in subsection (3) in either English or French, and in any other language that is the primary language of instruction at the school. (2) The following rules apply in respect of the information to be provided by a school under paragraph 6 of subsection (1): 1. The information must be provided annually and be current to October 30 of the year before it is provided. 2. The information must be provided by the last day of February if the parent or legal guardian is considering enrolling or has enrolled a child at the school for any period after September 1 of the same year and before September 1 of the following year. 3. Despite paragraph 2, the information may be provided by March 31, 2002 if the parent or legal guardian is considering enrolling or has enrolled a child at the school for any period after December 31, 2001 and before September 1, 2003. 4. A copy of the information must be provided to the Provincial Minister and the Minister by the day referred to in paragraph 2 or 3. (3) The following is the information referred to in paragraph 6 of subsection (1):

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1. The legal name of the school, the school’s operating name if it is different and the municipal addresses of the principal places of instruction and all other locations of instruction. 2. A description of the academic program taught at the school and the academic achievement expected of each pupil at the end of the program of study. 3. Whether the school participates in annual student evaluations and a description of the method of evaluation if it participates in annual evaluations. 4. Whether the school has collected the information described in paragraph 5 of subsection (1). 5. The professional credentials of the teachers associated with the school. 6. The school’s policy on refunds of tuition and any other charges or fees. 7. A brief history of the school, including the number of years the school has been in operation. 8. Information relating to pupil health and safety, including whether the school is in compliance with the Building Code and the Fire Code and with any requirements under the Health Protection and Promotion Act , and whether it has a code of conduct for pupils or staff.  :KHWKHUÀQDQFLDOVWDWHPHQWVRIWKHVFKRRODUHDYDLODEOHWRDSDUHQWRUOHJDO guardian who is considering enrolling or has enrolled a child at the school.

Qualifying taxpayer )RUWKHSXUSRVHVRIFODXVHF RIWKHGHÀQLWLRQRI´TXDOLI\LQJWD[SD\HUµLQVXEVHFWLRQ 8.4.2 (1) of the Act, a person must be a parent or legal guardian of an eligible child in order to be a qualifying taxpayer in respect of the eligible child. Apportionment of tax credit 6. For the purposes of subsection 8.4.2 (4) of the Act, the amount of the equity in education tax credit in respect of an eligible child for a taxation year determined under subsection 8.4.2 (2) of the Act must be apportioned between qualifying taxpayers based on the proportion of the tuition fees paid by each of them. Commencement 7. This Regulation comes into force on January 1, 2002. James M. Flaherty Minister of Finance Dated on December 3, 2001.

1080

#67(c) Amendments to the Equity in Education Tax Credit Regulations ((7& 25HJ$SULO25HJ 'HFHPEHU25HJ0D\25HJ 9 August 2003 The Equity in Education Tax Credit Regulations (EETC), Ontario Regulation 498/01, was amended by the Ontario government four times. On 12 April 2002, Ontario Regulation 498/01 was amended to allow more latitude in the provision of information required to ensure eligibility. No other changes were made (Ontario Regulation 134/02, 12 April 2002). On 5 December 2002, Ontario Regulation 498/01 was further amended by Ontario Regulation 384/02, to include a number of changes made as a result of the governPHQW·VH[SHULHQFHGXULQJWKHÀUVW\HDURIWKHFUHGLW7KHVHLQFOXGHGIRUH[DPSOH FKDQJHVWRWKHHOLJLELOLW\UHTXLUHPHQWVIRUFRXUVHVRIVWXG\JUHDWHUÁH[LELOLW\LQ the eligibility criteria for special needs children, and amendments to conditions to EHIXOÀOOHGE\LQGHSHQGHQWVFKRROVLQRUGHUWREHDQ´HOLJLEOHLQGHSHQGHQWVFKRROµ for purposes of the tax credit (such as a requirement that teachers provide an annual VWDWHPHQWFRQÀUPLQJWKDWWKHLUFULPLQDOUHIHUHQFHFKHFNVUHPDLQDFFXUDWHDQGD requirement that the schools’ statements of information be approved by the Ministry RI)LQDQFHÀUVWSULRUWRWKHLUGLVWULEXWLRQWRSDUHQWV  On 22 May 2003, Ontario Regulation 217/03 further amended the conditions to EHIXOÀOOHGE\LQGHSHQGHQWVFKRROVLQRUGHUWREHDQ´HOLJLEOHLQGHSHQGHQWVFKRROµ for the purpose of the tax credit. The amendments included requirements of a school to review the public register of the Ontario College of teachers on a yearly basis for relevant information about its teachers (and provisions for providing this information to parents), providing more detailed information to parents regarding the methods used to measure the progress of students, and providing a statement to parents about how to obtain information about their rights as consumers. The last amendment to Ontario Regulation 498/01 was made on 9 August 2003. Ontario Regulation 340/03 allowed more latitude in the provision of information required to ensure eligibility. No other changes were made.

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217$5,25(*8/$7,21 made under the INCOME TAX ACT Made: April 12, 2002 Filed: April 15, 2002 Printed in The Ontario Gazette: May 4, 2002 Amending O. Reg. 498/01 (Equity in Education Tax Credit) Note: Ontario Regulation 498/01 has not previously been amended. 1. Paragraph 4 of subsection 4 (2) of Ontario Regulation 498/01 is revoked and the following substituted: 4. If a school fails to provide the information by March 31, 2002 but gives a reasonable explanation for its failure to the Provincial Minister, the school is required to provide the information no later than June 28, 2002. 5. A copy of the information must be provided to the Provincial Minister and the Minister no later than the day it is to be provided under paragraph 2, 3 or 4, as the case may be. James M. Flaherty Minister of Finance Dated on April 12, 2002 *******

217$5,25(*8/$7,21 made under the INCOME TAX ACT Made: December 5, 2002 Filed: December 19, 2002 Printed in The Ontario Gazette: January 4, 2003 Amending O. Reg. 498/01 (Equity in Education Tax Credit) Note: Ontario Regulation 498/01 has previously been amended by Ontario Regulation 134/02. 1. Clause 1 (a) of Ontario Regulation 498/01 is revoked and the following substituted: (a) an individual who is at least four years of age throughout the taxation year, but is not 21 years of age or older at any time in the taxation year is an eligible child throughout the taxation year;

1082

8. LEGISLATIVE DEVELOPMENTS IN ONTARIO POST WALDMAN v. CANADA

2. Section 2 of the Regulation is revoked and the following substituted: Eligible course of study 2. (1) The following rules are prescribed for the purposes of clause (b) of the GHÀQLWLRQRI´HOLJLEOHFRXUVHRIVWXG\µLQVXEVHFWLRQ RIWKH$FW 1. An elementary or secondary course of study is an eligible course of study, i. if it complies with such requirements with respect to the length of the instructional program for each school day as are prescribed in Regulation 298 of the Revised Regulations of Ontario, 1990 (“Operation of Schools – General”) made under the Education Act , and ii. if it is a course of study in which at least 75 per cent of the instruction time is undertaken at one or more locations within Ontario. 2. Despite paragraph 1, a course of study for an eligible child who is a child with VSHFLDOQHHGVDVGHÀQHGLQVXEVHFWLRQ LVDQHOLJLEOHFRXUVHRIVWXG\ i. if it is designed for a child with special needs, ii. if it meets the requirements described in paragraph 1 for an eligible course of study, other than the requirement concerning the length of the instructional program for each school day, iii. if it is not a tutoring service supplemental to the child’s regular course of study, and iv. if the taxpayer has made a request to the Minister that the course of study be considered an eligible course of study for the child. (2) For the purposes of paragraph 2 of subsection (1), “child with special needs” means a child, (a) who has behavioural, communicational, intellectual, physical or multiple needs RUFRQGLWLRQVZKLFKKDYHEHHQLGHQWLÀHGE\DQDVVHVVPHQWWKDWLVHTXLYDOHQW to the assessment provided for under subsection 15 (1), (2) or (3) of Ontario 5HJXODWLRQ,GHQWLÀFDWLRQDQG3ODFHPHQWRI([FHSWLRQDO3XSLOV PDGH under the Education Act, and (b) who, as a consequence of such a need or condition, requires the length of his or her instructional program for each school day at the eligible independent school to be reduced. 3. (1) Subparagraph 5 i of subsection 3 (3) of the Regulation is revoked and the following substituted: i. that is paid to an eligible independent school in respect of the eligible child, and  &ODXVHF RIWKHGHÀQLWLRQRI´$µLQSDUDJUDSKRIVXEVHFWLRQ RIWKH5HJXODWLRQ is revoked and the following substituted: (c) described in paragraph 118.2 (2) (e) of the Federal Act as a medical expense that may be taken into consideration in determining the amount of a deduction for the taxation year under subsection 118.2 (1) of the Federal Act and under paragraph 17 of subsection 4 (3.1) of the Act, and

1083

STATE SUPPORT FOR RELIGIOUS EDUCATION

 7KHGHÀQLWLRQRI´%µLQSDUDJUDSKRIVXEVHFWLRQ RIWKH5HJXODWLRQLVUHYRNHG and the following substituted: “B” is the percentage equal to the sum of the lowest rate of tax payable by an individual under subsection 117 (2) of the Federal Act for the taxation year and the ORZHVWWD[UDWHDVGHÀQHGLQVXEVHFWLRQ RIWKH$FWIRUWKH\HDU (4) Subsection 3 (3) of the Regulation is amended by adding the following paragraph: 7. The sum of all amounts, each of which is an amount included in determining the amount of the tuition fees paid to an eligible independent school by a qualifying taxpayer in respect of the eligible child, if a parent or legal guardian of the eligible FKLOGUHFHLYHVDVXEVWDQWLDOÀQDQFLDOEHQHÀWUHDVRQDEO\DWWULEXWDEOHWRWKHSD\PHQW of the fees. 4. Section 4 of the Regulation is revoked and the following substituted: Eligible independent school





 )RUWKHSXUSRVHVRIWKHGHÀQLWLRQRI´HOLJLEOHLQGHSHQGHQWVFKRROµLQVXEVHFtion 8.4.2 (1) of the Act, a school is an eligible independent school for a 12-month period commencing on August 1, beginning with August 1, 2003, if the school VDWLVÀHVDOORIWKHIROORZLQJFRQGLWLRQV 1. The school is not a public or separate school that is administered under the Education Act at any time during the 12-month period.  7KH VFKRRO KDV DW OHDVW ÀYH IXOOWLPH SXSLOV GXULQJ HDFK VFKRRO WHUP LQ WKH 12-month period, each of whom is an eligible child. 3. The school’s principal places of instruction are in Ontario. 4. The school does not have as its principal activity the distribution of educational materials to students or to the public. 5. The school collects a personal criminal history in accordance with subsection (2) of every individual who is an employee of the school or is associated with the school and who comes into regular contact with pupils of the school.  7KHVFKRROJLYHVWKHIROORZLQJLQIRUPDWLRQWRWKHSHUVRQVVSHFLÀHGE\VXEVHFWLRQ (3) and complies with the other requirements set out in subsection (3): i. The legal name of the school, the operating name of the school if it is different from the legal name. ii. The municipal addresses of the school’s principal places of instruction and all other locations of instruction. iii. A description of the academic program taught at the school and the academic achievement expected of each pupil at the end of the program of study. iv. Information indicating whether the school participates in annual student evaluations and, if it does, a description of the method of evaluation. v. Information indicating whether the school has collected the information required by paragraph 5. vi. The professional credentials of each teacher employed by or associated with the school.

1084

8. LEGISLATIVE DEVELOPMENTS IN ONTARIO POST WALDMAN v. CANADA



vii. The policy of the school respecting refunds of tuition and refunds of any other charges or fees. viii. A brief history of the school, including the number of years the school has been in operation. ix. Information relating to the health, safety and general well-being of its pupils, including information indicating whether the school is in compliance with the Building Code and the Fire Code, whether the school has failed to meet any of its obligations under the Health Protection and Promotion Act and whether the school has a code of conduct governing pupils and staff. [ ,QIRUPDWLRQ LQGLFDWLQJ ZKHWKHU ÀQDQFLDO VWDWHPHQWV RI WKH VFKRRO DUH available to a parent or legal guardian who is considering enrolling, or has enrolled, a child at the school. (2) The following rules apply with respect to the personal criminal history required by paragraph 5 of subsection (1): 1. The personal criminal history of an individual is composed of the criminal background check required by paragraph 2 or 3 and the offence declarations required by paragraph 5. 2. The school shall obtain a criminal background check on or before January 1, 2003 for each individual who becomes employed by or associated with the school before January 1, 2003. 3. The school shall obtain a criminal background check for every other individual employed by or associated with the school and shall do so no later than the date on which the individual becomes so employed or associated. 4. The criminal background check required by paragraph 2 or 3 is a document about the individual, i. that is prepared by a police force or service from national data on the Canadian Police Information Centre database within six months before the date on which the school obtains the document, and ii. that contains information concerning criminal offences of which the individual has been convicted under the Criminal Code (Canada) and for which no pardon under section 4.1 of the Criminal Records Act (Canada) has been issued or granted. 5. Every year before September 1, the school shall obtain an offence declaration from each individual who is employed by or associated with the school on or after September 1. This is not required for the year in which the individual becomes employed by or associated with the school, if the employment or association begins on or after September 1. 6. The offence declaration required by paragraph 5 is a written declaration signed by the individual listing all of the offences under the Criminal Code (Canada) of which the individual has been convicted up to the date of the declaration, i. that are not included in the most recent criminal background check obtained by the school in compliance with this subsection, and ii. for which no pardon under section 4.1 of the Criminal Records Act (Canada) has been issued or granted.

1085

STATE SUPPORT FOR RELIGIOUS EDUCATION

(3) The following rules apply in respect of the information to be provided by a school under paragraph 6 of subsection (1). 1. Every year, the school shall give the required information to each parent or legal guardian of a child who is enrolled at the school and shall do so no later than the deadline described in paragraph 6 or, for a child who becomes enrolled after that deadline, upon request. 2. Every year, the school shall give the required information upon request to each parent or legal guardian of a child who is considering enrolling a child at the school. 3. The required information given to parents and legal guardians must be in either English or French and must also be in any other language that is the primary language of instruction at the school. 4. Despite paragraphs 1 and 2, the school is not permitted to give the required information to a parent or guardian until it has been approved by the Minister. 5. No later than February 28 each year, the school shall give the Minister the required information that it proposes to give to parents and legal guardians, and that information must be current to October 30 of the preceding year. 6. In each year, the deadline for providing the required information to parents and legal guardians is the later of, i. April 30, and ii. the day that is 30 days after the Minister approves the required information. (4) Despite subsection (1), a school that commences operations after February 28 and before August 15 in a year is an eligible independent school for the period beginning on the day on which it commenced operations and ending on the following July 31,  D  LIWKHVFKRROVDWLVÀHVWKHFRQGLWLRQVOLVWHGLQVXEVHFWLRQ ZLWKWKHPRGLÀFDtions described in this subsection;  E  LIWKHVFKRROVDWLVÀHVWKHUHTXLUHPHQWVRIVXEVHFWLRQ RWKHUWKDQSDUDJUDSK 5 of subsection (3); and (c) if, in lieu of the requirement set out in paragraph 5 of subsection (3), the school, (i) gives the Minister the required information referred to in that subsection that it proposes to give to parents and legal guardians, which information is current to the date on which it is given to the Minister, and (ii) gives it to the Minister no later than 60 days before the date on which LQVWUXFWLRQÀUVWEHJLQVDWWKHVFKRRO (5) A school that is an eligible independent school on December 31, 2002 continues to be an eligible independent school until July 31, 2003 if, throughout that period, the school continues to satisfy the requirements set out in this section as it read on December 31, 2002. (6) A school that is not an eligible independent school on December 31, 2002 shall be deemed to be an eligible independent school from January 1, 2003 until July 31,

1086

8. LEGISLATIVE DEVELOPMENTS IN ONTARIO POST WALDMAN v. CANADA

2003 if it is an eligible independent school under subsection (1) for the 12-month period beginning on August 1, 2003. (7) Despite subsections (1), (4), (5) and (6), a school that gives the Minister erroneous, inaccurate or misleading information relating to its status as an eligible independent school shall be deemed not to have been an eligible independent school for the period to which the information relates. 5. Section 5 of the Regulation is revoked and the following substituted: Qualifying taxpayer 7KHIROORZLQJUXOHVDUHSUHVFULEHGIRUWKHSXUSRVHVRIFODXVHF RIWKHGHÀQLWLRQ of “qualifying taxpayer” in subsection 8.4.2 (1) of the Act: 1. The person must be a resident of Canada on December 31 of the taxation year. 2. The person must be a parent or legal guardian of an eligible child and must have paid eligible tuition fees in respect of the child. 6. Section 6 of the Regulation is amended by striking out “the proportion of the tuition fees paid by each of them” at the end and substituting “the proportion of the eligible tuition fees paid by each of them”. 7. (1) Subject to subsection (2), this Regulation comes into force on January 1, 2003. (2) Subsections 3 (1), (2) and (3) and sections 5 and 6 shall be deemed to have come into force on January 1, 2002. Janet Ecker Minister of Finance Dated on December 5, 2002 *******

217$5,25(*8/$7,21 made under the INCOME TAX ACT Made: May 22, 2003 Filed: May 26, 2003 Printed in The Ontario Gazette: June 14, 2003 Amending O. Reg. 498/01 (Equity in Education Tax Credit) Note: Ontario Regulation 498/01 has previously been amended. Those amendments are listed in the Table of Regulations published in The Ontario Gazette dated January 18, 2003. 1. (1) Subsection 4 (1) of Ontario Regulation 498/01 is amended by adding the following paragraph:

1087

STATE SUPPORT FOR RELIGIOUS EDUCATION

5.1 The school consults the public register of the Ontario College of Teachers before September 1 each year and reviews any information recorded in the register that relates to the school’s teachers and prospective teachers. (2) Subparagraph 6 iv of subsection 4 (1) of the Regulation is revoked and the following substituted: iv. A description of the methods used by the school to measure the progress of its pupils in reading, writing and mathematics, including details about how and when the school assesses pupils’ progress in those subjects, details about the standard tests, if any, used by the school to assess pupils’ progress in those subjects, and details about how and when the school reports pupils’ progress in those subjects to their parents or legal guardians. (3) Paragraph 6 of subsection 4 (1) of the Regulation is amended by adding the following subparagraphs: vi.1 A summary of the information obtained by the school about its teachers and prospective teachers from the public register of the Ontario College of Teachers, LQFOXGLQJGHWDLOVDERXW WKHVWDWXV RI WKH &HUWLÀFDWHRI 4XDOLÀFDWLRQRI WKRVH teachers and prospective teachers who are registered with the College. … xi. A statement indicating that parents and legal guardians can obtain information about their rights as consumers from the Ministry of Consumer and Business Services, and indicating the Ministry web site and telephone number at which such information can be obtained. Janet Ecker Minister of Finance Dated on May 22, 2003 *******

217$5,25(*8/$7,21 made under the INCOME TAX ACT Made: August 9, 2003 Filed: August 11, 2003 Printed in The Ontario Gazette: August 30, 2003 Amending O. Reg. 498/01 (Equity in Education Tax Credit) Note: Ontario Regulation 498/01 has previously been amended. Those amendments are listed in the Table of Regulations (Legislative History). 1. (1) Section 4 of Ontario Regulation 498/01 is amended by adding the following subsection: (4.1) Despite subsection (1), where a school has failed to provide the information by February 28, 2003 but gives an explanation for its failure to do so that the Minister 1088

8. LEGISLATIVE DEVELOPMENTS IN ONTARIO POST WALDMAN v. CANADA

LVVDWLVÀHGLVUHDVRQDEOHWKHVFKRROLVDQHOLJLEOHLQGHSHQGHQWVFKRROIRUWKHSHULRG beginning August 1, 2003 and ending on July 31, 2004,  D  LIWKHVFKRROVDWLVÀHVWKHFRQGLWLRQVOLVWHGLQVXEVHFWLRQ ZLWKWKHPRGLÀFDtions described in this subsection;  E  LIWKHVFKRROVDWLVÀHVWKHUHTXLUHPHQWVRIVXEVHFWLRQ RWKHUWKDQSDUDJUDSK 5 of subsection (3); and (c) if, instead of complying with paragraph 5 of subsection (3) the school gives the Minister the required information that it proposes to give to parents and legal guardians, current to the date on which it is given to the Minister, no later than September 30, 2003. (2) Subsection 4 (7) of the Regulation is amended by striking out “subsections (1), (4), (5) and (6)” and substituting “subsections (1), (4), (4.1), (5) and (6)”. Janet Lynne Ecker Minister of Finance Dated on August 9, 2003

1089

#67(d) Keeping the Promise for a Strong Economy Act (Budget Measures), 2002, S.O. 2002, c. 22 7KH ÀUVW LQVWDOOPHQW RI WKH WD[ FUHGLW EHJDQ RQ  -DQXDU\  DV RULJLQDOO\ intended. The second phase, an increase to $1400.00 which was to take effect on 1 January 2003, was delayed in the budget passed in December 2002. The Ontario *RYHUQPHQWVWDWHGWKDWWKLVZDVGXHWRÀQDQFLDOFRQVWUDLQWV

&+$37(5 An Act to implement Budget measures and other initiatives of the Government Received Royal Assent December 9, 2002 Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows: … PART XIV INCOME TAX ACT … 109. Paragraphs 1 and 2 of subsection 8.4.2 (3) of the Act, as enacted by the Statutes of Ontario, 2001, chapter 8, section 41, are repealed and the following substituted: 1. If the taxation year commences after December 31, 2001 and ends before January 1, 2004, the appropriate percentage is 10 per cent. 2. If the taxation year commences after December 31, 2003, the appropriate percentage is 20 per cent. … Commencement 113. (1) Subject to subsections (2) to (5), this Part comes into force on the day this Act receives Royal Assent. Same (2) Sections 103 and 112 come into force on a day to be named by proclamation of the Lieutenant Governor. Same (3) Subsections 108 (1) and (2) come into force on January 1, 2003. Same (4) Subsection 108 (3) shall be deemed to have come into force on January 1, 2001.

1091

STATE SUPPORT FOR RELIGIOUS EDUCATION

Same (5) Section 111 shall be deemed to have come into force on February 1, 2002. … PART XXIX COMMENCEMENT AND SHORT TITLE … Short title 198. The short title of this Act is the Keeping the Promise for a Strong Economy Act (Budget Measures), 2002.

1092

#67(e) The Right Choices for Equity in Education Act (Budget Measures), 2003, S.O. 2003, c.5 In June 2003, the Ontario Government passed The Right Choices for Equity in Education Act (Budget Measures), 2003, which reinstated the original phased in VFKHGXOHIRUWKHÀUVWWZR\HDUVRIWKHWD[FUHGLWDQGIXUWKHUVHWRXWWKHVFKHGXOH for the full implementation of the credit by the taxation year commencing January 2006. For the taxation year commencing January 2004, the tax credit would be 30% of fees paid; in 2005, 40%; and 2006, 50% (to a maximum of $3500.00). The budget measures received royal assent on 26 June 2003.

&+$37(5 An Act respecting the equity in education tax credit Received Royal Assent June 26, 2003 Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows: 1. Subsection 8.4.2 (3) of the Income Tax Act, as enacted by the Statutes of Ontario, 2001, chapter 8, section 41 and amended by 2002, chapter 22, section 109, is repealed and the following substituted: Appropriate percentage (3) For the purposes of “A” in subsection (2), the following is the appropriate percentage for the taxation year indicated: 1. For a taxation year that commences after December 31, 2001 and ends before January 1, 2003, 10 per cent. 2. For a taxation year that commences after December 31, 2002 and ends before January 1, 2004, 20 per cent. 3. For a taxation year that commences after December 31, 2003 and ends before January 1, 2005, 30 per cent. 4. For a taxation year that commences after December 31, 2004 and ends before January 1, 2006, 40 per cent. 5. For a taxation year that commences after December 31, 2005, 50 per cent. Commencement 2. This Act comes into force on the day it receives Royal Assent. Short title 3. The short title of this Act is The Right Choices for Equity in Education Act (Budget Measures), 2003.

1093

#67(f) Fiscal Responsibility Act, 2003, S.O. 2003, c.7 On 2 October 2003, a provincial election brought to power a new Liberal government in Ontario. Representatives of the Liberal Party said, both before and after the election, they would rescind the Equality in Education Tax Credit. In December 2003, the new government passed legislation rescinding the tax credit. Notwithstanding that the credit had taken effect, the government withdrew the credit retroactively to the taxation year commencing January 2003. The repealing legislation received royal assent on 18 December 2003.

&+$37(5 $Q$FWUHVSHFWLQJÀVFDOUHVSRQVLELOLW\ Received Royal Assent December 18, 2003 Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows: … Income Tax Act … 13. (1) Paragraph 2 of subsection 8.4.2 (3) of the Act, as re-enacted by the Statutes of Ontario, 2003, chapter 5, section 1, is repealed. (2) Paragraphs 3, 4 and 5 of subsection 8.4.2 (3) of the Act, as enacted by the Statutes of Ontario, 2003, chapter 5, section 1, are repealed. … Commencement and Short Title Commencement 19. (1) Subject to subsections (2), (3) and (4), this Act comes into force on the day it receives Royal Assent. Same (2) The following provisions come into force on January 1, 2004: 1. Sections 1 and 2. 2. Subsections 3 (1) to (4). 3. Sections 4 to 6. 4. Sections 9 to 11. 5. Subsection 13 (2). Same

1095

STATE SUPPORT FOR RELIGIOUS EDUCATION

(3) Subsections 3 (5), 12 (3) and 13 (1) shall be deemed to have come into force on January 1, 2003. Same (4) Section 18 shall be deemed to have come into force on November 25, 2003. Short title 20. The short title of this Act is the Fiscal Responsibility Act, 2003.

1096

Index Alberta alternative schools, 6 Charter Schools, 5 Francophone school boards, 5 independent school groups and associations, 573 independent schools, 6-7 funding, 6-7, 810 private education, accredited private schools, 7, 561 funding, 6-7, 549, 561-562, 575 legislation, 560-562 registration of schools, 560-561  WHDFKHUFHUWLÀFDWLRQDQGTXDOLÀcation, 577 school funding, 5-7, 317 separate schools, 414-415 types of schools in, 5-6 Alberta Association of Independent Schools and Colleges (AISCA) purpose of, 810 Australia private schools, funding, 321-322 British Columbia denominational schools, 413 independent school groups and associations, 572 independent schools, funding, 810811 private education, enrolment, 565 funding, 4-5, 549,563-565, 575  LQGHSHQGHQWVFKRROVFODVVLÀFDtion, 562-563 legislation, 562-565  WHDFKHUFHUWLÀFDWLRQDQGTXDOLÀcation, 577 school funding, 4-5, 316-317 Canadian Bill of Rights

preamble, 657 Canadian Charter of Rights and Freedoms Adler v. Ontario, 20-21, 707-767 Bal v. Ontario, 21, 813-842 conscience and religion, freedom of, 3 Canadian Civil Liberties Association v. Ontario (Minister of Education), 20, 671-705 Constitution, not invalidating, 19, 21, 595-629, 707-767 equality programme, coming into force, 408-410 equality rights, 52, 468 establishment clause, lacking, 644 freedom of conscience and religion under, 3, 19, 20, 51, 631-670, 671705, 751-754 violation of, 19-20, 631-670, 671-705 fundamental freedoms, 51 guarantee of rights and freedoms, 51  MXVWLÀFDWLRQRILQIULQJHPHQW 648, 704-705 legislation not conforming to, 2 minority language educational rights, 52, 139 preamble, 658 Re Zylberberg and Sudbury Board of Education (Director), 19-20, 631-670 Reference re an Act to Amend the Education Act (Ontario), 18-19, 595-629 religious instruction in public schools violating, 19-20, 631-670, 671-705, 813-842 religious indoctrination violating, 689-691 religious school funding, and, 20-21, 707-767, 813-842 restrictions on rights, 468

1097

STATE SUPPORT FOR RELIGIOUS EDUCATION

rights and freedoms guaranteed by, 3 state obligations vis-à-vis private schools, effect on, 397-408 Canadian Constitution. See also Canadian Charter of Rights and Freedoms. Adler v. Ontario, 20-21, 707-767 amendment to, 3, 10, 11, 55, 151152 bilateral section 43 amendments, 132 Charter not to be used to invalidate, 19, 21, 595-629, 707-767 freedom of conscience and religion, impact of, 19 historic compromise, 1-2 law inconsistent with, 53 religious minority education rights, 1-4 Quebec, denominational school funding in, 10, 55 Reference re an Act to Amend the Education Act (Ontario), 18-19, 595-629  UHOLJLRXVHGXFDWLRQQRWVSHFLÀFWR denomination, amendment permitting, 151-152 Section 93 guarantees, 2, 709 Section 93, history of, 1-4 Terms of Union of Newfoundland with Canada, amendment of, 11, 136-138, 151-152 Charitable donations privately supported schools, to, 157-159 tuition fees not being, 157 Christian reform religious education, 813-842 Denmark private schools, funding, 321 Disabled children independent Christian school, not accepted in, 797, 808-809 School Health Support Services Program (SHSSP), availability of, 726-727, 737-738, 758, 766-767, 808-812

Discrimination. See Non-Discrimination; Canadian Charter of Rights and Freedoms; Freedom of Conscience and Religion; Religious Discrimination; International Covenant on Civil and Political Rights; Waldman v. Canada. Education common curricular experience, 452 Constitution Act, 1867, 45-49 denominational system, elimination of, 3 equality of opportunity, 450-451 excellence in, 453 external good, as, 448 factors affecting organizational arrangement of, 429 good of state, for, 446-447 good, assumption of, 430-431 individual differences, enhancement or diminution of, 452-453 individual good, as, 447 jurisdiction over, pre-Charter constitutional position, 394-396 mandatory, 431-432 minority language rights, 52, 139, 717 Ontario, in. See Ontario parent, State and child, rights of, 444-450 private good, as, 445-446 private. See Private education provision of, philosophical background, Christianity, 435-437 classicism, 435-437 individual development, 437-439 Judaism, 435-437 pragmatism, 439-440 progressive movement, 439-440 relationships between, 469 Rousseau, ideas of, 437-439 subjective existentialism, 441442 summary, 443 traditionalism, 435-437 1098

INDEX

unfettered choice, 437-439 utilitarianism, 440-441 public provision, 433-435 religious discrimination, 1-4, 13-17, 19-21. See also religious discrimination religious. See Religious education right to, International Covenant on Civil and Political Rights, 141, 167168 International Covenant on Economic, Social and Cultural Rights, 140-141 Universal Declaration of Human Rights, 140 societal homogeneity or heterogeneity, 451 voucher system, 454 England private schools, funding, 322-323 Equality. See Non-discrimination; Canadian Charter of Rights and Freedoms; International Covenant on Civil and Political Rights; Religious Discrimination; Waldman v. Canada. Federal Spending Power effect of, 28 Federation of Independent Schools independent education, overview, 569-577 representation, 569 France private schools, funding, 320-321 Freedom of conscience and religion Adler v. Ontario, 20-21, 707-767 Bal v. Ontario, 21, 813-842 Canadian Charter of Rights and Freedoms, under, 3, 751-754 applicable provisions of, 674 Canadian Civil Liberties Association v. Ontario (Minister of Education), 20, 671-705 conformity, freedom from, 20, 816 Constitution, impact on, 19

differential treatment, accommodation, 728 Education Act, accommodation by, 752 Human Rights Committee, General Comment 22, 191-194 Human Rights Committee, General Comment 23, 195-198 International Covenant on Civil and Political Rights, 167-168  MXVWLÀFDWLRQRILQIULQJHPHQW 648 limitation on, 639, 816 meaning, 816 minority, requirement to conform to practices of majority, 20, 631-670 multicultural approach, 730 nature of, 638-640, 816 non-believers, observances imposed on, 818 non-funding in independent schools, violation by, 20-21, 707-812, 824826, 831-833 Ontario legislation, whether infringing, 20-21,631-670, 671-705, 707-767, 813-842 Re Zylberberg and Sudbury Board of Education (Director), 19-20, 631-670 religious education curricula, violating, 20, 671-705 religious exercises in school violating, 20, 631-670, 677 religious indoctrination violating, 20, 689-691 religious school funding, and, 20-21, 707-767, 831-842 School Act, accommodation by, 752 U.S cases, issue in, 654 UN Human Rights Committee, issues before, 21-27 Freedom of expression International Covenant on Civil and Political Rights, 168 religion, views on, 836-838

1099

STATE SUPPORT FOR RELIGIOUS EDUCATION

Government economic functions, 483-487 Hindus religious education, 813-842 Home care  IDFLOLW\GHÀQLWLRQ  VHUYLFHVGHÀQLWLRQ Human rights nineteenth century provisions, 1 Human Rights Committee. See United Nations Human Rights Committee Human rights treaties. See also International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights.  &DQDGDUDWLÀFDWLRQE\ Effective implementation, 29 Premier of Ontario, letter from UHJDUGLQJUDWLÀFDWLRQ Independent Christian schools busing, 809 disabled children, treatment of, 797, 808-809 handicapped child, exclusion of, 797 non-funding, legality of, 707-812, 824-826, 831-833 quality of education in, 800 school health support services, non-availability of, 794-795 Independent schools. See Private education International Covenant on Civil and Political Rights. See also United Nations Human Rights Committee accession, 177 amendment, 177 child, protection of, 169 compliance, monitoring, 23 compliance, report on Canada, 30-31 criminal charge, minimum guarantees on, 166-167 criminal offence, acts and omissions being at time of commission, 167 1100

cruel, inhuman or degrading treatment or punishment, prohibition, 164 disregard of obligations by Canada, 29-30 education, right to, 141 effective remedy, right to, 26, 162 entry into force, 161, 177 equality before the law, 166, 169 equality rights, 22-27, 162, 169, 1013-1027 expulsion from territory, rights, 166 family rights, 169 freedom of association, right of, 168 freedom of expression, right to, 168 general note, 161 Government of Canada, acceptance of responsibilities by, 28 Human Rights Committee. See United Nations Human Rights Committee implementation, 176  LPSULVRQPHQWIRUIDLOLQJWRIXOÀO contractual obligation, prohibition, 165 individuals, complaint of violations by, 24 innocence, presumption of, 166 liberty and security of person, right to, 165 liberty of movement and right to choose residence, 165 life, right to, 163-164 minorities, rights of, 170 national standards and practices, consistency of, 23 national, racial or religious hatred, prohibition of promotion, 168 non-discrimination, 162, 169 opinions, right to hold, 168 Optional Protocol, 21-22, 24, 179182 peaceful assembly, right of, 168 person deprived of liberty, treatment, 165 person, right to recognition as, 167

INDEX

public funding of schools in Ontario, communication concerning. See United Nations Human Rights Committee public school system, integration into, 579-593 Re Board of Education for the Borough of North York and Ministry of Education, 18, 579-593 Quebec, in, 416 schedule of, 783-784  VWXGHQWVÀQDQFLDODVVLVWDQFH survival of Jewish communities, indispensable to, 771-778 variations in, 781

preamble, 161-162 privacy, family, home or correspondence, no interference with, 167 provisions of, 161-178 public affairs, right to take part in, 169 public funding of schools in Ontario, communication concerning. See United Nations Human Rights Committee  UDWLÀFDWLRQRI religious discrimination, complaint of, 22-23 self-determination, right of, 162 slavery, servitude and forced labour, prohibition, 164 thought, conscience and religion, freedom of, 167-168 Human Rights Committee, General Comment 22, 191-194 Human Rights Committee, General Comment 23, 195-198 torture, prohibition, 164 war propaganda, prohibition, 168 International Covenant on Economic, Social and Cultural Rights education, right to, 140-141

Legislation constitutional validity, examination of, effects, relevance of, 661-667 purpose, examination of, 649661 Life, right to International Covenant on Civil and Political Rights, 163-164

Jewish education importance of, 14 Ontario, in, 18 Jewish schools content of education, 782 cost of, 779-781 curriculum, 782 funding, source of, 779, 787 Jewish studies, 782 Jewish tradition, encompassing, 785 non-funding, legality of, 707-812, 824-826, 831-833 number of students in, 781 Ontario, in, 540, 544 Orthodox tradition, 790-791 public funding of private schools, position on, 335-336

Manitoba independent school groups and associations, 573 independent schools, funding, 8-9, 811-812 private education, clinician services, 558 curricular materials, 558 facilities and resources, 559 funding, 8-9, 549, 556-557, 576 instruction and services, 557-558 legislation, 556-559  SULYDWHVFKRROGHÀQLWLRQ special needs, 558  WHDFKHUFHUWLÀFDWLRQDQGTXDOLÀcation, 577 transportation grants, 558 school funding, 8-9, 315 separate schools, 410-413

1101

STATE SUPPORT FOR RELIGIOUS EDUCATION

minority and denominational rights. issue of, 123-125 minutes of proceedings, 150 non-denominational courses in religion, 127 opting out of religions courses or observances, 127-129 order of reference, 113-115 Progressive Conservative opposition, dissenting opinion, 149 recommendation, 129 Reform Party dissenting opinion, 148-149 religious observances, 127 students’ rights, 125-127 table of contents, 115-116 witnesses, 121-123 Standing Senate Committee on Legal and Constitutional Affairs Report, aboriginal peoples, submissions of, 74-75 additional views, 100-102 conclusion, 75-76 constitutional amendment, need for, 101 denominational rights, 81-82 dissenting opinion, 76-104 fairness of process, 82-84, 103 Framework Agreement, 67-68 historical background, 76-77 House of Assembly, views of, 98-100 list of witnesses, 104-110 local people, views of, 89-90 mandate and background, 63 members, 58 minority observations, 102104 minority rights, 68-75, 84-88 national fabric, effect on, 88-89, 104 order of reference, 59-61

Mennonites religious education, 813-842 Muslims religious education, 813-842 Minorities. See religious discrimination; Freedom of Thought, Conscience and Religion. Netherlands private schools, funding, 320 New Brunswick independent school groups and associations, 574 private school funding, 10, 553, 576 separate schools, 410 New Zealand private schools, funding, 319 Newfoundland Constitutional Amendment Proclamation, 133-134, 151-152 educational system, 77-79 independent school groups and associations, 574 private school funding, 11-12, 314, 551-552  UHOLJLRXVHGXFDWLRQQRWVSHFLÀFWR denomination, Constitution amendment permitting, 151-152 separate schools, 415-416 Terms of Union with Canada, Constitution of Canada, amendment to, 3, 11,136-138, 151-152 education, 135 Memorandum of Agreement, 134-135 referendum, 130-132 Special Joint Committee on the Amendment to Term 17, Report, background, 116-121 evidence before, 121-129 history of Term 17, 117-121 list of submissions, 145-147 list of witnesses, 142-145 members, 112

1102

INDEX

other provinces, effect of amendment on, 75 protected denominations, views of, 92-95 provincial rights, protection of, 65-67 Royal Commission report, events following, 90-92 Senate, role of, 63-68, 79-81 table of contents, 61-62 teachers, parents and non-denominational interests, 95-97 uni-denominational schools, right to, 70-73 views of witnesses, criteria, 82 Non-discrimination. See also Canadian Charter of Rights and Freedoms; Freedom of Conscience and Religion; Religious Discrimination; International Covenant on Civil and Political Rights; Waldman v. Canada Adler v. Ontario, 20-21, 707-767 Bal v. Ontario, 21, 813-842 Canadian Civil Liberties Association v. Ontario (Minister of Education), 20, 671-705 Human Rights Committee, General Comment 18, 187-190 International Covenant on Civil and Political Rights, 162, 169 Re Zylberberg and Sudbury Board of Education (Director), 19-20, 631-670 Reference re an Act to Amend the Education Act (Ontario), 18-19, 595-629 religious instruction in public schools, 20, 631-670, 813-842 religious school funding, and, 20-21, 707-767, 813-842 Roman Catholic and other religions, discrimination between, 1-4, 13-17, 707-767, 1013-1027 Northwest Territories private education, 565-566

private schools, public funding, 12, 314 Nova Scotia independent school groups and associations, 575 private school funding, 11, 315, 553 separate schools, 410 Nunavut Territory private schools, public funding, 12-13 Ontario  FHUWLÀFDWHVDQGGLSORPDVLQHGXFDtion (1950), 241-242 climate and geography, 238 demographic, 16 denial of equality in, 15 elementary schools (1950), 240 enrolment in private schools by UHOLJLRXVDIÀOLDWLRQV 233 enrolment in publicly funded schools by school type and level, 2002-2003, 231 French language, teaching in, 588 Hebrew schools, 18 independent school groups and associations, 574 non-Catholics, differential treatment of, funding rights, 1-4, 13-17, 18-19, 707-812 historic compromise, 1-2, 707767 inequality, 13-17, 707 non-Catholic religious schools, public funding litigation, 17-21, 579-595, 707-767, 813-842 particular school, right to attend, 587-592 per capita production, 238 period of consolidation, 1870-1900, 248-251 period of expansion, 1840-1870, 245-248 pioneer period, 1800-1840, 242-245

1103

STATE SUPPORT FOR RELIGIOUS EDUCATION

population (1941), 239 private and public education, possible policies for operation of, associated schools plan, 462-465 choice of options, 470-474 partial funding for pupils attending approved private schools, 458-459 public funding with a spending cap, 459-462 ranking of options, 466-467, 480 simulated value positions, 478480 single provincial school system, 456 status quo, 456-457 status quo plus provision of limited services for approved private schools, 457 status quo plus tax deductibility of fees paid to approved private schools, 457-458 summary of, 454-455 taxable grants to parents with children in approved private schools, 458 voucher system, 465-466 voucher system with cap, 465 private education, laws currently in force (1985), 392-393  WHDFKHUFHUWLÀFDWLRQDQGTXDOLÀcation, 577 private school funding. See Ontario private schools  UHOLJLRXVDIÀOLDWLRQV religious denominations, statistics, census 1870-71, 199-203 census 2001, 213 major denominations, 1991 and 2001, 215-216 religious education. See Ontario, religious education religious exercises in school. See Ontario, religious exercises in school

religious instruction of particular faiths, impermissible, 19-20, 631670, 671-705 religious schools, funding, 4, 20-21, 579-596, 707-767, 813-842 Report of the Commission on Private Schools. See Report of the Commission of Private Schools in Ontario (Shapiro Report) Roman Catholic schools, funding, 1-2, 13-17, 595-631 school enrolment statistics, 17 school funding, 9 school health services, provision in public school system, 707 secondary schools (1950), 241 territorial division (1950), 239 total school board expenditure, 2000-01, 217-229 tripartite education system (1843), 611-612 vocational schools (1950), 241 Ontario Alliance of Christian School Societies (OACSS) education philosophy, 805-808 establishment of, 802 handicapped students, provision of health services to, 808-809 member school societies, 803-804 membership, 803 nature of, 802 private school system, as, 802 professional standards, setting, 802 purpose of, 802 Ontario common schools annual grant, 613-614 Commissioners, 611 courses in, 612-613 funding, 617 grammar schools, and, 610-611 statutory provisions, 612-613 Ontario Education Act 13 Adler v. Ontario, 20-21, 707-767 Bal v. Ontario, 21, 813-842

1104

INDEX

constitutional rights and privileges, 154 interpretation, 153-154 legislative grants, 155-156 note on, 153 Protestant separate school boards, 155 public school boards, 155 Re Board of Education for the Borough of North York and Ministry of Education, 18, 579-593 Reference re an Act to Amend the Education Act (Ontario), 18-19, 595-629 religious exercises, public school boards, 155, 579-596, 631-670, 671-708 religious instruction, public school boards, 155, 579595, 631-670, 671-708, 813-842 Roman Catholic Boards, 155 religious schools, and, 20-21, 707767 Roman Catholic Boards, 155 Ontario grammar schools common schools, and, 610-611 provision for, 610 Ontario private schools Catholic, 539 conclusion, 542-544  GHÀQLWLRQ  ÀQDQFLQJ abstract, 481 charitable purposes, income tax deduction for, 508 context, 428 cost of providing aid, 507-515 current programme of aid, 507509 deductions, 490 different forms of aid, costs of, 510-515 direct payments to parents, 510-512 direct payments to school systems, 513 1105

direct payments to schools, 512-513 direct payments to staff, 512 discussion, conclusion and recommendations, 517-520 federal budget implications, 520  ÀQDQFLDODLGDPRXQWRI 485 forms of aid, 487-492 full funding, cost of, 509-510 goods and services, provision to children, 514 goods and services, provision to schools or school systems, 514 Ontario Institute for Studies in Education study, 427-480 parent, State and child, rights of, 444-450 parents, tax deductions to, 9, 515 preliminary assumptions, 430435 property tax exemption, 507 public purchase, amount of, 486 recipients, 487 refusal of, 550 religious tuition, deduction for, 508 Report of the Royal Commission on Education. See Report of the Royal Commission on Education in Ontario (Hope Report) tax credits, 491, 515. See also Tax credits tax exemptions, 514 total current support, 508 transitional costs of providing aid, 515-517 fundamentalist and evangelical Christian groups, involvement by, 540-541 history of, 529-546 innovation, of (1900-1960), 536-538 Jewish, 540, 544 legislation, 556 multicultural, 543

STATE SUPPORT FOR RELIGIOUS EDUCATION

necessity, of (1780-1850), 530-532 non-funding of, legality, 707-812 non-sectarian, 541-542 Pickering College, 537 post-war immigration, relevance of, 543 private-venture academic schools, 536 privilege, of (1850-1900), 532-535 protest, of (1960-1980), 539-542 public funding of, 9 religious initiatives for, 533 sexually-segregated, 534 survey, actual sample, description of, 493-499 administration of questionnaire, 493 questionnaire design, 493, 525529 results, description of, 499-506 sample of schools, selection, 492 traditional, 542 Upper Canada College, 535 Ontario public schools Bal v. Ontario, 21, 813-842 Canadian Civil Liberties Association v. Ontario (Minister of Education), 20, 671-705 Re Board of Education for the Borough of North York and Ministry of Education, 18, 579-593 Re Zylberberg and Sudbury Board of Education (Director), 19-20, 631-670 Reference re an Act to Amend the Education Act (Ontario), 18-19, 595-629 religion, place of, 635 religious exercises, challenge to, 19-20, 631-670, 677 religious instruction of particular faith not permitted in, 18-20, 579593 631-670, 671-705 Ontario, religious education Adler v. Ontario, 20-21, 707-767

1106

Bal v. Ontario, 21, 813-842 Canadian Civil Liberties Association v. Ontario (Minister of Education), 20, 671-705 Charter, applicable provisions of, 674 choice, of, 672 constitutionality of requirement, 676 curriculum, 675 curriculum, constitutionality of, 19-20, 671-705 Education Act, 1990, 155, 584 effect of provision, 685, 691-692 exemption from, 20  ÀUVWFDVHRQ freedom of conscience and religion, consistency with, 19-20, 671-705 historic compromise, 1-2 history of legislation, 678-685 Hope Commission report, 681-685 indoctrination by, 20, 671-705 Mackay Committee report, 681-685 particular faiths, of, 19-20 public education system, in, 18-21, 579-593, 631-670, 671-705, 813842 purpose of provision, 685-689 Re Board of Education for the Borough of North York and Ministry of Education, 18, 579-593 Re Zylberberg and Sudbury Board of Education (Director),19-20, 631-670 Reference re an Act to Amend the Education Act (Ontario), 18-19, 595-629 Regulation 262, 672-674 religious exercises distinguished, 672 religious instruction in public schools, 19-20, 631-670, 813-842 religious schools, public funding, 20-21, 707-767 Regulation 191, 584-586

INDEX

United Nations Human Rights Committee, complaint to. See United Nations Human Rights Committee Ontario, religious exercises in school broad secular purpose, 667 Canadian Civil Liberties Association v. Ontario (Minister of Education), 20, 671-705 challenge to law requiring, 19-20, 631-670, 671-705 Charter freedoms, infringement of, 638-668 effects of provision, 640-645, 661667 equality rights, challenge to, 668670 factual background, 633-635 freedom of conscience and religion, violating, 815 historical background, 635-638 individual exemption, 652 litigation, 20 public schools, in, 19-20, 631-670, 671-705 purpose of provision, 649-661 regulations, 632-633 Re Zylberberg and Sudbury Board of Education (Director), 19-20, 631-670 religious education distinguished, 672 statutory provision, 631 Ontario Roman Catholic separate schools Adler v. Ontario, 20-21, 707-767 Administration (to 1950), 288-290 admission to, 39 annual fund, share in, 41 appropriate education, right to, 620 assessment, borrowing powers and grants (1950), 290-295 Board of Trustees, 36 Constitution, consistency of Bill with, 603-622  ÀUVWSURYLVLRQIRU

full funding for, 1-4, 13-17, 18-19, 21, 595-629, 718 Charter of Rights, application of, 621-622, 627-629, 707-767 Constitution, consistency of Bill with, 18-19, 603-622 Historic compromise, 1-2 policy of, 597, 608-621 growth in (1950), 270-271 inspection, 43, 615 legislation, prior to confederation, 272-286, 609-615 reference on, 595-629 since confederation, 286-296, 615-621 notice of establishment, 36 powers of trustees, 37-38 provincial power relating to education, proper exercise of, 623-629 Reference re an Act to Amend the Education Act (Ontario), 18-19, 595-629 restoration of rights, 35 school board, 597 statutory provisions, 614 submissions, 602-603 support for (1950), 270 supporters, exemption from common school rates, 39-40  WHDFKHUV·FHUWLÀFDWHRITXDOLÀFDWLRQ 39 union, 37 visitors, 42 Ontario separate schools Adler v. Ontario, 20-21, 707-767 origin and development of, 269-295 Protestant, 269 Roman Catholic. See Ontario Roman Catholic separate schools Prince Edward Island denominational schools, 413 independent school groups and associations, 575

1107

STATE SUPPORT FOR RELIGIOUS EDUCATION

 SULYDWHVFKRROÀQDQFLQJ private schools, public funding, 11, 315 Private education Alberta, 5-7, 549, 561-562, 575, 577 British Columbia, 4-5, 549, 562566, 575, 577 Canadian Charter of Rights and Freedoms, effect of, 397-408 constitutional right to establish schools, 397-400 decision making matrix, 466, 475477 English-style schools, 548 enrolment in, 548-551, 570 Federation of Independent Schools overview, 569-577 historical comparisons, 571 laws currently in force (1985), 392-393 Manitoba, 8-9, 549, 556-559, 576577 New Brunswick, 10, 553 Newfoundland, 11-12, 551-552 Northwest Territories, 12, 565-566 Nova Scotia, 12, 553 Ontario. See Ontario private schools parent, values of, 448-450 Prince Edward Island, 11, 552 Quebec, 10, 554-556 Report of the Commission of Private Schools in Ontario. See Report of the Commission of Private Schools in Ontario (Shapiro Report) Saskatchewan, 7-8, 549, 559-560, 577 schools, public funding, CEA Information Note, 547-567 debate on, 548 language teaching, 550 Ontario, in. See Ontario private schools provinces providing, 4-12, 549550

state funding, 401-408 state regulation, 400-401 statistics, 549-551 values, 448-450 Yukon Territory, 12, 566 Private school  GHÀQLWLRQ Independent religious, legality of non-funding, 707-812, 824-826, 831-833 Ontario. See Ontario private schools Protestants minority, historical compromise, 1-2 Public schools. See also Ontario Public Schools Charter challenge, open to, 719 Constitution, inclusion in, 720 opt-in, 814, 834-835 Pupil  H[FHSWLRQDOGHÀQLWLRQ Quebec Constitutional amendment, 3, 10, 55 French language and English language school boards, establishment of, 56 independent school groups and associations, 574 Jewish children, education of, 416 private education, funding, 10, 549, 554-556, 576 institutions declared of public interest, 554 institutions recognized for purpose of grants, 549, 554 legislation, 554 teaching permit, schools holding, 554 private schools, public funding, 10, 55, 318 separate schools, 416-417 Religious denominations, statistics census, 2001, 209

1108

INDEX

major denominations, 1991 and 2001, 211-212 Ontario, 215-216 Ontario, census 1870-71, 199-203 Ontario, census 2001, 213 selected years, 1871-1981, 205-207 Religious discrimination See also: Ontario, religious education,; Ontario, religious exercises; Canadian Charter of Rights and Freedoms; Freedom of Thought, Conscience and Religion; nonDiscrimination; Waldman v. Canada. Adler v. Ontario, 20-21, 707-767 Bal v. Ontario, 21, 813-842 Canadian Constitution, section 93, 595-629 Canadian Constitution, and, 1-4, 19-20 Canadian Charter of Rights and Freedoms, 18-21, 595-629, 631-670, 671-705 Canadian Civil Liberties Association v. Ontario (Minister of Education), 20, 671-705 Government of Canada, abdication of responsibilities by, 27 History of litigation in Canada, 17-21 International Covenant on Civil and Political Rights, provisions of, 22-23, 167-168 minorities, in Ontario, 2, 3-4, 14-17 provincial comparison of school funding (table), 34-35 non-funding of religious schools in Ontario, 1-4, 13-17, 20-21, 25-27, 707-767, 813-842, 1013-1027 Re Zylberberg and Sudbury Board of Education (Director), 19-20, 631-670 Reference re an Act to Amend the Education Act (Ontario), 18-19, 595-629 religious instruction in public schools, 631-670, 671-705

Roman Catholic Separate School funding in Ontario, 1-4, 13-17, 18-19, 25-27 UN Human Rights Committee, issues before, 21-27  :DOGPDQY&DQDGDÀQDOYLHZV 1013-1027 Religious education Adler v. Ontario, 20-21, 707-767 Bal v. Ontario, 21, 813-842 Canadian Constitution, section 93, 18-19, 595-629 Canadian Charter of Rights and Freedoms, 18-21, 595-629, 631-670, 671-705 Canadian Civil Liberties Association v. Ontario (Minister of Education), 20, 671-705 Constitution Act, 1867, 45-49 current state of affairs, 31-32 curriculum, constitutionality of, 671-705, 818 elements of, 693-703 equality rights, infringement of, 704 freedom of conscience and religion, whether infringing, 671705 law or conduct, as, 692 particular faith, not to give primacy to, 813-842 discrimination, issues before UN Human Rights Committee, 21-27. See also United Nations Human Rights Committee funding. See School funding Hope Commission report, 748 indoctrination, and, 693, 703-704 MacKay Committee report, 748 Ministry of Education memorandum, 820-823 minorities, for, 813-842 Ontario, in. See Ontario, religious education particular faith, not to give primacy to, 813-842

1109

STATE SUPPORT FOR RELIGIOUS EDUCATION

policy, 822 Re Board of Education for the Borough of North York and Ministry of Education, 18, 579-593 Reference re an Act to Amend the Education Act (Ontario), 18-19, 595-629 regulations, 823 religious instruction in public schools, 19-21, 631-670, 671-705, 813-842 Report of the Commission of Private Schools in Ontario 1985 (Shapiro Report), recommendations, 380-382 tax credits, 28-29 Religious schools Constitution, Section 93 guarantees, 2 Report of the Commission of Private Schools in Ontario (Shapiro Report) current programmes of aid, 309-310 establishment of Commission, 302-303 general note, 297 historical periods, 305 legislative references, 306-307 mandate, 297 Ontario Institute for Studies in Education study, 427-480 operating costs, 308-309 past history, 305-306 plan of work, 303-304 public funding, associated schools, 366-372 comparative perspectives, 313323 Conference of Independent Schools, approach of, 340-341 educational equality, 363 informal consultations, 324-327 Jewish schools, position of, 335-336 legal and constitutional aspects of, 391-410

1110

limited support, programmes of, 364-366 matters of principle, 346-349 non-Roman Catholics, discrimination against, 360-361 Ontarians, views of, 323-344 parents’ rights, 360 problems with, 345-346 Protestant denominational schools, position of, 336-340 provincial government, responsibility of, 349 public opinion polls, 324 public policy, development of, 323 public school boards, position of, 328-333 recommendations, 345-386 response to, 359 schools for special education, position of, 342-344 separate school boards, position of, 333-335 social cohesion argument, 361362 status quo, arguments for, 361 tolerance, question of, 362 written briefs, 327-344 recommendations, 345-386 board schools, opportunities for, 372-378 consequences and challenges, 388-391 costs, 387 home schooling, 380 Ministry of Education, role of, 385 pre-schools programmes, 379 private schools, status, responsiELOLWLHVDQGWHDFKHUTXDOLÀFDWLRQV 352-357 process, matters of, 384-391 provincial government, role of, 385-386 public funding, 357-372  TXDOLÀHGWHDFKHUV

INDEX

religious education, 380-382 satisfactory instruction, 350-351 special cases, 378-384 special education, 382-384 statistical overview, 307-308 table of contents, 299-301 visits, 310-313 Report of the Royal Commission on Education in Ontario 1950 (Hope Report) aims of education, 254-255 curriculum, scope of, 261-264 educational philosophies or theories, base for aims, 265-269 cardinal virtues, 258-260 fundamental issues, 256-258 habit, customs and conventions, force of, 260-261 schools of thought, 255-256 whole child, development of, 264-265 educational scene,  FHUWLÀFDWHVDQGGLSORPDVLQ education, 241-242 elementary schools, 240 generally, 237-242 period of consolidation, 18701900, 248-251 period of expansion, 1840-1870, 245-248 pioneer period, 1800-1840, 242-245 secondary schools, 241 twentieth century, in, 251-254 vocational schools, 241 establishment of Commission, 235 general note, 235 mandate, 235 members, 236 separate schools, administration, 288-290 assessment, borrowing powers and grants, 290-295 courses in, 271

growth in, 270-271 legislation prior to confederation, 272-286 legislation since confederation, 286-296 origin and development of, 269-295 Protestant, 269  VWDIÀQJDQGPDLQWHQDQFH support for, 270 teacher, role of, 264 Roman Catholics Ontario, schools in, 13-17. See also Ontario Roman Catholic separate schools public education, factors affecting organizational arrangement of, 429 school religious funding, 2, 17-21 separate schools, Alberta, 414-415 Manitoba, 410-413 Ontario, in. See Ontario Roman Catholic separate schools provincial laws, 603-605 Saskatchewan, 414-415 separate schools, Royal Commission Report. See Report of the Royal Commission on Education in Ontario (Hope Report) special status of schools, discriminatory nature of, 360-361 Upper Canada, separate schools in, admission to, 39 annual fund, share in, 41 Board of Trustees, 36 Confederation, prior to, 609-615 inspection, 43 legislation prior to confederation, 272-286, 609-615 legislation, 609-610 notice of establishment, 36 powers of trustees, 37-38 restoration of rights, 35 supporters, exemption from common school rates, 39-40

1111

STATE SUPPORT FOR RELIGIOUS EDUCATION

 WHDFKHUV·FHUWLÀFDWHRITXDOLÀFDtion, 39 union, 37 visitors, 42 Saskatchewan alternative schools, 8, 560 associate schools, 8 historical schools, 7-8, 315-316, 560 independent school groups and associations, 573 private education, alternative schools, 8, 560 funding, 7-8, 549, 559-560, 576 historical high schools, 7-8, 560 legislation, 559-560  WHDFKHUFHUWLÀFDWLRQDQGTXDOLÀcation, 577 school funding, 7-8 separate schools, 414-415 School meaning, 588-589, 592, 710 School funding Adler v. Ontario, 20-21, 707-769 Alberta, 5-7, 317 British Columbia, 4-5, 316-317 comparative table, 33-34 independent schools, Alberta, 5-7, 810 British Columbia, 4-5, 810-811 Manitoba, 8-9, 811-812 Ontario, 9-10, 13-17, 707-812, 824-826, 831-833 Jewish, 14 Manitoba, 8-9, 315 New Brunswick, 10 Newfoundland, 11, 314 Northwest Territories, 12, 314 Nova Scotia, 11, 315 Nunavut Territory, 12-13 Ontario, 4, 9, 17-21 outside Canada, 318 preliminary assumptions, education as a good, 430-431

1112

mandatory education, 431-432 public provision, 433-435 Prince Edward Island, 11, 315 private and public education, possible policies for operation of, associated schools plan, 462-465 choice of options, 470-474 partial funding for pupils attending approved private schools, 458-459 public funding with a spending cap, 459-462 ranking of options, 466-467, 480 simulated value positions, 478480 single provincial school system, 456 status quo, 456-457 status quo plus provision of limited services for approved private schools, 457 status quo plus tax deductibility of fees paid to approved private schools, 457-458 summary of, 454-455 taxable grants to parents with children in approved private schools, 458 voucher system, 465-466 voucher system with cap, 465 private schools. See also Private education Alberta, 5-7, 317 Australia, 321-322 British Columbia, 4-5, 316-317 Denmark, 321 England, 322-323 France, 320 Manitoba, 8-9, 315 Netherlands, 320 New Brunswick, 315 New Zealand, 319 Newfoundland, 314 Northwest Territories, 314 Nova Scotia, 315 Prince Edward Island, 315

INDEX

Quebec, 318 Saskatchewan, 7-8, 315-316 Yukon Territory, 314 Quebec, 10, 55, 318 religious, Adler v. Ontario, 20-21, 707-769 elimination, case for, 26-27 general consensus, 3 history of, 1-4 international human rights law, violation of, 25-26 litigation, history of, 17-21 non-discrimination, 4 Ontario, position in, 13-17 provincial, 29 Reference re an Act to Amend the Education Act (Ontario), 18-19, 595-629 Roman Catholic, 2, 17-21 Report of the Commission of Private Schools in Ontario (Shapiro Report), 313-323 Saskatchewan, 7-8, 315-316 United Nations Human Rights Committee, complaint to. See United Nations Human Rights Committee Yukon Territory, 12, 314 School health support services  GHÀQLWLRQ education services, characterized as, 758 eligibility to receive, 714, 722 home care facility, provided by, 712 independent Christian school, not available in, 794-795 Jewish schools, not covering, 789790 School Health Support Services Program (SHSSP), handicapped children, assisting, 766-767 implementation, 722 private religious schools, failure to extend to, 723 public schools, only available to, 707-812

special education program, designation as, 737 Sikhs religious education, 813-842 Social Union federal spending power, use of, 28 Special education program  GHÀQLWLRQ requirement to provide, 722 school health support services as, 737 Special education services  GHÀQLWLRQ Tadman v. Canada admissibility decision, 10631070 overview, 26-27, 1063 individual opinion, 1070 Tax credits  HTXDOL]DWLRQRIÀQDQFLDOEXUGHQE\ way of, 28-29 Equity in Education, 31-32 legislation, 1073-1076, 1091, 1093 original schedule, reinstatement of, 1093 regulations, 1077-1080 amendments, 1081-1089 rescission, 1095 second phase delayed, 1091  2QWDULRSULYDWHVFKRROVÀQDQFLQJ 491, 515 Tuition fees charitable donation, not, 157-159 United Nations Human Rights Committee admissibility before, 24 communication concerning elimination of funding for Roman Catholics, Grant Tadman v. Canada. See Tadman v. Canada.

1113

STATE SUPPORT FOR RELIGIOUS EDUCATION

admissibility decision, 10631070 individual opinion, 1070 communication concerning public funding of schools in Ontario, Waldman v. Canada, see Waldman v. Canada admissibility considerations, domestic remedies, exhaustion of, 861-864, 883 elimination of state argument, 903 Government of Canada, initial reply, 883-888 Government’s agreement to join, 907 jurisprudence, 861-864 relevant material facts, 861 state party’s submissions, 920-930 state party’s submission, reply to, 897-899 UNHCR, letter from, 911-912 admissibility, 24 Articles violated, 844 author, 844 author’s reply and fourth submission, 987-988 author’s reply and second submission, 935-944 author’s reply and third submission, 961-963 complaint, 22 concurring opinion, 1027-1029 facts of claim, Canadian constitutional law and legislation, 847-852 history of litigation, 852-858 individual complaint, of, 845-847 school funding in Ontario, 858-861 state party’s submissions, 915-920  ÀQDOYLHZV  ÀQGLQJV

1114

follow-up, 27-31 international procedures, 844 merits of the case, Article 18(1) in conjunction with Article 2, 869-875 Article 18(4) in conjunction with Article 2, 875-876 Article 26, violation of, 865869 Article 27 in conjunction with Article 2, 876-878 Government of Canada, initial reply, 913 state party’s submissions, 920-930 Ontario Catholic Trustees’ Association proposed intervention, 989-1012 post-decision submissions and correspondence, Government of Canada, by, 1037 Government of Ontario, by, 1031-1032 Minister of Education, by, 1035 Minister of Foreign Affairs, by, 1033-1034 Ontario Parents for Equality in Education Funding, Government of Canada correspondence with, 1039Waldman, by, 1041-1046, 1049-1051, 1059-1060 Waldman, Government of Canada correspondence with, 1047, 1053-1057, 1061-1062 relief sought, 878 report on, 30 state concerned, 844 state party’s second reply, 945959 state party’s submissions on admissibility and merits, 920930 facts, 915-920 introduction, 914

INDEX

Waldman v. Canada NOTE: This section has been both moved and edited within the section action following, 26 admissibility considerations, domestic remedies, exhaustion of, 861-864, 883-884, 897-898, 903-904 elimination of state argument, 903-904 Joinder of admissibility with merits, 905, 907, 909, 911912 jurisprudence, 861-864 state party’s submissions, 883-888 state party’s submission, reply to, 897-899, 903-904 Third party submission, 889894 admissibility, 24, 1025 Articles violated, 1026 author’s initial communication, 22, 843-881 author’s reply and fourth submission, 987-988 author’s reply and second submission, 935-944 author’s reply and third submission, 961-963 complaint, 22 concurring opinion, 1027-1029 chronology of events, 22-27 effective remedy, 26, 1026 facts of claim,  DXWKRUDIÀGDYLWRI Canadian constitutional law and legislation, 847-852 history of litigation, 852-858 complaint, of author, 845-861 school funding in Ontario, 858-861 state party’s submissions, 915-920  ÀQDOYLHZVLQ  ÀQDOYLHZV

table of contents, 914 state party’s third reply, 965-986 submissions, 24 table of contents, 843 third party submission, 889-894  :DOGPDQDIÀGDYLWRI communications to, 24, 173-174, 179-180 competence, recognition of, 173, 179 composition, 23 Conciliation Commission, appointment of, 174-176 establishment, 170 experts, facilities, privileges and immunities of, 176 General Comment 3, 185-186 General Comment 18, 187-190 General Comment 22, 191-194 General Comment 23, 195-198 General Comments, 24 International Covenant on Civil and Political Rights, monitoring compliance with, 23 meetings, 172 members of, 170-172 non-discrimination, General Comment on, 187-190  RIÀFHUV religious discrimination, claims concerning, 21-27 reports, 172-173 rules of procedure, 172 staff and facilities, 172 Tadman v. Canada. See Tadman v. Canada views, disregard by Canada, 27 Waldman v. Canada. See Waldman v. Canada written submissions, conclusions on basis of, 24 Universal Declaration of Human Rights education, right to, 140

1115

STATE SUPPORT FOR RELIGIOUS EDUCATION

 ÀQDOYLHZVQRQFRPSOLDQFHE\ state party, 27-32  ÀQGLQJV follow-up, 27-31 merits of the case, Article 18(1) in conjunction with Article 2, 22-23, 869875, 920-926, 1027 Article 18(4) in conjunction with Article 2, 22-23, 875876, 920-926, 1027 Article 26, violation of, 2223, 25-25, 865-869, 926-929, 1026 Article 27 in conjunction with Article 2, 22-23, 876-878, 929-931, 1027 Ontario Catholic Trustees’ Association proposed intervention, 989-1012 overview, 22-27 post-decision submissions and correspondence, Government of Canada, by, 1037 Government of Ontario, by, 1031-1032 Minister of Education, by, 1035-1036 Minister of Foreign Affairs, by, 1033-1034 Ontario Parents for Equality in Education Funding, Government of Canada correspondence with, 10391040 Waldman, by, 1041-1046, 1049-1051, 1059-1060 Waldman, Government of Canada correspondence with, 1047, 1053-1057, 1061-1062 relief sought, 878 report on, 30 state party’s initial reply, 883888 state party’s second reply, 945959

 VWDWHSDUW\·VÀUVWVXEPLVVLRQRQ admissibility and merits, 913933 facts, 915-920 introduction, 914 merits, 920-933 table of contents, 914 state party’s third reply, 965-986 submissions, 24 third party submissions, 889-894, 989-1012  YLRODWLRQÀQGLQJRI 1026-1027  :DOGPDQDIÀGDYLWRI

Yukon Territory private education, 566 private schools, public funding, 12, 314

1116

STUDIES IN RELIGION, SECULAR BELIEFS AND HUMAN RIGHTS

1. Amanda Whiting and Carolyn Evans (eds.), Mixed Blessings: Laws, Religions, DQG:RPHQ·V5LJKWVLQWKH$VLD3DFLÀF5HJLRQ, 2006, ISBN 90 04 15141 9 2. Natan Lerner, Religion, Secular Beliefs and Human Rights: 25 Years After the 1981 Declaration, 2006, ISBN 90 04 15209 1 3. Anne F. Bayefsky and Arieh Waldman (eds.), State Support for Religious Education: Canada versus the United Nations, 2006, ISBN 90 04 14980 5 4. Niaz A. Shah, Women, the Koran and International Human Rights Law: The Experience of Pakistan, 2006, ISBN 90 04 15237 7