Govt Funding of non Catholics in Catholic schools held Unconstitutional

by Dentons


I. Introduction

This recent decision of the Saskatchewan Court of Queen’s Bench, Good Spirit School Division No. 204 v. Christ the Teacher Roman Catholic Separate School Division No. 2121 interprets the age-old constitutional guarantees for publicly funded Catholic schools in Saskatchewan. The plaintiff, Good Spirit School Division No. 204 (GSSD), sought a declaration that certain provisions of Saskatchewan’s Education Act, 19952 and The Education Funding Regulations offend ss. 2(a) and s. 15 of the Canadian Charter of Rights and Freedoms (the Charter).

Despite the numerous issues put forward by the parties, the essence of the decision turns on two very important issues:

  1. Is government funding of non-minority faith students in Saskatchewan’s separate schools a constitutionally protected component of separate schools under s. 93 of the Constitution Act, 1867?
  2. If such funding is not constitutionally protected under s. 93 of the Constitution does it infringe ss. 2(a) and 15 of the Charter?

The trial judge recognized that the constitutional guarantee that operates in three Canadian provinces, namely Alberta, Saskatchewan and Ontario, entitles Roman Catholics and Protestants to petition the provincial government to create a separate denominational school if they form a minority in a school attendance area, "… is an immutably cast constitutional right under s. 93 of the Constitution and is unquestioned in this action."3 However, he held that the extension of that right to funding of all students is not constitutionally guaranteed, which exposed the claim to scrutiny under the Charter. Without the protection of the Constitution, he found that funding of non-Catholic students in Catholic schools automatically infringed both ss. 2(a) and 15 and could not be saved by s. 1.

II. Brief facts

In 2003, Yorkdale School Division closed its community K-Grade 8 School in Theodore, Saskatchewan. Its 42 students would have to be bussed to the neighbouring school in Springside, 17 km away. Using the rights pursuant to The Education Act, 1995, a group of Roman Catholics successfully petitioned the Minister of Education to form the Theodore Roman Catholic School Division.

In 2005, Yorkdale School Division (now GSSD) commenced an action against what is now Christ the Teacher Roman Catholic School Division #212 ("CTT") and the Government of Saskatchewan. GSSD alleged, amongst other things, that per student grants paid to a Catholic school division for non-Catholic students is discriminatory against public schools under the Charter of Rights and Freedoms. GSSD argued that such funding goes beyond the denominational elements of Catholic education so that the funding of non-Catholics students is not an entrenched constitutional right and therefore, government action that funds non-Catholic students at Catholic schools is exposed to review under the Charter. The defendants took the position that funding of non-Catholic students at Catholic schools is a right protected by s. 93 of the Constitution and, therefore, immune under s. 29 of the Charter from any challenge.

III. Trial judge’s decision

1. Catholic schools have no constitutional right under s. 93(1) to receive funding for non-Catholic students

At the heart of the trial judge’s decision is the issue of whether the Constitution provides a denominational right to separate schools in Saskatchewan to receive provincial government funding to educate non-minority faith students. If the funding of non-Catholic students is constitutionally protected under s. 93, GSSD’s action would have failed because it would have been immune from challenge pursuant to s. 29 of the Charter.

Section 93(1).4 provides a guarantee, a minimum assurance, that a province cannot lessen the rights of classes of persons respecting denominational schools as they stood at the time of union or, as in Saskatchewan, under the 1901 Ordinances. Section 93(3) permits a post-union extension of the denominational rights protected by s. 93(1). The trial judge held that legislation under ss. 93(1) and 93(3) can be Charter-immune; however, to gain this immunity the legislation must be equally subjected to the "denominational aspects test" - i.e., the purpose of the legislation must be tied to upholding the religious essence of the denominational school.5 The defendants argued that funding of all students was a denominational right at the time of the union as opposed to after the union, and was therefore protected by section 93(1).

The trial judge held that s. 93(1) does not protect funding of non-minority faith students based on two reasons. First, in reviewing the historical evidence of the creation of the 1901 Ordinances, he found that it did not include a right or privilege for Catholic schools to admit and receive funding for non-Catholic students. Second, he held that funding was not a denominational right. He concluded as follows:

The reason for the existence of separate schools was to ensure that after the first public school was created in a school district, parents of the minority faith could separate their children from the majority’s children to inculcate their children in the minority’s faith, away and separate from the influences of the majority. If separating students was the essential reason for separate schools’ existence, I fail to see why the minority would simultaneously seek a right to admit children of the majority faith from whom they took deliberate action to separate.6

The trial judge rejected parental choice as part of the equation. Rather, he held that "'the fact that some non-minority faith students attended separate schools should, in the words of the Supreme Court, be seen ‘as a matter of favour.'"7 In applying a purposive interpretation to the 1901 Ordinances, the trial judge held that Catholic separate schools have no constitutional right to admit and receive funding for non-Catholic students. The upshot is that non-Catholic students who attend a separate school will be required to pay the full freight in order to continue to attend the school of their choosing, even though it is part of the dual public system.

2. Funding of non-minority faith students at Catholic schools is not a constitutional right under s. 17(2) of the Saskatchewan Act

The trial judge also refused to accept that funding of all students at a separate school is a denominational right on the basis that the equality in funding is guaranteed to the school pursuant to s. 17(2) of the Saskatchewan Act, and is not tied to the student’s religious affiliation. Section 17(2) states as follows:

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. (emphasis added)

The defendants argued that s. 17(2) of the Saskatchewan Act (which is incorporated into the Constitution) provides a full answer to this action because it requires the government to fund both Catholic and public schools equally and without discrimination. In addition, the Government argued that s. 17(2) was intended to create a second publicly-funded school system to provide choice to parents.

The trial judge rejected both arguments. In his view, preserving separateness is the hallmark of separate school funding, and as such, "preserving separateness is the requisite consideration that must be applied before separate schools can claim equal funding under s. 17(2)."8 The trial judge relied on the historical evidence that separate schools were created so that a minority faith could separate their children from the majority and concluded that the purpose was unrelated to parental autonomy and fairness. Accordingly, he concluded that s. 17(2) is not a constitutional guarantee in these circumstances, which then opens the door to a Charter analysis.

3. Government funding violates ss. 2(a) and 15 of the Charter

Having found that the admission and funding of non-Catholic students in Catholic schools is not a protected right under the Saskatchewan Act, the trial judge proceeded to determine whether funding of non-Catholic students is a breach of the Charter as infringing ss. 2(a) (freedom of religion) and 15 (equality). He concluded that funding of non-Catholic students infringes s. 2(a) of the Charter because it violates the state’s duty of religious neutrality by endorsing a particular religion and excluding others, i.e., funding of non-minority faith students confers benefits upon Catholics and Protestants not conferred upon any other faith.9 Given that the purpose for the constitutional protection was to give the minority Catholics a guarantee of a fully-funded separate education system that could withstand the test of time, it is not a surprise that it would be seen as a benefit conferred on one religious group over other denominations. However, as the defendants argued, this was the reason that s. 17 of the Saskatchewan Act should have been shielded from any Charter analysis. Accordingly, where there is a "breach of religious neutrality under s. 2(a) of the Charter by conferring a benefit upon one religion (the funding of Catholic schools respecting the attendance of non-Catholic students, a benefit deemed unprotected by s. 93), but not upon other religions, the Court held that an axiomatic result follows: the state has discriminated against and has unequally treated adherents of other religions."10

Similarly, the trial judge found a breach of s. 15(1) on the basis that (i) the government action of funding Catholic schools for the attendance of non-Catholic students, while no other religion receives such treatment, creates a distinction based on the enumerated ground of religion; and (ii) that this distinction creates a discriminatory impact. For example, since only Catholic schools receive full funding to admit non-adherents, Catholic schools are able to attract non-Catholic students while other faith-based schools that must charge tuition are less able to attract non-adherents.11 In other words, allowing one faith – Catholics – the ability to inculcate Catholic values into a broader community at public expense but disallowing others, particular smaller religious groups like Muslims and Hindus, implies a message that some faiths are more valued than others.12

4. The Charter breaches cannot be saved under s. 1

In assessing whether the Charter breach can be saved by s. 1, the trial judge analyzed the question of whether providing funding to Catholic schools respecting non-Catholic students is a reasonable limit on Charter rights and demonstrably justifiable in a free and democratic society. The onus was on the defendants to show that the funding has an objective of pressing and substantial concern in a free and democratic society and that the objective is proportionate to--and not outweighed by--the effect of the infringing action. The trial judge concluded that the defendants did not meet their burden under s. 1. He found that funding of non-minority faith students in separate schools "does not minimally impair the duty of neutrality and is inimical to the growing reality that Saskatchewan, like the rest of Canada, is becoming a far more complicated mosaic of religious (and non-religious) traditions."13

IV. Implications for Catholic education in Alberta and Ontario

On April 28, 2017, CTT announced that it will be appealing the Decision. Among the grounds of appeal it listed errors that the trial judge made in respect of the application of s. 17(2), which CTT argues expressly prohibits any such discrimination, as well as other interpretation errors in respect of several long-standing principles related to the Constitution.

The Government of Saskatchewan, through its Premier, Brad Wall, has indicated that the government is "examining all legal and legislative options to reverse this," including invoking the notwithstanding clause contained in the Charter14. The notwithstanding clause is contained in s. 33 of the Charter and allows provincial legislatures to temporarily circumvent certain Charter-protected rights and freedoms in order to maintain current laws or pass new ones.

The Decision is not binding law in Alberta or Ontario. In response, Education Minister David Eggen has stated that it has no impact on the Alberta education system.15 Nevertheless, it may have potential negative impact on future jurisprudence in Alberta given the similarity of the Alberta Act and the Saskatchewan Act. In addition, there could be significant implications for Catholic education in Alberta and Ontario, as many detractors will be looking for justification to curtail public funding. Further, if the decision is appealed to the Supreme Court of Canada, a final decision by that Court will impact the interpretation of the constitutional provisions affecting Catholic education in Alberta and Ontario.

1. 2017 SKQB 109 (the "Decision").

2. SS 1995, c E-0.2.

3. Supra note 1 at para. 3.

4. When Saskatchewan gained provincial status in 1905, s. 93(1) was replaced with three new provisions under s. 17 of the Saskatchewan Act. This provision is virtually identical to s. 17 of the Alberta Act, S.C. 1905, c.3. In Ontario, s. 93 of the British North America Act, 1867 applies.

5. Supra note 1 at para. 198.

6. Supra note 1 at para. 259.

7. Supra note 1 at para. 329.

8. Supra note 1 at para. 349. In doing so, he relied on Justice Iacobucci in English Catholic Teachers’ Assn. v. Ontario (Attorney General), 2001 SCC 15, wherein he upheld Ontario’s proposed new provincial funding arrangements affecting public and separate schools because the legislation continued to “preserve the ‘separateness’ of separate schools.”

9. Supra note 1 at para. 401.

10. Supra note 1 at para. 420.

11. Supra note 1 at para. 429 and 438.

12. Supra note 1 at para. 441.

13. Supra note 1 at para. 464.

14. Global News, Sask. Government explores legal options in Catholic schools funding decision (Saskatchewan: Global News, 2017)

15. Edmonton Journal, Court ruling could shake up Alberta Catholic Schools (Edmonton: Edmonton

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Dentons | Attorney Advertising

Written by:


Dentons on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.