QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 109 Date: 2017 04 20 Docket: QB 118 of 2005 Judicial Centre: Yorkton BETWEEN: GOOD SPIRIT SCHOOL DIVISION NO. 204 PLAINTIFF - and - CHRIST THE TEACHER ROMAN CATHOLIC SEPARATE SCHOOL DIVISION NO. 212 and THE GOVERNMENT OF SASKATCHEWAN DEFENDANTS Counsel: Robert W. Leurer, Q.C./Khurrum R. Awan and Christina M. Kerby for Good Spirit School Division No. 204 Colin K. Hirschfeld, Q.C./ Curtis J. Onishenko for Christ the Teacher Roman Catholic Separate School Division No. 212 Sharon H. Pratchler, Q.C./Theodore J.C. Litowski, Barbara C. Mysko and Thomson J. Irvine, Q.C. for the Government of Saskatchewan JUDGMENT LAYH J. APRIL 20, 2017 i TABLE OF CONTENTS Page No. PART ONE: OVERVIEW AND STATEMENT OF ISSUES 1 I. INTRODUCTION 1 II. STATEMENT OF ISSUES 3 III. CERTAIN PRELIMINARY FINDINGS AND OBSERVIATIONS 5 IV. WITNESS SUMMARY 11 A. GSSD’s Witnesses 12 B. CTT’s Witnesses 20 C. Government Witnesses 26 V. A NECESSARY FRAMEWORK 27 A. Legislative and Constitutional Provisions 27 B. The Confederation Compromise 36 C. The Experience of the Provinces 39 PART TWO: DOES GSSD HAVE STANDING? 42 I. HISTORY OF PROCEEDINGS RESPECTING STANDING 42 II. PARTIES’ POSITIONS 44 A. GSSD’s Position 44 B. Defendants’ Position 46 III. ANALYSIS 49 A. Two Preliminary Questions 49 1. Standing on Behalf of Whom? 49 2. Can Only Beneficiaries of Separate School Rights Have Standing? 53 B. Public Interest Standing 58 1. The Direction in Eastside Sex Workers 58 2. Serious Justiciable Issue 60 3. Does GSSD Have a Real Stake or Genuine Interest? 61 4. An Effective Way to Bring the Issue Before the Court 64 ii PART THREE: IS ST. THEODORE ROMAN CATHOLIC SCHOOL A SEPARATE SCHOOL? 75 PART FOUR: IS FUNDING OF ST. THEODORE ROMAN CATHOLIC SCHOOL A PROTECTED CONSTITUTIONAL RIGHT UNDER SS. 93(1) AND (3) OF THE CONSTITUTION ACT, 1867? 84 I. DIVERGENT POSITIONS RESPECTING OPERATION OF SS. 93(1) AND 93(3) 84 A. Essential Elements of GSSD’S Position 84 B. Essential Elements of the Defendants’ Position 88 C. Analysis 91 1. The Legal Framework of s. 93 of the Constitution Act, 1867 91 2. Four Reasons Why the Denominational Aspects Test Applies to s. 93(3) 95 a. Does case law support applying the denominational aspects test to s. 93(3) power? 96 b. Do unreasonable results arise if the denominational aspects test is applicable to s. 93(1) but not to s. 93(3) rights? 109 c. Does Government’s reliance on s. 93(3) power give it carte blanche to avoid the Charter? 112 d. Does defendants’ evidentiary basis preclude reliance on s. 93(3)? 116 II. IS THE FUNDING OF NON-CATHOLIC STUDENTS A RIGHT FOUND UNDER THE 1901 ORDINANCES AND,IF SO, DOES THE RIGHT SATISFY THE DENOMINATIONAL ASPECTS TEST? 118 A. Section 93(1) - A Two Step Inquiry 118 B. Essential Elements of GSSD’s Position 120 1. GSSD Submits 1901Ordinances Did Not Include Right to Fund Non-Minority Faith Students 120 2. GSSD Submits Funding of Non-Minority Faith Students is Not a Denominational Right 127 C. Essential Elements of the Defendants’ Position 128 1. Defendants Submit 1901 Ordinances Include Right of Funding for Non-Minority Faith Students 128 2. Defendants Submit Funding of Non-Minority iii Faith Students Was a Denominational Right 131 D. Analysis 133 1. Conclusion: Section 93(1) Does Not Protect Funding of Non-Minority Faith Students 133 2. The Basic Premise of the 1901 Ordinances 133 3. Judicial Authority and Guiding Principles of Constitutional Interpretation 139 PART FIVE: IS FUNDING OF NON-MINORITY FAITH STUDENTS AT ST. THEODORE ROMAN CATHOLIC SCHOOL A CONSTITUTIONAL RIGHT UNDER S. 17(2) OF THE SASKATCHEWAN ACT? 169 I. ESSENTIAL ELEMENTS OF THE DEFENDANTS’ POSITION 169 II. ANALYSIS 171 PART SIX: DOES GOVERNMENT FUNDING VIOLATE S. 2(a) OF THE CHARTER? 176 I. ESSENTIAL ELEMENTS OF GSSD’S POSITION 176 II. ESSENTIAL ELEMENTS OF DEFENDANTS’ POSITION 178 III. ANALYSIS 179 A. Is Charter Breach Axiomatic? 179 B. Going Beyond “Axiomatic” Charter Breach: Obligation of State Neutrality 184 1. Freedom of Religion Embraces Obligation of Religious Neutrality 184 2. The Principle of Religious Neutrality 185 3. Can a Non-Individual Advance a Claim for Religious Freedom Under the Doctrine of Religious Neutrality? 196 PART SEVEN: DOES GOVERNMENT FUNDING VIOLATE S. 15 OF THE CHARTER? 203 I. POSITION OF THE PARTIES 203 II. ANALYSIS 205 A. A Preliminary Point: Section 15 Infringement Follows s. 2(a) Infringement 205 B. A Recurring Theme – Must an Individual Show Discriminatory Impact? 207 iv PART EIGHT: DOES S. 1 OF THE CHARTER JUSTIFY CHARTER VIOLATION? 215 I. BURDEN OF PROOF AND OAKES TEST 215 II. IS THERE A PRESSING OBJECTIVE TO FUND NON-CATHOLIC STUDENTS? 218 III. PROPORTIONALITY 220 IV. A POINT OF CLARIFICATION: TIME FRAME OF PRESSING OBJECTIVES 226 PART NINE: REMEDIES 228 APPENDIX 1 – The Education Act, 1995, ss. 53, 85, 87, 310 APPENDIX 2 – The Education Funding Regulations, ss. 3, 4 PART ONE: OVERVIEW AND STATEMENT OF ISSUES I. INTRODUCTION [1] In the spring of 2003 happenings in the village of Theodore, Saskatchewan would become a flashpoint, bringing to a head a vital issue in Saskatchewan education: the extent of separate school rights. That spring the community of Theodore was faced with the decision of Yorkdale School Division [Yorkdale] to close its community kindergarten to grade 8 school. Its 42 students would be bussed to the neighbouring school in Springside, 17 kilometres away on the Yellowhead Highway. After several unsuccessful efforts to keep their school open, a minority group of Roman Catholics using the provisions of The Education Act, 1995,1 successfully petitioned the Minister of Education to form Theodore Roman Catholic School Division. After protracted negotiations with Yorkdale, the newly formed school division purchased the school building and opened one school, St. Theodore Roman Catholic School. The community saved its school but prompted one of the most significant lawsuits in the province’s history. [2] St. Theodore Roman Catholic School adopted the attributes of a Catholic school and offered a program that accorded with the usual operation of a Roman Catholic separate school. When the school opened in 2003, 13 of the 42 students were Roman Catholic or 31 percent of the student enrolment. That percentage has varied since then from a high of 39 percent to a low of 23 percent. At trial, 26 students were enrolled at St. Theodore Roman Catholic School. Nine are Catholic. Dwayne Reeve, former Director of Education of Good Spirit Public School Division (the successor to Yorkdale) [GSSD] estimated that 12 to 15 elementary students from the Theodore 1 SS 1995, c E-0.2 - 2 - attendance area no longer attend St. Theodore Roman Catholic School and, instead, attend school in Springside. [3] Basic to this litigation is an understanding of the historic constitutional guarantee operative in three Canadian provinces – Alberta, Saskatchewan and Ontario – that 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. This right is an immutably cast constitutional right under s. 93 of Constitution Act, 18672 and is unquestioned in this action. Instead, what drives this litigation is the provincial government’s policy to fund separate schools in Saskatchewan based solely on student enrolment without regard to the religious affiliation of students. As I understand GSSD’s position, it is not opposed to non-Catholic students attending St. Theodore Roman Catholic School, but submits that the historic constitutional protection of separate schools does not include the right for the school to receive government funding for non–Catholic students who attend the school. More significantly, GSSD submits that since such funding is not constitutionally guaranteed, it is exposed to scrutiny under the Canadian Charter of Rights and Freedoms3 and infringes freedom of religion under ss. 2(a) and equality rights under s. 15. [4] In essence then, this action, begun 12 years ago, poses two basic questions. First, 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? The defendants, 2 (U.K.), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II No 5 3Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. - 3 - the Government of Saskatchewan [Government] and Christ the Teacher Roman Catholic School Division [CTT], the successor to Theodore Roman Catholic School Division, submit such funding is; GSSD submits such funding is not. Second, if such funding is not constitutionally protected under s. 93 of the Constitution Act, 1867, does it infringe ss. 2(a) and 15 of the Charter? The Government and CTT submit it does not infringe the Charter; GSSD submits it does infringe the Charter. [5] In an interlocutory fiat in August 2012, Justice Mills stated that at its “simplest,” this case involves the ability of the Government to fund non- denominational students attending a denominational school. With prescient accuracy, he forewarned that “the case is much more complex than this simple statement, and if this matter were ever to proceed to trial…significant and complex issues” would have to be adjudicated. That time has now come. If funding of non-Catholic students at St. Theodore Roman Catholic School violates Charter rights, then funding of any non-Catholic students in Catholic schools in Saskatchewan similarly violates the Charter. II. STATEMENT OF ISSUES [6] Prior to the parties’ final arguments, I directed GSSD to provide to the defendants a statement of the issues the court needed to address to resolve this action.