Canada: Separate School Funding Appeal Scheduled For March 2019

Last Updated: November 29 2018
Article by Khurrum Awan and Brady Knight

The appeal of the trial judgment in Good Spirit School Division No. 204 v. Christ the Teacher Roman Catholic Separate School Division No. 212, 2017 SKQB 109 (the "Theodore case") has been scheduled to be heard in March 2019. The trial judgment found that Government funding of non-Catholic attendance in Catholic separate schools is unconstitutional. The appeal is expected to provide further guidance on the constitutional validity of such funding.


The Theodore case arose from the closure of a public school in the small town of Theodore, Saskatchewan, and the subsequent establishment of a separate school to educate the community's children.

In 2003, the Yorkdale Board of Education (the "Yorkdale board") voted to close the K-8 elementary school in Theodore, due to low enrollment which had negatively impacted the quality and cost of education. The 42 students at the Theodore public school were to be bussed to a public school located in the neighbouring town of Springside, 17 kilometers down the Yellowhead Highway. The Yorkdale board's decision to close the school coincided with a provincial government initiative to form larger school divisions and encourage more efficient utilization of resources in the education sector.

The decision to close the school in Theodore was opposed by the local community. Catholics and non-Catholics banded together to try and save their local school. Those efforts included asking the Yorkdale board to close other public schools instead of the Theodore public school, and asking a neighbouring school division to assume administration of the school. Eventually, local residents petitioned the Minister of Education to establish a Catholic school. St. Theodore Catholic school began operating in Theodore during the fall of 2003. Since its inception, only 23% to 39% of the students have been Catholic.

Public school closures were also circumvented in two other rural Saskatchewan communities, Englefeld and Wilcox, with the establishment of separate schools in response. In addition, for many years preceding and proceeding the events in Theodore, Saskatchewan public school boards had raised a number of concerns about the impact of provincial education funding for non-Catholics attending Catholic schools. Those impacts included, interference with closing inefficient rural schools; open competition between schools for student recruitment; the cost of building dual-purpose Catholic and Public schools; and the costs of providing competing transportation services.

As a result of the events in Theodore, the impacts on public education, and the related issue of the respective mandates of Public and Catholic schools, the Yorkdale board commenced legal proceedings against the Government of Saskatchewan and Christ the Teacher Roman Catholic School Division in 2005.


The Theodore case raises two primary issues which were adjudicated at trial:

  1. Whether government funding of non-adherent students in Saskatchewan's separate schools is protected by s. 93 of the Constitution Act, 1867 (Canada) (the provision which guarantees certain protections for Catholic and Protestant separate schools)? If funding for non-adherent students was protected by s. 93, such funding could not be challenged under the Canadian Charter of Rights and Freedoms (the "Charter"), as one part of the constitution cannot be used to attack another part of the constitution.
  2. If funding to support non-Catholic students to attend Catholic separate schools is not required by s. 93 of the Constitution Act, 1867 (Canada) ("S. 93"), does such funding violate the freedom of religion protected by the Charter?

Ruling of the Saskatchewan Court of Queen's Bench

To appreciate the import of the trial judgment, it is useful to briefly review the structure of S. 93. Section 93 has two components. Section 93(1) stipulates that the provincial legislature cannot prejudicially impact any right or privilege of a denominational nature, which exists under the legislation in effect in the particular province when Ontario, Saskatchewan and Alberta became part of Canada. Section 93(1) therefore sets a minimum benchmark below which the provincial legislature must not venture when legislating in relation to Catholic school rights. In contrast, s. 93(3) looks forward and permits the Province to add to the rights of separate schools.

At trial Mr. Justice D.H. Layh found that funding for non-Catholic attendance was not protected by the legislation in effect in 1905, when Saskatchewan entered Confederation, and therefore was not protected by s. 93(1). This conclusion was based on a number of factors including:

  1. the purpose of separate, Catholic schools under the legislation at the time was to permit the Catholic minority to separate from the Protestant majority for educational purposes, in order to educate Catholic children in an environment sheltered from majoritarian Protestant influence; and
  2. even if there were an implicit right under the legislation at the time to admit non-Catholics, such a right was not denominational in nature. In other words, such a right was unrelated to the essential nature and purpose of Catholic separate schools.

Justice Layh also found that the present funding of non-Catholic attendance in Catholic schools was not protected by s. 93(3). In order to be protected by s. 93(3), rights and privileges conferred after Saskatchewan's entry into Confederation must be denominational in nature. However, the funding of non-Catholics was not denominational in nature. As a result, such funding was subject to scrutiny under the Charter.

In his Charter analysis, Justice Layh found that the funding of non-Catholics in Catholic schools violated freedom of religion and equality rights. The Supreme Court of Canada had recognized a duty of religious neutrality which required public money to neither favour nor hinder any particular belief or non-belief. The right to equality prohibited discrimination on the basis of religion.

Saskatchewan's full funding of these non-adherent students exclusively in separate schools showed an obvious preference for the ideals of Catholicism and Protestantism over those of every other religion. Such funding permitted Catholic schools to evangelize non-adherents, teach the virtues of their religion to non-members, promote societal acceptance of their faith, and enhance the viability of Catholic schools. However, this benefit was not conferred on other faith groups, such as Jews and Muslims in Saskatchewan. Further, the funding of Catholic schools to educate non-Catholics discriminated between non-Catholic parents who were comfortable with Catholic doctrine and other non-Catholic parents who also desired a faith-based education for their children but were not comfortable with Catholic doctrine.

Justice Layh concluded that the violation of Charter rights could not be justified in a free and democratic society. Providing some choice in education to a select group of parents could not serve as a pressing and substantial government objective sufficient to override Charter rights. The funding of non-Catholics did not minimally interfere with the Government's obligation of religious neutrality. Rather, such funding accentuated the inequality inherent in the exclusive funding of Catholic and Protestant schools, and was inimical to the diversity of religious and non-religious belief in Saskatchewan. Finally, the harm of the funding at issue outweighed its beneficial impact. That harm was reflected in the undermining of public school boards' decisions to close rural schools with diminishing enrollment areas.

The hearing of the appeal and its determination will provide further and authoritative guidance in Saskatchewan on the constitutional validity of Government funding for non-Catholic students attending Catholic schools.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Khurrum Awan
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