2011-10-21 00:54:41 by admin
Because the Dominion of Canada initially included separate areas with English-speaking and Frenchspeaking majorities, constitutional legal protections were provided for denominational schools as a safeguard for minority-religion schools. Nearly 150 years later, such constitutionally protected schools continue to exist in three Canadian provinces. The background of their existence and current legal issues related to their protection are discussed in this entry.
In 1867, the English-speaking Protestant majority of Upper Canada (Ontario) and the French-speaking majority in Lower Canada (Quebec) entered into a constitutional compromise to confederate their jurisdictions and thus create the Dominion of Canada. The parliament of the United Kingdom duly passed the British North America Act, 1867 (now referred to as the Constitution Act, 1867), which ratified that confederation. Under that act, jurisdiction for education rested with the provinces, but, in accord with the compromise, denominational (religiously based schools) were constitutionally protected to ensure the legal protection of the English language (Protestant faith) schools in Quebec and the French language (Roman Catholic faith) schools in Ontario. These constitutionally protected and publicly funded minority schools are referred to as separate denominational schools.
As provinces joined the confederation, any denominational schools that were previously legally recognized within their territory also gained this constitutional protection. Today, the province of Ontario has constitutionally protected and publicly funded separate Catholic Schools from grades 1 through 8 and, through a modus vivendi between the government of Ontario and the Ontario Catholic School Trustees’ Association, public funding for separate Catholic Schools for students in grades 9 through 12. The provinces of Alberta and Saskatchewan, which were legislatively carved out of the existing Northwest Territories in 1905 by the Canadian federal government, have constitutionally protected publicly funded Catholic elementary and Catholic high schools. The denominational rights of those schools are derived from the Ordinances of the North-West Territories, which existed prior to 1905.
It is a legal anomaly that when Catholics are the majority in an urban or rural municipality in Alberta or Saskatchewan, non-Catholic ratepayers are legally entitled to create a non-Catholic separate school, and such groups have done so in a few circumstances. This right exists in Ontario but has not been generally exercised.
When the British government in effect granted legal independence to Canada in 1982, the relevant legislation, including the Canadian Charter of Rights and Freedoms, protected existing denominational rights from any resulting impact. Utilizing the constitutional amending process described in the Constitution Act of 1982, the provinces of Newfoundland and Labrador (1987) and Quebec (1997) amended their provincial educational system to eliminate their denominationally based school systems in favor of public school systems.
Catholic Schools exist in all Canadian provinces, including the Yukon, the Northwest Territories, and Nunavut. However, except for Ontario, Alberta, and Saskatchewan, these schools are independent, and any public funding that they receive is at the pleasure of the provincial or territorial governments.
Constitutionally protected Catholic separate schools are of great significance to Canadian education. In particular, the tenets of that religion constitute the legal basis for the protected Inclusion in schools of prayer, religious services, a religious-based curriculum, and religious symbols, and they also support the legally enforceable expectations of the Catholic school boards regarding teachers’ private and public lifestyles and, to a degree, student behavior. Civil litigation surrounding the relationship of the Catholic school systems and their teachers’ lifestyle choices predate the 1982 Charter of Rights and Freedoms; however, in most cases before and after the advent of the Charter, the religious raison d’etre of Catholic Schools has resulted in the courts holding in favor of Catholic school boards.
In the provinces of Alberta and Saskatchewan, Catholic separate schools receive their funding from two sources: the municipal government and the municipal tax base paid by registered Catholic ratepayers within the urban or rural municipality. In Ontario, funding for Catholic Schools comes from the provincial government. School board trustees must be Catholic, and only Catholics are permitted to vote for those trustees. It is the board’s responsibility to govern the local Catholic school district, but under the Catholic church’s Code of Canon Law, the local Catholic bishop is ultimately responsible for religious education and the Catholic identity of the Catholic Schools.
Some Catholic teachers and Catholic students have employed their Charter rights to freedoms of conscience, religion, thought, belief, opinion, expression, assembly, and association to challenge denominational restrictions on their conduct.
In the case of teachers, the Vatican document Lay Catholics in Schools: Witnesses to Faith provides the religious or denominational expectations for Catholic schoolteachers and school administrators. If a Catholic school administrator or teacher is found to be living contrary to the tenets of the Catholic faith, the school board may dismiss that teacher for denominational cause, or it may demand reMediation and monitor future conduct to ensure ongoing compliance.
Catholic teachers have challenged Catholic school districts’ denominational policies, using both provincial human rights codes and the Charter, in matters of marrying in civil ceremonies and pregnancy outside of marriage. However, most matters are resolved informally, which is in concert with the pastoral role of those in positions of authority in Catholic institutions.
One Catholic school student has recently confronted a Catholic school board with the legal argument that his Charter rights have been infringed by the restrictions put upon him by a Catholic school board. In Hall (Litigation Guardian of) v. Powers (2002), a gay Catholic high school student challenged his school board’s decision to prohibit him from taking his male partner to the high school prom. The student filed a Statement of Claim on the basis that his constitutional Charter rights were being infringed by the school board’s action. The school board claimed that to allow such an action by the student would be contrary to the values inherent to Catholic education, as it would be seen as accepting homosexual behavior in Catholic Schools.
As part of his application, the student successfully sought an injunction, which in effect stayed the board’s decision. The student attended the prom with his partner and subsequently withdrew his claim prior to trial. The issue therefore remains whether the Canadian courts will allow that the acceptance by some in the Catholic community of certain actions, which are not acceptable from a formal Catholic Church perspective, is sufficient to ground a wider legal understanding of the norms of the Catholic faith and hence the reasonable expectations of Catholic school boards toward their employees and students.
The issue of Catholic Schools’ continued existence as constitutionally protected school systems is under debate in Ontario, Alberta, and Saskatchewan. This is perhaps understandable, as the reason for the original constitutional compromise—two cultures and two religions—no longer exists in the cultural and religious mosaic that is the Dominion of Canada. Further, with the loss of Catholic Schools’ constitutional status in Newfoundland and Labrador and the advent of articulated individual rights in the Charter and provincial codes of human rights, the supporters of constitutionally protected Catholic Schools likely will continue to face pressure to justify the continued existence of separate Catholic school systems in Ontario, Alberta, and Saskatchewan.
J. Kent Donlevy
See also Canadian Charter of Rights and Freedoms; Catholic Schools; Nonpublic Schools
Further Readings
Legal Citations