LexView 77.0 - Constitutional Implications of Bill 13 Amendments

September 27, 2012


Accepting Schools Act, 2012
Bill 13, Legislative Assembly of Ontario

In Force: September 1, 2012
Date of Issue: September 27, 2012


In this issue:

  1. Key Terms
  2. Introduction
  3. Summary of Facts
  4. Significant Questions & Answers
  5. LexView Commentary


Key Terms:

Education rights; denominational schools; section 93; Constitution Act, 1867; children; parents; appeal; federal Cabinet


Introduction:

The material below is from a legal opinion by Eugene Meehan, Q.C. (of Supreme Advocacy LLP, Ottawa), whereby Cardus retained his firm to advise on two questions:

Question 1: Are key provisions of Bill 13 (the Accepting Schools Act, 2012) subject to constitutional challenge?

Question 2: If the answer to question 1 is yes, then what constitutional provisions could be invoked to ensure constitutional protection of recognized denominational school rights?

The answers are 1) yes and 2) Sec. 2 of the Charter, which makes freedom of religion a fundamental right in Canada, and section 93 of the Constitution Act, 1867, which protects the rights of denominational schools and allows citizens to appeal directly to the federal cabinet to overturn transgressive provincial laws.

While Bill 13 attempts to come across as balanced insofar as it targets bullying in general, there is major focus on homosexual-related bullying. One reason for this is that the impetus for Bill 13 was disputes specifically over gay-straight alliances.

Bill 13's preamble directly challenges the denominational rights of schools and provides the basis for an infringement of freedom of religion. In addition to giving the minister of education unprecedented new powers for detailed direction to school boards and trustees, it states that students' "knowledge, skills, attitude and values" must adhere to those that include the gender constructs of LGBTTIQ. Going even further, one contentious amendment, indicative of the nature of Bill 13, is the restriction on boards from refusing to allow any student to "use the name gay-straight alliance or a similar name" for a school organization.

Taken together, these and other elements of Bill 13 disregard Catholic doctrine and ignore constitutionally afforded denominational protection. They open the door for a "one size fits all" model that fails to respect Catholic differences and the purpose behind having separate school systems.

By encroaching denominational aspects of a school's functioning for the purpose of preventing prejudice, Bill 13 oxymoronically risks prejudicing minority religious groups. Instead of fostering respect for diversity of beliefs and school choices, it risks encouraging and endorsing a single point of view and nullifying the purpose of denominational schools. Finally, it proposes that the Government enforce selective and particular perspectives and belief systems, seeking to render the school system increasingly homogenous, rather than encouraging proper respect for each child and their unique cultural and religiously informed perspective and up-bringing.

Courts have recognized that the constitutional rights granted to denominational schools involve more than a guarantee of the right to establish denominational schools—the right to establish denominational schools necessarily includes the right to maintain the religious character of the schools. Specifically, courts have consistently recognized that Catholic denominational schools can function according to distinct Catholic philosophy and tenets.

The rationale is expressed succinctly by M.H. Ogilvy in Religious Institutions and the Law in Canada: "Throughout the world, education is one of the most contested areas for religious institutions and believers; all religions are only ever one generation away from oblivion and the education of the next generation in the beliefs and habits of faith is necessary to ensure the survival of all faiths. While the family and religious institutions are the primary places for education, schools are also important as places for the reinforcement of religious values."

No constitutional challenge can be qualified as a "sure thing". While a court could agree that s. 93 rights should be given a broad interpretation and that it is crucial to respect the denominational character of schools and the concomitant authority of school boards, in the end, it would be open to a court of first instance to conclude that the disputed provisions fall outside the scope of protection of s. 93. The Court of Appeal may have a different constitutional view, and ultimately the Supreme Court of Canada would be the final arbiter.

Additionally, a group of citizens with standing could ask the federal cabinet to intervene directly and use its powers to remedy a provincial act deemed to offend denominational schooling guarantees. The willingness of the federal cabinet to do so with regard to Bill 13 is untested, and it must be pointed out that no federal cabinet has used its remedial power to overturn a provincial law affecting denominational schooling.

While the Accepting Schools Act, 2012 was validly enacted, however, it is open to a court challenge based on possible violations of fundamental constitutional provisions. As explained by former Chief Justice Dickson of the Supreme Court of Canada, in Canada we live in a constitutional supremacy not a Parliamentary supremacy.


Summary of Facts:

On June 5, 2012, Bill 13, Accepting Schools Act, 2012, passed third and final reading in the Ontario legislature. Bill 13 received royal assent on June 19, 2012 and the Accepting Schools Act, 2012, which is composed of amendments to the Education Act, came into force on September 1, 2012. (The Accepting Schools Act, 2012 will be referred to in this document as "Bill 13" to avoid confusion with the Education Act.)

Key amendments are the inclusion of a definition of "bullying" and the requirement for anti-bullying policies, from which a number of other amendments flow. For instance, Bill 13 imposes numerous responsibilities on principals, school boards and the Ministry of Education—these responsibilities will have major impacts on students, teachers, trustees, parents and related organizations.


(a) General Amendments

Subsection 1 (1) of the Education Act is amended to include a definition of "bullying". In additional to requiring boards to promote student achievement and well being, the Act is amended to require the promotion of a positive school climate that is inclusive and accepting and focuses on the prevention of bullying. These amendments are made to the Act's Part VI Boards—Duties and Powers.


(b) Duties Imposed on the Minister of Education

Bill 13 imposes specific duties on the Minister of Education regarding policy and guideline development for the implementation of new provisions. The Minister is required to:

  • establish policies and guidelines with respect to "school climate surveys";

  • establish policies and guidelines for disciplinary measures;

  • establish policies and guidelines for bullying prevention and intervention; and

  • report suspensions and expulsions.

The Minister has a new power with respect to the approval of board policies and guidelines. Section 10(4) of Bill 13 provides for the following:

Approval and changes, board policies and guidelines

(11) The Minister may require boards to submit any policy or guideline established under section 302 to the Minister and to implement changes to the policy or guideline as directed by the Minister.

Section 302 of the Education Act, referred to in s. 10(4) above, deals with a board's duty and power to establish policies and guidelines. The amendment can be seen as conferring considerable power on the Minister over a board's decisions with respect to its policies and guidelines as the Minister has the final say.


(c) Duties Imposed on School Boards

Adding additional obligations, Bill 13 amends Part VI of the Education Act which deals with the duties and powers of boards. These amendments are unprecedented in the amount of detailed direction given to boards on how to operate.

Section 169.1(1)(a) of the Education Act states that every board shall "promote student achievement and well-being." Bill 13 adds two requirements:

(a.1) promote a positive school climate that is inclusive and accepting of all pupils, including pupils of any race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability;

(a.2) promote the prevention of bullying;

To fulfill these requirements, boards must use surveys, every two years, to collect information from pupils, staff, parents and guardians.

Boards must also establish policies and guidelines with respect to disciplining pupils and bullying prevention and intervention in schools. A board must specifically establish "a bullying prevention and intervention plan for the schools of the board and require its schools to implement the plan." In establishing bullying prevention plans, boards are required to consult with pupils, teachers and staff, the volunteers working in the schools, the parents and guardians of the pupils, school councils and the public.

Boards also must "provide annual professional development programs to educate teachers and other staff of the board about bullying prevention and strategies for promoting positive school climates." Similarly, boards must provide support for students who were involved in any manner with bullying (victims, witnesses, aggressors) and these supports "may be provided by social workers, psychologists or other professionals who have training in similar fields, as determined by the board."

Boards will be required to submit annual reports to the Minister of Education with respect to suspensions and expulsions. Boards are also required to ensure that any agreements with third parties regarding the use of the school "shall include in the agreement a requirement that the person or entity follow standards that are consistent with the code of conduct."

Boards are required to support students who want to establish and lead activities and organizations that promote a safe and inclusive learning environment, the acceptance of and respect for others and the creation of a positive school climate. A contentious amendment, indicative of the nature of Bill 13, is the restriction on boards from refusing to allow any student to "use the name gay-straight alliance or a similar name" for a school organization.


(d) Duties Imposed on Principals

The Education Act is amended to require that principals ensure the promotion of a positive, inclusive and accepting school climate and promote the prevention of bullying.

Staff are required to report bullying incidents to the principal and the principal is now under an explicit duty to investigate and report back. The principal must also notify the parents or guardians of the student who was harmed and the student who engaged in the activity that resulted in the harm—notice is to include the nature of the offending activity, the nature of the harm to the student, steps to be taken and supports that will be provided.

Like the restriction placed on boards with respect to the requirement to permit school clubs, the principal cannot refuse to allow a pupil to use the name gay-straight alliance or a similar name for an organization.

Lastly, principals must make their board's bullying prevention and intervention plan available to the public.


(e) Objectives and Impact of Bill 13

The stated objective of Bill 13 can be found in its preamble:

. . .

Believe that students need to be equipped with the knowledge, skills, attitude and values to engage the world and others critically, which means developing a critical consciousness that allows them to take action on making their schools and communities more equitable and inclusive for all people, including LGBTTIQ (lesbian, gay, bisexual, transgender, transsexual, two-spirited, intersex, queer and questioning) people;

Recognize that a whole-school approach is required, and that everyone—government, educators, school staff, parents, students and the wider community—has a role to play in creating a positive school climate and preventing inappropriate behaviour, such as bullying, sexual assault, gender-based violence and incidents based on homophobia, transphobia or biphobia;
. . .

While Bill 13 attempts to come across as balanced insofar as it targets bullying in general, there is major focus on homosexual-related bullying. One reason for this is that the impetus for Bill 13 was disputes specifically over gay-straight alliances.


Significant Questions & Answers:

The nature of some of the Bill 13 amendments create responsibilities that strike to the core of constitutionally protected rights of denominational schools. In this context, what are the constitutional implications of Bill 13 on denominational schools?

Question 1: Are key provisions of Bill 13 subject to constitutional challenge?

Answer 1: Yes

Question 2: If the answer to question 1 is yes, then what constitutional provisions could be invoked to ensure constitutional protection of recognized denominational school rights?

Answer 2: The key constitutional provisions are section 93 of the Constitution Act, 1867 and section 2 of the Canadian Charter of Rights and Freedoms.


LexView Commentary:

"Throughout the world, education is one of the most contested areas for religious institutions and believers; all religions are only ever one generation away from oblivion and the education of the next generation in the beliefs and habits of faith is necessary to ensure the survival of all faiths. While the family and religious institutions are the primary places for education, schools are also important as places for the reinforcement of religious values."
—M.H. Ogilvie

Section 93 of the Constitution Act, 1867 confers on the provincial Legislatures the exclusive power to make "laws in relation to education". This power is limited by the addition of four qualifying subsections. Section 93 provides:

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.


(a) Constitutional Protection Granted by s. 93 (1)

The protection granted in subsection (1) is in relation to denominational schools and courts have held that it does not extend to aspects of the curriculum that have no denominational significance. The words "any class of persons" have been interpreted as meaning a class of persons determined according to religious belief, and not according to race or language.

As a result of the inclusion of the words "by law" and the phrase "at the union", courts have held that only rights and privileges established by statute are entitled to protection (practices and customs do not qualify). Importantly, only rights and privileges in existence at Confederation (i.e. pre-Confederation rights) are entitled to protection.

Section 93 prohibits laws that prejudicially affect protected rights and privileges. Laws that have a beneficial effect are constitutional and legislation characterized as neutral can be deemed not to be prejudicial.

Based on that framework, a number of provincial intrusions in educational matters have been deemed permissible:

  • reorganization of school board system to reduce the number of boards

  • restructuring the educational funding system

  • changes to non-denominational portions of curriculum

  • creation of non-denominational regulations (i.e. municipal zoning bylaws and building codes, the right to collective bargaining for teachers).

Likewise, many provincial intrusions have been found to be impermissible:

  • changes to the right of denominational schools to be managed by denominational trustees (management rights are protected)

  • imposing an obligation to serve other sections of the population (exclusivity is protected)


(b) Federal Power under ss. 93(3) & (4)

Section 93(3) allows Protestant or Roman Catholic minorities a right of appeal to the Governor General in Council (federal Cabinet) from a provincial decision that affects a right or privilege in relation to education. Since s. 93(3) is an appeal to the federal Cabinet, it is often characterized as a political right rather than a legal right. The enactment of legislation would fall within an "Act or Decision" of the provincial legislature. Subsection 93(4) provides the power to enact remedial legislation in relation to education when a decision made by the federal Cabinet pursuant to s. 93(3) is not acted upon by the provincial authority.

There is considerable uncertainty with respect to ss. 93(3) and (4) due largely to its lack of use since Confederation. The federal Cabinet has a range of options for dealing with a s. 93(3) appeal, including the following:

  • decline to intervene;

  • put pressure on the provincial government to modify the law at issue;

  • reference a question to the Supreme Court of Canada so as give its political decision some measure of legal weight; or

  • enact its own remedial legislation under s. 93(4).

With respect to the third option, s. 53 of the Supreme Court Act allows the Governor in Council to refer matters to the Supreme Court. Section 46 of the Rules of the Supreme Court of Canada sets out the procedure for commencing a reference. The Court's answer to a question posed on a reference is advisory only and does not have the same precedential value as an actual case. However, in practice reference opinions are not disregarded by the parties and are treated in the same way as other judicial opinions. The Court may decline to answer a question where it is not yet ripe, is moot, is not a legal one, is too vague, or is not accompanied by information needed to make a sound decision.


(c) Charter of Rights and Freedoms

The Charter of Rights and Freedoms applies to all laws enacted by provincial Legislatures and all action taken under statutory authority. The Charter therefore applies to laws enacted by the government in relation to education.


(i) Freedom of Religion

Section 2 of the Charter protects fundamental freedoms, including freedom of conscience and religion. In R. v. Big M. Drug Mart, the Supreme Court of Canada defined freedom of religion in s. 2(a) as follows:

The essence of the concept 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 belief by worship and practice or by teaching and dissemination. But the concept means more than that.

Freedom can primarily be characterized by the absence of coercion or constraint . . . Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest belief 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.

The Court also emphasized:

. . . the purpose of freedom of religion is clear. The values that underlie our political and philosophical 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. Religious belief and practice are historically prototypical and, in many ways paradigmatic of conscientiously-held beliefs and manifestations and are therefore protected by the Charter.

In Edwards Books, the Supreme Court confirmed that:

The purpose of section 2(a) is to ensure that society does not interfere with profoundly personal beliefs that govern one's perception of oneself, human kind, nature, and, in some cases, a higher or different order of being. These beliefs, in turn, govern one's conduct and practices, The Constitution shelters individuals and groups only to the extent that religious beliefs or conduct might reasonably or actually be threatened.

A broad interpretation of protected religious practice was upheld in Syndicat Northcrest v. Amselem. A practice, to receive Charter protection, need not to be part of an established belief system or a belief system shared by others and it need not be perceived as obligatory—the sole requirement is that the claimant sincerely believes that the practice is of religious significance (religious belief is personal and can vary from one person to another).

In Multani v. Commission scolaire Marguerite-Bourgeoys, the Court addressed freedom of religion within the context of public schools. In that case, the Court upheld the right of a Sikh child to wear a kirpan to school—the boy sincerely believed that he had to wear the kirpan. In the section 1 analysis, the Court opined that safety issues would be sufficiently addressed if the boy wore the kirpan in a wooden sheath and stitched it into his clothing.

In the recent decision of the Supreme Court of Canada in S.L. v. Commission scolaire des Chenes the Court addressed what is required to establish a violation of the s.2(a) right of freedom of religion. In that case, the Court reviewed the decision in Quebec to replace Catholic and Protestant religious and moral instruction with an Ethics and Religious Culture Program ("ERC"). Two parents requested that the school board exempt their children from the ERC on the basis that it would harm them within the meaning of s. 222 of the (Quebec) Education Act. Their request was denied. Before the courts, the parents argued that the ERC infringed the right to freedom of conscience and religion. The courts ruled against them.

Before the Supreme Court of Canada, the parents advanced that, as a function of their Catholic faith, they had an obligation to pass on the precepts of the Catholic religion to their children and, that the ERC interfered with this practice—the ERC exposed the children to a form of relativism that portrayed different beliefs on an equal footing.

A majority of the Supreme Court found that the parents had failed to prove a violation of s. 2(a). While the parents believed they were obliged to pass along the precepts of their Catholic faith to their children, the parents had not proven that the ERC obstructed this practice. As set out by Justice Deschamps:

the early exposure of children to realities that differ from those in their immediate family environment is a fact of life in society. The suggestion that exposing children to a variety of religious facts in itself infringes their religious freedom or that of their parents amounts to a rejection of the multicultural reality of Canadian society and ignores the Quebec government's obligations with regard to public education. Although such exposure can be a source of friction, it does not in itself constitute an infringement of s. 2(a) of the Canadian Charter and of s. 3 of the Quebec Charter.

While a subjective test is applied to determine what constitutes a religious belief protected by the Charter, an objective test is to be applied to determine whether a belief has been violated.


(ii) Equality and Multiculturalism

The following two Charter sections are also relevant:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, 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 multicultural heritage of Canadians.

In Withler v. Canada (Attorney General), the Supreme Court of Canada set out the relevant framework for a s. 15 analysis. A two-step test is to be applied to assess a s. 15 claim:

  1. Does the law create a distinction based on an enumerated or analogous ground?

  2. Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?


Step 1: Enumerated or Analogous Ground

Section 15(1) protects only against distinctions made on the basis of the enumerated grounds or grounds analogous to them. An analogous ground is one based on a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity. Grounds including sexual orientation, marital status, and citizenship have been recognized as analogous grounds of discrimination.


Step 2: Discriminatory Impact

A distinction based on an enumerated or analogous ground is not sufficient to establish a violation of s. 15—it must also be shown that the law has a discriminatory impact in terms of prejudicing or stereotyping. As set out in Withler:

The first way that substantive inequality, or discrimination, may be established is by showing that the impugned law, in purpose or effect, perpetuates prejudice and disadvantage to members of a group on the basis of personal characteristics within s. 15(1). Perpetuation of disadvantage typically occurs when the law treats a historically disadvantaged group in a way that exacerbates the situation of the group. Thus judges have noted that historic disadvantage is often linked to s. 15 discrimination. In R. v. Turpin, [1989] 1 S.C.R. 1296, for example, Wilson J. identified the purposes of s. 15 as "remedying or preventing discrimination against groups suffering social, political and legal disadvantage in our society" (p. 1333)

The second way that substantive inequality may be established is by showing that the disadvantage imposed by the law is based on a stereotype that does not correspond to the actual circumstances and characteristics of the claimant or claimant group. Typically, such stereotyping results in perpetuation of prejudice and disadvantage. However, it is conceivable that a group that has not historically experienced disadvantage may find itself the subject of conduct that, if permitted to continue, would create a discriminatory impact on members of the group. If it is shown that the impugned law imposes a disadvantage by stereotyping members of the group, s. 15 may be found to be violated even in the absence of proof of historic disadvantage.

The section 15 analysis involves reviewing the circumstances of members of the group and the negative impact of the law on them. The analysis is contextual, not formalistic, grounded in the actual situation of the group and the potential of the impugned law to worsen their situation.

The Court in Withler also stated:

Without attempting to limit the factors that may be useful in assessing a claim of discrimination, it can be said that where the discriminatory effect is said to be the perpetuation of disadvantage or prejudice, evidence that goes to establishing a claimant's historical position of disadvantage or to demonstrating existing prejudice against the claimant group, as well as the nature of the interest that is affected, will be considered. Where the claim is that a law is based on stereotyped views of the claimant group, the issue will be whether there is correspondence with the claimants' actual characteristics or circumstances. Where the impugned law is part of a larger benefits scheme, as it is here, the ameliorative effect of the law on others and the multiplicity of interests it attempts to balance will also colour the discrimination analysis.

Both the inquiries into perpetuation of disadvantage and stereotyping are directed to ascertaining whether the law violates the requirement of substantive equality. Substantive equality, unlike formal equality, rejects the mere presence or absence of difference as an answer to differential treatment. It insists on going behind the facade of similarities and differences. It asks not only what characteristics the different treatment is predicated upon, but also whether those characteristics are relevant considerations under the circumstances. The focus of the inquiry is on the actual impact of the impugned law, taking full account of social, political, economic and historical factors concerning the group. The result may be to reveal differential treatment as discriminatory because of prejudicial impact or negative stereotyping. Or it may reveal that differential treatment is required in order to ameliorate the actual situation of the claimant group. [Emphasis added]


(d) Interplay of Constitutional Provisions

(i) Charter and s. 93

Emphasizing special treatment of section 93 rights, 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.

The Charter, therefore, is not to be read as amending earlier constitutional provisions that could be inconsistent with its guarantees.

Further, section 93 protection cannot be enlarged through the operation of s. 2(a) of the Charter, nor can it be restricted by Charter provisions. As noted by the SCC in Adler, s. 93 is the product of a historical compromise and does not represent a guarantee of fundamental freedoms. What is exempt from Charter application is section 93 itself and the rights it guarantees. Denominational schools are exempt from the Charter only where an 1867 right can be established and it goes to the core of its denominational character.


(ii) Constitution and Education Act

Ontario's Education Act makes specific mention of the Constitution Act, 1867 and the Charter:

Constitutional rights and privileges

1(4) This Act does not adversely affect 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.

This provision is infrequently referred to, but on its face it reaffirms the importance of ensuring that Ontario's Education Act conforms to s. 93 and its protection of denominational rights.

The Education Act also enshrines the denominational rights of schools:

257.52 (1) Nothing in this Division or Division C.1 authorizes the Minister to interfere with or control(a) the denominational aspects of a Roman Catholic board ...

(2) The powers under this Division and Division C.1 shall be exercised in a manner that is consistent with,
(a) the denominational aspects of a Roman Catholic board ...

This forbids the Minister from interfering with the denominational aspects of a school board. Whether such an interference has occurred can be reviewed by the courts by virtue of s. 257.40(5):

Exclusive jurisdiction

257.40 (1) Subject to subsections (3) and (4), the Minister has exclusive jurisdiction as to all matters arising under this Division or out of the exercise by the board or any person of any of the powers conferred by this Division, and that jurisdiction is not open to question or review in any proceeding or by any court.

Limitation

(5) This section is subject to section 257.52.


(e) Recognized Constitutional Distinctiveness of Denominational Schools

(i) Courts Recognize Distinct Philosophy of Catholic Education

Courts have consistently recognized that Catholic denominational schools can function according to distinct Catholic philosophy and tenets:

  • Tiny Separate School Trustees v. The King: The idea that the denominational school is to be differentiated from the common school purely by the character of its religious exercises or religious studies is erroneous. Common and separate schools are based on fundamentally different conceptions of education. Undenominational schools are based on the idea that the separation of secular from religious education is advantageous. Supporters of denominational schools on the other hand, maintain that religious instruction and influence should always accompany secular training.

    Any statute or regulation that would materially diminish or curtail the scope of the education which denominational schools were, at the date of Confederation, legally entitled to impart, or that would intend to restrict the period during which supporters of such school, Catholic or Protestant, were then legally entitled to have the education of their children subject to the influence of denominational control and instruction, would "prejudicially affect a right or privilege with respect to denominational schools" enjoyed by the class of persons of which such supporters form a section.

  • Caldwell v. Stewart: Catholic schools are significantly different from other schools mainly because of the doctrinal basis upon which they are established. It is a fundamental tenet of the Church that Christ founded the Church to continue His work of salvation. The Church employs various means to carry out his purpose, one of which is the establishment of its own schools which have as their object the formation of the whole person, including education in the Catholic faith.

    … the Catholic School is different than the public school. In addition to the ordinary academic program, a religious element which determines the true nature and character of the institution is present in the Catholic School. To carry out the purposes of the school, full effect must be given to this aspect of its nature ...

    … the Catholic School differ(s) 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.

  • Daly v. Ontario: The evidence establishes that the aim of Catholic education is not merely the transmission of knowledge and development of skills, but rather the integral formation of the whole person according to a vision of life that is revealed in the Catholic tradition.

(ii) Teachers

Courts have recognized that section 93 denominational rights extend beyond the right of the existence and funding of denominational schools—implicit in s. 93 is the right to create and promote a Roman Catholic ethos. In a number of decisions, courts have relied on the constitutional distinctiveness of denominational schools to affirm:

  • the private lives of teachers in Roman Catholic schools are subject to the discipline and teachings of the Roman Catholic Church;

  • denominational cause may be used in the appointment, promotion and dismissal of teachers.

Courts have also confirmed that:

  • legislation that seeks to reinstate teachers dismissed for denominational cause because they have entered a civil marriage is ultra vires—it infringes s. 93 denominational school rights.

The following passages from Caldwell are particularly relevant to the argument that implicit in s. 93 is the right to create and promote a Roman Catholic ethos:

It is my opinion that objectively viewed, having in mind the special nature and objectives of school, the requirement of religious conformance, including the acceptance and observance of the Church's rules regarding marriage is reasonably necessary to assure the achievement of the objects of the school.

... teachers are required to observe and comply with the religious standards and to be examples in the manner of their behavior in the school so that students see in practice the application of the principles of the Church on a daily basis and thereby receive what is called a Catholic education. [Emphasis added]

In Caldwell, the Supreme Court of Canada characterized the role of a teacher in a Catholic school as follows:

The relationship of the teacher to the student enables the teacher to form the mind and attitudes of the student, and the Church depends not so much on the usual form of academic instruction as on the teachers who, in imitation of Christ, are required to reveal the Christian message in their work as well as in all aspects of their behaviour. The teacher is expected to be an example consistent with the teaching of the Church, and must proclaim the Catholic philosophy by his or her conduct within and without the school ... The teaching of doctrine and the observance of standards by the teachers form part of the contract of employment of the teachers. They are required to exhibit the 'highest model of Christian behaviour'.

In Daly, the Court also stated:

Particular emphasis is placed on the role of a teacher in the Catholic school as a 'witness to the faith', where teachers transmit Catholic faith through example and active participation in the liturgical and sacramental life of the Church as well as through the personal relationships they form with their students.

... on the basis of shared common beliefs and values, teachers and students develop relationships and a common commitment to the beliefs, values, attitudes and knowledge that the school aims to inculcate.

... the transmission of beliefs, values, attitudes and knowledge is accomplished both directly and indirectly from teacher to student, whether the subject matter formally subsumes those beliefs, values, attitudes and knowledge, such as religion or whether is does not".


(iii) Students

As set out above, the courts have continually allowed schools to protect their Roman Catholic culture vis-à-vis their teachers and staff. With respect to employees, provincial legislation cannot force schools to abandon its policies which promote Roman Catholic ethos—to do so would be a breach of section 93 denominational rights. One can infer from this right to promote Roman Catholic values in employees the right to have similar control with respect to students. Both teachers and students are integral contributors to the denominational character of a school.


(iv) The Decision in Hall—Anomaly?

Court non-interference with Roman Catholic ethos and values was set aside in Hall (Litigation guardian of) v. Powers. The motions judge granted an interlocutory injunction to prohibit a Roman Catholic high school from preventing a male student from attending prom with his boyfriend. The basis for the injunction was that there was a serious issue to be tried; namely, the Charter could apply to publicly funded schools and a trial court could find discrimination on the basis of sexual orientation.

The judge raised doubts as to the section 93 arguments since there was no historic right to bar homosexual couples from school events and such a right was not necessary to promote the denominational character of the school. He also questioned the evidence from the bishop and the Catechism of the Catholic Church as to a uniform belief regarding homosexual relationships.

The case is noteworthy in that it does not uphold the right of Roman Catholic schools to foster and promote a Roman Catholic ethos. As the case was discontinued shortly after the motion and did not proceed to trial, the board was unable to defend its section 93 rights through a full trial.

There are a number of juridical and tautological weaknesses in the reasoning of the court. The court's "proper approach" to the first stage of the analysis of s. 93 rights (whether there was a right or privilege enjoyed by law at 1867) is based on a vague examination of past rights and applying "2002 common sense." Arguably, control over school events could be subsumed within the general power of the trustees to manage their schools. The "common sense" approach sheds little light when it will be found that a right can be connected to one that existed in 1867.

The second stage of the s. 93 analysis (whether the legislation in question prejudicially affects the right or privilege) is on equally shaky footing. The court asked: "Does allowing this gay student to attend this Catholic high school prom with a same-sex boyfriend prejudicially affect rights with respect to denominational schools under s. 93(1) of the Constitution Act, 1867?" It answered this question in the negative based largely on a finding that there was a diversity of opinion within the Catholic community on the issue of homosexuality. The Church's evidence, despite being authoritative, was given little weight. Greg M. Dickinson commented in "Injunction Orders Catholic School Board to Permit Same-Sex Partner at School Prom" that the court "was content to equate dissension within the Church on a matter of dogma—in this case the treatment of homosexuality—with there being no authoritative Church position."

Hall can be argued as being wrong in its characterization of what rights are protected denominational rights or distinguished for dealing with a school event that is essentially a party, having far less of an educational component than a student support group. Support based on Catholic teachings can be shared in student groups, while the educative potential of a prom (in relation to school curriculum) is arguably much lower.


(f) Fundamental Roman Catholic Values

For Catholics, education of children must reflect God's creation and be done "in the faith". Education within the Catholic faith belongs to the Church. The Catholic Church teaches that all people are children of God, respect is due to everyone irrespective of their race, gender, age, stage of development, disability, sexual orientation (same-sex or opposite-sex attraction), gender identity, class or religion. The Catholic faith thus stands against injustice including injustice in interpersonal relationships such as those typified by bullying.

In "Respecting Difference", the Catholic Church's position on sexuality is set out as follows:

  • everyone, whatever their sexuality, single and/or married, is called to live a life of chastity, and that involves for each person a growth in holiness, and an inner peace that is made evident in a truly joyful life of generous love for others;

  • all actions involving human sexuality are morally assessed in reference to its two-fold meaning and purpose, mutual love of the spouses and an openness to life;

  • if a person acts in a way that goes against this meaning it is also viewed as an act against the virtue of chastity—this assessment is the same for all people, whether heterosexual or those with same-sex attraction.


(g) Objections to Bill 13 Amendments

(i) General Philosophical Objections

  • Bill 13 undermines the religious freedom of families and the institutional freedoms of schools and boards.

  • "Catholic parents and schools—like other religious and cultural communities—wish to retain their constitutionally protected right to ensure that any school teaching or activity is consistent with their philosophical and religious values, including their understanding of sexual morality." (Cecil Chabot, "Ontario's anti-bullying bill resorts to bullying," Toronto Star, 3 June 2012)

  • Catholic parents "want to defend their responsibilities and rights as the primary educators of their children." (ibid)

  • Parents should have the right to educate their children in accordance with the fundamental precepts of their religion.

  • "Instead of protecting students from prejudice," Bill 13 oxymoronically risks "giving implicit legislative support for prejudice against minority, religious and cultural groups." (ibid)

  • "Instead of fostering respect for a plurality of understandings and school choices," Bill 13 "risks promoting a uniformity of understanding and making school choices meaningless." (ibid)

  • Bill 13 proposes that the Government enforce selective and particular perspectives and belief systems, "seeking to render the school system increasingly homogenous, rather than encouraging proper respect for each child and their unique cultural and religiously informed perspective and up-bringing." (Evangelical Fellowship of Canaada, "Ontario's Bill 13, The Accepting Schools Act, and Anti-Bullying Initiatives: What You Need To Know," February 2012)


(ii) Problematic Sections

Although not an essential element of legislation, preambles are important to statutory interpretation since they set out the reasons why the legislature thought it necessary to enact the legislation. They can be relied upon as evidence of the legislative intent. Courts may look to the preamble of Bill 13 to help interpret not only the provisions it amends, but also the Education Act generally.


Preamble

The Preamble directly challenges the denominational rights of schools and provides the basis for an infringement of freedom of religion. It states that students' "knowledge, skills, attitude and values" must adhere to those which include the gender constructs of LGBTTIQ. This disregards Catholic doctrine and ignores the constitutionally afforded denominational protection. It opens the door for a "one size fits all" model which fails to respect Catholic differences and the purpose behind having separate school systems.


Sections 2, 10 & 11: Power Over Policies

Sections 2 and 10(11) of Bill 13 (which amend ss. 8(1) para. 29.1 and 301(11) respectively of the Act) give the Minister of Education the power to review a board's policies regarding equity or bullying and to direct them to implement changes. Section 11 states that the policies and guidelines regarding discipline and bullying must be consistent with those established by the Minister.

These provisions remove substantial control from school boards' over policies dealing with equity, inclusiveness, discipline and bullying. For denominational school boards, these policies would undoubtedly have a denominational character and could be very different from those of the non-denominational school boards. However there is nothing to ensure that the Minister would create a policy with denominational values in mind; indeed, Bill 13 suggests that the opposite will take place and the Minister's policies will be in direct conflict with Catholic values.


Section 10: Agreement with Third Parties using Schools

Section 301(1) of the Education Act provides the Minister with the authority to establish a code of conduct governing the behaviour of all persons in schools. Section 10(1) of Bill 13 adds "to prevent bullying" as one of the purposes of the code of conduct. Section 10(2) then provides that if a board enters into an agreement with a third party regarding the use of a school, the "board shall include in the agreement a requirement that the person or entity follow standards that are consistent with the code of conduct." The practical result of these amendments is that a group that holds religious convictions which could be seen as homophobic would be prevented from using the school.


Section 10: Discipline

Bill 13 sections 10(3) and 10(4) in exacting detail give substantial power to the Minister to establish policies and guidelines with respect to disciplining pupils and bullying. The policies for discipline must now include a framework that identifies inappropriate behavior based on homophobia, transphobia or biphobia. All policies must also include training, procedures and resources. However, there is nothing to suggest that the training, procedures and resources will take into account denominational school values or that the difference between non-denominational and denominational schools is to be respected.


Section 12: Mandated Support for Non-Denominational Values

Lastly, s. 12, which amends s. 303.1, could be argued to infringe s. 93 by forcing schools to support student groups and activities that would stand in direct conflict with Catholic doctrine and breach the school boards' constitutionally protected denominational rights. To limit s. 93 protection to only religious curriculum and to ignore other educative activities within a school render meaningless the constitutional protection. Bill 13 enforces the acceptance of school clubs that are unaccountable to school values, authorities and the parents who delegate their authority to the school.

Adding to the difficulty of a Charter or s. 93 challenge are the provisions following the requirement to support student groups. They are well crafted and likely added in anticipation of challenges to the legislation. Section 303.1(3) makes the support contingent on a student wanting it—there is no requirement on the school board to be proactive and offer the support to students unless requested. Section 303.1(4) suggests the basis for 303.1(2) is simply to ensure an inclusive and accepting climate. Section 303.1(5), which states that compliance must be done in a way that respects the Charter, sets the stage for a challenge against a school board on the grounds of a s. 15 equality claim.


(h) Court Challenge: Solid Constitutional Ground?

(i) Framing the Right

Constitutional arguments can be made that certain key provisions of Bill 93 impinge and infringe the guarantees of s. 93(1). A preliminary step of the analysis is to properly frame the right that is at issue. This would be influenced by strategic, legal, and political considerations. The framing of the right at issue may be influenced by the particular provision that is being contented.

  • Preamble: The language of the Preamble disregards Catholic doctrine and ignores the constitutionally afforded denominational protection: it opens the door for a model which fails to respect Catholic differences and the purpose behind having separate school systems.

  • Sections 2 & 10(11): The amendments regarding policies and guidelines puts at stake denominational school boards' control over denominational aspects of students' education.

  • Section 10: Requiring third-party users of the school to agree to a provincial code of conduct chips away at a school board's s. 93 denominational rights by preventing groups that share the same beliefs as the denominational school from using it as a gathering place: the value of the school as a part of its denominational community is reduced.

  • Section 12: Sections forcing schools to support groups and activities that would stand in direct conflict with Catholic doctrine breaches the school boards' denominational rights to control its religious curriculum. To limit the protection to only in-class religious curriculum ignores the other educative functions of a school and unduly narrows the constitutional protection.


(ii) Section 93 Aspects Analysis

Courts have applied a two-stage "aspects analysis" approach to s. 93 rights. The first stage has two subsidiary questions and the complete analysis can be summarized as follows:

  1. Whether there was a right or privilege enjoyed by law at 1867.
    1. What was the extent of the power of the trustees at 1867.

    2. What measure is that power a right or privilege with respect to denominational schools.

  2. Whether the legislation in question prejudicially affects the right or privilege in effect at the time of Union in 1867.

At the first stage, there is a recognized 1867 right of school boards to provide education to school-aged children and to control denominational elements of its schools' curricula. These rights can be subsumed in a general right of management of denominational rights and privileges or a non-denominational right necessary to deliver the denominational elements of education.

In the first stage of analysis, the following arguments could be advanced:

  • It would undermine s. 93 protections to require an exact match between present and historic rights—more appropriate would be a flexible approach (this could be consonant with the purposive approach endorsed by the Supreme Court of Canada) which focuses on the broader purposes and intentions of the legislation in 1867.

  • The protected rights of Catholic schools in 1867 were meant to be frozen and not expanded, but there is room within those protected rights to account for changes over time—an overly rigid approach would render the constitutional protections meaningless.

  • In taking a broad and purposive approach to the right(s) at issue, the educative function of the school beyond the classroom walls is also important. Elichai Shaffir in his commentary "Dancing Like It's 1867: How Can Religious Intolerance Be Supreme Law in 2006?" 16 Educ. & L.J. 1 notes the "hidden" curricula:
    Implicit within all schools are the notions of an explicit and 'hidden' curricula. In other words, schools do more than simply transmit knowledge as laid down in the official curricula. They also serve to transmit beliefs and values which are embedded within the 'hidden' curriculum.

The mission of all Catholic school boards and their schools, as noted by the Ontario Catholic Trustees' Association, is to create a faith community where religious instruction, religious practice, value formation and faith development are integral to every area of the curriculum. The schools strive to provide an environment which promotes Catholicism and where children can be taught Catholic values and encouraged to live a Catholic lifestyle. In that light, what goes to the essential denominational nature of a school can be quite broad with respect to those aspects of the school which have an educational element.

With respect to the subset questions of stage one of the analysis, the question turns to the extent of the power of the trustees at 1867 in denominational schools. If it is accepted that the historic right is one of general management over denominational rights or non-denominational aspects necessary to deliver denominational elements of education, then the trustees' power in that regard in 1867 would be quite extensive. The Separate Schools Act (Scott Act) of 1863 authorized Roman Catholics to establish separate schools and elect trustees "for the management" of each school. The school board would have had substantial power over educative information being transmitted to students whether it was inside a classroom or through an alternative learning method sanctioned by the school. The entire basis for establishing and protecting denominational schools was to ensure that children could benefit from their unique educational experience.

At the second question, the issue is whether the legislation in question prejudicially affects the right(s) or privilege(s) in effect at the time of Union in 1867? Here the imposition of non-Catholic policies that would displace Catholic policies regarding what is taught within the school go to the essential denominational nature of the school and therefore prejudicially affect s. 93 rights. The policies at issue deal with aspects of the school environment that have a large educative component.

More specifically with respect to student groups, the right to control which groups are formed and sanctioned by the school should fall within a school board's right of general management. Unlike an event like a dance or prom, school groups or organizations have a potentially much larger educative component designed to support students within the sphere of learning of the school. They provide a vehicle, within the school sphere, for students to share, learn, connect and find support over certain issues. It provides an opportunity to share Catholic values on tolerance, sexuality and compassion.


(iii) Section 2(a) of the Charter

An argument can also be advanced that the disputed provisions endanger the religious freedoms of parents and students who attend denominational schools: the disputed provisions impose particular perspectives and belief systems within denominational schools, beliefs which ignore, conflict and directly contradict the religious beliefs of parents and students alike.


(iv) Standing to Bring a Challenge

A challenge to the amendments made by the Accepting Schools Act, 2012 will have to occur in proceedings initiated for that purpose and where the relief being sought is a declaration that the statute, or a part of it, is invalid. The first issue in considering a declaratory proceeding is whether the applicant has standing.

The general rule is that an individual who is "exceptionally prejudiced" by a statute has standing to bring a declaratory action to challenge the validity of the statute. However, this requires that the statute applies to him or her differently from the public generally. In the present case, if an individual parent brings the action, it would be difficult to show how the impact of the law on the plaintiff is different than on other parents subject to the statute. Also, given the fact the Act is generally declaratory and directory, not imposing penalties for its breaches, it would be difficult for anyone to establish exceptional prejudice. It may be possible for a school board to show exceptional prejudice.

An alternative to the exceptional prejudice rule is discretionary public interest standing: the court can grant standing to a private plaintiff who seeks to vindicate a public interest and who is not exceptionally prejudiced. The courts will grant public interest standing when: (1) the action raises a serious legal question, (2) the plaintiff has a genuine interest in the resolution of the question, and (3) there is no other reasonable and effective manner in which the question may be brought to court.

Applying the test in the present case, first, the action raises a serious issue as to the validity of the new policies required at schools regarding bullying and discrimination. A school board's control over student groups and related curriculum is important for all parties involved with denominational schools. Second, boards, trustees and parents would have a genuine interest in the issue because the educative function of school groups impacts their children attending Catholic schools. The third requirement likely poses the most problems if those seeking the injunction do not include a full panoply of stakeholders.


(v) Potential Lead Plaintiffs

The board, its trustees. bishops and parents would be the most ideal lead plaintiffs since it is their control over curriculum and denominational aspects of education that is being directly challenged.


(vi) Relief Sought

If the Education Act as amended by Bill 13 infringes s. 93 of the Constitution, then a remedy can be sought under s. 52(1), the supremacy clause, which applies to the entire Constitution, including the Charter. Where there is a Charter infringement, in addition to s. 52(1), s. 24(1), the remedy clause, is available to a person whose rights have been infringed. Section 24(1) authorizes a wide range of remedies, while s. 52(1) is limited to a holding of invalidity.

A declaration of invalidity has a number of variations: nullification, temporary validity, severance, reading in, reading down and constitutional exemption.

If a court accepts that the Bill 13 amendments infringe s. 93 of the Constitution, then it must determine which variation of invalidity it would apply: one must remember that the provisions would only be an infringement of denominational rights and would not infringe the rights of non-denominational school boards.


(vii) Availability of an Injunction Pending Court Determination

An interlocutory injunction could be difficult to obtain given that injunctions are rarely granted in constitutional cases as it is assumed that laws enacted by democratically elected legislatures are directed to the common good and serve a valid public purpose.

The Court set out a three part test for granting an interlocutory injunction in Metropolitan which was reapplied by that court in RJR MacDonald:

  1. Is there a serious issue to be tried that would justify the intervention of the court prior to trial?

  2. Will the applicant suffer irreparable harm that cannot be adequately compensated in damages if an interlocutory injunction is not granted?

  3. Whom does the balance of convenience favour—which party will suffer greater harm from the court's granting or refusal to grant relief prior to trial?

For the first requirement, the constitutionality of the sections in issue clearly provides a serious question to be determined. The Bill 13 amendments raise issues as to the infringement of s. 93 rights, as well as Charter rights. The threshold for satisfying this first part of the test is a low one.

With respect to establishing irreparable harm, the nature of the harm that would be suffered is not one which can be quantified in monetary terms or which can be cured. The adverse effect on the plaintiffs' interests is significant—it is an attack on, and potential weakening of, the right to denominational schooling. One can question whether the damage done to the rights of a religious minority could be fully restored if the provisions are found to be unconstitutional.

The third stage of the test takes into account the public interest and is the most difficult requirement to meet in the present case. In Metropolitan, the Court held that public interest considerations will generally require those challenging the constitutional validity of laws to obey those laws pending a final determination. There is a presumption that the law will produce a public good. In order to overcome this assumed benefit to the public interest, the applicant must demonstrate that the suspension of the legislation would itself provide a public benefit.

On four occasions where the Supreme Court of Canada dealt with issues of interlocutory relief in the context of challenges to the validity of legislation—Gould v. Attorney General of Canada, Metropolitan, RJR-MacDonald, Harper v. Canada—the applicants failed to establish the balance of convenience.

However, in favour of the granting of an injunction is that an injunction at an early stage would essentially preserve the status quo, which already has in place anti-bullying protections. Also, there is a recognition by the school boards of the seriousness of the issue and an assurance (as seen in the "Respecting Difference" document) to address the issue. A strong argument could therefore be made that the greater harm is to the denominational rights of the schools being affected.

For an example of where an injunction was granted, see Law Society of British Columbia v. Canada (Attorney General) which dealt with a law that could require lawyers to disclose information even if it is subject to solicitor-client privilege. The violation could have resulted in the "public's confidence in an independent bar [being] shaken and the lawyer-client relationship irrevocably damaged".


(viii) Strengths

A fundamental constitutional right is in issue and is at risk—s. 93. While the rights protected under s. 93 have been narrowly interpreted, Courts have consistently upheld the right of Catholic schools to require a Catholic character in all aspects of those schools. In this regard, the Hall decision is an outlier.

Parents have the responsibility and right as the primary educators of their children. When they delegate this authority to denominational schools, they do so with the assurance that their children will be educated in accordance with a particular philosophical and religious approach. In Daly, the Court of Appeal recognized that "the right of Catholic Separate Schools is protected under s. 93(1) and the perspective of the rights holders is a legitimate consideration".

Courts have recognized that the constitutional rights granted to denominational schools involve more than a guarantee of the right to establish denominational schools—the right to establish denominational schools necessarily includes the right to maintain the religious character of the schools.

Not all provisions of the legislation are the subject of a constitutional challenge. It is thus possible to agree with the objective of the legislation and at the same time disagree with some of the means chosen to achieve that objective.

There are many ways of attaining the objective(s) of the legislation. The fact that an alternative proposal was put forward by the Catholic School Trustees' Association is fundamentally important as it demonstrates that it is possible to protect students who attend denominational schools from bullying while, at the same time, respecting constitutional rights. The guidelines proposed in "Respecting Difference" reveal that laudable objectives can be attained while at the same time respecting religious and constitutional rights, that is, respecting the difference and integrity of the Catholic system.


(ix) Challenges

Any section 93 analysis, whatever disputed provision of Bill 13 is under review, is bound to be met with the argument (convincing argument) that the legislation does not impact the denominational rights of boards. The Minister may argue that the amendments go beyond any religious matter and deal with safety, bullying and discipline, nothing to do with religious curriculum.

The Minister will also try to downplay the educative impact of the amendments. The argument may be that the school groups are after school programs and are disconnected from classroom teaching. Bill 13 simply provides a framework, but does not dictate what is addressed in the student groups—it is the students who decide that.

Arguments relating to section 15 of the Charter—legislation violates s. 15 rights—will most likely be set aside. The fact that Bill 13 can be characterized as ameliorative legislation is a relevant consideration. Further, the amendments are careful to avoid exhaustive language when referring to specific groups.

The recent judgment of the Supreme Court of Canada in S.L., although not decided within the context of denominational schools, is instructive as regards to current thinking of the Court on freedom of religion:

The suggestion that exposing children to a variety of religious facts in itself infringes their religious freedom or that of their parents amounts to a rejection of the multicultural reality of Canadian society.


(i) Governor General in Council Appeal

As an alternative to a court challenge, s. 93(3) gives Protestant or Roman Catholic minorities a political recourse: a right of appeal to the Governor General in Council (federal Cabinet) to challenge a provincial law that affects education.


(i) Pre or Post Rights

An inconsistency arises with respect to the application of s. 93(3) to pre-Confederation rights. It is clear that s. 93(1) applies only to pre-confederation rights and it is clear that ss. 93(3) and (4) apply to post-Confederation rights. What is unclear is whether ss. 93(3) and (4) also apply to pre-confederation rights. In one of the most recent considerations of s. 93(3), the majority decision of the SCC in Reference re Bill 30 limited its discussion to post-Confederation rights and continually referred s. 93(3) as applying to legislation passed after Union. The Court does not explicitly state that s. 93(3) could not apply to pre-Confederation rights, but suggests resorting to s. 93(1) in that regard. Similar approaches are seen in Brophy and Adler v. Ontario.

An alternative approach can be found in Potter c. Quebec (Attorney General), where the Quebec Court of Appeal states that subsection (4), the remedial provision, only grants power to the federal authority when subsections (1) and (2) are not met. This suggests that s. 93(3) and (4) could also be triggered when there is an infringement of pre-Confederation rights.

The pre- and post-Confederation distinction is important. If s. 93(3) applies only to post-Confederation rights, then the framing of the right is particularly important. The right or privilege at stake would have to be one that can be traced to a post-Confederation action. If the right is limited to a right in existence at the time of the Union, then there may be an argument that the real issue is whether the law is ultra vires s. 93(1) and the issue is properly resolved in the courts.


(ii) Standing

Based on the wording of s. 93(3), it can be assumed that it is the "Protestant or Roman Catholic Minority" which has standing to bring an appeal under s. 93(3). What group would provide sufficient representation for such a minority is unclear. The better a party represents the minority, the more likely it is that it will be taken seriously by the Cabinet, and the more likely it is to have standing should it seek injunctive relief. Historically, it appears that petitioners on behalf of the Roman Catholic Minority have included a comprehensive group from the Canadian Catholic hierarchy, politicians and school boards or their trustees.


(iii) Remedial Provision

Realistically, for political reasons, the chances of federal intervention, by way of creating remedial legislation using s. 93(4), is minimal. It would be seen as the federal government substantially encroaching on the provinces' power over education. As noted, this has been the case historically with s. 93(4) never having been exercised—many commentators have noted that for practical purposes this remedy is désuets. Nonetheless, it is a key provision in s. 93 and its lack of exercise does not result in its repeal.


(iv) Strengths Arguments

Section 93(3) is tailored to deal with the particular situation of when the province affects the rights of Protestant or Roman Catholic minorities regarding education. Because s. 93(3) is often characterized as a political recourse, rather than a legal one, the range of its application and potential outcomes may be broader. Subsection 93(4) provides a specific remedial provision and empowers the federal Cabinet to implement changes where the provincial government fails to act.

When addressing the appeal, the Governor in Council has the ability under the Supreme Court Act to refer questions to the Supreme Court of Canada—in this regard it may be seen as a shortcut to the Supreme Court in order to obtain a final and authoritative decision on the matter. It could therefore potentially proceed faster than a constitutional challenge that has to work its way through the courts.

An appeal under s. 93(3) should not preclude a later appeal in the courts under s. 93(1).


(v) Challenges

The main challenge is the uncertainty with respect to the scope of s. 93(3) and the process and the fact that, as it is a political avenue of recourse, the federal Cabinet has the real option to do nothing. This would simply delay the time before a constitutional challenge under s. 93(1) could be brought in court.

Much of the uncertainty stems from the lack of use of the appeal and remedial provisions of s. 93. The actual appeal mechanism found in s. 93(3) was exercised in the Brophy matter in 1895. However, the remedial provision in s. 93(4) did not end up being exercised due to a change in government and accordingly has never been used. Since Brophy, s. 93(3) and (4) have been referred to in cases for the purpose of interpreting s. 93 denominational rights. See for example Tiny Separate School Trustees v. The King and Reference re Bill 30. In addition to the limited historic use, the Constitution provides no other guidance as to procedure. This may be a deterrent to a party relying on this approach and to the federal Cabinet from wanting to make any sort of decision pursuant to s. 93.

It is important to consider that once an appeal under s. 93(3) is filed with the federal Cabinet, the applicants may lose substantial control over how it proceeds.

The question of appropriate representatives is also problematic. Who would have standing and be suitable representatives for the Catholic minority to initiate an appeal under s. 93(3) is unclear. Petitions at the time of the Brophy case suggest that there was significant cohesion amongst the Catholic minority—signatories included major figures in the Catholic Church at the time in Canada. A mixture of parents, trustees and church representatives may not be sufficient or compelling enough for the federal Cabinet to make a decision that would affect all Catholics in a province. A lack of cohesion amongst the minority stakeholders—some boards agree with the legislation, many parents support the legislation, major figures in the Canadian Church have expressed a willingness to work within the framework of the legislation—provides a strong incentive for the federal government to dismiss the appeal (do nothing, not even refer the matter by way of Reference).

An argument could even be made that without full support from all major stakeholders, the federal government has the obligation (political or legal) not to act: the Government must protect the rights of the minority, not just the rights of a sub-set of the minority.


(j) Bullying in Schools: Viable Constitutionally Sound Alternatives and Options

Bullying is a complex and multi-faceted behaviour and not one that legislation alone can address. It affects students of all gender, socioeconomic, and ethnic background. There are a number of factors which increase a student's risk of being bullied—bullying behavior targets a number of distinctive factors. A recent Toronto School Board District Research Report found that, for students in the Toronto area, the most common type of bullying was based on body imagine. The second most common type of bullying was based on grades.

The Provincial government, through Bill 13, has taken an approach that focuses largely on bullying based on sexual orientation and emphasizes that the Minister, not the boards, has control over related policies. It prescribes a very detailed approach (i.e. specifies the particular name which groups may use) that overlooks any differences between denominational and non-denominational schools.

In order to ensure that Catholic Schools provide an environment in which all students feel safe from bullying, the Ontario Catholic School Trustees Association prepared, in 2012, Guidelines for the establishment of student-led organizations and activities. "Respecting Difference" sets out a comprehensive framework to ensure care and support for bullying victims and proper discipline and care for the children exhibiting bullying behaviour. The Guidelines also specifically provide for student establishment of "activities or organizations within the school" to "address concerns regarding bullying".

Another example of an alternative proposal is seen in Bill 14 (Anti-Bullying Act, 2012) tabled by the Progressive Conservatives on the same day as Bill 13. Both address the same core issue, provide definitions for bullying, amend reporting provisions, and create an annual bullying awareness week. The key differences between the Bills are seen in the detailed restrictions imposed on the school boards and the control removed from the school boards with respect to forming policies suitable for its particular needs.

The "Respecting Difference" policy and Bill 14 make it clear that the same objectives of Bill 13 can be reached, but using an approach that is constitutional and respects Catholic values.


(k) Conclusion

The passage of Bill 13 is problematic for denominational schools on a number of fronts. Key provisions of the legislation:

  • impinge on the authority of school boards;

  • ignore the denominational character of Roman Catholic schools; and

  • impact curriculum.

On the other hand, the legislation does address a fundamental and pressing issue within all schools, namely bullying.

While there is an arguable case that the legislation infringes key constitutional provisions, no successful constitutional challenge can be qualified as a "sure thing". In addition, while a court could agree that s. 93 rights should be given a broad interpretation and that it is crucial to respect the denominational character of schools and the concomitant authority of school boards, in the end, it would be open to a court of first instance to conclude that the disputed provisions fall outside the scope of protection of s. 93. The Court of Appeal may have a different constitutional view, and ultimately the Supreme Court of Canada would be the final arbiter.

While a s. 93(3) appeal to federal Cabinet is specifically designed to challenge constitutional education matters, the process and scope of the section is fraught with uncertainty. Unlike a court proceeding, a significant amount of control (timing and argument) may be removed from the applicant party.

Even if the Accepting Schools Act, 2012 was validly enacted, this does not preclude a court challenge based on possible violations of fundamental constitutional provisions. As explained by former Chief Justice Dickson of the Supreme Court of Canada, in Canada we live in a constitutional supremacy not a Parliamentary supremacy.




This issue of LexView was researched and written by:
Eugene Meehan, Q.C., Supreme Advocacy LLP, Member of the Bars of Ontario, Alberta, N.W.T., Yukon, Nunavut, and Arizona, former Executive Legal Officer at the Supreme Court of Canada.

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Copyright © 2012 Cardus & Eugene Meehan, Q.C.

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