Saskatchewan v Good Spirit School Division No. 204, 2020 SKCA 34
In a March 25, 2020 decision, a five-judge panel (the “Panel”) of the Saskatchewan Court of Appeal allowed an appeal to dismiss a trial decision which stipulated that the Saskatchewan Government (the “Government”)’s funding of non-Catholic students to attend Catholic schools was unconstitutional, pursuant to Sections 2(a) and 15 of the Canadian Charter of Rights and Freedoms (the “Charter”).
The dispute arose as a result of the establishment of the St. Theodore School in Theodore, Saskatchewan, a Catholic school created by a community of parents after their local publicly-funded elementary school closed due to budgetary reasons. St. Theodore School opened under the jurisdiction of a separate school division, with almost the same enrolment and almost the same ratio of Catholic and non-Catholic students as the prior school (that is a majority being non-Catholic students, and a minority of Catholic students). St. Theodore School continued to operate as a fully functioning, separate school funded by the Government in the same way as the prior school, which was based largely on student enrollment.
Following the opening, the Good Spirit School Division No. 204 (“GSSD”), the public school division serving the community of Theodore, brought an action against the Government and Christ the Teacher Roman Catholic Separate School Division No. 212 (“CTT”), the separate school division that also serves the Theodore district, seeking a declaration that the Government’s funding of non-Catholic students to attend Catholic schools breached Sections 2(a) and 15 of the Charter, an application that was allowed by the trial judge.
The Panel found three fundamental errors of law that permeated the principal issues identified at the trial stage:
- The case was not about the constitutionality of “funding non-Catholics in Catholic schools”, as it would narrowly overstate what was at stake while understating the interconnectivity of the constitutional protection afforded to separate schools and the legislative scheme at play;
- A case for religious discrimination on the foundational fact that private religious schools receive partial funding from the Government was not a proper application of the Charter right of religious freedom; and
- Section 93 of the Constitution Act, 1867 and the protections it affords to separate schools in a particular province do not create inequality under the Charter. This does not mean that separate schools are Charter-free zones, but it does mean the funding of them is not inherently discriminatory.
Leave to appeal to the Supreme Court of Canada was denied.
This case ultimately affords clarification on the correct applications of law related to constitutional guarantees, particularly in the context of religious freedom as it relates to education law.
Miller Thomson represented GSSD in the case with a team led by Khurrum Awan and Roger Lepage (Commercial Litigation).
