Constitutional Appeal is this Week in Saskatchewan

Today and tomorrow Saskatchewan’s Court of Appeal hears the appeal as to whether the Saskatchewan government is entitled to fund non-Catholic students who attend Catholic Schools.

Decision of Lower Court

On April 20, 2017 Justice Layh of Saskatchewan’s Court of Queen’s Bench issued a 242 page decision finding that Canada’s Constitution does not constitutionally allow Saskatchewan to provide grants paid on a per student basis to a Catholic school division for non-Catholic students because that funding is not a denominational right of separate schools (see our April 24, 2017, email alert).

Justice Layh concluded that the 1905 Saskatchewan Act only protects separate schools to the extent they admit students of the minority faith.

Facts

In the spring of 2003 Yorkdale School Division, a public school division, closed its community kindergarten to grade 8 school situated in the village of Theodore, Saskatchewan. Its 42 students would be bussed to a neighbouring public school in the town Springside, which is 17 kilometers away from the village of Theodore.

Following this, a minority group of Roman Catholics formed a new separate school jurisdiction under the name of St. Theodore Roman Catholic School Division in the village of Theodore. At trial, the evidence established that 17 of the 26 students enrolled at St. Theodore Roman Catholic School were non-Catholic.

After protracted negotiations with Yorkdale School Division, the newly formed St. Theodore Roman Catholic School Division purchased the school building from Yorkdale and then opened the St. Theodore Roman Catholic School in Theodore.

The public school jurisdiction was discontent with the opening of the Catholic elementary school in Theodore. It legally challenged both the constitutional right of a Catholic school division to enroll non-Catholic students in a Catholic school and challenged the government funding of non-Catholic students who attend Catholic schools.

As noted by Justice Layh, while the community saved its school, their actions prompted one of the most significant lawsuits in Saskatchewan’s history which raised the key issue of the extent of separate school rights under Canada’s Constitution.

Notwithstanding Clause Applied

Following Justice Layh’s decision, on November 8, 2017, Saskatchewan introduced legislation (School Choice Protection Act) invoking the notwithstanding clause which would allow non-Catholic students to continue to be funded by the Saskatchewan government to attend Catholic schools in Saskatchewan.

Upcoming Decision of Saskatchewan Court of Appeal

At stake in this important appeal is the extent of constitutional separate school rights in Saskatchewan.

The decision of the Saskatchewan Court of Appeal will have significant implications in Alberta given that Alberta’s constitutional framework for education is parallel to that in Saskatchewan.

Saskatchewan’s Court of Appeal will interpret 150 year-old historical constitutional documents to ascertain the scope of constitutional rights being applied in 2019.

What will the Saskatchewan Court of Appeal’s answers be regarding the following:

  • What is the extent of constitutional separate school rights in Saskatchewan?
  • Is government funding of non-minority faith students in Saskatchewan’s separate schools a constitutionally protected component of separate schools under the Constitution Act, 1867?

There is little doubt that the decision of the Saskatchewan Court of Appeal will have significance in Alberta. We will update you as soon as the decision is issued.

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.