Ruling Restricts Government Funding for Religious Schools

Justice DH Layh has ruled in a landmark case, Good Spirit School Division No 204 v Christ the Teacher Roman Catholic Separate School Division No 212,1 that government funding for Roman Catholic schools cannot extend to fund non-Catholic students at those schools. The case is certain to be appealed. Meantime the government of Saskatchewan has promised to use the controversial ‘notwithstanding clause’ to override this ruling and fund all students at government-funded Roman Catholic schools. The province of Saskatchewan, Canada, is one of several provinces where funding for Roman Catholic schools is guaranteed by the constitution. The constitutional guarantee for denominational school funding has been one of the most contentious provisions in the Canadian constitution, spawning vast numbers of legal challenges.2 Courts have tended to interpret these provisions very narrowly, restricting denominational funding to what it was at the time of union. This case is no different. Canada has numerous separate constitutional documents that together form ‘the constitution.’ The founding document is the Constitution Act, 1867.3 Section 93 guarantees denominational education rights as they existed in 1867. Saskatchewan became a province in 1905 under the Saskatchewan Act.4 Section 17 applies parts of section 93 of the Constitution Act, 1867 but replaces section 93(1) with other provisions. These constitutional provisions, in their essence, protect denominational school rights as they existed at the time of union. A decade-long series of court battles in Manitoba, including two appeals to the Judicial Committee of the Privy Council in Britain, divided the country in the 1890s. It is astonishing that this continues to be a contentious issue in Canada over 100 years later.

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