Hamilton teacher’s bid to abolish funding for Ontario Catholic schools fails

An Ontario Superior Court judge has struck down a lawsuit attempting to abolish public funding for separate schools in the province.

In a written decision Nov. 28, Justice Fred Myers said it's plain and obvious" the constitutional challenge, in which plaintiffs say publicly funded Catholic schools violate the right to freedom of religion guaranteed by the Charter of Rights and Freedoms, wouldn't succeed.

The Supreme Court of Canada has determined the issues already," he wrote. The issues raised in this application are not new. There has been no change in circumstances that fundamentally shifts the parameters of the legal debate."

The Ontario government motion to strike the application served on the province last winter was heard Nov. 25.

It just feels like such common sense and you feel like common sense will prevail," said Adrienne Havercroft, 39. I guess not, in this instance."

Havercroft, a non-Catholic Hamilton teacher who believes she may have been hired sooner had she been eligible to apply to both school boards, is one of two plaintiffs. It took Havercroft, who teaches English at Sir Winston Churchill Secondary School in east Hamilton, more than a decade to land a permanent job.

The second is Markham parent James Sutton, who was forced to send his kids to a French immersion public school an hour away by bus.

Their application objects to the public funding of non-Catholic and grades 11 and 12 students, who were not included in the initial 1867 document and therefore should not be immune from a charter challenge," Havercroft said. Catholic high schools in Ontario have had to allow students of all faiths ever since the province began funding them in the mid-1980s, the Toronto Star has reported. However, non-Catholics are generally not hired to teach in the province's Catholic schools - including in Hamilton.

In his decision, the judge said the Supreme Court has held that minority education rights are not susceptible to attack or scrutiny under the charter."

They are every bit as much a feature of the constitution as the equality rights and freedom of religion relied upon by the applicants," Myers wrote.

The loss comes with a $10,000 fine, which, combined with about $150,000 in legal fees, is more than what the group has in the bank. Havercroft said she and Sutton may be personally on the hook" if they don't meet their fundraising target. They haven't yet decided if they will appeal the decision.

Plaintiffs in the current lawsuit were recruited about six years ago by Reva Landau, the co-founder of grassroots organization One Public Education Now (OPEN) whose own 2012 challenge was thrown out. Landau, a retired business systems analyst with a law degree who lives in Toronto, was denied legal standing because she wasn't personally affected by the issue.

Havercroft said she always knew the odds were stacked against them, and the recent decision has affirmed her belief there may not be a legal mechanism" to challenge the constitutional right to Catholic education. But there's another reason she took this on.

It has been just as much about trying to raise the profile of the issue," she said.

There's appetite" among the public, which she believes would, for the most part, agree that funding Catholic schools is discriminatory and represents values of an era that no longer exists," she said.

This is a conversation we need to crack open a little bit more," Havercroft said.

Constitutional law expert Andrew McDougall says this perennial" battle has repeatedly failed because, human rights breach or not, the 1867 document protects the right to publicly funded Catholic education in Ontario.

This has been litigated now for a long time," said McDougall, an associate professor at the University of Toronto. The court has been very clear that this is in the Constitution, this is constitutional."

In the early 1990s, Thornhill parent Susie Adler and several other Jewish and Christian families launched a suit against the province alleging a violation of the Canadian Charter of Rights and Freedoms. The plaintiffs in that suit, an appeal for which was ultimately dismissed by a Supreme Court judge in 1996, claimed it was unconstitutional for the province to deny funding to thousands of students enrolled in private religious schools.

This is just one of the leading cases" against Catholic education, a movement that gained momentum in the 1980s, arguing that the right to publicly funded Catholic education violates the right to religious freedom, McDougall said. To date, none have succeeded.

You can't use one part of the Constitution ... to strike down another part," he added.

The state of Catholic education in Canada

Through the 20th century, Newfoundland and Labrador had a multi-denominational school system, shaped by its insular, God-fearing communities" where churches had significant influence on world view, said Gerald Galway, faculty of education dean at Memorial University in St. John's.

Several denominations, including Catholic, Protestant and Pentecostal, were receiving their share of the educational pie."

The slices were starting to get narrower and narrower," he said.

At the same time, birth rates were plummeting and school enrolment was tanking.

Spurred by an increasingly secular and multicultural society and concerns about wasteful spending" on a hodgepodge of schools," at least some partially funded by the church, a movement toward a single public school system started to gain momentum. In a 1997 referendum under then-Premier Brian Tobin, 73 per cent voted to abolish the church-based education system, resulting in a constitutional amendment allowing the province to replace the existing system with a non-denominational one.

The political climate was there," Galway said. People's attitudes changed and they felt that ... their children would be better served in a fully public system."

The constitution was amended the same year to allow Quebec to make a similar change, instead replacing its denominational system with English and French school boards. The difference in those cases is that changes were spurred by politicians, rather than by citizens in court.

Today, only two other provinces, Alberta and Saskatchewan, as well as all three territories have publicly funded Catholic education. Nova Scotia, New Brunswick, Prince Edward Island and British Columbia never had publicly funded Catholic education enshrined in the constitution.

In the absence of constitutional reform, cost-sharing models in provinces like Saskatchewan might suggest steps toward a more efficient system.

The Saskatchewan government is building 18 schools on nine sites to be shared by Catholic and public school divisions in Regina, Saskatoon and other municipalities. Students are taught separately, but child care and common spaces are jointly used by public and Catholic students, staff and families.

Hamilton's public and Catholic boards say they share some resources, including before- and after-school child-care programs and a bus service with a combined budget of more than $20 million, and realize considerable efficiencies," said Hamilton-Wentworth Catholic District School Board chair Pat Daly.

But change at a systemic level would still ultimately require a formal constitutional amendment, which would have to be proposed by politicians - for instance, at Queen's Park, McDougall said.

There's a procedure to do that, but the question is, of course, is there the political will to act?" he said. I haven't seen anybody recently come out in Ontario saying they want to pass a constitutional amendment to get rid of the Catholic school board, so I don't really think it's on the horizon any time soon."

Kate McCullough is an education reporter at The Spectator. kmccullough@thespec.com