Civil Procedure – Appeal – Fresh Evidence
Constitutional Law – Charter of Rights – Education – School Divisions
Constitutional Law – Charter of Rights – Section 1, Section 2(a), Section 15
Constitutional Law – Denominational Aspects Test
Constitutional Law – Standing
Practice – Standing
Statutes – Interpretation – Constitution Act, 1867, Section 91, Section 93
Statutes – Interpretation – Education Act, 1995
Statutes – Interpretation – Saskatchewan Act 1905, Section 17(2)
St. Theodore School (the school) in the village of Theodore (village) was a school under the jurisdiction of the public school division until the summer of 2003. The majority of the students that attended the school were non-Catholic students and a minority were Catholic students. The public school division closed the school. Parents arranged for the school to be opened as a catholic school under the jurisdiction of the separate school division. The ratio of Catholic to non-Catholic students was the same as when the school was operated by the public school division. The public school division brought an action against the Government and the Catholic school division seeking a declaration that the school was not a valid, separate school. The legislation that was involved in the applications was the Constitution Act, 1867 (s. 93); The Saskatchewan Act (s. 17); the North-West Territories’ 1901 School Ordinance; and The Education Act, 1995 (EA). The public school division sought a declaration that ss. 53, 85, 87, and 310 of the EA and ss. 3 and 4 of the Regulations were unconstitutional to the extent they provide funding to educate non-minority faith students attending a denominational separate school. The trial judge made the following findings: 1) the public school division had standing to seek judicial review of the government’s action in funding the non-minority faith students in separate schools in Saskatchewan; 2) the school was a separate school, properly constituted, within the meaning of the EA; 3) the Constitution Act, 1867 does not provide a constitutional right to separate schools in Saskatchewan to receive funding for non-minority faith students because that is not a denominational right of separate schools; 4) s. 17(2) of The Saskatchewan Act only protects separate schools to the extent that they admit students of the minority faith; 5) provincial funding of non-minority faith students attending separate schools was a violation of the state’s duty of religious neutrality under s. 2(a) of the Charter; 6) the funding was also a violation of equality rights under s. 15(1) of the Charter; and 7) the Charter violations were not reasonable limits that could be demonstrably justified in a free and democratic society. Therefore, the trial judge concluded that the provisions of EA and the Regulations were of no force and effect to the extent that the government has provided funding grants to separate schools respecting students not of minority faith. The government and Catholic school division appealed the decision and costs award. They also applied to adduce fresh evidence and to strike a portion of the public school division’s sur-reply factum. The issues discussed by the appeal court were: 1) the public interest standing; 2) the fresh evidence application and application to strike part of the public school division’s sur-reply factum; 3) the trial judge’s reliance on extraneous tests; 4) constitutional interpretation; 5) interpretation and application of s. 93 and s. 17(2); 6) infringement under s. 2(a) or s. 15(1); and 7) s. 1 analysis.
HELD: The appeal was allowed. The trial judge’s declaration of constitutional validity was set aside, as was the costs decision. No order for costs was made in the appeal court or lower court. The issues were discussed as follows: 1) the appeal court concluded that the trial judge committed three errors in granting public interest standing to the public school division for the purposes of arguing the legislative framework infringed ss. 2(a) or 15 of the Charter. The appeal court concluded that the trial judge erred by granting the public school division interest standing to assert a breach of ss. 2(a) or 15; 2) the fresh evidence application of the government was granted. The trial judge referred to a book by Professor Bill Waiser in his reasons. The fresh evidence sought to be adduced was an affidavit of Bill Waiser. Neither the book nor the author’s testimony were included in the evidence at trial; therefore, the government could not have anticipated the need to provide the fresh evidence. The evidence was relevant to determine whether the trial judge erred by relying on the book. The appellants also sought to strike material from the public school division’s sur-reply factum. The application was granted. The material was in an appendix that included a complete chapter from Professor Waiser’s book; 3) the appellants argued that the trial judge erred by conducting independent research into Saskatchewan’s history and in relying on evidence not tendered by the parties at trial. The public school division said that the trial judge did nothing more than take judicial notice of notorious facts. The trial judge referred to a text and two articles that did not form part of the evidence at trial. The material did not meet the requirements necessary for judicial notice. The appeal court chose to analyze the trial judge’s interpretation of the applicable constitutional provisions without support from the additional sources; 4) the trial judge set out eight interpretive principles that he found germane to the question of whether the funding of non-Catholics attending Catholic schools was protected by s. 93. The appeal court concluded that the comments used by the trial judge should not be used to determine what s. 93 or s. 17(2) guaranteed to the minority faiths as of 1905 or the present day. The trial judge did not give effect to the principle that separate school rights are also a Charter right. The trial judge erred in developing his own interpretive principles, rather than following the prevailing jurisprudence with respect to the interpretation of s. 93 and s. 17(2). The trial judge also did not give effect to decisions from the Supreme Court of Canada that focused on ss. 93(1) and 93(3), nor did he give effect to the evolving jurisprudence from the Supreme Court with respect to the protection of minority rights; 5) the overarching issue was whether the legislative framework contravened ss. 2(a) and 15 of the Charter. The trial judge concluded that the government’s approach to funding school divisions would not contravene the Charter if that approach were protected by s. 93 or s. 17(2). The trial judge should have begun his analysis with a consideration of s. 17(2) rather than s. 93. The trial judge concluded that he had to first determine whether separate schools had a right to receive funding for non-Catholic students in order to determine whether the legislation in question contravened s. 17(2). This required the application of the denominational aspects test. The appeal court found that the trial judge made errors in his s. 17(2) analysis. He imported the denominational aspects test into its interpretation. He concluded that s. 17(2) guarantees funding for minority faith children only. The appeal court found that the arguments the trial judge used to make the conclusion did not address how s. 17(2) should be interpreted and applied in the case. There is no denominational aspect to s. 17(2): it applies to schools of any class. The appeal court found that the appeal could be resolved on the basis of s. 17(2). The only question for the trial judge was whether the legislative framework was fair or proportional in its application to public and separate school divisions alike. The legislative terms do not draw a distinction between public school divisions and separate school divisions. The appeal court went on to consider s. 93. The trial judge held that “legislation under ss. 93(1) and 93(3) can be Charter-immune but to gain this immunity the legislation must be equally subjected to the denominational aspect test.” He concluded so for four reasons. The trial judge erred in drawing a line around separate school rights for the purpose of defining an area that would be subject to Charter oversight. The error affected his analysis in relation to ss. 93(3) and 93(1). The appeal court disagreed that the denominational aspects test applied to s. 93(3). The aspects test had only been applied to s. 93(1) in the jurisprudence. The cases referred to by the trial judge were not found to support his hypothesis that the denominational aspects test is necessary to prevent governments from passing Charter-offending laws regarding education funding and thereafter justifying those laws under its plenary power. The appeal court concluded that the denominational aspects test does not apply to s. 93(3). The issue was whether the legislative framework was a valid exercise of the government’s plenary power or, in other words, was consistent with the guarantees granted to separate schools by s. 93 and s. 17(2). The legislative framework provides for funding to separate and public boards on the same footing, based on enrolment, regardless of the religion of the student. The Legislative Framework was a valid exercise of the legislative authority conferred by those provisions and therefore is protected from Charter scrutiny. The appeal court then looked at s. 93(1) and whether it acts as a curtailment of the plenary power conferred by the opening words of s. 93. The legislative framework draws no distinction between separate and public schools. Section 93(1) can play no role because no one is suggesting the legislature is taking away any right or privilege guaranteed as of 1901. The trial judge erred by considering the Catholic doctrine when determining whether the 1901 Ordinances included a right or privilege for Catholic schools to admit and receive funding for non-Catholic students. The appeal court found that the question was whether it was a denominational right to admit non-Catholic students to Catholic schools. After Vatican II, Catholic doctrine did change to embrace the teaching of non-Catholics in Catholic schools. The trial judge’s eight principles to interpretation were found to restrict the ambit of s. 93(1). The appeal court concluded that the legislative framework was consistent with the constitutional guarantees provided by s. 93; 6) given the appeal court’s finding that the legislative framework was a valid exercise of legislative power conferred by s. 93 and s. 17(2) meant that the framework was immune from Charter scrutiny. The appeal court, nonetheless, assumed the contrary to consider the issues raised by the public school division in relation to ss. 2(a) and 15(1). The trial judge found that the public school division could assert a claim under s. 2(a) for three reasons. The appeal court found that there was not support for the three reasons. There was no breach of the state’s obligation to remain religiously neutral in the case. The appeal court concluded that the legislative framework respects the state’s duty of religious neutrality and there was no evidence of a breach of any individual’s rights under s. 2(a). The appeal court found that the trial judge did not give due effect to the Supreme Court jurisprudence under s. 15 of the Charter. This was an error. There was no proof that the funding of non-Catholic students in Catholic schools perpetuates prejudice, disadvantages or negatively stereotypes individuals or groups. The legislative framework was not found to infringe s. 15(1) of the Charter; 7) the appeal court set aside the trial judge’s s. 1 analysis and replaced its own. The government’s objective of providing equitable funding to all students attending schools protected by s. 93(1) without tying it in any way to their religion was pressing and substantial. The appeal court found a rational connection between the legislative objective and the action taken. Further, the government showed that there were not less drastic means of achieving its legislative objective. The appeal court found proportionality was achieved between the effects of the measure and the stated legislative objective. The benefits of the Government’s approach to funding students in separate schools was found to outweigh the harms caused by the infringement and the potential harm caused by any of the other options suggested. The legislative framework was found not to infringe ss. 2(a) or 15. If that was an error, the appeal court would nonetheless have held up the legislative framework as a reasonable limit on religious freedom and one that was demonstrably justified in a free and democratic society. No order for costs was made because the fundamental source of funding for all parties came from the taxpayers of the province.