Saskatchewan ruling on Catholic schools could have far-reaching consequences

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A Saskatchewan judge's ruling that non-Catholic students should not receive public funding to attend separate schools could have implications in other parts of the country.

The decision, released on Thursday, said the province violated equality rights set out in the Charter of Rights and Freedoms and its obligation of religious neutrality by funding non-minority faith students who enroll in Catholic schools.

The ruling will have far-reaching consequences if applied to other provinces, including Ontario, where publicly funded secular and separate school districts compete for students as birth rates decline and governments provide funding regardless of a family's religious affiliations.

"When the government funds Catholic schools respecting non-Catholic students, which I have found is an unconstitutionally protected benefit to the Catholic faith, but does not equally fund other faith-based schools to educate non-adherents, discrimination is evident on the face of the enabling legislation and regulations," Justice Donald Layh wrote in his 242-page decision.

Saskatchewan's Education Minister, Don Morgan, told reporters on Friday the decision is being reviewed and the government has not decided whether to appeal. But he said following the ruling would disrupt the province's schooling system.

"The decision, if applied and followed in its present form, will require thousands of students in our province to move from the separate school system to the public school system. So we've asked our officials to review and determine what the logistics of that might look like if we have to go down that road," Mr. Morgan said.

He added: "As a province … we've spent an enormous amount of capital maintaining and building the two school systems, each of which is large enough to have probably very full economies of scale and we've been well served for the last century by having those systems."

The judge's decision was stayed for one year to give the government and the school systems time to work through the details.

Saskatchewan funds 28 public and separate school divisions. Children without a baptismal certificate can attend Catholic schools. Alberta and parts of Ontario have similar practices.

Alberta's Education Minister David Eggen said in a statement that school choice is protected in Alberta, given there is sufficient space for students. Richard Francella, a spokesman for Ontario Education Minister Mitzie Hunter, said the government has no plans to change rules around who attends secular and separate schools.

In Ontario, where funding from the province is on a per-pupil basis, many Catholic school districts have opened up enrolment to non-Catholic students at the elementary and high-school levels.

Kyle Naylor, who developed a website designed to help Ontario parents advocate for their children in the Catholic school system, said the Saskatchewan ruling has "incredible implications" if applied in his province.

"If these non-Catholic students weren't funded or were restricted access, the results would be a dramatic transformation to the education system," he said. "It would mean a complete re-evaluation of how we divide students and fund the education infrastructure in practically every community."

The Ontario Public School Boards' Association said it is reviewing the ruling to see if it has any implications for public education in the province.

The case in Saskatchewan had been playing out for about a decade, since the Good Spirit School Division, which is part of the secular system, filed a legal complaint against Christ the Teacher Catholic Schools over the creation of a Catholic school in the village of Theodore, Sask., after the community's public one was closed. Students were to be bused to a Good Spirit school in a neighbouring community, but a group of parents petitioned the government to open a Catholic school, and many students went there instead. Only about a third of the students who enrolled in the Theodore school were Catholic.

Larry Huber, executive director of the public section of the Saskatchewan School Board Association, said secular school divisions wanted clarity around non-Catholic students attending Catholic schools.

"As public boards, with a responsibility for the education of public school children, … this didn't seem right to us, and we wanted to know the policies were appropriate," he said.

Tom Fortosky, a spokesman for the Saskatchewan Catholic School Boards Association, said the organization was disappointed by the decision.

"This has already been a 12-year journey instigated by the public boards, and we don't have much of an appetite to spend more on legal defence," he said in a statement. "However, we have an obligation to stand up for the constitutional rights of separate school divisions, so we are giving serious consideration to an appeal."