The hearing wrapped up Oct 18 after Canadian Civil Liberties Association (CCLA) lawyer Andrew Lokan presented his submissions in support of Reva Landau, who is representing herself in an attempt to challenge the Ontario government.
Justice David Corbett gave no indication of when he would release his decision.
Lokan reinforced Landau’s key argument, that the Catholic minority held a different societal role in 1867 than it does today.
“The suggestion I made is that it may be open to the Supreme Court to consider whether, in the modern context, in the multicultural context, it’s really more of an unwarranted privilege rather than a necessary protection,” Lokan says.
That has not been argued “squarely” at the Supreme Court level, he adds. “In the CCLA’s view, the logic for the original constitutional bargain has changed.”
If the case moves forward, Lokan says he anticipates that other intervenors will likely come forward to include submissions outlining their experience with Catholic schools. This could include gay, lesbian, bisexual or trans students and teachers who have experienced discrimination.
“If the court considers those relevant, they will be listened to,” he says.
Noa Mendelsohn Aviv, director of the equality program for the CCLA, has been a key supporter of Ontario students fighting for gay-straight alliances in Catholic schools over the past two years.
She says the court has been asked to examine a very interesting legal question.
“When can you ask the court to examine an issue it has already considered? Are the legal issues new or just variations on issues that have been raised before? When is it legitimate to say to the court that, yes, you decided on this years ago, but the time has come to reconsider?”
Mendelsohn Aviv says the CCLA believes it is time for the court to revisit the issue.
“This is a matter of public interest,” she says. “There are new, social, political, legal realities that Ms Landau and CCLA are trying to bring to the court’s attention.”
Landau says she has been overwhelmed by support from the public. She feels she has given Corbett much to think about.
“It’s clear that this is an issue that’s important to a lot of people in Ontario, ordinary people, who have no experience in law,” she says. “We are a multicultural society. It’s better to have a public schools system that reflects that. That’s the reaction I’m getting from a lot of people.”
A Toronto woman who is challenging Ontario’s separate school system says Catholic schools enjoy a privileged and unconstitutional “special right” not afforded to any other religious group -- something she finds problematic as a non-Catholic taxpayer.
Reva Landau, a non-practising lawyer, began presenting her arguments at Ontario Superior Court Oct 17. She says the government should stop funding Catholic secondary schools, and Catholic elementary schools should be reduced to the funding levels they were entitled to in 1867.
All Ontario taxpayers currently contribute to Catholic education. Landau says she disagrees with many Catholic teachings -- such as the church's position on gay rights -- and she thinks forcing taxpayers to pay for this violates the fundamental equality rights of non-Catholics.
“Someone who is Buddhist or Muslim or Jewish or atheist who wants to send their child to school that promotes their particular philosophies has to pay for it out of their own pocket,” she says. “Only Roman Catholics get to send their children to a school that promotes their philosophy without paying. In a multicultural society, does that seem fair? Is that just?
“Part of my argument is that I, as a non-Catholic, am funding a system that has views on abortion, the rights of gays to marry and contraception that I don’t agree with, and I am forced to pay for it.”
Section 93 of the Constitutional Act guarantees Catholic school boards' denominational rights.
Justice David Corbett spent much of the day probing Landau about her submission. Corbett represented Marc Hall in 2002 when Hall successfully challenged the Durham Catholic District School Board for the right to take his boyfriend to the school's prom.
Before Landau presented her arguments, Corbett also questioned Josh Hunter, a lawyer with the Ministry of the Attorney-General, who agreed that Catholic schools enjoy a privilege others don't but says it’s an unchangeable constitutionally protected right.
"Children who are not Catholic are entitled to have their children not indoctrinated,” Corbett pointed out.
Hunter says the case has already been argued in court four times. Previous challenges have also focused on the fact Ontario funds Catholic schools and not other faiths. Those challenges were unsuccessful.
"There has to be a factual change,” he says. “If your argument is that the Supreme Court was wrong the first time, that's not enough."
The Canadian Civil Liberties Association (CCLA) is intervening in the challenge and supporting Landau. The group is arguing that the court should reconsider its interpretation of the Constitution.
CCLA lawyer Andrew Lokan says the government wants the case tossed out. If the judge grants this request, Landau can appeal.
“There has been an indication from the Crown that if the motion is dismissed, then they may seek to appeal,” he says. “That would take the preliminary issue back up into the higher courts before any hearing on the merits is held. There is an appeal process on either side.”
Lokan says the government is arguing that funding for Catholic schools is part of an original deal made at Confederation in 1867, and it has already been challenged at the Supreme Court level.
But Landau says the agreement struck in 1867 did not include funding for secondary schools, which was extended by former premier Bill Davis in 1985.
“Catholic schools do not have a right to funding for grades 9 to 12, based on Section 93. That happened post-1867 constitution,” she says.
Landau made the decision to launch her legal challenge in 2007 when John Tory, at the time leader of the Progressive Conservatives, promised to extend funding for religious schools to all faiths.
“I support public schools,” she says. “I think it’s better for children to all be in one school together in a multicultural society. Premier Dalton McGuinty said he believes it’s wonderful to have all children of all faiths, all creeds, all different backgrounds in public schools together. I agree with him. So then why is he funding Catholic schools?”
The last similar challenge was Adler v Ontario in 1996, which sought equivalent funding for all faiths. The lawyer in that case also argued that it is unconstitutional to fund one religious school system to the exclusion of all other religions.
But Landau says much has changed since that last challenge. “None of those changes have ever been argued before the Supreme Court.”
Still, she says, if Ontario wanted to eliminate Catholic funding and merge the boards, it could.
“The only way to get rid of [Catholic funding] completely is to do what Quebec did and pass a resolution saying that denominational rules do not apply,” she says. “That would get rid of it completely, and yes, that would be my preference.”
Corbett says Ontario has chosen, for whatever reason, not to pursue that option. “We're dealing now with the issue of ‘the constitutional compromise.’ The Supreme Court has said it's up to Ontario to terminate it. Quebec has chosen to end the compromise. Ontario has not chosen to do so.”
Furthermore, Landau says the privileged position enjoyed by Catholic schools translates into real discrimination in its treatment of students, particularly gay students, and the hiring of teachers. Catholic teachers in Ontario can be employed in both school systems, Catholic and secular. Non-Catholic teachers can apply only for jobs in the secular school system. About 30 percent of the teaching jobs in Ontario are in the Catholic separate system.
“Catholic schools have a right by law to hire Catholic teachers,” she says. “There are not a lot of jobs for teachers right now.”
In June, the Ontario Liberals passed the Accepting Schools Act, a hard-fought piece of anti-bullying legislation that contains key language that allows youth to create gay-straight alliances in all schools. Previously, Ontario Catholic schools had denied students the right to start GSAs. However, Catholic schools continue to use the Pastoral Guidelines to Assist Students of Same-Sex Orientation, which teach that homosexuality is "disordered" and "depraved."
Landau’s case continues Oct 18 at 393 University Ave.