Funding for Catholic schools in Ontario can be traced back to the beginnings of Canada. Denominational rights, originally granted to protect minority Catholics from discrimination, were inserted into the 1867 British North America Act.
But today, that same “special right” to Catholic education is functioning to discriminate against others: by blocking queer youth in Ontario Catholic schools from forming gay-straight alliances (GSA), silencing pro-choice advocates and ensuring that only devout Catholics are hired as teachers.
Leonard Baak is the spokesperson for the One School System network and the president of Education Equality in Ontario, a coalition of education and health advocates who argue in favour of merging the Catholic school system into the publicly funded secular school system. He says Catholic school funding has its roots in 19th-century Canada, when people were generally more religious. The 1867 Canadian Constitution contains explicit guarantees of denominational school rights, which grants each province in Canada exclusive jurisdiction to enact laws regarding education. Ontario’s Education Act states that separate schools are entitled to full funding, and separate schools are defined as Roman Catholic only.
When Canada was in its infancy, says Baak, ethnic and religious tensions ran high between the French-speaking Roman Catholic population and the Protestant majority.
“Sir John A Macdonald was constantly dealing with religious sectarianism and the Catholics and their need for separate schools,” he says. “It was woven into Confederation because of the religious intolerance that purveyed in Ontario then. That original intolerance doesn’t exist anymore. There is no need for us to continue separate schools.”
Fast-forward to Ontario today, where people are generally much less religious, Baak says. Many families send their children to Catholic school simply because it’s the best option in their particular neighbourhood. Catholic schools may have the best buildings, the best test scores, the best programs or the best facilities. Sometimes the Catholic school is just geographically closer.
So, if the world has changed and something designed to protect against discrimination has grown into an instrument of discrimination, why are Ontario Catholic schools still funded from the public purse?
As it stands now, Ontario is the only province that funds Catholic schools fully. Yukon and Northwest Territories provide full funding, too. Alberta, Saskatchewan, British Columbia, Manitoba and Quebec provide at least partial funding to independent, mostly religious schools, while New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, and Nunavut provide no funding at all for faith-based schools.
Quebec once had a Protestant school system and Newfoundland once had Catholic system, not unlike Ontario. But both provinces changed that in the 1990s following constitutional amendments.
In Ontario, public funding for non-Catholic religious schools has been the subject of litigation since at least 1978. Over the years, many have argued in the courts that funding only Catholic schools, and no other faith-based schools, is fundamentally discriminatory.
A leading case is Adler v Ontario (1996). Ed Morgan, a University of Toronto constitutional law professor who argued the Adler case on behalf of Jewish schools, sought equivalent funding for all faiths. “Fund them all, or fund none of them.” The Supreme Court of Canada rejected his arguments, leaving things as they stand today.
Then there is Waldman v Canada, brought forward by a Jewish man whose two children were enrolled in a private Jewish school in Ontario for which he paid $14,050 in annual tuition fees. Waldman argued that it is unjust that he should have to pay local property taxes to fund a public school system he does not use. As legal ave-nues seemed exhausted in Canada, he took his complaint to the United Nations Human Rights Committee.
“He experienced financial hardship in order to provide his children with a Jewish education, a hardship which is not experienced by a Roman Catholic parent seeking to provide children with a Roman Catholic education,” reads the case material. The committee agreed that it is discriminatory to fund one religious school system but no others.
In 2007, the Public Education Fairness Network was formed. The lobbying group consisted of Jewish, Hindu, Sikh, Muslim and Armenian community members who joined forces to call on the Ontario government to fund all faith-based schools that meet provincial standards. In the provincial election that year, then-Progressive Conservative leader John Tory threw his support behind the group and called for full funding to all faith-based schools.
The Canadian Civil Liberties Association (CCLA) argued then that Ontario should stop funding Catholic schools altogether. The watchdog organization warned that Tory’s plan to extend $400 million in public funding to Jewish, Muslim and other faith-based schools would ultimately make Ontario “a much less tolerant place,” and said that the government should “stop funding Catholic schools altogether,” says the CCLA’s Noa Mendelsohn Aviv, adding that the CCLA’s position remains the same today.
In September of that year, an Ipsos Reid poll showed 53 percent support for a single public system in Ontario, 23 percent for the current funding model and 21 percent backing for Tory’s suggestion. That same month, an Environics poll found that 48 percent of Ontarians supported Tory’s plan, while 44 percent were opposed.
Faith-based schools became a key issue in that election and ultimately led to Tory’s defeat.
“The electorate proved in its reaction to John Tory’s proposal that it does not want to extend funding to religious schools,” Morgan says. “So if you ask me, it’s time for constitutional reform. Make all the public schools secular public schools.”
As the Catholic school funding debate heats up again this year, Morgan is keeping an eye on the controversy surrounding GSAs in Catholic schools. In it he sees an opportunity for the courts to finally provide clarity on denominational rights. “It sounds like discrimination put into practice,” he says. “It should be ripe for a court challenge or a human rights challenge.
“The courts have never said [Catholic schools can discriminate], and I would love to take that challenge myself,” he adds. “I don’t think that the courts will protect anything but the basic right to teach Catholicism in the schools when you can’t teach other religions in the schools. Suppose there was a Catholic school that discriminates on the grounds of race? No one would tolerate that.
“There is a difference between teaching Catholic doctrine and theology and practising discrimination.
“If [Catholic schools] discriminate against gay students, you could take them to the Human Rights Commission or take it to the courts under the Charter. You can’t yank their funding, but that doesn’t mean you can’t get court orders to bring them into line with other social norms that have nothing to do with the basic existence of Catholic schooling.
“In my personal view, Ontario is ready to do what Newfoundland did and other provinces have done and get rid of the Catholic public school board. Just make one secular school board. If you want religion in your school, go to private school.”
A charter challenge may be daunting, “but,” Morgan says encouragingly, “just because something is difficult does not mean it should not be done.”