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Research Note #11
The
United Nations Submissions
The 1999 condemnation of
Canada as an abuser of human rights came as a result of two submissions to
the UN about religious discrimination in the Ontario school system.
One submission was made by
Arieh Waldman, a Jewish parent who had to pay a substantial tuition fee to
have his son taught in the Jewish faith while a Roman Catholic parent does
not have to pay anything.
A second submission was
made by our predecessor organization, Friends of Public Education in
Ontario, Inc., claiming Tadman et al as victims of Ontario’s discriminatory
school funding policy.
The Human
Rights Committee considered the two submissions together and issued a rebuke
to Canada under Waldman which stated:
“...if a State party
(Canada)
chooses to provide public funding to
religious schools, it should make this funding available without
discrimination.” The two
choices for Ontario then, were to provide equal public funds for all
religions, or no public funds for any.
Since no action to resolve
the violation was taken by either the Canadian or Ontario governments in the
almost eight years since the Waldman decision, Civil Rights in Public
Education, Inc. has seen fit to file another submission to the United
Nations Human Rights Committee. The submission was filed on November 17,
2005 for violations of Articles 2.1, 2.2, 2.3, and Article 50 of the
Covenant.
We have now received
formal notification from the United Nations Human Rights Committee that our
claim on behalf of Grant Tadman and Jeff Prentice (see attachment) has been
registered as Communication No. 1481/2006 pursuant to the Optional Protocol
to the International Covenant on Civil and Political Rights (ICCPR).
Pertinent
articles of the
International Covenant on Civil and Political Rights
Articles of the International Covenant on Civil and Political Rights
allegedly violated by Canada: Article 26, Article 2.1, Article 2.2,
Article 2.3, Article 50.
Article 26:
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect the
law shall prohibit any discrimination and guarantee to all persons
equal and effective protection against discrimination on any ground
such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.
Article 2.1:
Each State Party to the present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the present Covenant, without
distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or
other status.
Article 2.2:
Where not already provided for by existing legislative or other measures,
each State Party to the present Covenant undertakes to take the necessary
steps, in accordance with its constitutional processes and with the
provisions of the present Covenant, to adopt such legislative or other
measures as may be necessary to give effect to the rights recognized in the
present Covenant.
Article 2.3:
Each state Party to the present Covenant undertakes:
[a] To ensure that any person whose rights or freedoms as herein
recognized are violated shall have an effective remedy, notwithstanding
that the violation has been committed by persons acting in an official
capacity;
[b] To ensure that any person claiming such a remedy shall have his
right thereto, determined by competent judicial, administrative or
legislative authorities, or by any other competent authority provided for by
the legal system of the State, and to develop the possibilities of judicial
remedy;
[c] To ensure that the competent authorities shall enforce such
remedies when granted.
Article 50:
The provisions of the present Covenant shall extend to all parts of
federal States without any limitations or exceptions.
(underlining has been added)
_____________________________________________________
The Covenant was used as a model for the Canadian Charter of Rights and
Freedoms. Compare the wording of Article 26 of the Covenant, above, with
that of Section 15(1) of the Charter, which reads:
“Every individual is equal before and under the law and has the right to the
equal protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.”
Read the
following for the case presented to the UN on behalf of the victims of the
discrimination.
First Victim,
discrimination in promotion
Grant
Tadman
Grant Tadman graduated
from the University of Toronto with a Bachelor of Physical and Health
education in 1972 and thereafter attended at the Faculty of Education,
graduating with a Bachelor of Education degree in 1974.
Mr. Tadman describes
himself as a member of the United Church of Canada.
From 1975 to 1986, Mr.
Tadman taught at various high schools for the North York Board of Education.
In 1986, as a direct
consequence of the application of Bill 30, Mr. Tadman agreed to transfer to
the Metropolitan (Roman Catholic) Separate School Board (MSSB) as a
“designated” teacher under the provisions of s.135 of the Education Act. He
co-operated in solving a surplus teacher problem and had no concern about
teaching in a Roman Catholic school.
Mr. Tadman reported for
work in September and, despite the provisions of his transfer, which were to
ensure that he had an essentially similar position to the one he left in
the Public Board, he was never placed in a permanent teaching position.
Instead, he was assigned to work in a supernumerary teaching assistant
position, as an in-school supply teacher, attendance secretary,
receptionist, and file clerk.
Nevertheless, Mr. Tadman
applied himself conscientiously to any assignment given to him and attempted
to perform his duties in accordance with the Board’s own standards and
requirements such that he never received any performance appraisals which in
any way suggested incompetence or unsatisfactory teaching skills.
Although permanent
teaching positions became available from time to time, the MSSB did not
assign him to any position, despite its legal obligation to do so. Mr.
Tadman made a number of requests for a permanent teaching post, but he was
turned down for reasons he considered unjustified.
Furthermore, while working
for the Separate Board, Mr. Tadman was placed in a position which provoked
religious intolerance and verbal harassment by staff and students because he
did not share their adherence to the Roman Catholic faith. The Board did
not take any positive steps to eliminate the circumstances which gave rise
to the conflict.
These stress-inducing
conditions made it necessary for Mr. Tadman to take medical leaves for
periods between 1987 and 1989, and between 1992 and 1994.
In April 1992 Mr. Tadman
pursued his rights under the Ontario Education Act as entrenched in the
guarantees promised by Bill 30 and filed a complaint with the Ontario Human
Rights Commission. The response in 1992 was that the Commission lacked
jurisdiction to deal with the matter, and dismissed it.
In October 1992 the
Office of the Ombudsman advised that it would not be investigating the
complaint because it “concurs with the position taken by the Ontario Human
Rights Commission.”
Grievances filed with the
Roman Catholic Board produced unsatisfactory resolutions to Mr. Tadman’s
concerns.
In addition, Mr. Tadman
made submissions to the Ontario courts pursuant to the provisions of the
Ontario Education Act and the Canadian Charter of Rights and Freedoms.
Again, an unsatisfactory conclusion was produced.
Notwithstanding the
statutory guarantees enacted under the Ontario Education Act (Bill 30) in
1986, the experience of Mr. Tadman reflects the discriminatory application
of these laws and the failure of the Ontario Human Rights Commission, the
Ontario Ombudsman, and the Ontario court system to protect his rights as
originally embodied under s.135 and s.136 of the Education Act.
Given the complete
exhaustion of domestic remedies for the injustices he has endured, Mr.
Tadman is left with no recourse except this current communication to the
United Nations Human Rights Committee pursuant to the Optional Protocol of
the International Covenant on Civil and Political Rights.
Second Victim,
discrimination in hiring
Jeff
Prentice
Mr. Prentice associates
himself with the United Church of Canada and is a graduate in Mechanical
Engineering who had been teaching mathematics and science on a part-time
basis at St. Pius X Catholic High School in the City of Ottawa in the
1997-1998 school year.
Mr. Prentice applied for a
full-time job at St. Pius X in the spring of 1998 when he became aware that
there were approximately 200 new teaching jobs at the Ottawa-Carleton
Separate School Board.
Despite glowing references
and a petition from his colleagues at St. Pius X High School, Mr. Prentice
learned that he would not be able to apply for any of these new teaching
opportunities within the Ottawa-Carleton Catholic School Board.
It became abundantly clear
to Mr. Prentice that he was being rejected on the basis that he was not a
practising Roman Catholic.
It had been Mr. Prentice's
understanding that when Ontario's Roman Catholic schools were granted full
funding in 1986, the Province had provided certain statutory guarantees
vis-a-vis the hiring and promotion of teachers who would be required to
transfer from the Public school system to the Catholic separate school
system.
For a period of time there
was a further understanding that publicly funded Catholic schools could no
longer reject non-Catholic job applicants. Indeed, the Education Minister in
the Provincial Government warned the Ottawa-Carleton Separate School Board
to "back off" on a request that teaching applicants provide a letter from
their parish priest. However, as a consequence of an Ontario Superior Court
ruling (the Daly case), it was held that the Canadian Constitution Act of
1867 protected Roman Catholic School Boards’ ability to discriminate on
religious grounds and the preferential hiring of Catholics was reinstated.
Mr. Prentice takes the
position that the social values instilled in him by the United Church are
not that different from those taught by the Roman Catholic Church.
Notwithstanding Mr.
Prentice's skills and training, and the substantial recommendations he had
received, his application to the Ottawa-Carleton Catholic School Board was
rejected.
The teachers at St. Pius X
High School delivered a petition signed by approximately 35 colleagues to
the Ottawa-Carleton Catholic School Board. Further, Mr. Prentice requested
an explanation as to the reasons why his application would not be
considered.
Mr. Prentice received a
terse note from the Roman Catholic School Board stating as follows: "….your
application is returned because you are not able to provide a pastoral
letter from a parish priest attesting to the fact that you are a practising
Catholic," signed by the Board's Superintendent of Human Resources.
Mr. Prentice was advised
that the Separate School system takes the position that Catholic teachers
are required so that the system can remain distinct. He was further advised
that non-Catholics are only hired if a suitable Catholic candidate cannot be
found.
The School Board
emphasized that its first concern has to be the Catholicity of the teacher
so as to ensure that Catholic values are expressed.
Mr. Prentice's performance
and expertise as a teacher were never in question, and he was rejected on
the sole basis that he was not a practising Catholic.
It is our position that
these particular requirements of the Roman Catholic separate school system
reflect a further violation of Article 26 of the International Covenant.
In Waldman, the Human
Rights Committee directed Canada to “make (public) funding available without
discrimination.” The experiences of Grant Tadman and Jeff Prentice indicate
that the existence of a publicly-funded Roman Catholic school system in
Ontario reveals further significant consequences with regard to the
discrimination.
In the Province of Ontario,
notwithstanding the original intentions of the Ontario Government as
reflected in the enactment of section 135 and section 136 of Bill 30 in
1986, blatant discrimination continues to exist vis-a-vis the hiring and
promotion of teachers in the Roman Catholic separate school system.
Our
Suggested Remedy
It is a fundamental tenet of
this Communication that a resolution to the existing violations of the
Covenant lies in two alternative approaches:
1)
The Province could create a singular public
system, open to all and without distinction, as exists in the present public
system, with the resultant effect of eliminating the present inequality that
exists under the provisions of the Ontario Education Act.
It has become the view of
a number of commentators and observers at this time that a singular public
system with privilege or prejudice to no one would provide the most
realistic and equitable solution to the present dilemma.
2)
The Province of Ontario could extend
Government funding on an equal basis to all those religious/denominational
groups with a substantial presence in Ontario and which are not currently
subsidized by the Province so as to alleviate the present inequity that
exists. Although such a structure would represent a solution to the present
inequity, this option does not represent the most practicable resolution to
the discriminatory aspects of the present situation.
Given the fiscal
restraints and budgetary constraints facing Federal and Provincial
governments in Canada, it would be our judgement that this solution would
not be financially viable at this time.
It is also of significance
that Canada has two official languages, English and French, and that
elementary and secondary education is a right of each linguistic group. It
is, therefore, noteworthy that the government of Ontario presently gives
preferential treatment to the Roman Catholic faith group which results in
the fact that the province presently has four publicly-funded school
systems. In effect, any additional faith group that receives public funding
must then accommodate the two language groups.
It is further to be
emphasized that Ontario is an extremely large province in Canada of more
than one million square kilometers (larger than the area of France and Spain
combined) and occupied by only some twelve million people.
Indeed approximately 80%
of the province's area is occupied by fewer than one person per square
kilometer giving rise to a significant number of remote and small
communities along northern highways and railway lines many of which, in
north eastern Ontario in particular, have a substantial French-speaking
population.
Therefore, a scheme of
extending public funding to schools of all faith groups would be very
expensive and socially divisive in the extreme because there would in all
probability always be un-accommodated children whose numbers do not
represent "a substantial presence".
Renton Patterson Civil Rights in
Public Education, Inc.
www.CRIPEweb.org
publiced@renc.igs.net
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