The following outlines an argument against
the discriminatory policy of the Government of Ontario,
condoned by the Government of Canada,
to exclusively fund, through taxpayer dollars,a complete separate school system for the Roman Catholic class of persons.
A submission was made, in April of 2011, to the Canadian Constitution Foundation http://www.canadianconstitutionfoundation.ca/
The argument made to the organization is copied below and organized under headings used by the Canadian Constitution Foundation from their application form for persons or groups to apply for assistance.
“The Canadian Constitution Foundation is a registered charity, independent and non-partisan. We act as a voice for freedom in Canada’s courtrooms and law schools.” The application for assistance was rejected because the Foundation “lacked the required resources”. When questioned about which resources they were short of – person power or dollars – there was no reply.
The following is the complete text of the submission with format instructions indicated in italics
Briefly summarize your dispute or case.
Past and present governments of the province of Ontario have, and still do, fund a Roman Catholic separate school system, and no others, from taxes paid by citizens of all other faith groups, and taxpayers who belong to no faith group. On the basis of one’s religion, or no religion, this Roman Catholic separate school system discriminates against student entry in the elementary schools and against employees for both its elementary and secondary schools. This religious discrimination is a violation of our Canadian Charter of Rights and Freedoms which “guarantees” under sections 2(a), freedom of religion, and under section 15, equality.
The Supreme Court of Canada, however, in “Reference re Bill 30, an Act to Amend the Education Act” ruled in June of 1987 that the Canadian Charter of Rights and Freedoms does not apply to the province’s plenary power over education, and it could do what it wanted, so the province has chosen to continue discrimination in the allocation of public funds, and to allow the religious discrimination practiced by the separate school system to continue.
Justice Estey acknowledged the Charter violation when he wrote: “It is axiomatic (and many counsel before this Court conceded the point) that if the Charter has any application to Bill 30, this Bill would be found discriminatory and in violation of s. 2(a) and s. 15 of the Charter of Rights.”
The Court made it abundantly clear that the reason the Charter did not apply was because Bill 30 is “… insulated from Charter attack as legislation enacted pursuant to the plenary power in relation to education granted to the provincial legislatures as part of the Confederation compromise.” (Justice Wilson, Bill 30 reference) The preceding is just one of TEN or more references in the Bill 30 decision which emphasize the importance of the Confederation compromise – the only reason why the Supreme Court threw out the Charter. The compromise is expressed in legal form in the Constitution Act, 1867, in section 93(2):
“2. All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen’s Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen’s Protestant and Roman Catholic subjects in Quebec:”
The point of this case is that the Confederation compromise is now broken due to Quebec’s elimination of Protestant separate schools (details under second-last panel, below) so there is no further reason for the Charter not to apply to the Ontario Education Act. In fact we question the legitimacy of Ontario’s Education Act now that two “provisions”, dependent on that power, are no longer in effect.
Did the government body/agency in question give you any explanation for its actions against you? If so what was it?
The standard answer from the Ontario government, copied below, is taken from a form-letter reply to the question as to why the government still provides discriminatory public funding to the Roman Catholic separate school system, which in turn discriminates against children and teachers on the basis of their religion, or absence of faith.
“Our goal is to make Ontario’s public education the best. As we work toward that goal, we will continue to uphold our constitutional obligations and fund public and separate schools fully.”
Following Confederation in 1867, without using the province’s section 93 plenary power to change things, all privileges to Roman Catholics and Protestants were to remain. Understood. What the province will not admit, however, is that it can use section 93(3) to abrogate those privileges. Manitoba set the precedent for such a move in 1890 when it used its plenary power through section 22(2) of the Manitoba Act 1870 which is essentially the same as section 93(3) for Ontario. The Constitution was not changed and the “guarantee” for Roman Catholic privilege in Manitoba still remains in the Constitution to this day. Ontario could do the same.
Queries to the federal government come back with an answer that education is a matter under provincial jurisdiction and so passes off responsibility to the province. But this is not an education issue, it is a human rights issue, pure and simple. Because of the Bill 30 Supreme Court decision, applications were made to the United Nations Human Rights Committee under the Optional Protocol of the International Covenant on Civil and Political Rights, which entered into force for Canada on August 19, 1976. The Committee found Canada (which has sole responsibility for the international Covenant) in violation of Article 26 of the Covenant in 1999 and again in 2005 due to the province’s discriminatory application of public funds to the Roman Catholic separate system. No action has been taken to resolve the issue. Canada remains in contempt of the law it pledged to uphold.
Why do you think the government has taken these actions against you?
The short answer is that there is an acknowledged democratic deficit in this country. Despite the politicians who get elected who are “renowned human rights scholars”, such as Irwin Cotler and Michael Ignatieff, nothing seems to change on the federal human rights file.
A more practical explanation is the fact that the Roman Catholic Church has a very organized and effective lobby such that the perception they instill in the politicians is one that if any party dare to come up with a policy that would interfere with their privilege, that party would suffer in any subsequent election. The leaders of all of Ontario’s political parties are routinely contacted by the lobby group to ensure their present status in that party’s policy platform is maintained, as illustrated below.
From the Ontario Catholic School Trustees’ Association website – www.ocsta.on.ca – under “Mission and Vision”, we find the following points under “Political Advocacy”
–Protects the constitutional right of the Catholic community to govern, control and manage Catholic schools.
–Promotes education in our province that reflects the Catholic principles of social justice.
–Advocates for government recognition of the distinctive nature of Catholic education.
–Advocates for provincial policy, legislation and funding support that enable Catholicboards to provide quality Catholic education.
–Influences the strategic and political direction of the Ontario government and opposition parties regarding issues that impact Catholic education.
The politicians are influenced, but not the public. Opinion polls consistently show that a majority (up to 79%) of the Ontario public favour one public school system.
Is your case currently in litigation? If so, in what court or before what tribunal or agency?
No, our case is not currently in litigation.
If your case is already in litigation, what is the next important date or deadline, and what is scheduled for that date?
Our case is not currently in litigation.
Have you consulted and/or retained a lawyer? If so, who is the lawyer, and what is his or her address and/or telephone number? Can we contact him or her if we want to learn more about your case?
We have had a one-hour consultation with Paul Champ of Champ & Associates – www.champlaw.ca – 43 Florence Street , OttawaONK2P 0W6. 613-237-4740, ext. 1. The consultation was to determine the effect of Quebec’s breaking of the confederation compromise, section 93(2), through its constitutional amendment which states “93A Paragraphs (1) to (4) of section 93 do not apply to Quebec.” Paul Champ’s written summary of our meeting reads, in part:
“You contend that Quebec’s breach of ss. 93(1) and (2) of the Constitution Act, 1867 constitutes a fundamental violation of the Confederation compromise. The consequences of this, you suggest, is that Ontario should also have the right to ignore those provisions, or at least the Charter of Rights and Freedoms should no longer shield the Catholic school system in Ontario. Your views around the Confederation compromise being broken are very interesting and certainly should cause Ontario to reconsider its position on this issue. Obviously protection of minority religion education is no longer a major national unity issue in Canada. As far as I know, there were no objections from Ontario over Quebec’s request for a constitutional amendment to eliminate religious school boards.”
Yes, it is fine with us if you contact Paul Champ to learn more about our potential case against the province of Ontario.
Quebec’s desired change to the Constitution was approved in the House of Commons on November 18, 1997. This move broke the Confederation bargain represented in legal substance by section 93 (2). Another provision was also broken – section 93 (1) – when Quebec’s denominational schools in Montreal and Quebec City were eliminated by its Constitutional change.
To us it is a “no-brainer” that the powers given to the Ontario Legislature in the opening words of s. 93 are “subject and according to” provisions which are no longer met. The “confederation compromise” on which the Supreme Court put so much weight, is no longer in force so the reasons given to throw out the Charter of Rights are no longer there. The Charter should therefore now apply to the Ontario Education Act and Ontario citizens should now be free from religious discrimination.
What do you want the Canadian Constitution Foundation to do for you?
Since two of the litigation priorities of the Canadian Constitution Foundation are to support “freedom of conscience and religion” and “Equality before the law: Charter section 15 guarantees equal rights and equal opportunities for all Canadians, special privileges for none” we ask you to give an opinion on the merits of the arguments presented here.
If the arguments have merit, we ask your advice as to what initiative we might take from here in order to ensure that children in the future will no longer be subject to religious profiling by the government of Ontario in matters of education.
Our sincere thanks for being here for us.
Renton Patterson, President
Civil Rights in Public Education, Inc.
CCF’s initial response to the above submission is copied below.
Potential Case Form
Thank you for submitting your case to the Canadian Constitution Foundation. Our legal staff will receive it shortly and commence their review of your case. They will compare your case against our litigation criteria and then contact you to let you know whether or not the Canadian Constitution Foundation will be able to help you.
Because litigation is rarely a simple matter, it may take several weeks before you receive a response from us. Our staff are not able to provide you with status updates regarding the review of your case over the phone.
Reply e-mail dated “ Thu 12/05/2011 1:27 PM”
Thank-you for contacting the Canadian Constitution Foundation. We carefully consider each request for help that we receive. I regret to inform you that we lack sufficient resources to offer you any assistance at this time.
Derek James From Student-At-Law
When questioned about which resources they were short of – person power or dollars – there was no reply.