‘By Jenna Smith’

For many students in the province of Ontario, it is common to attend a school that is within a public or a Catholic school board, both of which are fully funded by the Government of Ontario. However, the province of Ontario is an anomaly when it comes to education funding as it is currently the only province that fully funds a public-school board as well as a separate Catholic school board and provides no public funding to any other independent religious schools.[i] This education funding arrangement is grounded in section 93 of the Constitution Act 1867, which constitutionally requires the province of Ontario to fully fund a Catholic school system.[ii] This blog post outlines how a constitutional amendment to section 93 of the Constitution Act 1867 could remove the Government of Ontario’s obligation to publicly fund Catholic schools.

The key takeaway of this discussion is that the task of amending section 93 may not be as onerous as some might think from a Constitutional amendment perspective. However, it will be seen that the true challenge to amending section 93 are political barriers and a current lack of political will. It should be noted that this blog post is not suggesting the removal of Catholic schools entirely in Ontario, as they could still exist through a privately funded education system like other independent religious schools in Ontario.[iii] What is being argued, however, is that the constitutional protection afforded to Catholic schools and its associated public funding in Ontario should come to an end, and this can be undertaken through a constitutional amendment of section 93, using the section 43 bilateral amending formula in Part V of the Constitution Act 1982.

Why Section 93 Should be Amended to Remove Public Funding for Catholic Schools in Ontario
Section 93 of the Constitution Act, 1867 has historical underpinnings that date back to Confederation, as it was created to ensure the protection of the Catholic and Protestant minorities within the provinces of Ontario and Quebec from being usurped by the majority religion.[iv] Since Confederation, the provinces of Quebec and Newfoundland have amended their way out of obligations under section 93, leaving behind only the province of Ontario to exclusively fund a Catholic School system alongside a fully funded secular public school system.[v] If other provinces have turned their backs on this historical compromise under section 93, it begs the question as to why Ontario should continue to uphold the section, and continue to publicly fund a Catholic school system?

In addition to Ontario being the only province to exclusively fund this dual school system, there is the issue of potential discrimination which can occur with the support of section 93. Section 93 is insulated from Charter scrutiny, as held by the court in Adler, which reinforced that one part of the Constitution cannot interfere with rights that are protected by other sections of the Constitution.[vi] Thus, section 93 has been used by Catholic schools to dismiss teachers based on a “denominational cause” for instances such as being pregnant while unmarried.[vii] Section 93 has also been relied on to allow Catholic schools to prefer the hiring and promotion of teachers who are Catholic.[viii] Additionally, the United Nations Human Rights Committee found Ontario’s sole funding of Catholic schools, which excludes all other religious schools, to be discriminatory.[ix] Although this decision is not binding on Canadian courts, it is noteworthy as it shows that section 93 is prima facie discriminatory and thus unacceptable law to the United Nations. The inaction within Ontario following this decision is also concerning as these types of discriminatory acts can continue to occur with the protection of section 93. There are other reasons why section 93 should be amended, including financial benefits and declining Catholic school enrollment, however, the main focus of this blog post is how this constitutional amendment could actually occur.[x]

How Section 93 of the Constitution Act 1867 Could be Amended

If Ontario were to amend section 93 of the Constitution it could proceed with a formal constitutional amendment in adherence to the bilateral amending procedure under section 43 of Part V of the Constitution Act, 1982. Out of the various constitutional amending procedures available, section 43 would likely be used as it has already been triggered by the province of Quebec to amend section 93 when the province added the following clause to the Constitution: “93A. Paragraphs (1) to (4) of section 93 do not apply to Quebec”.[xi] The validity of this amendment was upheld in Quebec with a Court holding that removing protections for denominational schools did not affect any other province and that consent by other provinces was not required to make this constitutional amendment.[xii] The province of Newfoundland also amended its way out of section 93 by way of the section 43 amending procedure.[xiii] This removes any doubt that a different amending procedure in Part V would be used by Ontario to amend section 93.

The section 43 amending procedure in the Constitution Act, 1982 is for amendments that apply to “one or more, but not all provinces.” It requires that a proclamation be passed in the Senate and House of Commons and the legislative assembly of the affected provinces.[xiv] Therefore, for Ontario to undergo this amendment in adherence to section 43, they would need to pass a resolution in the Legislative Assembly of Ontario as well as in the House of Commons and Senate.[xv] Perhaps Ontario could even adopt the wording of Quebec’s amendment and add a section 93B to the Constitution that would remove the section’s application to Ontario. And there we have it, that is all it would take to remove Ontario’s constitutional obligation to publicly fund Catholic schools. It may be surprising as to how simple this Constitutional amendment to section 93 would be, considering Canada has one of the most rigid Constitutions in the world.[xvi] However, the next section will highlight the true challenge that this potential amendment faces.

The Political Barriers to Making this Amendment a Reality

Although the correct amending procedure has been identified to undergo a constitutional amendment to section 93 to end the public funding of Catholic schools in Ontario, a larger challenge presents itself—a lack of political will. The greatest barrier facing this amendment is not the amending procedure or the rigidity of the Canadian Constitution, but the challenge of garnering enough political support to make this amendment a reality. Although Quebec successfully amended section 93 of the Constitution Act 1867, the province did so on the back of a growing secularization movement within the province, which is not being replicated in Ontario.[xvii] In Ontario, the public is still divided as to whether the current dual funding structure in Ontario should shift to a single publicly funded school system.[xviii] Thus, proposing an end to the funding of Catholic schools may come at a political cost, including backlash from Catholic organizations that actively benefit from the current arrangement.[xix]

Also, it seems that presently the major political parties in Ontario are not up for the challenge as only the Green Party of Ontario has the removal of publicly funded Catholic schools on their party platform, a party that currently has one seat in the Legislative Assembly of Ontario.[xx] Bringing up the issue of religious education funding could prove fatal for politicians in Ontario, as occurred with John Tory during his 2007 failed provincial election campaign where he received immense backlash for proposing that education funding in Ontario should be extended to all religious schools.[xxi]

Conclusion

Although a prompt attempt to amend section 93 seems unlikely, on the bright side it appears that whenever Ontario may be ready to undergo such an amendment, it is achievable via section 43 of Part V of the Constitution Act, 1982. Perhaps a decline in religiosity and evolving demographics within Canada will eventually translate into the necessary political support to achieve this amendment and rid Ontario of its constitutional obligation to fund Catholic schools.[xxii]

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About the author: Jenna Smith is a 2L student in the English Common Law program at the University of Ottawa Faculty of Law. She completed her Bachelor of Arts (Honours) in Political Science at the University of Guelph in 2020. She is currently an Associate Editor with the Ottawa Law Review and will be a Senior Editor in the upcoming academic year.

Note: To avoid potential conflicts, all student blog posts are anonymized during the screening, editing, and review processes; Jenna was not involved in her capacity as OLR Associate Editor.

[i] Although each province in Canada has a fully funded public school system, there is a patchwork of religious school funding throughout the provinces. For instance, both Alberta and Saskatchewan fully fund a Catholic School system and also provide partial funding for independent religious schools. British Columbia, Manitoba and Quebec provide partial funding for religious schools of any faith while New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland provide no funding for religious schools of any kind. See John Young, “Religious Education in Canada” in Derek Davis & Elena Miroshnikova, eds, The Routledge International Handbook of Religious Education1st ed (London: Routledge, 2012) 71.

[ii] Constitution Act, 1867, s 93.

[iii] This discussion is outside the scope of this blog post as the primary focus is on the Constitutional amendment of section 93 to remove the public funding of Catholic schools in Ontario.

[iv] Ref re Bill 30, An Act to Amend the Education Act, [1987] 1 SCR 1148 at para 27, 40 DLR (4th) 18.

[v]Although Newfoundland does not have constitutionally protected denominational schools anymore, the Province has allowed religious observances in public schools if requested by a child’s parents. See Markus F Kremer, Heather Pessione & Alannah Fotheringham, “Not Merely the Transmission of Knowledge: Constitutional Protection for Denominational Education in Canada and the United States” (2017) 26:2 Educ & LJ 100 at 108; See also Bruce Pardy, “Does Constitutional Protection Prevent Education Reform in Ontario?” (December 2016) at 3, online (pdf): Fraser Institute: Fraser Research Bulletin <https://www.fraserinstitute.org/sites/default/files/does-constitutional-protection-prevent-education-reform-in-ontario.pdf >.

[vi] Adler v Ontario, [1996] 3 SCR 609 at para 35, 30 OR (3d) 642 [Adler]; See also Ref re Bill 30, An Act to Amend the Education Act, [1987] 1 SCR 1148, 40 DLR (4th) 18.

[vii] See Casagrande v Hinton Roman Catholic Separate School District No 155, [1987] AJ No 315, 38 DLR (4th) 382.

[viii] See Daly v Ontario (Attorney General), [1999] OJ No 1383, 44 OR (3d) 349.

[ix] Arieh Hollis Waldman v Canada, Communication No 694/1996, UNHRC, UN Doc CCPR/C/67/D/694/1996 (1999) at para 10.6.

[x] Some other reasons for removing the public funding of Catholic schools in Ontario are the cost savings that could occur, and to mitigate enrollment competition between the Catholic and public school boards as student enrollment has been declining. See e.g. Andrew Russell “With up to $1.6B in savings, should Ontario defund its Catholic schools?”, Global News (6 June 2018), online: Global News <https://globalnews.ca/news/4247095/ontario-separate-schools-election/>; Samuel Trosow & Bill Irwin, “It’s Time to Merge Ontario’s Two School Systems” (22 July 2018), online: The Conversation <https://theconversation.com/its-time-to-merge-ontarios-two-school-systems-99922>.

[xi] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 93(A) reprinted in RSC 1985, Appendix II, No 5.

[xii] See Potter c Québec, [2001] RJQ 2823; Markus F Kremer, Heather Pessione & Alannah Fotheringham, “Not Merely the Transmission of Knowledge: Constitutional Protection for Denominational Education in Canada” (2017) 26:2 Educ & LJ 93 at 100.

[xiii] See Kremer, supra note v at 108.

[xiv] Procedure for Amending the Constitution of Canada s 43, Part V of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[xv] David R Cameron & D Krikorian Jacqueline, “Recognizing Quebec in the Constitution of Canada: Using the Bilateral Constitutional Amendment Process” (2008) 58:4 UTLJ 389.

[xvi] See generally Richard Albert, “The Difficulty of Constitutional Amendment in Canada” (2015) 53:1 Alta L Rev.

[xvii] Adrian Davidson, Jack Lucas & Michael McGregor, “Politics and Religion: Identifying the Correlates of Support for Merging the Public and Separate School Systems in Ontario” (2020) 43:1 Can J Education 229 at 234.

[xviii] See Ontario Institute for Studies in Education of the University of Toronto, “Public Attitudes Toward Education in Ontario 2018: The 20^th OISE Survey of Educational Issues” (2018) at 19, online (pdf): <https://www.oise.utoronto.ca/oise/UserFiles/Media/Media_Relations/OISE-Public-Attitudes-Report-2018_final.pdf>.

[xix] See e.g. Canadian Secular Alliance, “Public Financing of Religious Schools” (28 September 2009), online:
<http://secularalliance.ca/about/policies/public-financing-of-religious-schools/> (“includes the Institute for Catholic Education, the Ontario Conference of Catholic Bishops, Catholic parents groups, Catholic Teachers Unions, and the Catholic Trustees Association”).

[xx] See Bob Hepburn, “Is it time for Ontario to End Catholic school funding?” (17 March 2021), online: Toronto Star <https://www.thestar.com/opinion/star-columnists/2021/03/17/is-it-time-for-ontario-to-end-catholic-school-funding.html>.

[xxi] See Karen Howlett, “Tory Admits Faith-Based Schools Funding Mistake” (25 October 2007), online: The Globe and Mail <https://www.theglobeandmail.com/news/national/tory-admits-faith-based-schools-funding-mistake/article18147998/>.

[xxii] See e.g. Statistics Canada, Insights on Canadian Society: Religiosity in Canada and its Evolution From 1985 to 2019, by Louis Cornelissen, Catalogue No 75-006-X (Ottawa: Statistics Canada, 28 October 2021) (“From 1985 to 2019 there was a decline in religious affiliation among Canadians from 90% to 68”).