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Adler v. Ontario, [1996] 3 S.C.R. 609

 

Susie Adler, Mark Grossman, Paula Kezwer,

Marcy Rapp and Riky Young                                                           Appellants

 

v.

 

Her Majesty The Queen in Right of Ontario,

the Minister of Education and the Minister of Health                    Respondents

 

and between

 

Leo Elgersma, Harry Pott, Raymond Dostal,

Harry Fernhout and the Ontario Alliance of

Christian School Societies                                                                 Appellants

 

v.

 

The Attorney General for Ontario,

the Minister of Education and the Minister of Health                    Respondents

 

and

 

The Attorney General of Quebec,

the Attorney General for Saskatchewan,

the Ontario Multi‑Faith Coalition for Equity in Education,

the Ontario Federation of Independent Schools,

the Metropolitan Toronto School Board and

the Ontario Public School Boards’ Association and

the Canadian Civil Liberties Association                                         Interveners

 

Indexed as:  Adler v. Ontario

 

File No.:  24347.

 

1996:  January 23, 24; 1996:  November 21.

 

Present:  Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

 

on appeal from the court of appeal for ontario

 

                   Constitutional law ‑‑ Charter of Rights  (freedom of religion (s. 2 (a)) and equality rights (s. 15(1) )) and Constitution Act, 1867 (education rights of Roman Catholics and Protestants in Ontario and Quebec respectively (s. 93)) ‑‑ Education funding ‑‑ Dissentient religion‑based schools ‑‑ Secular and Roman Catholic schools receiving both funding and School Health Support Services for disabled students ‑‑ Dissentient religion‑based schools receiving neither ‑‑ Whether denial of funding to religion‑based independent schools an infringement of s. 2 (a) Charter  guarantee of freedom of religion ‑‑ If so, whether justified under s. 1  ‑‑ Whether denial of funding to dissentient religion‑based schools an infringement of equality provisions of s. 15  of the Charter  ‑‑ If so, whether justified under s. 1  ‑‑Whether denial of School Health Support Services to dissentient religion‑based schools an infringement of s. 2 (a) Charter  guarantee of freedom of religion ‑‑ If so, whether justified under s. 1  ‑‑ Whether denial of School Health Support Services to dissentient religion‑based schools an infringement of equality provisions of s. 15  of the Charter  ‑‑ If so, whether justified under s. 1  ‑‑ Canadian Charter of Rights and Freedoms , ss. 1 , 2 (a), 15(1) , 27  ‑‑ Constitution Act, 1867 , s. 93(1) , (2) , (3) , (4)  ‑‑ Education Act, R.S.O. 1990, c. E.2, ss. 1(1), 21(1)(a), (b), (2)(a), 70(1)(a), (b) ‑‑ R.R.O. 1990, Reg. 552, ss. 13(1), 14(1), (2).

 

                   The appellants, by reason of religious or conscientious beliefs, send their children to private religious schools.  The “Adler appellants” sought a declaration that non‑funding of Jewish schools in Ontario was unconstitutional.  The “Elgersma appellants” sought, among other relief, a declaration that the non‑funding of independent Christian schools infringed their Charter  rights.  Both applications  included claims with respect to the School Health Support Services Program (“SHSSP”) which provides health support services at school to students.  The trial judge found that the appellants’ religious and equality rights guaranteed under the Canadian Charter of Rights and Freedoms  were infringed but that the legislation was justified under s. 1 .  The Court of Appeal found that s. 2 (a) of the Charter  did not provide a positive entitlement to state support for the exercise of one’s religious practice and that any infringement was justified under s. 1 .  The majority found that there was not sufficient factual foundation with respect to the School Health Support Services Program.

 

                   The constitutional questions before this Court queried:  (1) whether the definitions of "board" and "school" in s. 1(1) of the Education Act, together with the annual general legislative grants, infringe or deny the appellants' freedom of religion under s. 2 (a) of the Charter  or their s. 15(1)  equality rights by not providing funding to dissentient religion‑based schools, and if so, is this non‑funding justified under s. 1 , and (2) , whether s. 14 of Regulation 552, R.R.O. 1990, which prescribed school health support services as insured services to an insured person who is placed in a special education program in a "school" as defined in s. 1(1) of the Education Act, but not to an insured person in a dissentient religion‑based school, infringes or denies the appellants' freedom of religion under s. 2 (a) of the Charter  or their s. 15(1)  equality rights by not providing these services to dissentient religion‑based independent schools, and if so, was this withholding of services justified under s. 1 .

 

                   Held (McLachlin J. dissenting in part and L’Heureux‑Dubé J. dissenting): The appeal should be dismissed.

 

Funded Education

 

                   Per Lamer C.J. and La Forest, Gonthier, Cory and Iacobucci JJ.:  Section 93  of the Constitution Act, 1867  is the product of a historical compromise crucial to Confederation and forms a comprehensive code with respect to denominational school rights which cannot be enlarged through the operation of s. 2 (a) of the Charter . It does not represent a guarantee of fundamental freedoms.  The appellants, given that they cannot bring themselves within the terms of s. 93 's guarantees, have no claim to public funding for their schools.  To decide otherwise by accepting the appellants’ claim that s. 2 (a) requires public funding of their dissentient religion‑based schools would be to hold one section of the Constitution violative of another.

 

                   Section 93(1)  requires the Ontario government to fund Roman Catholic separate schools fully.  The claim that the government’s choice to fund Roman Catholic separate schools but not other religious schools contravened the equality provisions of s. 15(1)  of the Charter  should be rejected for two reasons.  First, the decision falls “fairly and squarely” within s. 29  of the Charter  which explicitly exempts from Charter  challenge all rights and privileges “guaranteed” under the Constitution in respect of denominational, separate or dissentient schools.  Second, the decision is nonetheless “immune” from Charter  review because it was made pursuant to the plenary power in relation to education granted to the provincial legislatures as part of the Confederation compromise.  One part of the Constitution cannot be used to interfere with rights protected by a different part of that same document.

 

                   Public schools are contemplated by the terms of s. 93 , as it applies to Ontario.  In order to claim the protection of s. 93 , it must be shown that there was a right or privilege with respect to denominational schooling which was enjoyed by a class of persons by law at the time of union.  This section raised denominational school rights and privileges, which were created by ordinary pre‑Confederation legislation and which were equated by that legislation with those of the public schools, to the status of constitutional norms.  The result is that public schools are part and parcel of s. 93 's comprehensive code.  Accordingly, public schools are impliedly but nonetheless clearly within the terms of the regime set up by s. 93  and, consequently, receive a protection against constitutional or Charter  attack.  This protection exists despite the fact that public school rights are not themselves constitutionally entrenched.  It is the province’s plenary power to legislate with regard to public schools which are open to all members of society without distinction that is constitutionally entrenched.

 

                   The province remains free to exercise its plenary power with regard to education in whatever way it sees fit, subject to the restrictions relating to separate schools imposed by s. 93(1) .  The province’s legislative power is not limited to the public and Roman Catholic school systems.  However, legislation in respect of education could be subject to Charter  scrutiny whenever the government decides to go beyond the confines of this special mandate to fund Roman Catholic separate schools and public schools.

 

                   Per Sopinka and Major JJ.:  Nothing in s. 93(3)  of the Constitution Act, 1867  restricts extending funding to others.  This provision specifically contemplates the exercise of the plenary power to create a “System of Separate or Dissentient Schools” where one does not exist.  Neither the legislation funding public schools nor legislation extending funding to the appellants’ schools would be within the terms of s. 93(3) .  It would not affect any right or privilege of the Protestant or Roman Catholic minority and it would not establish a system of separate or dissentient schools.

 

                   When the province exercises its plenary power outside of the areas specified in s. 93(1)  and (3) , any distinctions violating the Charter  are not “expressly permitted” or even contemplated.  Legislation in such cases is no different from legislation under any of the heads of s. 92 .  Giving effect to the Charter  will not invalidate any power conferred by s. 93 .

 

                   Certain rights and privileges of the Protestant majoritarian schools do not ipso facto receive constitutional protection because they are relevant in identifying the rights and privileges of Roman Catholic schools.  The rights and privileges of public schools are merely the benchmarks for ascertaining the rights and privileges of separate schools.  Certain provisions of pre‑Confederation statutes gave separate schools the same rights as enjoyed by public schools.  While the terms of those statutes are relevant to ascertain what these rights and privileges are, the statutes themselves are not given constitutional status.  Only the rights and privileges of separate schools are given constitutional protection.

 

                   Legislation under the plenary power relating to funding for secular schools is not insulated from Charter  attack.  In this regard such legislation is no different in character than legislation passed under any of the powers in s. 92  of the Constitution Act, 1867 .  The exercise of the plenary power in relation to the matters specifically authorized by s. 93(3) , however, is immune.  Section 93(3)  specifically authorizes distinctions to be made that would otherwise contravene the Charter .  The plenary power itself was no different in character than any of the powers in s. 92 .

 

                   Some overlap exists between the claims based on s. 2 (a) and s. 15  of the Charter .  Neither section is infringed even if the non‑funding of private religious schools imposes an economic disadvantage in relation to parents who send their children to secular public school.   Nothing in the Education Act relating to mandatory education per se involves a breach of appellants’ rights under s. 2 (a) of the Charter .  The Act allows for the provision of education within a religious school or at home and does not compel the appellants to act in any way that infringes their freedom of religion.

 

                   The distinction made between the Roman Catholic schools and other religious schools is constitutionally mandated and cannot be the subject of a Charter  attack.  The legislation is not the source of any distinction amongst all the groups whose exercise of their religious freedom involves an economic cost.  Any  disadvantage flows exclusively from their religious tenets.   Failure to act in order to facilitate the practice of religion cannot be considered state interference with freedom of religion.  Not providing funding for private religious education does not infringe the freedom to educate children in accordance with religious beliefs where there is no restriction on religious schooling.   Moreover, the cost of sending their children to private religious schools is a natural cost of the appellants’ religion and does not, therefore, constitute an infringement of their freedom of religion protected by s. 2 (a) of the Charter .

 

                   The distinction in the Education Act between public and private school funding does not meet the threshold stage of the s. 15  inquiry.  The Act, as well, does not give rise to adverse effect discrimination.  No distinction is made between the appellants and other groups on the basis of a particular characteristic common to the appellants.  That the appellants feel compelled to send their children to private school because of a personal characteristic (religion) with the effect that they are unable to benefit from publicly funded schooling is not an effect arising from the statute.

 

                   If the distinctions relied on by the appellants do not arise as a result of the legislation, no governmental action is involved to which s. 15  can attach.  No government action compelled the appellants to send their children to private, religious‑based independent schools.  They were free to send their children to secular public schools maintained at public expense.  Their decision not to do so was solely a response to their religious beliefs and not a result of any government action.

 

                   The threshold stage of a s. 15  inquiry is not met and there is no distinction to consider in the second stage, namely as to whether or not discrimination results from such a distinction.  No distinction based on personal characteristics was shown to be drawn by the Education Act (either directly or indirectly) between the appellants and others.  Not being able to take advantage of the public school system does not result from the Education Act but rather from the combination of the appellants’ religious beliefs and the imperatives of the Charter  as they apply to the exercise of the province’s plenary power over education.

 

                   Even if the appellants had succeeded in showing that the legislation created a distinction, they would not have succeeded in demonstrating that this distinction amounts to discrimination on the basis of religion.  The only ground of distinction in this case is between “public” institutions, which are funded by the government, and “private/independent” institutions, which do not receive funding from the government.  No private schools receive funding whether they are religious or secular.  No religion is given preferential treatment within the system.  The distinction between “private” and “public” institutions is neither an enumerated nor an analogous ground in s. 15  of the Charter .

 

                   Per McLachlin J. (dissenting in part):  Section 93  of the Constitution Act, 1867  is not a code ousting the operation of the Charter  and was not intended to do more than guarantee school support for the Roman Catholic or Protestant minorities in Ontario and Quebec respectively.  Provinces exercising their plenary powers to provide education services must, subject to this restriction, comply with the Charter .

 

                   The s. 2 (a) Charter  guarantee of freedom of religion was not infringed.  The requirement of mandatory education does not conflict with the constitutional right of parents to educate their children as their religion dictates.  The Education Act does not require children to attend either secular or Roman Catholic schools.  Indeed, s. 21 excuses children from school attendance if they are receiving satisfactory instruction elsewhere.  In determining the content of the guarantees contained in the Charter , the courts must look to the history of the values it enshrines.  That history provides no support for extending the guarantee of freedom of religion to the provision of equal funding for religious practices, like religious education.  Freedom of religion does not entitle one to state support for one’s religion.

 

                   The argument that the s. 15  equality provisions of the Charter  was infringed by the unequal funding provided Roman Catholic schools was untenable given the special constitutional bargain protecting funding for Roman Catholic schools in Ontario at the time of Confederation.   Section 15  was nevertheless infringed because of the unequal funding vis‑à‑vis funded secular schools.   Although the public school system is neutral on its face, the funding system nevertheless results in adverse effect discrimination in that it has the effect of denying a benefit to those whose religions do not permit their adherents to send their children to public secular schools.  This adverse effect discrimination is caused by the Education Act and not by the appellants’ religion.  The law proceeds from the premise that the individual is entitled to equal treatment in spite of those differences.  The state cannot “blame” the person discriminated against for being of the status or for having chosen the status which leads to the denial of benefit.

 

                   The encouragement of a more tolerant harmonious multicultural society constitutes a pressing and substantial objective capable, provided its effect is duly proportionate, of justifying the infringement of s. 15 .  The public school system represents the most promising potential for realizing a more fully tolerant society.  The legislative scheme promotes the objective sought.  The denial of funding to separate schools is rationally connected to the goal of a more tolerant society.  It is impossible to say whether a less intrusive measure, such as partial funding for private religious schools, might achieve the same objective with less infringement of the guarantee of freedom of religion.  Given the deference accorded the legislature on social issues, the minimal impairment test is met.  The effect of denying funding to independent religious schools was proportionate to the objective sought.

 

 

                   Per L’Heureux‑Dubé J. (dissenting):  The only school support guaranteed by s. 93  of the Constitution Act, 1867  is that required of Ontario and Quebec to their respective Roman Catholic and Protestant minorities.  Provinces exercising their plenary powers to provide education must, subject to this requirement, comply with the Charter .

 

                   The failure to fund the independent religious schools does not constitute a limit on the guarantee of freedom of religion.  Given the exemption from public education included in its s. 21, the Education Act does not compel the appellants to violate the tenets of their religion with respect to education.  The denial of a benefit on the basis of the appellants’ religion is more appropriately addressed under s. 15  of the Charter .

 

                   An individual, to make out a violation of his or her rights under s. 15(1)  of the Charter , must demonstrate:  (1) a legislative distinction; (2) that this distinction results in a denial of one of the four equality rights on the basis of the rights claimant’s membership in an identifiable group; and (3) that this distinction is “discriminatory” within the meaning of s. 15 . The examination of whether the distinction is discriminatory should be undertaken from a subjective‑objective approach, i.e., from the point of view of the reasonable person, dispassionate and fully apprised of the circumstances, possessed of similar attributes to, and under similar circumstances as, the group of which the rights claimant is a member. In determining whether discrimination has occurred, it is necessary to reconstruct the context in which the distinction arises.  Two categories of factors prove particularly instructive:  (1) the nature of the group adversely affected by the distinction and (2) the nature of the interest adversely affected by the distinction. This approach is primarily effects‑oriented in its contextual determination of the impact of the legislation in question on a particular group.  Inherent in this model is a recognition of the importance of adverse impact discrimination in present‑day society.

 

                   The legislature creates a distinction between the appellants and others  who are able to access publicly funded education in the surrounding social context. As found at trial, remaining a member of the particular religious communities in question and acting in accordance with the tenets of these faiths required that the children be educated in a manner consistent with the faith and therefore outside of the public or Roman Catholic schools.  Control over the education of their children was essential to the continuation of the religious communities in question.  This distinction results in the denial of the claimants’ s. 15  right to equal benefit of the law on the basis of their membership in an identifiable group.

                  

                   State action which discriminates on the basis of religion cannot be excused on the grounds that religion is a choice and that the individuals may choose to avoid the negative impact which arises from the state’s response to their religious identity.  Discrimination on the basis of religion would become an empty concept.

 

                   The degree of choice which a person may be expected to have in identifying with a particular group, while relevant to a determination of discrimination, must be assessed from the subjective‑objective perspective.  In this case the appellants would see themselves as not having a choice.

 

                   Section 2 (a) of the Charter  is primarily concerned with the necessary limits to be placed on the state in its potentially coercive interference with the original, objectively perceived religious “choice” that individuals make.  Section 15  ensures that consequences in behaviour and belief, which flow from this initial choice and are not perceived by the rights claimant as optional, are not impacted upon by state action in such a way as to attack the inherent dignity and consideration due all human persons.  The protections afforded in s. 15  may thus be of greater scope than those in s. 2 (a).

 

                   Accommodation as understood in human rights law is applicable to the rights enumerated in s. 15  of the Charter .  The exemption for religious parents contained in s. 21 of the Education Act does not constitute the accommodation necessary under s. 15  to ensure equal access in real terms.  Rather, it addresses the potential coercive aspect of mandatory secular education alone, and thus allows the impugned legislation to meet the requirements of s. 2 (a).  In a case of unequal benefit, accommodation will mean taking the steps necessary to ensure access of these parents without discrimination.  Given the complete denial of this benefit to those who cannot access it for religious reasons, the equal benefit of a publicly funded education has been denied the appellants on the basis of a distinction which relates to their membership in an identifiable group.

 

                   This distinction is capable of promoting or perpetuating a view that the appellants are, by virtue of their religious beliefs, less capable or worthy of recognition or value as human beings or members of Canadian society equally deserving of concern, respect, and consideration.  Consideration must be given to both the nature of the group affected and the nature of the interest.  Dissentient minority religious groups have suffered severely from the historic disadvantage which has adhered to religious identity.  They are necessarily discrete and insular minorities given the forces of secularization in society.  The consequences which flow from the denial of an economic benefit are necessarily incidental to protecting the dignity and value of the appellants.  Denial of any funding to the appellants constitutes not only a financial prejudice, but also a complete non‑recognition of their children’s educational needs and the children’s and parents’ fundamental interest in the continuation of their faith.  In applying s. 15  in the context of the denial of funding for education to those who cannot access it for religious reasons, s. 27  of the Charter  (dealing with the preservation and enhancement of a multicultural heritage) supports a finding that the interests at stake, the preservation and continuation of the communities in question, form interests fundamental to the purposes of the Charter .   The Education Act funding scheme represents a prima facie violation of the s. 15  guarantee of equal benefit of the law.

 

                   While deference has been granted the state in its legislative role by the courts in undertaking a s. 1  analysis, this deference has been designed to give better effect to the general purposes of the Charter .  Generally, where the nature of the rights infringement falls far from Charter  values and where the legislative objective promotes these values, deference will be shown.  As a corollary, however, where the nature of the infringement lies at the core of the rights protected in the Charter  and the social objective is meant to serve the interest of the majority as a whole, as represented by state action, courts must be vigilant to ensure that the state has demonstrated its justification for the infringement.  A less deferential stance should be taken and a greater onus remain on the state to justify its encroachment on the Charter  right in question.  In each case, therefore, only after the objective of the legislation has been identified can the appropriate degree of deference be determined.  “Social” legislation per se will not, in the absence of these factors, warrant deference.  Indeed, cases will be rare where it is found reasonable in a free and democratic society to discriminate.

 

                   The objectives of providing free public education and of fostering tolerance are clearly pressing and substantial in a democratic society.  The former objective dictates that the latter be linked to the discouragement of non‑secular education.  The value underlying the legislation is the provision of education in a manner which fulfills the majoritarian interests of a secular society and it is the majoritarian interests, and not the interests of vulnerable and discrete social groups, which are threatened by the funding of religious schools.  The infringement, by contrast, affects members of an insular religious minority within a minority to the extent of touching upon its members’ ability to maintain their practices and therefore upon its ability to survive as a community.  The degree of judicial deference allowed in other cases is not warranted here.  The state must clearly discharge the burdens of evidence and proof which are mandated under s. 1 .

 

                   A rational connection was established between funding choices and the maintenance of universally open and religiously tolerant schools.  Full funding for dissentient schools was shown to be linked to the possible outflow of a large number of students from the public school system.  The legislation, however, did not minimally impair the rights in question.  Complete denial of funding is the most excessive impairment possible and not one of a range of permissible alternatives.  Partial funding could be provided without affecting the objectives of the legislation and would ensure a less severe impairment.  It could ensure some recognition of these communities and assist in their continuation, all the while maintaining the generally secular, universal and socially tolerant nature of the public school system.  Finally, the salutary effects of the legislation, being essentially financial in nature, did not outweigh the deleterious impact.

 

School Health Support Services

 

                   Per Lamer C.J. and La Forest, Gonthier, Cory and Iacobucci JJ.:   The School Health Support Services Program is immune from Charter  scrutiny.  These services, which should be characterized as education services as opposed to health services, are designed to ensure that children with special needs have full access to the public school system.  The program is therefore simply a manifestation of the Ontario government’s fulfilling its mandate to provide an education designed for all members of the community.  It is accordingly immune from Charter  scrutiny.  Given the characterization of these services as “education services” rather than “health services”, the failure to extend these services to private religious schools does not violate either s. 2 (a) or s. 15(1)  of the Charter  .

 

                   Per Sopinka and Major JJ.:  The School Health Support Services are properly characterized as “education services” as opposed to strict “health services”.  If the appellants have no basis for claiming a right to public funding for the education provided in private schools, they have no claim for additional “educational services” available only within the public school system.  There is no reason to distinguish funding for this aspect from other aspects of funding for educational purposes.

 

                   Per McLachlin J. (dissenting):  The unequal treatment given disabled children attending independent religious schools flows from the religious conviction of their parents whose belief compels them to educate their children outside the public secular system.  Labelling the denial of assistance as an education matter does not obviate the inequality the restriction creates.  This unequal treatment is discrimination contrary to s. 15  of the Charter .

 

                   The objective of promoting a more tolerant multicultural society  might be capable of justifying the impugned regulation which relies on definitions contained in the Education Act and therefore alludes only to public secular schools and Roman Catholic schools.  Rational connection is more problematic.  The Regulation might be argued to be a measure to encourage disabled children of religious minorities to participate in the multicultural public school system.  The infringement, however, is not minimally impaired.  The cost of extending these school health services is not great and denying these services to disabled children in non‑funded schools adds to their burden of coping.  The discrimination effected by the Regulation is not justifiable under s. 1 .

 

                   A provision should be read into Regulation 552, extending the Education Act’s definition of “school” to include private denominational schools and broadening the Act’s definition of “special education program” to include programs that are comparable to special education programs in public schools or Roman Catholic schools.

 

                   Per L’Heureux‑Dubé J. (dissenting):  The services to disabled students provided under the Health Insurance Act in the public and separate schools as part of a “special education program” form an integral part of the education services funded in the province under the Education Act.  Denying this funding as part of the complete denial of funding to these schools infringes s. 15  of the Charter .  Providing services which make it possible for disabled students to attend publicly funded schools furthers the objectives of the Education Act in creating a non‑discriminatory, universal system of education.  The denial of the health support program, however,  is not rationally connected to the objectives of providing universal education without discrimination.  Furthermore, denying disabled children access to the independent schools will not, in any significant way, further enhance the social diversity and harmony in the public school system because religious reasons prevent their parents from sending them to the secular system in any event.  It was unnecessary to undertake a determination of whether a minimal impairment has been imposed or whether the effects are proportionate to the objective.

 

                   A provision should be read into Regulation 552 which expands the definition of “school” in the Education Act to include private denominational schools and extends the Education Act’s definition of special education programs to include those equivalent to the ones offered in the separate or public school systems.

 

Cases Cited

 

By Iacobucci J.

 

                   AppliedReference Re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; consideredMahe v. Alberta, [1990] 1 S.C.R. 342;  referred toReference re Education Act (Que.), [1993] 2 S.C.R. 511; Reference re Adoption Act, [1938] S.C.R. 398; Greater Montreal Protestant School Board v. Quebec (Attorney General), [1989] 1 S.C.R. 377; Société des Acadiens du Nouveau‑Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549; Reference re Public Schools Act (Man.), [1993] 1 S.C.R. 839; Attorney General of Quebec v. Greater Hull School Board, [1984] 2 S.C.R. 575; Roman Catholic Separate School Trustees for Tiny v. The King, [1928] A.C. 363; Brophy v. Attorney‑General of Manitoba, [1895] A.C. 202.

 

By Sopinka J.

 

                   AppliedReference Re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; consideredR. v. Jones, [1986] 2 S.C.R. 284; distinguishedMahe v. Alberta, [1990] 1 S.C.R. 342; Zylberberg v. Sudbury Board of Education (Director) (1988), 65 O.R. (2d) 641; Canadian Civil Liberties Assn. v. Ontario (Minister of Education) (1990), 71 O.R. (2d) 341;  referred to:  Hirsch v. Protestant Board of School Commissioners of Montreal, [1928] A.C. 200; Brophy v. Attorney‑General of Manitoba, [1895] A.C. 202; Reference re Adoption Act, [1938] S.C.R. 398; Attorney General of Quebec v. Greater Hull School Board, [1984] 2 S.C.R. 575; Greater Montreal Protestant School Board  v. Quebec (Attorney General), [1989] 1 S.C.R. 377; Reference re Education Act (Que.), [1993] 2 S.C.R. 511; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; R. v. Turpin, [1989] 1 S.C.R. 1296; Miron v. Trudel, [1995] 2 S.C.R. 418; Egan v. Canada, [1995] 2 S.C.R. 513;  Ontario Human Rights Commission v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Russow  v. British Columbia (Attorney General) (1989), 35 B.C.L.R. (2d) 29; Bal v. Ontario (Attorney General) (1994), 21 O.R. (3d) 681.

 

By McLachlin J. (dissenting in part)

 

                   Applied:  Reference Re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; distinguished:  R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; referred to:  Miron v. Trudel, [1995] 2 S.C.R. 418; Egan v. Canada, [1995] 2 S.C.R. 513; Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561; R. v. Oakes, [1986] 1 S.C.R. 103; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Reference re  ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; R. v. Chaulk, [1990] 3 S.C.R. 1303.

 

By L’Heureux‑Dubé J. (dissenting)

 

                   Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Egan v. Canada, [1995] 2 S.C.R. 513; Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561; Miron v. Trudel, [1995] 2 S.C.R. 418; Ontario Human Rights Commission v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; R. v.  Oakes, [1986] 1 S.C.R. 103;  National Trust Co. v. Christian Community of Universal Brotherhood Ltd., [1941] S.C.R. 601; Saumur v. City of Quebec, [1953] 2 S.C.R. 299; Roncarelli v. Duplessis, [1959] S.C.R. 121; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v. Jones, [1986] 2 S.C.R. 284; Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Schachter v. Canada, [1992] 2 S.C.R. 679.

 

Statutes and Regulations Cited

 

Act respecting Common Schools in Upper Canada, C.S.U.C. 1859, c. 64, ss. 27(16), 169.

 

Act to restore to Roman Catholics in Upper Canada certain rights in respect to Separate Schools, S. Prov. C. 1863, c. 5, ss. 7, 9, 14, 20.

 

Canadian Charter of Rights and Freedoms , ss. 1 , 2 (a), 15 , 23 , 27 .

 

Constitution Act, 1867 , ss. 92 93(1) , (2) , (3) , (4) .

 

Constitution Act, 1982 , s. 29 .

 

Education Act, R.S.O. 1990, c. E.2, ss. 1(1), 21(1)(a), (b), (2)(a), 70(1)(a), (b).

 

Health Insurance Act, R.S.O. 1990, c. H.6, s. 45.

 

R.R.O. 1990,  Reg. 552, ss. 13(1), 14(1), (2).

 

School Act, S.A. 1988, c. S-3.1, s. 16.

 

Authors Cited

 

Carignan, Pierre.  “La raison d’être de l’article 93  de la Loi constitutionnelle de 1867  à la lumière de la législation préexistante en matière d’éducation” (1986), 20 R.J.T. 375.

 

Hogg, Peter W.  Constitutional Law of Canada, vol. 2, 3rd ed. (Supplemented).  Scarborough, Ont.:  Carswell, 1992 (loose-leaf).

 

Ontario.  Commission on Private Schools in Ontario.  Report of the Commission on Private Schools in Ontario (Shapiro Report).  Toronto:  1985.

 

Ontario.  Committee on Religious Education in the Public Schools of the Province of Ontario.  Report on Religious Information and Moral Development.                                       (MacKay Report). Toronto: Department of Education, 1969.

 

Ontario.  Legislature of Ontario Debates, 4th sess., 31st parl., May 23, 1980, p. 2135.

 

Ontario.  Royal Commission on Education in Ontario.  Report of the Royal Commission on Education in Ontario.  Toronto:  King’s Printer, 1950.

 

         APPEAL from a judgment of the Ontario Court of Appeal (1994), 19 O.R. (3d) 1, 116 D.L.R. (4th) 1, 73 O.A.C. 81, 22 C.R.R. (2d) 205, dismissing an appeal from a judgment of Anderson J. (1992), 9 O.R. (3d) 676, 94 D.L.R. (4th) 417.  Appeal dismissed, McLachlin J. dissenting in part and L’Heureux‑Dubé J. dissenting.

 

         Edward M. Morgan, for the appellants Susie Adler, Mark Grossman, Paula Kezwer, Marcy Rapp and Riky Young.

 

         David M. Brown and Elizabeth Pillon, for the appellants Leo Elgersma, Harry Pott, Raymond Dostal, Harry Fernhout and the Ontario Alliance of Christian School Societies.

 

         Robert E. Charney and Hart Schwartz, for the respondents.

 

         Isabelle Harnois, for the intervener the Attorney General of Quebec.

 

         Thomson Irvine, for the intervener the Attorney General for Saskatchewan.

 

         Peter R. Jervis and David D. Conklin, for the intervener the Ontario Multi‑Faith Coalition for Equity in Education.

 

         John A. Olthuis and H. W. Roger Townshend, for the intervener the Ontario Federation of Independent Schools.

 

         Brian A. Kelsey, Q.C., and William S. Challis, for the interveners the Metropolitan Toronto School Board and the Ontario Public School Boards’ Association.

 

         Patricia D. S. Jackson and Clare E. Burns, for the intervener the Canadian Civil Liberties Association.

 

         The judgment of Lamer C.J.  and La Forest, Gonthier, Cory and Iacobucci JJ. was delivered by

 

1.      Iacobucci J. -- This appeal involves the question of whether the current education funding scheme in the province of Ontario violates the appellants' religious and equality rights as guaranteed by ss. 2 (a) and 15  of the Canadian Charter of Rights and Freedoms .  The appeal also raises the question of whether the provision of school health support services only to students in the public school system violates the appellants' ss. 2 (a) and 15  Charter  rights.

 

I.  Background

 

2.      The appellants are parents who, by reason of religious or conscientious beliefs, send their children to private religious schools.  The first five appellants (the "Adler appellants") are parents of children attending Jewish day schools.  The "Elgersma appellants" are four parents whose children attend independent Christian schools, and a non-profit corporation, the Ontario Alliance of Christian School Societies ("OACSS"), which is active in the promotion of Christian elementary and secondary education.

 

3.      The Adler appellants sought a declaration that the non-funding of Jewish day schools in Ontario was unconstitutional.  Full-time Jewish day schools have existed in Ontario since 1949 and now have an enrolment of approximately 10,000 students. The schools provide Jewish religious instruction and Judaic studies in addition to secular studies at both the elementary and high school levels in conformity with Ministry of Education guidelines, although they receive no direct funding from the Government of Ontario.  Their costs are met through tuition fees, funds raised by the schools, and other fund-raising activities of the Jewish community.

 

4.      The Elgersma appellants sought, along with other relief, a declaration that the non-funding of independent Christian schools infringed their rights as guaranteed under the Charter .  There are now 73 Christian schools in Ontario.  Membership in each individual school society is open to all adult, active Christian church members who assent to the society's aims and confessional principles, who pay the prescribed membership fee, and who are willing to be actively involved in the work of the society.  Most society members belong to the Christian Reformed Church.  OACSS member schools, like Jewish day schools, do not receive government funding.  Funds are obtained from parental tuition pledges, community donations, and other fund-raising activities.

 

5.      Both the Adler and the Elgersma applications include claims with respect to School Health Support Services Program (SHSSP).  Matan Kezwer, the son of the appellant Paula Kezwer, has a hearing and speech impairment.  The appellants claim that if Matan were enrolled in a public or Roman Catholic separate school, he would qualify for school health support services.  Furthermore, they claim that the failure to fund such services at Matan’s Jewish day school violates his Charter  rights.

 

6.      Walter Elgersma, the son of the appellant Leo Elgersma, attends a Christian day school.  He was born with spina bifida and hydrocephalus and, as a consequence, needs periodic medical attention throughout the course of the day, in addition to wheelchair accessible transportation to and from school.  These services are not provided at his present school.

 

7.      Joel Pott is the son of the appellant Harry Pott.  He is a non-verbal, developmentally handicapped child with autistic tendencies and behavioural problems.  Harry Pott deposed that Joel requires special attention of the sort provided under the SHSSP.  At the time of the hearing, Joel was attending a Roman Catholic separate school in Kingston.  His parents want to send him to an independent Christian school, but the school lacks the funding to provide the special services which the Potts say that Joel needs.  Both the Elgersmas and the Potts claim that the government’s refusal to extend the school health support services to independent Christian schools violates their children’s rights under ss. 2 (a) and 15(1)  of the Charter .

 

II.  Relevant Constitutional and Statutory Provisions

 

8.                Constitution Act, 1867 

 

         93.      In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions:--

 

         (1)  Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union:

 

         (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:

 

         (3)  Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen’s Subjects in relation to Education:

 

         (4)  In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section.

 

Canadian Charter of Rights and Freedoms 

 

         2.Everyone has the following fundamental freedoms:

 

         (a)freedom of conscience and religion;

 

         15. (1)  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.

 

Education Act, R.S.O. 1990, c. E.2

 

         1.-- (1) In this Act and the regulations, except where otherwise provided in the Act or regulations,

 

. . .

 

“exceptional pupil” means a pupil whose behavioural, communicational, intellectual, physical or multiple exceptionalities are such that he or she is considered to need placement in a special education program by a committee established under subparagraph iii of paragraph 5 of subsection 11(1), of the board,

 

(a)of which the pupil is a resident pupil,

 

(b)that admits or enrols the pupil other than pursuant to an agreement with another board for the provision of education, or

 

(c)to which the cost of education in respect of the pupil is payable by the Minister; (“élève en difficulté”) R.S.O. 1980, c. 129, s. 1(1), pars. 20, 21.

 

                                                                   . . .

 

"private school" means an institution at which instruction is provided at any time between the hours of 9 a.m. and 4 p.m. on any school day for five or more pupils who are of or over compulsory school age in any of the subjects of the elementary or secondary school courses of study and that is not a school as defined in this section; ("école privée")

 

                                                                    ...

 

"school" means,

 

         (a)the body of public school pupils or separate school pupils or secondary school pupils that is organized as a unit for educational purposes under the jurisdiction of the appropriate board, or

 

         (b)the body of pupils enrolled in any of the elementary or secondary school courses of study in an educational institution operated by the Government of Ontario,

 

and includes the teachers and other staff members associated with such unit or institution and the lands and premises used in connection therewith; ("école")

 

                                                                    ...

 

“special education program” means, in respect of an exceptional pupil, an educational program that is based on and modified by the results of continuous assessment and evaluation and that includes a plan containing specific objectives and an outline of educational services that meets the needs of the exceptional pupil; (“programme d’enseignement à l’enfance en difficulté”)

 

“special education services” means facilities and resources, including support personnel and equipment, necessary for developing and implementing a special education program; (“services à l’enfance en difficulté”)

 

                                                                   ....

 

         21. -- (1)  Unless excused under this section,

 

(a)every child who attains the age of six years on or before the first school day in September in any year shall attend an elementary or secondary school on every school day from the first school day in September in that year until the child attains the age of sixteen years; and

 

(b)every child who attains the age of six years after the first school day in September in any year shall attend an elementary or secondary school on every school day from the first school day in September in the next succeeding year until the last school day in June in the year in which the child attains the age of sixteen years.

 

         (2)A child is excused from attendance at school if,

 

(a)the child is receiving satisfactory instruction at home or elsewhere;

 

. . .

 

         70. -- (1)  Subject to subsection (2) and to the regulations, every board shall provide adequate accommodation for the trainable retarded pupils,

 

(a)who are exceptional pupils of the board; and

 

(b)in respect of whom a placement in a school or class for trainable retarded pupils has been made by a committee established under paragraph 5 of subsection 11(1),

 

Health Insurance Act, Regulation 552, R.R.O. 1990

 

         13. -- (1) In this section,

 

“home care facility” means,

 

         (a)a local board of health of a municipality or a health unit, or

 

         (b)an agency,

 

         approved by the Minister to provide home care services;

 

“home care services” means,

 

         (a)the services that are provided, on a visitation basis, by a nurse or a nursing assistant,

 

         (b)the services provided, on a visiting basis, by a physiotherapist, occupational therapist, speech therapist, social worker or nutritionist,

 

         ©the provision of dressings and medical supplies,

 

         (d)the provision of diagnostic and laboratory services,

 

         (e)the provision of hospital and sickroom equipment,

 

         (f)the provision of transportation services to and from the home to a hospital, health facility or the attending physician’s office, as the case may be;

 

         14. --  (1)  In this section,

 

“home care facility” means a home care facility as defined in subsection 13(1);

 

“school” means a school as defined in subsection 1(1) of the Education Act;

 

“school health support services” means,

 

 

         (a)the services that are provided, on a visitation basis, by a nurse, physiotherapist, occupational therapist, speech therapist or nutritionist,

 

         (b)the training, supervision or consultation services of a nurse, physiotherapist, occupational therapist, speech therapist or nutritionist to support personnel referred to in the definition of “special education services” in subsection 1(1) of the Education Act, and

 

         ©the provision of dressings and medical supplies necessary for the services referred to in clause (a), ...

 

“special education program” means a special education program as defined in subsection 1(1) of the Education Act;

 

. . .

 

         (2)  School health support services provided by a home care facility to an insured person who is placed in a special education program in a school are prescribed as insured services.

 

III.  Judgments Appealed From

 

A.  Ontario Court of Justice (Toronto Motions Court) (1992), 9 O.R. (3d) 676

 

9.      Anderson J. accepted the Adler appellants’ evidence that the religious education necessary for their practice of the Jewish religion can only be achieved in a Jewish day school environment.  Similarly, with regard to the Elgersma appellants, Anderson J. found that the dictates of their religion required them to educate their children in accordance with the principles of the Christian Reformed Church and that this was not possible in the province’s publicly funded schools.

 

10.    Anderson J. accepted the appellants' arguments relating to ss. 2 (a) and 15(1)  of the Charter .  He noted from the outset that the funding of Roman Catholic separate schools was not a relevant consideration in determining any of the rights of the appellants.  He based this conclusion on Reference Re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148 (Reference Re Bill 30) which upheld the constitutionality of full funding for Roman Catholic separate schools under s. 93  of the Constitution Act, 1867 .  According to Anderson J., at p. 693, funding for Roman Catholic separate schools was a constitutional anomaly having its roots in a historical political compromise “made as an incident of the Confederation of 1867” and, as such, was not subject to Charter  scrutiny.

 

11.    However, the motions court judge concluded that government funding for public secular schools coupled with the non-funding of independent religious schools violated the appellants’ s. 15(1)  equality rights.  He reasoned that the Education Act created a distinction based on religion in so far as it provided the benefit of a free education to people whose children attend public schools, but denied that benefit to people who, because of religious convictions, sent their children to private parochial schools.

 

12.    Anderson J. also held that the appellants' freedom of religion as guaranteed by s. 2 (a) of the Charter  had been infringed.  He found that the Education Act made school attendance mandatory and that, for parents who were precluded by religious and conscientious belief from taking advantage of the publicly funded school system, the price of escape was the payment of tuition fees.  The legislation, thus, imposed a cost or burden on parents such as the appellants.

 

13.    However, Anderson J. concluded that the legislation in question was saved by s. 1  of the Charter .  In his view, the legislative objectives, including the provision of tuition-free, secular, universally accessible public education, and the establishment of a public education system fostering and promoting the values of a pluralistic, democratic society, were of sufficient importance to warrant overriding a constitutionally protected right or freedom.  He found there to be a rational connection between those objectives and the means chosen to achieve them.  He held that the “degree of impairment” of the appellants’ rights was “within permissible limits”.  Finally, he held that the benefits of the legislation were proportionate to its adverse effects on the appellants.

 

B.  Ontario Court of Appeal (1994), 19 O.R. (3d) 1

 

         (a)      Dubin C.J. (for the majority)

 

14.    Dubin C.J. held that Anderson J. had erred in finding a s. 2 (a) violation.  In his view, s. 2 (a) did not provide a positive entitlement to state support for the exercise of one's religion.  A breach can only consist in state action which denies or limits religious practice.

 

15.    Dubin C.J. found that Anderson J. had made two further errors.  The first was the motions court judge’s finding that s. 21 of the Education Act made school attendance mandatory.  Dubin C.J. noted that the Act only made education (as opposed to school attendance) compulsory and that children need not attend school so long as they receive satisfactory instruction elsewhere.  Dubin C.J. found that this provision for excusing children from public schools provided a sufficient protection for religious freedom.

 

16.    Dubin C.J. went on to hold, at p. 14,  that the state action complained of was not, in fact, responsible for creating the alleged burden for the Adler and Elgersma appellants:

 

         Further, there is no evidence that any of the appellants' children receive education because of s. 21 of the Act, or that the appellants would choose to forgo educating their children in the absence of that section.  There is no evidence that compulsory education is inconsistent with any of the appellants' religious beliefs, and, therefore, there is no conflict between s. 21 of the Act and the appellants' religious freedom.

 

In the opinion of the majority in the Court of Appeal, the appellants' decision not to send their children to public school was entirely attributable to their religious beliefs and not to any government action.  Thus, what was complained of was not government action, but rather, government inaction which in the circumstances of this case could not be the subject of a s. 2 (a) Charter  challenge.

 

17.    Dubin C.J. then considered the arguments relating to equality rights.  He agreed with Anderson J. that, pursuant to Reference Re Bill 30, the funding of Roman Catholic separate schools was not a basis for holding that the Education Act contravened s. 15  of the Charter .

 

18.    Having disposed of the arguments relating to funding for separate schools, Dubin C.J. turned to the claim that the funding of secular public schools constituted discrimination on the basis of religion.  He held, at p. 24,  that if the lack of government funding for private schools created a distinction, that distinction was not one based on religion:

 

The public school system is solely secular and, in my view, because it is secular, it cannot found a claim of discrimination because it does not provide public funds for religious education under private auspices.

 

19.    Dubin C.J. stated that even if the appellants' Charter  rights had been infringed, the absence of funding for the religious schools was a reasonable limit under s. 1  of the Charter .

 

20.    With respect to the SHSSP, Dubin C.J. stated that there was not a sufficient factual foundation upon which to base the constitutional challenge.  In his view, there was no proof that any of the appellants' children would have qualified for the school health support services if the services had been extended to independent schools.  In any event, according to Dubin C.J., the program was not merely a matter of health services, as contended by the appellants, but was inextricably tied to the educational services provided in the public and separate schools for handicapped children.

 

         (b)      Weiler J.A. (dissenting in part)

 

21.    Weiler J.A. agreed with the majority judgment on the issues relating to public funding for private religious schools.

 

22.    With regard to the school health support services question, Weiler J.A. agreed with Dubin C.J. that the record disclosed no evidence to support the standing of the Kezwers and the Potts to challenge the regulation.  However, in her view, the evidence did show that Walter Elgersma would be eligible to receive support services under SHSSP if he attended a public or separate school.  Therefore, Walter Elgersma was directly affected by the legislation in question and his parents did have a genuine interest in the outcome of the legislation.  Further, she said, at pp. 40-41 that "[t]he present action by Walter Elgersma's father appears to be the only reasonable and effective way to bring the legislation's validity before the court".  Weiler J.A. accordingly found that there was “an adequate contextual basis” to grant standing.

 

23.    Weiler J.A. held that s. 93  of the Constitution Act, 1867  had no bearing on the matter, and that it was appropriate to consider the applicability of the Charter .  She found that the school health services regulation was legislation in relation to health, not education and concluded that the appellants’ children were denied equal benefit of the law and that the funding scheme constituted discrimination on the basis of religion.  She held that the denial of equal benefit of the law was not a reasonable limit under s. 1  of the Charter .  With regard to the appropriate remedy, she held that reading into the regulation an expanded definition of school, as opposed to nullification, would be the more consistent with the government’s purpose in enacting the legislation.

 

IV.  Issues on Appeal

 

24.    By order of Lamer C.J. dated May 16, 1995, the following constitutional questions were stated:

 

1.Do the definitions of "board" and "school" in s. 1(1) of the Education Act, R.S.O. 1990, c. E.2, together with the annual General Legislative Grants promulgated under s. 11(3)(a) and (b) thereof, infringe or deny the appellants' freedom of religion under s. 2 (a) of the Canadian Charter of Rights and Freedoms  by not providing funding to religious-based independent schools?

 

2.(a)  Do the definitions of "board" and "school" in s. 1(1) of the Education Act, R.S.O. 1990, c. E.2, together with the annual General Legislative Grants promulgated under s. 11(3)(a) and (b) thereof, infringe or deny the appellants' equality rights under s. 15(1)  of the Canadian Charter of Rights and Freedoms  by providing funding to public school boards but not to religious-based independent schools?

 

(b)  Do the definitions of "board" and "school" in s. 1(1) of the Education Act, R.S.O. 1990, c. E.2, together with the annual General Legislative Grants promulgated under s. 11(3)(a) and (b) thereof, infringe or deny the appellants' equality rights under s. 15(1)  of the Canadian Charter of Rights and Freedoms  by providing funding to Roman Catholic separate school boards but not to religious-based independent schools?

 

3.If the answer to Question 1 or 2 is in the affirmative, is the non-funding of religious-based independent schools justified as a reasonable limit pursuant to s. 1  of the Canadian Charter of Rights and Freedoms ?

 

4.(a)  Does s. 14 of Regulation 552, R.R.O. 1990, made under s. 45 of the Health Insurance Act, R.S.O. 1990, c. H.6, infringe the appellants' freedom of religion under s. 2 (a) of the Canadian Charter of Rights and Freedoms  by prescribing school health support services as insured services to an insured person who is placed in a special education program in a "school" as defined in s. 1(1) of the Education Act, but not to an insured person in a religious-based independent school?

 

(b)  Does s. 14 of Regulation 552, R.R.O. 1990, made under s. 45 of the Health Insurance Act, R.S.O. 1990, c. H.6, infringe the appellants' equality rights under s. 15(1)  of the Canadian Charter of Rights and Freedoms  by prescribing school health support services as insured services to an insured person who is placed in a special education program in a "school" as defined in s. 1(1) of the Education Act, but not to an insured person in a religious-based independent school?

 

5.If the answer to Question 4(a) or 4(b) is in the affirmative, is the prescribing of school health support services as insured services to an insured person who is placed in a special education program in a "school" as defined in s. 1(1) of the Education Act, but not to an insured person in a religious-based independent school justified as a reasonable limit pursuant to s. 1  of the Canadian Charter of Rights and Freedoms ?

 

V.  Analysis

 

25.    As I see the issues before us, this case is to be resolved with reference to s. 93  of the Constitution Act, 1867 Section 93  grants to the provinces the power to legislate with regard to education.  This grant is subject to certain restrictive conditions, among them s. 93(1)  which provides that no law may prejudicially affect any right or privilege with respect to denominational schools which any class of persons had at the time of Union.  The effect of this subsection is to entrench constitutionally a special status for such classes of persons, granting them rights which are denied to others.

 

26.    The appellants advance, in essence, two Charter  arguments.  The first is that s. 2 (a)’s guarantee of freedom of religion requires the province of Ontario to provide public funding for independent religious schools.  The second is that, by funding Roman Catholic separate schools and secular public schools at the same time as it denies funding to independent religious schools, the province is discriminating against the appellants on the basis of religion contrary to s. 15(1) .

 

27.    I propose to deal with these arguments in turn.  As will be explained more fully below, it is my opinion that the s. 2 (a) claim fails because any claim to public support for religious education must be grounded in s. 93(1)  which is a “comprehensive code” of denominational school rights.  With regard to the appellants’ equality argument, this claim fails because the funding of Roman Catholic separate schools and public  schools is within the contemplation of the terms of s. 93  and is, therefore, immune from Charter  scrutiny.

 

A.  The Appellants’ Claims with Regard to Section 2 (a) of the Charter 

 

28.    In my view, any analysis of denominational school rights must take as its starting point the guarantees contained in s. 93(1) .  If the rights claimed are not found in this subsection, I fail to see how other sections of the Constitution, in particular s. 2 (a) of the Charter , can be used to enlarge upon s. 93 's constitutionally blessed scheme for public funding of denominational schools.

 

29.    Section 93  is the product of an historical compromise which was a crucial step along the road leading to Confederation.  As Gonthier J. said in Reference re Education Act (Que.), [1993] 2 S.C.R. 511, at p. 529:

 

         Section 93  is unanimously recognized as the expression of a desire for political compromise.  It served to moderate religious conflicts which threatened the birth of the Union.

 

Without this “solemn pact”, this “cardinal term” of Union, there would have been no Confederation.  See Wilson J.’s discussion of the history of s. 93  in Reference Re Bill 30, supra, at pp. 1173-74; and the judgment of Duff C.J. in Reference re Adoption Act, [1938] S.C.R. 398, at p. 402.

 

30.    As a child born of historical exigency, s. 93  does not represent a guarantee of fundamental freedoms.  Beetz J. stated, in Greater Montreal Protestant School Board v. Quebec (Attorney General), [1989] 1 S.C.R. 377, at p. 401:

 

While it may be rooted in notions of tolerance and diversity, the exception in s. 93  is not a blanket affirmation of freedom of religion or freedom of conscience . . . . [and] should not be construed as a Charter  human right or freedom or, to use the expression of Professor Peter Hogg, a “small bill of rights for the protection of minority religious groups”....

 

And see Reference re Education Act (Que), supra, at pp. 539-40.

 

31.    A useful analogy can be drawn between s. 93  and the minority language guarantees contained in s. 23  of the Charter .  Like s. 93 , s. 23  has its origins in political compromise.  See Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549, at p. 578; Reference re Public Schools Act (Man.), [1993] 1 S.C.R. 839, at p. 851.

 

32.    Furthermore, both sections grant special status to particular classes of people.  Dickson C.J. discussed the entrenched inequality created by s. 23  in Mahe v. Alberta, [1990] 1 S.C.R. 342.  In this case, a group of parents claimed that their children were being denied the French language educational facilities to which they were entitled under s. 23  of the Charter .  The parents argued that s. 23  should be interpreted in light of the words of s. 15(1)  of the Charter .  Speaking for a unanimous court, Dickson C.J. rejected this argument.  In his words, s. 23  provides a “comprehensive code”, a unique source for minority language educational rights.  See Mahe, supra, at p. 369.  The Court recognized that this would create inequalities: English speakers living in francophone provinces and French speakers living in anglophone provinces would enjoy rights which are denied to other linguistic groups.  However, it is the words of the Constitution itself which create this “special status”.  As Dickson C.J. said at p. 369:

 

[Section 23 ] is, if anything, an exception to the provisions of ss. 15  and 27  in that it accords these groups, the English and the French, special status in comparison to all other linguistic groups in Canada.

 

33.    Section 93(1)  confers a similarly privileged status on those religious minorities which, at the time of Confederation, enjoyed legal rights with respect to denominational schools.  In Reference Re Bill 30, Wilson J. acknowledged at p. 1197 that this special status may “sit uncomfortably with the concept of equality embodied in the Charter ”, but it must nonetheless be respected.  In his concurring judgment, Estey J. drew a similar conclusion, saying that the purpose of s. 93  was “to provide the province with the jurisdiction to legislate in a prima facie selective and distinguishing manner”.  See Reference Re Bill 30, supra, at p. 1206.

 

34.    As Dickson C.J. concluded in Mahe, at p. 369, to use s. 15(1) ’s equality rights as an interpretive aid to s. 23  would unacceptably distort the meaning and scope of the educational guarantees:

 

... it would be totally incongruous to invoke in aid of the interpretation of a provision which grants special rights to a select group of individuals, the principle of equality intended to be universally applicable to “every individual”.

 

35.    In my opinion, the reasoning used in Mahe is equally applicable to the appellants’ attempt to use s. 2 (a) in combination with s. 15(1)  to expand on s. 93 's religious educational guarantees.  Thus, just as s. 23  is a comprehensive code with respect to minority language education rights, s. 93  is a comprehensive code with respect to denominational school rights.  As a result, s. 2 (a) of the Charter  cannot be used to enlarge this comprehensive code.  Given that the appellants cannot bring themselves within the terms of s. 93 's guarantees, they have no claim to public funding for their schools.  To emphasize, in Ontario, s. 93(1)  entrenches certain rights with respect to public funding of religious education.  However, these rights are limited to those which were enjoyed at the time of Confederation.  To decide otherwise by accepting the appellants’ claim that s. 2 (a) requires public funding of their religious schools would be to hold one section of the Constitution violative of another -- a result which Reference Re Bill 30 tells us to avoid, as will be further discussed below.

 

B.  The Appellants’ Claims with Regard to Section 15(1)  of the Charter 

 

(a)     Section 15(1)  and Roman Catholic Separate Schools

 

36.    In Reference Re Bill 30, Wilson J., writing for the majority, upheld Ontario legislation which extended full funding to the province’s Roman Catholic separate schools.  Her decision rested on two alternative findings.

 

37.    First, she found that Bill 30 was a valid exercise of provincial power under the combined effect of the opening words of s. 93  and s. 93(3) .  See Reference Re Bill 30, at p. 1176.  Second, she presented an alternative finding which was that, at the time of Confederation, separate schools were entitled to public funding for secondary education.  Thus, s. 93(1)  requires the Ontario government to fund fully Roman Catholic separate schools.  Seen in this light, Bill 30 simply righted an old wrong.

 

38.    Wilson J. went on to address the claim that the government’s choice to fund Roman Catholic separate schools but not other religious schools contravened s. 15(1)  of the Charter .  The Adler and Elgersma appellants are advancing what amounts to the same argument in the present case.  Wilson J. rejected this argument for two reasons.  First, she found that, in the event that Bill 30 was passed pursuant to s. 93(1) , it would fall “fairly and squarely” (at p. 1196) within s. 29  of the Charter  which explicitly exempts from Charter  challenge all rights and privileges “guaranteed” under the Constitution in respect of denominational, separate or dissentient schools.  Second, she found that, in the event that Bill 30 was passed pursuant to the opening words of s. 93  and s. 93(3) , it was nonetheless “immune” from Charter  review because it was “legislation enacted pursuant to the plenary power in relation to education granted to the provincial legislatures as part of the Confederation compromise”.  See Reference Re Bill 30, at p. 1198.  This was true regardless of the fact that this unequal funding might, as I mentioned above, “sit uncomfortably with the concept of equality embodied in the Charter ”.  In other words, Wilson J. at p. 1197 refused to use one part of the Constitution to interfere with rights protected by a different part of that same document: “It was never intended, in my opinion, that the Charter  could be used to invalidate other provisions of the Constitution. . . .”

 

39.    Following the same line of reasoning used by Wilson J. in the Reference Re Bill 30, I find that public funding for the province’s separate schools cannot form the basis for the appellants’ Charter  claim.

 

(b)    The Appellants’ Section 15(1)  Claims and Public Schools

 

40.    The appellants advanced a further argument which was that, even assuming that Roman Catholic separate schools are given a privileged place in our constitutional scheme, public schools are given no such protection. According to this argument, the fact that the government funds public schools but not private religious schools is analogous to the government funding, for example, private Christian schools but not private Islamic schools.  As the reasoning goes, public schools are not a part of the scheme envisioned by s. 93  and are, thus, open to Charter  challenge.

 

41.    In my view, this argument is mistaken in supposing that public schools are not contemplated by the terms of s. 93 , as it applies to Ontario.  On the contrary, the public school system is an integral part of the s. 93  scheme.  When the province funds  public schools, it is, in the words of Wilson J. in Reference Re Bill 30, at p. 1198, legislating “pursuant to the plenary power in relation to education granted to the provincial legislatures as part of the Confederation compromise”.  A closer examination of s. 93 , in particular s. 93(1) , as it applies to the province of Ontario, will help to illustrate that the public school system is impliedly, but nonetheless clearly, contemplated by the terms of that section.

 

42.    In order to claim the protection of s. 93 , it must be shown that there was a right or privilege with respect to denominational schooling which was enjoyed by a class of persons, by law, at the time of union.  See Attorney General of Quebec v. Greater Hull School Board, [1984] 2 S.C.R. 575, at p. 582.  Thus, for Ontario, s. 93(1)  requires an examination of the law as it stood in 1867, with regard to denominational schooling.  As Wilson J. said in Reference Re Bill 30, at pp. 1177-78, “Our task therefore is to examine the laws in force prior to Confederation to see what rights or privileges they gave”.  In the words of Gonthier J., in Reference re Education Act (Que.), supra,  at p. 539, “[Section 93 ] is in a sense a snapshot of the legislative situation in 1867”.

 

43.    An Act to restore to Roman Catholics in Upper Canada certain rights in respect to Separate Schools, S. Prov. C. 1863, c. 5 (Scott Act), was the last piece of legislation relating to denominational schools in Upper Canada enacted before Confederation.  In essence, what this legislation did was to define the rights and privileges of Roman Catholic separate schools in terms of the rights and privileges of the province’s common schools.  The preamble reads:

 

WHEREAS it is just and proper to restore to Roman Catholics in Upper Canada certain rights which they formerly enjoyed in respect to separate Schools, and to bring the provisions of the Law respecting Separate Schools more in harmony with the provisions of the Law respecting Common Schools. . . . [Emphasis added.]

 

This close linkage between the separate and public schools was made most clearly through s. 7 which gave the separate school trustees “all the powers in respect of Separate Schools, that the Trustees of Common Schools have and possess under the provisions of the Act relating to Common Schools” and through s. 9 which gave the separate school trustees all “the same duties . . . as Trustees of Common Schools”.  Section 20 of the Scott Act required that separate schools receive a proportionate share of the funds annually granted by the legislature to support the common schools.  Even the qualification of separate school teachers was to be determined according to the same standards used in the public schools.  In Roman Catholic Separate School Trustees for Tiny v. The King, [1928] A.C. 363 (P.C.), at p. 387,  Viscount Haldane went so far as to say that, in 1867, “[t]he separate school was only a special form of common school. . . .”  For a full discussion of the history of separate school legislation in the province see Wilson J.’s discussion in the Reference Re Bill 30, supra, at pp. 1176 ff, and Viscount Haldane’s speech in Tiny, supra, at pp. 376 ff.

 

44.    The effect of s. 93(1)  is to create what Professor Pierre Carignan, in “La raison d’être de l’article 93  de la Loi constitutionnelle de 1867  à la lumière de la législation préexistante en matière d’éducation” (1986), 20 R.J.T. 375, has called the [translation] “constitutionalization mechanism” whereby denominational school rights and privileges created by ordinary legislation are raised to the status of constitutional norms.  See Reference re Education Act (Que.), supra, at p. 531; Greater Montreal Protestant School Board, supra, at p. 418.  What the relevant pre-Confederation legislation did was to equate the rights and privileges of separate schools to those of public schools.  The result is that public schools are part and parcel of s. 93 's comprehensive code.  Accordingly, as I noted above, public schools are impliedly but nonetheless clearly within the terms of the regime set up by s. 93 .

 

45.    This inclusion of  public schools in the Constitution is consistent with the historical purpose of s. 93 .  As was explained by the Privy Council in Brophy v. Attorney-General of Manitoba, [1895] A.C. 202, at p. 214, during the negotiations leading up to Confederation, Roman Catholic separate school supporters expressed concern that the existing public school system, open as it was to children of all races and religions, could not meet the needs of the Roman Catholic community:

 

They regarded it as essential that the education of their children should be in accordance with the teaching of their Church, and considered that such an education could not be obtained in public schools designed for all the members of the community alike, whatever their creed. . . .

 

Thus, when separate school supporters were negotiating the terms of s. 93 , they were negotiating against the back-drop of the existing common school system.  The hallmark of these common schools was that they were not organized (in the relevant legislation) along denominational lines and were, therefore, open to all members of the community without distinction, (with the exception of those for whom a separate school had been established).  As Professor Carignan says, at p. 428, [translation] “[i]n the context of public education, the structures set up by Parliament itself are designed for children of all beliefs and all races”.  As Wilson J. pointed out in Reference Re Bill 30, supra, at p. 1193, at the time s. 93  was being negotiated, it was assumed that publicly funded non-denominational schools would always be a part of the political landscape:

 

The security afforded the Roman Catholic minority through the tying of funding for its schools to a proportion of the funding for the common schools was in the certainty that the Legislature would never cut off funding for the common schools.

 

46.    At the time of Confederation, Roman Catholic parents could choose to support either the local separate schools or the local common schools.  Section 14 of the Scott Act lays out the registration procedure to be followed.  If a parent chose to register as a separate school supporter, then his or her child would be eligible to attend only the local separate school.  An Act respecting Common Schools in Upper Canada, C.S.U.C. 1859, c. 64, s. 27(16).  In other words, Roman Catholic parents could choose between two publicly funded educational systems -- one Roman Catholic, the other non-denominational.  Section 93  gives constitutional protection to this publicly funded choice.  Therefore, the public school system is an integral part of the Confederation compromise and, consequently, receives a protection against constitutional or Charter  attack.

 

47.              This protection exists despite the fact that public school rights are not themselves constitutionally entrenched.  It is the province’s plenary power to legislate with regard to public schools, which are open to all members of society, without distinction, that is constitutionally entrenched.  This is what creates the immunity from Charter  scrutiny.  To paraphrase Wilson J., in Reference Re Bill 30, supra, at p. 1198, funding for  public schools is insulated from Charter  attack as legislation enacted pursuant to the plenary education power granted to the provincial legislatures as part of the Confederation compromise.  If the plenary power is so insulated, then so is the proper exercise of it.

 

48.    One thing should, however, be made clear.  The province remains free to exercise its plenary power with regard to education in whatever way it sees fit, subject to the restrictions relating to separate schools imposed by s. 93(1) Section 93  grants to the province of Ontario the power to legislate with regard to public schools and separate schools.  However, nothing in these reasons should be taken to mean that the province’s legislative power is limited to these two school systems.  In other words, the province could, if it so chose, pass legislation extending funding to denominational schools other than Roman Catholic schools without infringing the rights guaranteed to Roman Catholic separate schools under s. 93(1) .  See the words of Gonthier J., writing for the Court, in Reference re Education Act (Que.), supra, at p. 551.  However, an ability to pass such legislation does not amount to an obligation to do so.  To emphasize, s. 93  defines the extent of the obligations of the province to set up and fund denominational schools when public schools are established.  In this respect, it is a comprehensive code thereby excluding a different or broader obligation regarding denominational schools, while not restricting the plenary power of the province to establish and fund such other schools as it may decide.

 

49.    Furthermore, it should be pointed out that all of this is not to say that no legislation in respect of public schools is subject to Charter  scrutiny, just as this court’s ruling in Reference Re Bill 30 did not hold that no legislation in respect of separate schools was subject to Charter  scrutiny.  Rather, it is merely the fact of their existence, the fact that the government funds schools which are, in the words of the Lord Chancellor, in Brophy, supra, at p. 214, “designed for all the members of the community alike, whatever their creed” that is immune from Charter  challenge.  Whenever the government decides to go beyond the confines of this special mandate, the Charter  could be successfully invoked to strike down the legislation in question.

 

50.    For these reasons, I find that the funding of public schools coupled with the non-funding of private religious schools is immune from Charter  attack and therefore does not violate s. 15(1)  of the Charter .

 

         (c)School Health Support Services

 

51.    With regard to the question of whether any of the appellants have standing to challenge the SHSSP, I agree with the reasons of Weiler J.A.  While the record does not show that either Matan Kezwer or Joel Pott would be eligible for the SHSSP if they were enrolled in a public school, Walter Elgersma is “in a different category”.  A government witness, Ms. Spalding-Martin, acknowledged that the health services Walter requires are eligible for funding under the SHSSP.  For these reasons, it is my view that Leo Elgersma, as Walter’s father, should be granted standing to challenge the SHSSP.

 

52.    In 1980, the Education Act was amended by Bill 82 which laid the foundation for the SHSSP.  The purpose of the Bill was to ensure universal access to public education.  The Minister of Education emphasized this goal of accessibility to the public schools:

 

         This bill does two things.  First, the basis of universal access contained within the bill guarantees the right of all children, condition notwithstanding, to be enrolled in a school.  No longer will retarded children be enrolled after an assessment procedure established in law  which has in fact denied universality of access. [Legislature of Ontario Debates, 4th sess., 31st parl., May 23, 1980, p. 2135, per Hon. B. Stephenson, Minister of Education.]

 

In addition to the provision for the SHSSP, this legislation included a requirement that every school board provide special education programs for all children who could benefit, including those with intellectual, communication, behavioural and physical disabilities.

 

53.    The SHSSP was implemented through s. 14 of Regulation 552, R.R.O. 1990, made under s. 45 of the Health Insurance Act, R.S.O. 1990, c. H.6.  In essence, this regulation provides that certain health-related services provided by a “home care facility” to children in public and separate schools are publicly insured services.

 

54.    With respect to whether the failure to extend the SHSSP to private religious schools violates either s. 2 (a) or s. 15(1)  of the Charter , I am in agreement with Dubin C.J.'s resolution of the matter.  He characterized the services as “education services” as opposed to “health services”.  It is true, as the Elgersma appellants maintain, that catheterization does not look much like an educational service.  However, it is necessary to look at the context in which these services are provided.  The services are delivered in the public schools.  They are designed to ensure that children with special needs have full access to the public school system whose constitutionally protected purpose is to provide education to all members of the community.  This purpose is made clear in the speech of the Minister of Education, quoted above.  Put another way, the provision of the health services to those qualified is simply a means to an end, a way to ensure access to education.  Therefore, the SHSSP is simply a manifestation of the Ontario government’s fulfilling its mandate to provide an education designed for all members of the community and is, thus, immune from Charter  scrutiny.

 

55.    Accordingly, I would dismiss the appeal and answer the stated constitutional questions as follows:

 

1.No.

 

2(a).No.

 

2(b).No.

 

3. Not necessary to answer.

 

4(a).No.

 

 4(b).           No.

 

5.Not necessary to answer.

 

         The following are the reasons delivered by

 

56.    L’Heureux-Dubé J. (dissenting) -- This appeal raises the question of whether the provincial scheme -- which  denies funding to independent denominational schools established by parents who, for religious reasons, are unable to educate their children in the public schools --  violates the freedom of religion and equality guarantees in the Canadian Charter of Rights and Freedoms .

 

57.              I have had the advantage of reading my colleagues’ reasons. I am in agreement with Justice McLachlin that s. 93 of the Constitution Act, 1867 does not provide an answer to the appellants’ Charter  claim. While s. 93  requires the provinces of Ontario and Quebec to provide funding for schools serving the Roman Catholic and Protestant minorities, respectively, this is the only school support which is constitutionally guaranteed under that section. Where provinces otherwise exercise their plenary powers to provide education, they must, subject to this requirement, comply with the Charter .

 

58.              I also agree with McLachlin J.’s reasons which find that the failure to fund the independent religious schools does not constitute a limit on the guarantee of freedom of religion.  Given the exemption from public education included in its s. 21, the Education Act, R.S.O. 1990, c. E.2, does not compel the appellants to violate the tenets of their religion with respect to education. The burden complained of by the appellants, viz. the cost of sending their children to private schools, being not a prohibition of a religious practice but rather the absence of funding for one, has not historically been considered a violation of the freedom of religion. While these parents do bear a cost which is not imposed on parents who can send their children to public schools, this lack of benefit is more appropriately addressed under s. 15  of the Charter , the equality guarantee.

 

59.              I, like McLachlin J., do find that the denial of funding to independent denominational schools effects a prima facie violation of s. 15 , albeit following a different route. Where I depart most significantly from the reasons of McLachlin J. is in my finding that the funding scheme in the Education Act cannot be saved under s. 1 , and, accordingly, I cannot agree with the result she reaches on that issue.

 

60.              On the other hand, this analysis leads me also to find that a denial of health support services for children with disabilities who attend the independent religious schools is impermissible under s. 1 , and, consequently, I do agree with the result on this issue which was reached by McLachlin J. 

 

I.Does Denial of Funding to Independent Denominational Schools Constitute a Prima Facie Breach of Section 15  of the Charter ?

 

61.                     In Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 171 and at pp. 174-75, McIntyre J. for the court gave this definition of what constitutes discrimination:

 

                   It is clear that the purpose of s. 15  is to ensure equality in the formulation and application of the law. The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration. It has a large remedial component.

 

                                                                   . . .

 

I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed. 

 

 

62.                     In Egan v. Canada, [1995] 2 S.C.R. 513, I developed an approach to interpreting and applying the equality guarantee of the Charter  which had the primary objective of giving effect to its purpose, that is, the elimination of discrimination, as opposed to focusing on the enumerated or analogous grounds of the provision. I was concerned that, by focusing on the grounds, we risked ignoring state action which, given its impact on a particular group, would effect or encourage inequality in the surrounding socio-economic context. I advocated  “putting ‘discrimination’ first”, at para. 55, through the following principled, three-stage method of analysis:

 

                   In my view, for an individual to make out a violation of their rights under s. 15(1)  of the Charter , he or she must demonstrate the following three things:

 

(1)that there is a legislative distinction;

 

                   (2)that this distinction results in a denial of one of the four equality rights on the basis of the rights claimant’s membership in an identifiable group;

 

(3)that this distinction is “discriminatory” within the meaning of s. 15 .

 

63.                     In elaborating the content of the third stage of the analysis I also found, at para. 56, that:

 

                   A distinction is discriminatory within the meaning of s. 15  where it is capable of either promoting or perpetuating the view that the individual adversely affected by this distinction is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration. This examination should be undertaken from a subjective-objective perspective: i.e. from the point of view of the reasonable person, dispassionate and fully apprised of the circumstances, possessed of similar attributes to, and under similar circumstances as, the group of which the rights claimant is a member.

 

64.                     Furthermore, in determining whether discrimination has occurred, it is necessary to reconstruct the context in which the distinction arises. Two categories of factors prove particularly instructive: (1) the nature of the group adversely affected by the distinction, and (2) the nature of the interest adversely affected by the distinction. Where the group identified by the distinction is socially vulnerable and delineated by characteristics which are popularly conceived of as fundamental to personhood, the distinction is more likely to be considered discriminatory. Where the interest involves an economic benefit, protection of the right to the benefit must be incidental to protection of the worth and dignity of a human person. (See Egan, supra, at paras. 58 to 65.)

 

65.                     An evaluation of the interest at stake must, however, reach beyond economic prejudice to the constitutional and societal significance of the interest or interests adversely affected. Distinctions which restrict access to a fundamental social institution or affect an aspect of full membership in Canadian society are more likely to constitute discrimination. Also, as I concluded in Egan, supra, at para. 64:

 

It stands to reason that a group’s interests will be more adversely affected in cases involving complete exclusion or non-recognition than in cases where the legislative distinction does recognize or accommodate the group, but does so in a manner that is simply more restrictive than some would like. [Emphasis in original.]

 

 

In the end, the distinction must be shown to violate a basic right to equal human dignity and worth in the context of both the nature of the group and the interest. This approach is primarily effects-oriented in its contextual determination of the impact of the legislation in question on a particular group.  Inherent in this model is a recognition of the importance of adverse impact discrimination in our present-day society, which, as my colleagues Justices Sopinka and McLachlin have stated, is a principle which has been clearly recognized by this Court. (See Egan, supra, at para. 78.)

 

66.                     Our initial tasks involve determining, first, whether a distinction is created by the legislation between the appellants and others in the surrounding social context; and second, whether this distinction results in the denial of one of the claimants’ four basic equality rights on the basis of their membership in an identifiable group. The basic equality guarantees include:  equality before the law, equality under the law, equal protection of the law, and equal benefit of the law.

 

67.                     In the Education Act scheme, parents have three choices in undertaking the mandatory education of their children: enrollment in Roman Catholic religious schools, in the public schools, or, if for some reason, the parents cannot or do not want to send their children to these schools, in an alternative educational environment which the state considers a satisfactory substitute. In the first two options, the costs of the children’s education are paid by the state. Under the third option, parents provide for their children’s education at their own expense.

 

68.                     The distinction affecting the appellants arises in regard to the third option. For some parents who make this choice, membership in an identifiable group is not a factor; theirs is truly an individual preference. For these parents the public education system is accessible without discrimination, as it is to those who choose the first two options. For others, including the appellants in this case, membership in an identifiable group precludes their accessing the other, publicly funded, options. Evidence submitted by the appellants and accepted by the trial judge establishes that to remain a member of the particular religious communities in question, and to act in accordance with the tenets of these faiths, the appellants are required to educate their children in a manner consistent with this faith and therefore outside of the public or the separate schools. Also established by the appellants’ evidence according to the judgment of first instance was the finding that control over the education of their children was essential to the continuation of the religious communities in question. None of the parties before our court has contested the bona fides of the religious beliefs held by the appellants.

 

69.                     While the legislature may not have intended to create this distinction, the  effect of the legislative choice is to distinguish between parents who can access the public schools, and those, like the appellants,  who cannot, for religious reasons. This distinction results in the total denial of the equal benefit of funded education for the appellants on the basis of their membership in an identifiable group, a group made up of small religious minority communities.

 

70.                     My colleague, Sopinka J., finds that the religions of the appellants cause the denial of the benefit as opposed to the legislation. Adopting the judgment of the Ontario Court of Appeal (1994), 19 O.R. (3d) 1, as delivered by Dubin C.J., he concludes that the legislature has created an education system which, owing to its secular nature, accommodates all parents of all religious beliefs. In the view of Sopinka J., it is the religion of the appellants which precludes their access to this publicly funded service, a religion which the appellants have chosen freely without state coercion. McLachlin J. presents the differing view, that the chosen aspect of religion does not have a part to play in determining whether discrimination has taken place. In her opinion,  if state action which discriminates on the basis of religion can be excused on the grounds that religion is a choice, and that the individuals may choose to avoid the negative impact which arises from the state’s response to their religious identity, discrimination on the basis of religion will become an empty concept. I agree.

 

71.                     While I stated in Egan, supra, that the degree of choice which a person may be expected to have in identifying with a particular group will be relevant to our determination, this analysis must be undertaken from the subjective-objective perspective which I have outlined above. We must determine whether the individual in question, in the circumstances, would consider him- or herself to have a choice. For members of religious communities, particularly those of the appellants, this is clearly not the case. What might be termed an objective choice of a particular religion from the court’s point of view, will, from the religious adherent’s perspective, entail a moral imperative. Also, commitment and adherence to the beliefs and practices of one’s religion define one’s membership in the particular religious community. From the point of view of the community and its members, these are not optional but essential defining features of leading a moral life. 

 

72.                     While s. 2 (a) of the Charter  is primarily concerned with the necessary limits to be placed on the state in its potentially coercive interference with the original, objectively perceived religious “choice” that individuals make, s. 15   ensures that consequences in behaviour and belief, which flow from this initial choice and are not perceived by the rights claimant as optional, not be impacted upon by state action in such a way as to attack the inherent dignity and consideration which are due all human persons. The protections afforded in s. 15  may thus be of greater scope than those in s. 2 (a), as our concern moves from the coercive aspect of the state action to its impact on the individuals’ and groups’ sense of dignity and worth in the socio-economic context of the day.

 

73.                     In accordance with its inherent focus on human dignity and worth, s. 15  may require not only that the state program be formally open to all members of society, but also that it include extra steps, or accommodation, to ensure equal access, in real terms, by all members of society to the benefit in question. The principle of accommodation for religious beliefs is well accepted in Canadian human rights law, as evidenced by the case of Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561, to which my colleague McLachlin J. refers. This principle has been incorporated into the substantive approach to equality which was first articulated in Andrews, supra, and has remained, in principle, that adopted by the majority of this Court. (See Miron v. Trudel, [1995] 2 S.C.R. 418; Egan, supra.)

 

74.                     In Andrews, supra, at p. 175, McIntyre J., writing for the majority on this issue, recognized that general principles of human rights law will apply to the interpretation of s. 15  of the Charter . Moreover, in developing a definition of discrimination, he referred specifically at p. 173 to the case of Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, which expresses the principle of accommodation as forming a necessary aspect of determining whether facially neutral actions are discriminatory.  Professor Peter W. Hogg also asserts that the application of s. 15  of the Charter  will involve the concept of accommodation, especially given its prohibition of adverse effects discrimination. As he explains in Constitutional Law of Canada (vol. 2, 3rd ed. 1992 (Supplemented)), at pp. 52-32 and 52-33 (referring to a point made by Dale Gibson, The Law of the Charter : Equality Rights (1990), at p. 133):

 

[I]t is a necessary corollary of the rule that discrimination may be indirect and unintended that a law may have to make reasonable accommodation for those who, by reason of religious affiliation or disability (for example), are discriminated against by otherwise neutral

laws.

 

Decisions by this court on the basis of the freedom of religion guarantee in s. 2 (a) have also recognized that accommodation or differential treatment may be necessary to avoid indirect coercion under state action. (See R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, per Dickson J. (as he then was), at p. 347; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713.)

 

75.                     While one might argue that the exemption for religious parents contained in s. 21 of the Education Act constitutes the necessary accommodation, in my view, such accommodation addresses the potential coercive aspect of mandatory secular education alone, and thus allows the impugned legislation to meet the requirements of s. 2 (a). However, it does not achieve the necessary accommodation required under s. 15  where unequal access to a benefit is involved. In a case of unequal benefit, accommodation will mean taking the steps necessary to ensure access to these parents without discrimination. Given the complete denial of this benefit to those who cannot access it for religious reasons, I conclude that the equal benefit of a publicly funded education has been denied the appellants on the basis of a distinction which relates to their membership in an identifiable group.

 

76.                     The final step to take within a s. 15  analysis is to ask whether the distinction is one capable of promoting or perpetuating a view that the appellants are, by virtue of their religious beliefs, less capable or worthy of recognition or value as human beings or members of Canadian society equally deserving of concern, respect, and consideration. As I stated above, in carrying out this final stage of the analysis, consideration must be given to both the nature of the group affected and the nature of the interest. These together make up the all-important social context in which the distinction arises.

 

77.                     In Egan, supra, at para. 59, I explained that the kinds of questions which arise in the analogous grounds approach to determining whether a particular group comes within the purview of the s. 15  guarantee continue to be instructive in deciding whether the nature of the group supports a finding of discrimination in a particular social context:

 

Furthermore, it is important to ask ourselves questions such as “Is the adversely affected group already a victim of historical disadvantage?”; “Is this distinction reasonably capable of aggravating or perpetuating that disadvantage?”; “Are group members currently socially vulnerable to stereotyping, social prejudice, and/or marginalization?”; and “Does this distinction expose them to the reasonable possibility of future social vulnerability to stereotyping, social prejudice and/or marginalization?” Membership in a “discrete and insular minority”, lacking in political power and thus susceptible to having its interests overlooked, is yet another consideration that may be taken into account.  

 

 

78.                     While under the grounds-oriented approach to equality these questions would be seen as unnecessary given that religion is an enumerated ground, I find it important to consider them in determining the discriminatory effects of the legislation in question in this appeal. In answering these queries with respect to the appellants’ religious communities, it becomes evident that they constitute the quintessential group deserving of protection under s. 15 .

 

79.                     The group to which the Adler and Elgersma appellants belong includes religious communities which might be termed minorities-within-minorities. As the appellants claim and the courts below have accepted, these are small religious groups which have attempted to protect their adherents from the assimilating effects of secular society. They have struggled to maintain a space for a lifestyle which is infused with religious belief and practice.

 

80.                     Dissentient minority religious groups have probably suffered most severely from the historic disadvantage which has adhered to religious identity. Examples abound in  earlier jurisprudence of  this Court. (See National Trust Co. v. Christian Community of Universal Brotherhood Ltd., [1941] S.C.R. 601; Saumur v. City of Quebec, [1953] 2 S.C.R. 299; Roncarelli v. Duplessis, [1959] S.C.R. 121.) In today’s secular society, it stands to reason that religious subgroups which have attempted to maintain a non-secular lifestyle are even more vulnerable to stereotype, social prejudice and marginalization.

 

81.                     These communities also constitute discrete and insular minorities, as their attempts to maintain a religious life leads them to distance themselves somewhat from the secular institutions of the larger society around them. While  some may say this is their choice, we must remember that, in evaluating discriminatory effects of state action, we are concerned with its potential impact within the broader societal context. Insularity has become necessary to maintaining the religious lifestyle practised by the appellants by virtue of the powerful economic and other forces of secularization in society. Such insularity clearly carries with it the danger of such a group’s interests being overlooked. The questions which I concluded above to be indicative of the vulnerability of a particular group to discrimination would all be answered in the affirmative for the appellants. They constitute a group which is most clearly intended to receive Charter  protection under s. 15 .

                            

82.                     As for the nature of the interest involved, as I have already stated, financial prejudice alone will not support a finding of discrimination. However, in this case, as in Egan, supra, the consequences which flow from the denial of an economic benefit are necessarily incidental to protecting the dignity and value of the appellants.  Both of the lower courts accepted the appellants’ evidence that education of their children in accordance with religious practices and beliefs was essential to their membership in the religious communities in question as well as to the very survival of these communities. The educational practices of religious communities merit special attention given their necessity to future membership in these faiths. Thus, mandatory, publicly funded state education policies may attract a greater degree of Charter  scrutiny under s. 15  than other institutions which will not have as great an impact on the continuation of the religious community in question.

 

83.                     In Egan, supra, at para. 86, I made the following observation:

 

Official state recognition of the legitimacy and acceptance in society of a particular type of status or relationship may be of greater value and importance to those affected than any pecuniary gain flowing from that recognition.

 

Denial of any funding to the appellants constitutes not only a financial prejudice, but also a complete non-recognition of their children’s educational needs and the children’s and parents’ fundamental interest in the continuation of their faith.

 

84.                     The interests at stake for the appellants, being the recognition and continuation of these communities, are clearly recognized as relevant to the fundamental purposes of the Charter . This conclusion can be drawn from the incorporation of the principle of accommodation in the interpretation of s. 2 (a) and s. 15 . Moreover, it is consonant with the interpretive guidance of s. 27  which reads as follows:                                                                     

 

                   27. This Charter  shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

 

85.                     In applying this provision to the application of the freedom of religion guarantee of the Charter  in Big M Drug Mart Ltd. and Edwards Books and Art Ltd., supra, Dickson C.J. held that religion forms an integral part of the multicultural heritage of Canada. The interests underlined in s. 27 , they being both “the preservation and enhancement of the multicultural heritage of Canadians” (emphasis added) thus informed an approach to freedom of religion which could impose on the state the duty to accommodate religious minorities where the adverse and coercive impact of a secular law required it. (See Big M Drug Mart Ltd., supra, at pp. 337-38; Edwards Books and Art Ltd., supra, at p. 758.) In applying s. 15  in the context of the denial of funding for education to those who cannot access it for religious reasons, s. 27  supports a finding that the interests at stake, the preservation and continuation of the communities in question, do form interests fundamental to the purposes of the Charter .

 

86.                     At issue here are the efforts of small, insular religious minority communities seeking to survive in a large, secular society. As such, the complete non-recognition of this group strikes at the very heart of the principles underlying s. 15 . This provision, more than any other in the Charter , is intended to protect socially vulnerable groups from the discriminatory will of the majority as expressed through state action. The distinction created under the Education Act gives the clear message to these parents that their beliefs and practices are less worthy of consideration and value than those of the majoritarian secular society. They are not granted the same degree of concern, dignity and worth as other parents. I conclude that the Education Act funding scheme results in a prima facie violation of s. 15 's guarantee of equal benefit of the law without discrimination. To use the metaphor which I developed in Egan, we cannot imagine a deeper scar being inflicted on a more insular group by the denial of a more fundamental interest; it is the very survival of these communities which is threatened.

 

II.Is the Denial of Funding to Independent Denominational Schools Reasonably Justified under Section 1 ?

 

87.              A violation of s. 15(1)  may be saved under s. 1  if the impugned distinction is demonstrably justifiable in our free and democratic society. I am of the opinion, however, that the instant violation cannot be salvaged by s. 1 , as it is not proportionately tailored to the pressing objectives of the legislation.

 

88.                     As an introduction to the s. 1  analysis of the legislation in question, I find it necessary to make some observations regarding the general purposes of this provision and how these should inform the degree of judicial deference accorded the legislature’s choice in a particular case.

 

89.                    As is well known, the case of R. v. Oakes, [1986] 1 S.C.R. 103, provided the first occasion for this Court to develop the principles of judicial review of the state’s justification for limits imposed on a Charter  right, in accordance with s. 1 . An approach was developed, subsequently referred to as the “Oakes test”, which was meant to provide a universal and onerous standard of review of the evidence and argument submitted by state representatives in defence of a prima facie breach of the Charter .

 

90.                     In Oakes, supra, writing for the Court on this issue, Dickson C.J. applied a purposive approach to interpreting s. 1 . He noted that, while constitutionally guaranteeing the rights and freedoms of the Charter , s. 1  also gave a clear signal that these entitlements were not unlimited in scope. However, for limits to be considered “reasonable”, they must be justified in a “free and democratic society” and therefore necessarily informed by the values and principles underlying the Charter  itself:

 

Inclusion of these words as the final standard of justification for limits on rights and freedoms refers the Court to the very purpose for which the Charter  was originally entrenched in the Constitution: Canadian society is to be free and democratic. The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter  and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified. [Oakes, supra, at p. 136.] 

 

 

91.                     In subsequent applications of the Oakes test, this Court has varied the standard of justification with respect to proof and the evidentiary burden placed on the state, granting a greater degree of deference to the legislative choice in cases of “social legislation”, that is, legislation with a valid objective related to social justice.  For example, a less onerous burden has been placed on the state where the legislature was seeking to balance Charter  rights and/or values, (Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825), otherwise protect a socially vulnerable group (Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927),  balance competing interests of various social groups (McKinney v. University of Guelph, [1990] 3 S.C.R. 229), or address conflicting social science evidence as to the cause of a social problem (RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199).

 

92.                     As La Forest J. concluded in his dissenting reasons in RJR-MacDonald, supra, at para. 63, in determining the degree of flexibility and deference to be shown Parliament in a s. 1  analysis, this jurisprudence directs courts to take a contextual approach to the legislation in question, to evaluate both the nature of the right infringement and that of the social interest or values meant to be promoted by the legislation. For example, where the objective of the legislation promotes the protection of a socially vulnerable group and the nature of the infringement lies far from the core Charter  values, deference will be warranted.

 

93.                     No issue was taken by the majority in that case with this characterization of the task facing courts except as regards the necessity of maintaining a limit to judicial deference. As McLachlin J. stated for the majority on this point, at para. 129:

 

While remaining sensitive to the social and political context of the impugned law and allowing for difficulties of proof inherent in that context, the courts must nevertheless insist that before the state can override constitutional rights, there be a reasoned demonstration of the good which the law may achieve in relation to the seriousness of the infringement. It is the task of the courts to maintain this bottom line if the rights conferred by our constitution are to have force and  meaning....No matter how important Parliament’s goal may seem, if the state has not demonstrated that the means by which it seeks to achieve its goal are reasonable and proportionate to the infringement of rights, then the law must perforce fail. 

 

 

94.                     Thus, while deference has been granted the state in its legislative role by the courts in undertaking a s. 1  analysis, this deference has been designed to better give effect to the general purposes of the Charter  and with an understanding that Charter  values may at times require a sensitive balancing. Deference has not been found warranted where to do so would frustrate the very values of the Charter , but rather to give better effect thereto and to allow the legislature the flexibility to make these difficult policy choices.

 

95.                     A corollary to this principle should also be articulated: where the nature of the infringement lies at the core of the rights protected in the Charter  and the social objective is meant to serve the interest of the majority as a whole, as represented by state action, courts must be vigilant to ensure that the state has demonstrated its justification for the infringement. A less deferential stance should be taken and a greater onus remain on the state to justify its encroachment on the Charter  right in question. In each case, therefore, only after the objective of the legislation has been identified can the appropriate degree of deference be determined.  Indeed, cases will be rare where it is found reasonable in a free and democratic society to discriminate. (See Andrews, supra, per Wilson J., at p. 154.)

 

96.                     As I stated in Egan, supra, at para. 75 “social” legislation per se will not, in the absence of these factors, warrant deference. This finding was echoed by the other dissenting judges in that case.  Cory and Iacobucci JJ. particularly expressed concern about a deferential stance allowing governments to justify any discriminatory impact on the basis that they are balancing the financial needs of various groups. (See Egan, supra, at para. 216.) In deciding whether deference is in order, the guiding principles have always been and continue to be those embodied in the Charter  as articulated by Dickson C.J. in Oakes, supra.

 

97.                     The first task in assessing whether the limit to the right in question is reasonably justified as required under s. 1  will involve determining whether the restriction on funding has an objective of pressing and substantial concern in a free and democratic society. A contextual approach in this case reveals the principal objectives of the legislation to be: first, to provide a large, publicly funded, system of education intended to be universally open and free to all, without discrimination; and second, to foster the values of a pluralist, democratic society, including the values of cohesion, religious tolerance and understanding. It would be misleading to look at either goal in isolation from the other. The choice of increasing social tolerance through encouraging the coming together of members of all communities is predicated on a system of education which is meant to be universal, and thus meet the needs of the majority of parents.

 

98.                     In such a system, the objective of encouraging religious tolerance  becomes linked to discouraging non-secular education. However, such a link is not inevitable. In fact, it is not the goal of encouraging social tolerance and understanding that creates a difficulty for the appellants, but rather the secular nature of the education. For example, as the Adler appellants submitted and one of the respondents’ experts testified, the environment in the Jewish day schools was very conducive to social tolerance, successful integration, and acceptance of others.

 

99.                     Having identified the objectives of the legislation in question, I must now turn to the question of the degree of deference to be shown the legislature in reviewing the respondents’ arguments and evidence to support the legislation. The circumstances in the case on appeal differ greatly from those previous cases where deference has been found appropriate. The value underlying the legislation in this appeal is the provision of education in a manner which fulfills the majoritarian interests of a secular society. Arguably, it is not vulnerable and discrete social groups which are threatened by the funding of religious schools but rather the interests of the majority of citizens.

 

100.                   In comparison with this interest, the right infringement affects members of  an insular religious minority within a minority. Moreover, the infringement impacts on an interest which is, as accepted by the courts below, essential to the survival of their communities and practices. Rather than being consonant with the values underlying the Charter , as articulated by Dickson C.J. in Oakes, supra, deference in such a case would promote the very problem the Charter  is meant to remedy, that is, the unlimited and discriminatory impact of the interests and needs of the majority on the rights of a small and relatively powerless minority. The  degree of judicial deference allowed in other cases is thus not warranted in this case. The  state must clearly discharge the burdens of evidence and proof which are mandated under s. 1 .

 

101.                   I agree with the Court of Appeal’s finding in this case that the objectives of providing free public education and of fostering tolerance are clearly pressing and substantial in a democratic society. In R. v. Jones, [1986] 2 S.C.R. 284, at p. 299, the reasons of La Forest J., dissenting but not on this point, clearly establish this conclusion. However, before discussing the proportionality element of the inquiry, I note that this same objective is no less pressing and substantial in the education systems in the five other provinces of Canada where independent religious schools receive partial funding, as indicated by the respondents’ evidence.

 

102.                   To reiterate my earlier conclusion, in the proportionality aspects of the s. 1  analysis,  a more rigorous burden should thus rest with the respondents than has rested, perhaps, in other cases of “social legislation”. The first step in assessing the proportionality between the objective sought through the legislation and the right infringement, is to ask whether the state has demonstrated a rational connection between restricting funding and the maintenance of a public school system which is open to all and fosters social tolerance. As I stated in Egan, supra, at para. 73, here the state is required to establish the relevance of the distinction created to the objective of the legislation.

 

103.                   In the case before us, the question becomes: has it been proven on a balance of probabilities that a denial of funding will further the purposes of the legislation? The respondents have argued that if full funding is provided to independent schools, there will be an outflow of students from the public school system of potentially so great a magnitude as to change that system in a fundamental manner. The connection sought here is between the provision of funding and the schooling parents choose for their children. I find that this link has been established by the evidence led by the respondents, through the expert testimony and reports as regards the possible effects on parental behaviour of increased funding and the report cited of a jurisdiction where full funding is provided. Also, while partial funding in other provinces resulted in a relatively low increase in the number of independent schools, this effect could be expected to be of greater and unpredictable magnitude were full funding provided. A rational connection has thus been established by the respondents between funding choices and the maintenance of universally open and religiously tolerant schools.

 

104.                   The respondents have, however, failed to discharge the burden of proving that the means used, in this case, a complete denial of funding, constitute a minimal impairment of the right in question. As has been established in the jurisprudence following Oakes, supra, and recently reiterated in the majority reasons on this point in RJR-MacDonald, supra, at para. 160,

 

[i]f the law falls within a range of reasonable alternatives, the courts will not find [a legislative choice] overbroad merely because they can conceive of an alternative which might better tailor objective to infringement: see Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123, at pp. 1196-97; R. v. Chaulk, [1990] 3 S.C.R. 1303, at pp. 1340-41; Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084, at pp. 1105-06. On the other hand, if the government fails to explain why a significantly less intrusive and equally effective measure was not chosen, the law may fail.

 

I had made a similar observation in Egan, supra, at para. 75.

 

105.                   In this case, the appellants made the alternate submission that partial funding should be provided to the independent schools. The respondents’ evidence and argument nonetheless focused primarily on the potential effects of full funding to independent schools on the current system. This evidence consisted mainly of the opinion of expert witnesses and one study of the private school system in Ontario dating from 1985, the “Shapiro Report” (Report of the Commission on Private Schools in Ontario (1985)). Moreover, the evidence which they did lead as to the effects of partial funding points to a very limited impact on the current public system. In the evidence submitted by the respondents, estimates as to the increase in enrollment in independent schools in the event of partial funding ranged from 3 percent of the total enrollment in the public schools, to approximately 6 percent. Clearly, the loss of 3 percent to 6 percent of the students currently enrolled in public schools would not undermine the primary objectives of creating a large, universally open public school system, where people of varying beliefs and backgrounds will come together. In fact, the source of the 3 percent estimate, the Shapiro Report, concluded that some funding to independent schools could be extended without significantly impinging on the larger public system.

 

106.                   While partial funding is, on the evidence submitted by the respondents, a means for reasonably impairing the right in question, yet fulfilling the objectives of the legislation, this option was not implemented by the legislature. I thus cannot agree with the conclusion  that it is impossible to say whether a less intrusive measure such as partial funding might achieve the same objective with less of an infringement. In fact, partial direct funding to independent religious schools, is currently provided in five Canadian provinces, namely, Quebec, Manitoba, Saskatchewan, Alberta, and British Columbia. In these provinces, the minimum and maximum amounts of funding vary. Expressed as a percentage of the public school rate, the maximum rates of funding for independent religious schools in the provinces range from 50 percent to 75 percent. Partial funding would actually further the objective of providing a universally accessible education system and promote the value of religious tolerance in this context where some religious communities cannot be accommodated in the secular system.

 

107.                   A further principle established in the majority reasons of RJR-MacDonald, supra, on the basis of preceding jurisprudence is that a complete ban or denial of a right, will be more difficult to uphold than a partial one, even where the exercise of the right in question falls far from the core values upheld in the Charter . Complete bans will only be permissible where the government can show that this is absolutely necessary to further its objective. (See RJR-MacDonald, supra, per McLachlin J., at para. 163.)  For example, in the majority reasons of RJR-MacDonald, a complete ban on advertising was not seen as a demonstrably justified incursion on freedom of expression. This principle was applied more recently in Ross, supra. In this case, as the complete exclusion of the teacher from the classroom was the only means to remedy the discriminatory effects of the teacher’s invidious expression on his students, it was found to be justified. La Forest J., writing for the majority in Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22, at p. 47, indicates that this principle also applies to the total denial of a right to the equal benefit of a program funded by the Federal government.  

 

108.                   Given the necessity of a less deferential approach in the case on appeal for the reasons I mentioned earlier, and the fact that the infringement of the appellants’ equality right arises from a lack of funding, I find that the complete denial of funding is the most excessive impairment possible, not one of a range of permissible alternatives. In essence, the respondent made no effort to impair minimally the equality right in question. Furthermore, the respondents’ own evidence regarding partial funding in other provinces supports the finding that the objectives of a public, secular school system which fosters tolerance will not be eroded unduly by such accommodation. Partial funding could thus be provided without affecting the objectives and would ensure a less severe impairment. This measure could ensure some recognition of these communities and assist in their continuation, all the while maintaining the generally secular, universal, and socially tolerant nature of the public school system.

 

109.                   The respondents have argued that partial funding is already provided indirectly through property tax exemptions and tuition and charitable donation deductions  in the federal income tax legislation. However, these do not relate to the direct provincial funding which is given the other schools in addition to revenues from property taxes. Moreover, they are not co-extensive with the costs borne by the parents; a large portion of this indirect support is from federal legislation over which the province has no control; and the benefit of the tax deduction will be greater for parents with increased economic resources. As Cory and Iacobucci JJ. explained in Egan, supra, at paras. 151 to 161 and paras. 199 to 208, it is not acceptable to find legislation constitutionally valid on the basis of benefits provided in the legislation of another jurisdiction which are neither co-extensive with the benefit lost nor available to all who fall within the identifiable group.  Other concerns relating to the funding of independent schools which have been identified by the respondents relate to accountability and the necessary promotion of tolerant values through hiring practices and other means. These could be addressed in fashioning the appropriate funding mechanism.

                  

 

110.                   In my view, the minimal impairment element of the Oakes test has not been satisfied in this case. The respondents failed to show why a measure less intrusive than a complete denial of the right in question was not adequate to promote the objectives of the legislation. The following conclusion which I drew in Egan, supra, at para. 75, applies equally to the case before us:

 

In fact, to defer to the legislative prerogative in circumstances where social science views do not substantially conflict, and where there is a reasonable, alternative means of fulfilling the legislative objective in a way that would materially lessen the magnitude of the rights violation, would frustrate the purpose of the Charter .

                         

111.                   Finally, while it is unnecessary to pursue the analysis, I note that the  salutary effects of the legislation do not outweigh the deleterious impact on the claimants. No evidence has been adduced by the respondents that a total denial of funding is required to further the goals of creating a large, public education system which fosters the development of social tolerance and harmony. The respondents led no evidence establishing that the fiscal impact of partial funding would carry with it fundamental changes in the nature or extent of the public school system. We must also remember that the students of the independent religious schools would have a right to public expenditures were the public schools accessible to them.

 

112.                   This case involves a severe breach of an insular minority group’s equality rights, for the purposes of furthering majoritarian interests, in circumstances where the benefits are largely financial. In Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at pp. 218-20, Wilson J. held that budgetary considerations alone will not constitute a reasonable justification for an infringement of a Charter  right, a result which has not been overruled by this Court. At most, these considerations will come into play in the fashioning of a remedy, as indicated in Schachter v. Canada, [1992] 2 S.C.R. 679. Partial funding would strongly attenuate the discriminatory effects of legislation which completely denies any funding and thus any recognition of these communities’ educational needs. The salutary effects of the exclusion, being essentially financial, are not proportional to the serious infringement of the constitutional rights in question.

 

113.                   In conclusion, the respondents have not discharged their burden under s. 1 . The funding scheme created in the Education Act represents an impermissible violation of the appellants’ right to equal benefit of the law under s. 15  of the Charter .

                  

The School Health Support Service Plan

 

114.                   I find it unnecessary to analyse the school health services separately from the general question of funding for independent schools. I agree with McLachlin J. that, given their designation as a part of a “special education program”, the services to disabled students provided under the Health Insurance Act, R.R.O. 1990, Reg. 552, s. 14 in the public and separate schools, form an integral part of the education services funded in the province under the Education Act. Denial of funding for school health services in the independent schools, as part of the complete denial of funding to these schools, thus also infringes s. 15  of the Charter 

 

115.                   Regulation 552 which extends these services to those schools which receive public funds under the Education Act, clearly links these services to the objectives of that Act. It is evident that providing services which make it possible for disabled students to attend publicly funded schools furthers the objectives of the  Education Act in creating a non-discriminatory, universal system of education. 

 

116.                   McLachlin J., however, additionally finds that the denial of the health support services program to independent religious schools is rationally connected to the objectives of the legislation. I cannot agree, given the characterization of the legislative objectives which I believe is warranted in the context. The twofold objectives involve the provision of education which is universally open to all students without discrimination and the encouragement of social tolerance and harmony. These objectives were undertaken in a scheme which allowed parents to opt out of the secular system. Given that the state has already recognized that parents may not be able to educate their children in the secular system, denying disabled children access to the services which make attendance at independent schools possible for them conflicts directly with the primary goal of the legislation, to provide education for all children in Ontario.

 

117.                   Moreover, as parents of children in the independent schools are unable, for religious reasons, to send their children to the secular public schools, it is difficult to imagine how denying these children access to the independent schools will, in any significant way, further enhance the social diversity and harmony in the public school system. Such a policy seems likely to encourage such parents to educate these children at home, thereby losing the many benefits of education in a school environment, and compounding the marginalization and isolation of children with disabilities from these communities. The denial of the school health support services to independent schools clearly is not rationally supportable on the objectives of the legislation.

 

118.                   As I find no rational connection between the denial of school health support services to children in independent denominational schools, it is unnecessary to undertake a determination of whether a minimal impairment has been imposed or whether the effects are proportionate to the objective. The discrimination caused by Regulation 552 is not demonstrably justified in a free and democratic society. In my view, the appropriate remedy with respect to the school health services, is that recommended by McLachlin J. A provision should be read into Regulation 552 which expands the definition of “school” in the Education Act to include private denominational schools and extends the Education Act’s definition of special education programs to include those equivalent to the ones offered in the Roman Catholic and public school systems. 

                         

III. Disposition

 

119.                   I would allow the appeal with costs throughout. The appropriate disposition is to declare the current Education Act unconstitutional on the grounds of its violation of s. 15(1)  of the Charter . However, this declaration should be suspended in its effect for two years so as to allow the provincial government the opportunity to undertake the necessary inquiry as to the level of direct funding to independent denominational schools which  can be supported in the present system without unduly undermining the central objectives of the legislation. A reasonable, carefully tailored  alternative legislative scheme of education funding must be chosen, one which minimally impairs the rights in question. Other reasonable requirements, such as accountability measures, for the independent schools may also be established.

 

120.                   With respect to the health support services, the “reading in” remedy proposed by McLachlin J. is appropriate. This should take effect immediately and should be maintained under the future legislative choices which aim to impair minimally the rights in question.

 

121.                   Finally, I would answer the constitutional questions as follows:

 

 

Question 1:Do the definitions of “board” and “school” in s. 1(1) of the Education Act, R.S.O. 1990, c. E.2, together with the annual General Legislative Grants promulgated under s. 11(3)(a) and (b) thereof, infringe or deny the appellants’ freedom of religion under s. 2 (a) of the Canadian Charter of Rights and Freedoms  by not providing funding to religious-based independent schools?

 

 

Answer:       No.

 

Question 2(a):Do the definitions of “board” and “school” in s. 1(1) of the Education Act, R.S.O. 1990, c. E.2, together with the annual General Legislative Grants promulgated under s. 11(3)(a) and (b) thereof, infringe or deny the appellants’ equality rights under s. 15(1)  of the Canadian Charter of Rights and Freedoms  by providing funding to public school boards but not to religious-based independent schools?

 

 

Answer:       Yes.

 

Question 2(b):Do the definitions of “board” and “school” in s. 1(1) of the Education Act, R.S.O. 1990, c. E.2, together with the annual General Legislative Grants promulgated under s. 11(3)(a) and (b) thereof, infringe or deny the appellants’ equality rights under s. 15(1)  of the Canadian Charter of Rights and Freedoms  by providing funding to Roman Catholic separate school boards but not to religious-based independent schools?

 

 

Answer:       Not necessary to decide.

 

Question 3:If the answer to Question 1 or 2 is in the affirmative, is the non-funding of religious-based independent schools justified as a reasonable limit pursuant to s. 1  of the Canadian Charter of Rights and Freedoms ?

 

 

Answer:       No.

 

Question 4(a):Does s. 14 of Regulation 552, R.R.O. 1990, made under s. 45 of the Health Insurance Act, R.S.O. 1990, c. H.6, infringe the appellants’ freedom of religion under s. 2 (a) of the Canadian Charter of Rights and Freedoms  by prescribing school health support services as insured services to an insured person who is placed in a special education program in a “school” as defined in s. 1(1) of the Education Act, but not to an insured person in a religious-based independent school?

 

 

Answer:       Not necessary to decide.

 

Question 4(b):Does s. 14 of Regulation 552, R.R.O. 1990, made under s. 45 of the Health Insurance Act, R.S.O. 1990, c. H.6, infringe the appellants’ equality rights under s. 15(1)  of the Canadian Charter of Rights and Freedoms  by prescribing school health support services as insured services to an insured person who is placed in a special education program in a “school” as defined in s. 1(1) of the Education Act, but not to an insured person in a religious-based independent school?

 

 

Answer:       Yes.

 

Question 5:If the answer to Question 4(a) or 4(b) is in the affirmative, is the prescribing of school health support services as insured services to an insured person who is placed in a special education program in a “school” as defined in s. 1(1) of the Education Act, but not to an insured person in a religious-based independent school justified as a reasonable limit pursuant to s. 1  of the Canadian Charter of Rights and Freedoms ?

 

Answer:       No.

 


 

                   The reasons of Sopinka and Major JJ. were delivered by

 

1                        Sopinka J. -- In this appeal the Adler appellants challenged the legislative scheme for the funding of public and Roman Catholic separate school education on two bases.  First, they alleged that the funding of separate Roman Catholic schools creates a distinction and inequality that violates ss. 2 (a) and 15  of the Canadian Charter of Rights and Freedoms .  Second, they submit that the funding of public schools while failing to fund independent religious schools constitutes a violation of these provisions.  The Elgersma appellants limited their submissions to the second ground of attack.

 

1                        With respect to the first ground advanced by the Adler appellants, the decision of this Court in the Reference Re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148, is a complete answer.  Legislation for the funding of separate schools is supported under both s. 93(1)  and (3)  of the Constitution Act, 1867 .  In the Reference Re Bill 30, this Court decided that legislation passed pursuant to these provisions was immune from Charter  attack.  On the other hand, legislation funding the public school system stands on a different footing.  It is passed pursuant to the opening words of s. 93  conferring on the province a plenary power to legislate with respect to education.  This power is no different from the heads of power contained in s. 92  of the Constitution Act, 1867 .  Like the latter, it is subject to the Charter .  Nothing in the Reference Re Bill 30 suggests otherwise.

 

1                        My colleague Justice Iacobucci would hold that s. 93  is a complete code with respect to denominational schools and that presumably the province is restricted to legislation that is mandated by s. 93(1)  or permitted by s. 93(3) .  He concludes that this renders such legislation immune from s. 2 (a) of the Charter  but apparently not immune from s. 15 .  In my view, this wholly unwarranted restriction on the plenary power is supported by neither authority nor principle.

 

1                        With respect to s. 15 , my colleague finds that in certain respects and, in particular, with respect to funding, s. 93(1)  can be interpreted to extend constitutional protection not only to “denominational schools” specified in the section but to public schools as well.  I cannot agree with this proposition.  My reasons, in summary, are as follows:

 

(1) The historic compromise which is embodied in s. 93  had as its purpose the protection of the religious schools of the minority, primarily Protestants in Quebec and Roman Catholics in Ontario.  The majority schools needed no protection.

 

(2) Section 93  makes no mention of protection of the rights and privileges of the public schools.

 

(3) No decision of this Court or of any other court can be cited to support this proposition and all the authorities support the opposite conclusion.

 

(4) If s. 93  protects the rights and privileges of the public schools, then all rights and privileges enjoyed at Confederation must be included.  There is no basis for concluding that while all rights and privileges of denominational schools are protected, the only privilege protected relating to public schools is funding.

 

(5) Entrenching rights and privileges of public schools relative to a benchmark of 1867 places the province in a straightjacket which impedes the progressive reform of educational institutions.

 

 

1                        I will first develop the reasons for my conclusion that the Charter  applies to the legislation that provides funding to the public schools but not to the independent religious schools.  I will then address the submission of the appellants that the legislation violates ss. 2 (a) and 15  of the Charter .

 

1.  Section 93  - A Complete Code

 

1                        My colleague deals with the applicability of ss. 2 (a) and 15  separately.  With respect to s. 2 (a), he concludes, at para. 35,  that s. 93  “is a comprehensive code with respect to denominational school rights.  As a result, s. 2 (a) of the Charter  cannot be used to enlarge this comprehensive code”.  With respect to s. 15 , however, he finds that the funding of public schools is impliedly within the protection of s. 93(1) .

 

1                        In my view, if the impugned legislation is insulated from the Charter  because it is a comprehensive code, it would be insulated from both ss. 2 (a) and 15 .  I propose to deal with this issue on this basis.  What my colleague’s proposition amounts to is that s. 93  limits the power of the province to extend funding to the appellants and, therefore, the Charter  cannot enlarge those powers.  Otherwise, the Charter  would invalidate the limiting provisions of s. 93  contrary to this Court’s decision in the Reference Re Bill 30.  The contrary view that s. 93  is a comprehensive code and that funding cannot be extended to independent religious schools would prevent the province from creating alternative religious schools such as those which exist in Alberta.  See School Act, S.A. 1988, c. S-3.1, s. 16.  It would also call into question the Alberta legislation.  Later in his reasons, at para. 48,  my colleague states that “[t]he province remains free to exercise its plenary power with regard to education in whatever way it sees fit.... [T]he province could, if it so chose, pass legislation extending funding ...” to independent religious schools.  These schools are not within the guarantees of s. 93  and if the province is free to legislate as suggested then s. 93  is not a comprehensive code with respect to legislative powers in relation to denominational schools.

 

1                        The problem with this proposition is that the legislation funding the public school system is passed pursuant to the plenary power contained in the opening words of s. 93 .  As well, legislation extending funding to the appellants would call for the exercise of the plenary power.  The plenary power is not restricted by the other provisions of s. 93  unless: (a) a right or privilege protected by s. 93(1)  is affected or, (b) the legislation affects “any Right or Privilege of the Protestant or Roman Catholic Minority” created after Confederation in which case an appeal lies under s. 93(3)  to the Governor General in Council.  Neither the provisions of the Education Act, R.S.O. 1990, c. E.2, funding public schools nor legislation that would fund religion-based independent schools are within the terms of s. 93(3) .  Whether such legislation deals or would deal with a right or privilege protected by s. 93(1)  is the issue with respect to the second branch of my colleague’s reasons which I will address below.

 

1                        The broad scope of the power of the province over education conferred by s. 93  is manifest from the breadth of the language of the opening words: “In and for each Province the Legislature may exclusively make Laws in relation to Education....”  This power has been characterized as “a plenary power” over education to stress that it is a provincial power on the same footing as the provincial powers granted to the provinces in s. 92  of the Constitution Act, 1867 

 

1                        In Hirsch v. Protestant Board of School Commissioners of  Montreal, [1928] A.C. 200, Viscount Cave L.C. commented on the scope of the plenary power at  p. 215:

 

While s. 93 of the Act of 1867 protects every right or privilege with respect to denominational schools which any class of persons may have had by law at the Union, it does not purport to stereotype the educational system of the Province as then existing.  On the contrary, it expressly authorizes the Provincial Legislature to make laws in regard to education subject only to the provisions of the section; and it is difficult to see how the Legislature can effectively exercise the power so entrusted to it unless it is to have a large measure of freedom to meet new circumstances and needs as they arise.

 

 

This passage was cited with approval in Attorney General of Quebec v. Greater Hull School Board, [1984] 2 S.C.R. 575, at pp. 585-86, and Greater Montreal Protestant School Board v. Quebec (Attorney General), [1989] 1 S.C.R. 377, at pp. 399-400.

 

1                        It is incontestable that if the plenary power stood alone, legislation providing funding to religion-based independent schools would be competent to the province and that legislation which failed to do so would be subject to Charter  scrutiny.  The limitation, if any, which restricts the power so as to immunize it from the Charter  must be imposed by the other provisions of s. 93 .  What are these limitations?

 

1                        In the Reference Re Bill 30, Estey J. stated at p. 1201:

 

The opening words of s. 93  are a clear grant of legislative power to the province, providing the province with the authority to make laws in relation to education.  As such, the opening words of s. 93  are similar to the various grants of provincial power found in s. 92  of the Constitution Act, 1867  and might well have been included in s. 92 ....

 

 

 

And at p. 1202:

 

 

 

                   When read with the opening words of s. 93 , which provide the province with a general plenary power to “exclusively make laws in relation to Education”, it is clear that the province can make any laws with respect to education subject only to two limitations.  First, any such laws may not violate the minimum constitutional guarantees found in s. 93(1) , and second, the exercise of this provincial power may also face federal intervention under s. 93(4) .  Support for this general proposition can be found in both Brophy v. Attorney-General of Manitoba, [1895] A.C. 202, and Tiny Separate School Trustees v. The King, [[1928] A.C. 363].

 

 

 

1                        With respect to s. 93(1) , as I have already indicated, this limitation is dependent on a finding that legislation funding the appellants’ schools would affect a right or privilege protected by s. 93(1) .  For reasons that will follow, I am of the opinion that, even if it could be said that extending the funding to the appellants would affect the funding of public schools, the latter is not a right or privilege protected by s. 93(1) .

 

1                        As for s. 93(3) , Wilson J., speaking for the majority, stated at p. 1169:

 

                   On their face these provisions would appear to support the view that Bill 30 is a valid exercise of legislative power by the provincial legislature.  The opening words of s. 93  vest an exclusive plenary power over education in the Province “subject and according to” the provisions that follow.  Section 93(3)  does not appear to derogate in any way from that power.

 

 

1                        There is nothing in s. 93(3)  that restricts extending funding to others.  It specifically contemplates the exercise of the plenary power to create a “System of Separate or Dissentient Schools” where one does not exist.  In addition, it provides an appeal to the Governor General in Council from, inter alia, any legislation which affects a right or privilege protected under s. 93(1)  or created by subsequent legislation.  Neither the legislation funding public schools nor legislation extending funding to the appellants’ schools would be within the terms of s. 93(3) .  It would not affect any right or privilege of the Protestant or Roman Catholic minority and it would not establish a system of separate or dissentient schools.

 

1                        Bill 30 was held to be immune from Charter  scrutiny because it was an exercise of the plenary power in a manner specifically contemplated by s. 93(3)  and which authorized legislation which made distinctions on the basis of religion.  A Charter  remedy in these cases, based on this distinction, would negate the power to make them.  The effect would be that one part of the Charter  would invalidate another.  At p. 1198, Wilson J. stated:

 

But the province is master of its own house when it legislates under its plenary power in relation to denominational, separate or dissentient schools.  This was the agreement at Confederation and, in my view, it was not displaced by the enactment of the Constitution Act, 1982 .

 

 

 To the same effect, Estey J., at p. 1207, stated:

 

The power to establish or add to a system of Roman Catholic separate schools found in s. 93(3)  expressly contemplates that the province may legislate with respect to a religiously-based school system funded from the public treasury.  Although the Charter  is intended to constrain the exercise of legislative power conferred under the Constitution Act, 1867  where the delineated rights of individual members of the community are adversely affected, it cannot be interpreted as rendering unconstitutional distinctions that are expressly permitted by the Constitution Act, 1867 . [Emphasis added.]

 

 

1                        When the province exercises its plenary power outside of the areas specified in s. 93(1)  and (3) , it cannot be said that any distinctions that violate the Charter  are “expressly permitted” or even contemplated.  Legislation in such cases is no different from legislation under any of the heads of s. 92 .  Giving effect to the Charter  will not invalidate any power conferred by s. 93  and the principle in the Reference Re Bill 30 has no application.

 

1                        This conclusion is not affected by anything that was said in Mahe v. Alberta, [1990] 1 S.C.R. 342, to which my colleague refers.  In Mahe, parents of children of the minority Francophone community in Edmonton claimed the right to management and control of their schools.  In furtherance of this claim, they sought the benefit of s. 15  in interpreting their rights under s. 23  of the Charter .  Dickson C.J. refused to accede to this argument.  He observed that s. 23  provides in a comprehensive way for protection of minority linguistic rights.  English and French minorities are given preferential treatment over other groups and it would be quite incongruous for members of one of these groups to rely on s. 15  which seeks to attain universal equality for all individuals.

 

1                        The situation in Mahe is not at all comparable to the situation in which the appellants claim Charter  relief.  They are not members of a group entitled to claim protection under s. 93(1)  or (3) .  They cannot be told, as were the appellants in Mahe, that there is already a special provision in the Charter  for protection of their rights.  The case would be comparable if parents of children of a separate school sought the aid of s. 15  to maximize their rights and privileges under s. 93 .

                                                     

2.  Section 93(1)  and the Charter 

 

1                        The second proposition advanced by my colleague which serves to insulate the impugned legislation from Charter  scrutiny under s. 15  is that pre-Confederation legislation equated certain rights and privileges of separate schools to those of public schools and thereby impliedly brought these rights and privileges within the protection of s. 93(1) .  Not all rights and privileges of public schools existing at Confederation are protected, just those that relate to the existence of public schools “which are open to all members of society, without distinction”. 

 

1                        I note at the outset that this proposition erroneously assumes that because certain rights and privileges of the Protestant majoritarian schools are relevant in identifying the rights and privileges of separate schools, the former are ipso facto given constitutional protection.  My colleague says, at para. 44,  that “public schools are part and parcel of s. 93 's comprehensive code”.  But, the rights and privileges of public schools are merely the benchmarks for ascertaining the rights and privileges of separate schools.  Certain provisions of pre-Confederation statutes gave separate schools the same rights as enjoyed by public schools.  While the terms of those statutes are relevant to ascertain what these rights and privileges were, the statutes themselves are not given constitutional status.  Only the rights and privileges of separate schools were given constitutional protection.

 

1                

                   My colleague further states that the plenary power is entrenched only as long as it is exercised within the confines referred to above.  The province can legislate, however, to extend funding to independent religious schools which, of course, are not open to all without distinction.  Such legislation would perforce be subject to the Charter .  It follows logically that failure to legislate would also be subject to the Charter .  On a more fundamental basis, I cannot accept that, when the plenary power is exercised divorced from s. 93(1)  and (3) , it is entrenched in the sense that its exercise is immune from Charter  scrutiny.  It is entrenched only to the same extent that other powers in s. 92  are entrenched.  It is in the Constitution and like other powers can be exercised only in conformity with the Charter .

 

1                        With due respect to the contrary view, the conclusion I have reached is supported by: (1) the wording of s. 93  of the Constitution Act, 1867  and s. 29  of the Constitution Act, 1982 (2) the historical background; (3) the cases; and (4) policy.

 

3.  Sections 93  and 29 

 

1                        Section 93(1)  provides:

 

                          93. ...

 

                   (1)  Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union:

 

 

1                        There is no mention in s. 93(1) of any rights or privileges of the common schools or of the rights and privileges of the majority.

 

1                        Section 93(2)  refers to the separate schools and the dissentient schools.  No mention is made of common schools or the schools of the majority.

 

1                        Section 93(3)  refers only to “any Right or Privilege of the Protestant or Roman Catholic Minority”.  In ascertaining what rights and privileges are protected by s. 93(1) , it is necessary to review the history of pre-Confederation legislation.  As stated by Wilson J. in the Reference Re Bill 30, at p. 1177:

 

It is immediately apparent that the scope of the rights and privileges protected under the section must be determined by ascertaining the rights and privileges in existence at the time of the Union.  Was there any right or privilege entitling denominational secondary schools to full funding by law at the time of Confederation?  To answer this it is necessary to consider the history of pre-Confederation legislation pertaining to education in Upper Canada.

 

 

1                        In some instances, as in the case of funding, the historical evidence reveals that the denominational schools were treated on an equal footing with the majority school system.  In such cases, the only relevance of the right and privilege is to establish the constitutionally protected entitlement of the denominational school.  The fact that historical evidence relating to the entitlement of the majority schools is resorted to does not mean that it is thereby given constitutional protection.

 

1                        In 1982 the framers of the Charter  had occasion to consider what protection was provided under s. 93(1) Section 29  was enacted to immunize rights protected by s. 93(1)  from Charter  scrutiny.  Section 29 , therefore, serves as a statement of Parliament and the provinces which ratified the Charter  as to the extent of the rights guaranteed by s. 93(1) .  In the Reference Re Bill 30, Wilson J. was of the view that s. 29  immunized s. 93(1)  from Charter  review even though she concluded that such immunity existed apart from s. 29 Section 29  was adopted for greater certainty.  This in no way diminishes its force as a statement by Parliament and provinces as to what s. 93(1)  protects.  Section 29  is a clear statement that the rights and privileges guaranteed under s. 93  are those of “denominational, separate or dissentient schools”.

 

4.  Historical Background

 

1                        A number of cases have reviewed the background to the historical compromise which s. 93  embodies.  See Brophy v. Attorney-General of Manitoba, [1895] A.C. 202, and Reference re Adoption Act, [1938] S.C.R. 398.  The most recent review is contained in the reasons of Wilson J. in the Reference Re Bill 30.  At p. 1173, Wilson J. sums up the situation as follows:

 

The protection of minority religious rights was a major preoccupation during the negotiations leading to Confederation because of the perceived danger of leaving the religious minorities in both Canada East and Canada West at the mercy of overwhelming majorities.

 

 

1                        Wilson J. refers to extracts in the Parliamentary debates of the time to stress the crucial importance of protecting the religious minority.  At p. 1173, the statement of Lord Carnarvon is quoted:

 

...the object of the clause [s. 93 ] is to secure to the religious minority of one province the same rights, privileges and protection which the religious minority of another Province may enjoy.  The Roman Catholic minority of Upper Canada, the Protestant minority of Lower Canada and the Roman Catholic minority of the Maritime Provinces, will thus stand on a footing of entire equality.

 

 

And, at pp. 1173-74, Sir Charles Tupper in Debates of the House of Commons dated March 3, 1896, at p. 2724,  is quoted as follows:

 

...I say it within the knowledge of all these gentlemen...that but for the consent to the proposal of the Hon. Sir Alexander Galt, who represented especially the Protestants of the great province of Quebec on that occasion, but for the assent of that conference to the proposal of Sir Alexander Galt, that in the Confederation Act should be embodied a clause which would protect the rights of minorities, whether Catholic or Protestant, in this country, there would have been no Confederation.... I say, therefore, it is important, it is significant that without this clause, without this guarantee for the rights of minorities being embodied in that new constitution, we should have been unable to obtain any confederation whatever.  That is my reason for drawing attention to it at present.

 

 

1                        No mention is made in these historic statements of protection for the majority.  The reason is obvious.  The majority was in control of the legislature and had no need to have special guarantees in the Constitution Act, 1867 .  Wilson J. sums it up at p. 1193:

 

The security afforded the Roman Catholic minority through the tying of funding for its schools to a proportion of the funding for the common schools was in the certainty that the Legislature would never cut off funding for the common schools.  There would therefore always be a grant in which the separate schools would be entitled to share.

 

 

1                        There is another aspect of my colleague’s analysis of this point to which the historical background is pertinent.  The rights and privileges that s. 93(1)  protects are those which existed at law at Confederation.  With respect to denominational schools, all such rights are protected provided they relate to the denominational character of the school.  See Greater Montreal Protestant School Board v. Quebec (Attorney General), supra.  If the plenary power to legislate to protect the existence of public schools “designed for all members of the community alike, whatever their creed” was similarly entrenched, one would expect to find some historical support for this.  One would expect to find pre-Charter  challenges to the teaching of Christianity in the public schools on this basis.  The historical record, however, does not support this scenario.  While education in common schools might have been classed as non-denominational, it certainly did not conform to the model which my colleague says s. 93  is intended to protect from the Charter .  Instead, the Council of Public Instruction for Upper Canada prescribed that “Christianity is the basis of our whole system of elementary education...[and] that principle should pervade it throughout” (as quoted by Pierre Carignan, “La raison d’être de l’article 93  de la Loi constitutionnelle de 1867  à la lumière de la législation préexistante en matière d’éducation” (1986), 20 R.J.T. 375, at p. 431, note 269).  Moreover, where separate denominational schools were allowed to exist, children of that denomination were not entitled to attend common schools but were required to attend separate school: An Act respecting Common Schools in Upper Canada, C.S.U.C. 1859, c. 64, s. 27(16).  Dissentient parents that did not have the benefit of a separate school had to rely on a statutory exemption in order for their children to be excused from participating in religious activities or instruction in the public school system.  See An Act respecting Common Schools in Upper Canada, s. 169.  Similar provisions remained virtually unchanged on the books in Ontario until recent times.  The very existence of such an exemption confirms the non-secular nature of the public school system at the time of Confederation.

 

1                        The issue of religious education in Ontario public schools was the subject of two comprehensive government studies: the Royal Commission on Education in Ontario (the Hope Commission) in the early fifties and the Committee on Religious Education in the Public Schools of the Province of Ontario (the MacKay Committee) in the late sixties.  Referring extensively to Christian values and ideas as the cornerstone of Canadian society, the Hope Commission Report endorsed the existing system of religious education in public schools, in particular the teaching of “honesty and Christian love”.

 

1                        The MacKay Report (Report on Religious Information and Moral Development), released in 1969, examined the existing system and concluded that the religious curriculum was designed to indoctrinate students in the Christian faith and way of life.  Considering the exemption provisions, the Committee concluded that they were discriminatory and unfair.  While some changes towards secularization took place, it was not until the provisions were successfully challenged under the Charter  that the exemption provisions were removed.

 

1                        Zylberberg v. Sudbury Board of Education (Director) (1988), 65 O.R. (2d) 641 (C.A.), and Canadian Civil Liberties Assn. v. Ontario (Minister of Education) (1990), 71 O.R. (2d) 341 (C.A.) (hereinafter referred to as the Elgin County case), in which religious instruction was successfully challenged, contain no discussion that would suggest that there was any consideration given as to whether the plenary power had been exercised within the confines that immunize its exercise from Charter  challenge.  In my view these cases were decided, and rightly so, on the ground that the Charter  applied because they were not dealing with protected rights in that rights and privileges of the public school system were at issue.

 

5.  The Cases

 

1                        The judgments of this Court and the Privy Council that have analysed s. 93  uniformly refer only to the rights and privileges of religious minorities.  No case has been cited and I have been unable to find one that suggests that the protection of s. 93(1)  extends to aspects of the public school system.  In Hirsch, supra, at p. 207, Viscount Cave stated:

 

                   In order to determine whether the restrictions imposed by s. 93 of the Act of 1867 are infringed by the Quebec statute of 1903, it is necessary to consider, first, whether any and which of the schools referred to in that statute were denominational schools in which any class of persons had by law any right or privilege at the Union, and, secondly, whether and to what extent that statute prejudicially affects any such right or privilege.

 

 

1                        In the Reference Re Bill 30 there are numerous references to the scope of s. 93(1) .  I have already referred to them above.  No suggestion is made that the protection relates to rights and privileges of public schools.  My colleague’s reference to the statements of Wilson J. in relation to the plenary power does not support his paraphrase to the effect that legislation under the plenary power relating to funding for secular schools is insulated from Charter  attack.  It is clear that it is the exercise of the plenary power in relation to the matters specifically authorized by s. 93(3)  that is immune.  The whole of the passage from which my colleague’s extracts are taken makes this clear.  Wilson J. states, at p. 1198:

 

The question then becomes: does s. 29  protect rights or privileges conferred by legislation passed under the province’s plenary power in relation to education under the opening words of s. 93 ?  In my view, it does although again I do not believe it is required for this purpose.  The Confederation compromise in relation to education is found in the whole of s. 93 , not in its individual parts.  The section 93(3)  rights and privileges are not guaranteed in the sense that the s. 93(1)  rights and privileges are guaranteed, i.e., in the sense that the legislature which gave them cannot later pass laws which prejudicially affect them.  But they are 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.  Their protection from Charter  review lies not in the guaranteed nature of the rights and privileges conferred by the legislation but in the guaranteed nature of the province’s plenary power to enact that legislation.  What the province gives pursuant to its plenary power the province can take away, subject only to the right of appeal to the Governor General in Council.  But the province is master of its own house when it legislates under its plenary power in relation to denominational, separate or dissentient schools.

 

 

1                        As I have pointed out earlier in my reasons, the Court was at pains to stress that the plenary power itself was no different in character than any of the powers in s. 92 .  When exercised in the manner expressly permitted by s. 93(3)  in relation to denominational schools, the legislature is expressly authorized to make distinctions on the basis of religion.  This is what renders the legislation immune from Charter  review.  If subject to the Charter , s. 93(3)  would be emasculated.  This would mean that one part of the Constitution would be permitted to invalidate another.  As explicitly stated by Estey J. in the passage quoted above from Reference Re Bill 30 at p. 1207, “it [the Charter ] cannot be interpreted as rendering unconstitutional distinctions that are expressly permitted by the Constitution Act, 1867 ”.

 

1                        In Greater Montreal Protestant School Board v. Quebec (Attorney General), supra, our Court held that even in respect of denominational schools only denominational aspects and non-denominational aspects related thereto were protected.  At issue was the validity of s. 16(7) of the Education Act, R.S.Q., c. I-14, and regulations thereunder which sought to regulate the non-denominational aspects of elementary and secondary curriculum.  The appellants contended that these provisions violated a right protected under s. 93(1)  enabling the Protestant minority in Quebec to manage and control its schools, including curriculum.  At p. 411, Beetz J. stated:

 

... certain non-denominational aspects of curriculum may fall within the protection of the s. 93(1)  guarantee because they are “with respect to Denominational Schools”.  In other words, constitutional protection “with respect to Denominational Schools” has both denominational and non-denominational components.  The problem in Hull [Attorney General of Quebec v. Greater Hull School Board, [1984] 2 S.C.R. 575], in this case and in other like cases, is determining the extent to which these non-denominational aspects of curriculum merit constitutional protection. 

 

 

1                        In Mahe, supra, it was argued that the transfer of power to linguistic minority boards would infringe the rights and privileges of denominational schools under s. 93(1) .  Dickson C.J., speaking for the Court, held that transfer of powers of management and control to a minority linguistic board would not alter the denominational character of denominational schools.  At pp. 382-83, he observed:

 

                   The transfer of the powers in respect of management and control thus amounts to the regulation of a non-denominational aspect of education, namely, the language of instruction, a form of regulation which the courts have long held to be valid.... I note that this conclusion was also reached by the Ontario Court of Appeal in Reference Re Education Act of Ontario, [(1984), 10 D.L.R. (4th) 491].  That court stated that the provinces enjoy a “full power of regulation”, adding on p. 538, that “[s]o long as the legislation regulates education and does not threaten the existence of the separate schools or interfere with their denominational character it is valid”. [Emphasis in original.]

 

 

1                        In the latest pronouncement by this Court with respect to the scope of the protection afforded by s. 93(1) , Gonthier J., writing for the Court in Reference re Education Act (Que.), [1993] 2 S.C.R. 511, at pp. 539-40, states:

 

                   Section 93 of the Constitution crystallizes the rights and privileges pertaining to denominational schools under the law in effect at the time of Confederation: it is in a sense a snapshot of the legislative situation in 1867.

 

                                                                    ...

 

                   As the rights and privileges protected by s. 93(1) of the Constitution are those with respect “to Denominational Schools”, it is helpful in determining the scope of the constitutional protection to try to distinguish the content of denominational status beyond the definition of the denominational school itself.

 

 

6.  Policy

 

1                        Section 93 , although it served to promote the union of the provinces, has also been a considerable impediment to reform designed to modernize the education system.  Changes have been achieved only through long and costly litigation as the plethora of cases dealing with s. 93  attests.  As a consequence, one province is nearing completion of the process of attempting to discard this costly yoke.  The process, however, involves a long and expensive constitutional amendment.  In light of the foregoing, in my view it would be a retrograde step to add to the costly restrictions on the power of provinces to legislate with respect to education.  Inasmuch as it has not been suggested in the past that changes to the public school system may infringe s. 93 , a decision to this effect would likely produce a flurry of litigation as many of the past changes to the public school system are challenged on the basis of their departure from the Confederation benchmark.  Moreover, the distinction between protected rights and those which are subject to provincial legislation is less than crystal clear.

 

1                        To conclude on this aspect of the appeal, I am of the view that the legislation which funds public schools but not religious-based independent schools is subject to Charter  scrutiny.  I now turn to consider whether the legislation violates the  Charter .

 

7.   The Charter  -- Freedom of Religion

 

1                        It is evident that there is some overlap between the claims based on s. 2 (a) and s. 15  of the Charter .  Under both sections, the appellants argue that the non-funding of private religious schools imposes an unfair burden on them.  In both contexts, the argument is made that the appellants suffer an economic disadvantage in relation to parents who send their children to secular public schools.  On the one hand, this economic burden is said to amount to an infringement of freedom of religion.  On the other hand, this same burden is said to deny to the appellants the equal benefit of the law on grounds of religion, in breach of equality rights guaranteed under s. 15 .  During oral argument, it became increasingly difficult to identify whether a particular argument supported a claim under s. 2 (a) or under s. 15 .

 

1                        This overlap may flow from the manner in which this Court approached the question of religious freedom in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713.  There this Court held that a Sunday-closing law infringed s. 2 (a) because it imposed an economic burden on, inter alia, Saturday observers but not on Sunday observers.  The analysis compared the effect of the legislation on different religious groups and on non-observers.  Yet the Court in Edwards Books explicitly did not consider the issue under s. 15  because that section was not in force at the time the appellants were charged with breaching the Sunday-closing legislation.

 

1                        The appellants submit that the current funding scheme violates their freedom of religion under s. 2 (a) of the Charter  by mandating that children be educated but providing funding only to secular public schools and not to religious-based independent schools.  Section 21 of the Education Act provides:

 

21. -- (1) Unless excused under this section,

 

                   (a)every child who attains the age of six years ... shall attend an elementary or secondary school on every school day ... in that year until the child attains the age of sixteen years;

 

                                                                    ...

 

(2) A child is excused from attendance at school if,

 

                   (a)the child is receiving satisfactory instruction at home or elsewhere;

 

 

1                        At trial, Anderson J. (1992), 9 O.R. (3d) 676, found that the above section made school attendance mandatory.  The Court of Appeal (1994), 19 O.R. (3d) 1, correctly reversed this finding, holding that on the grounds of the exemption in s. 21(2), the Act made education compulsory, not school attendance.  In R. v. Jones, [1986] 2 S.C.R. 284, we held that this type of scheme did not violate freedom of religion.

 

1                        The precise issue in Jones was whether it was a violation of religious freedom to require someone to apply to the Alberta Department of Education to set up a private school or a home-teaching program for religious instruction.  The appellant was challenging the fact that he was required to apply for an exemption from mandatory school attendance for the home schooling program he was providing for his children because to recognize the authority of the school board in such a way would offend his conscience and religious convictions.  Wilson J., dissenting on another issue but with the support of the majority on this issue, said this requirement did not violate the appellant’s s. 2 (a) rights.  At p. 312 she states:

 

                   In my view, the School Act does not offend religious freedom; it accommodates it.  It envisages the education of pupils at public schools, private schools, at home or elsewhere.  The legislation permits the existence of schools such as the appellant’s which have a religious orientation.  It is a flexible piece of legislation which seeks to ensure one thing--that all children receive an adequate education....There is no conflict between what the legislation requires and what the appellant feels it is his duty to provide.  True, he wishes to provide more, specifically religious guidance, but the legislation does not prohibit that.

 

 

 

1                        There is no disputing the fact that the appellants enjoy a fundamental constitutional right to send their children to the religious school of their choice.  This Court has recently reiterated that parents have the right to educate their children in the religion of their choice.  In B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, La Forest J., writing for the majority, made the following statement, at p. 382:

 

It seems to me that the right of parents to rear their children according to their religious beliefs, including that of choosing medical and other treatments, is an equally fundamental aspect of freedom of religion.

 

 

The appellants cannot, however, complain that the Ontario Education Act prevents them from exercising this aspect of their freedom of religion since it allows for the provision of education within a religious school or at home.  The statute does not compel the appellants to act in any way that infringes their freedom of religion.  Nothing in the Education Act relating to mandatory education per se involves a breach of the appellants’ rights under s. 2 (a) of the Charter .

 

1                        I note that the appellants are not claiming that without the compulsory education provision of the Education Act they would choose not to send their children to school.  On the contrary, the Elgersma appellants specifically state that they have a parental duty to provide their children with an education consistent with and supportive of their religious beliefs.  Thus with or without s. 21 of the Education Act, the appellants would act in the same manner, thereby eliminating any potentially coercive aspect of the legislation.

 

1                        In the alternative, the appellants argue that the province’s failure to fund private religious schools imposes an unconstitutional burden on their freedom of religion.  It is thus the effect of the Education Act that is the source of the infringement.  Much reliance is placed on Edwards Books, supra, in which Dickson C.J. specified, at pp. 758-59, that s. 2 (a) captures both indirect and direct coercion of religious beliefs.

 

In my opinion indirect coercion by the state is comprehended within the evils from which s. 2 (a) may afford protection....  It matters not, I believe, whether a coercive burden is direct or indirect, intentional or unintentional, foreseeable or unforeseeable.  All coercive burdens on the exercise of religious beliefs are potentially within the ambit of s. 2 (a).

 

 

In Edwards Books the purpose of Ontario’s Retail Business Holidays Act, R.S.O. 1980, c. 453, under challenge was to provide a common day of rest for retail workers, and therefore the purpose was not to coerce religious observance.  However, this Court found that the effect of the Act imposed an economic burden on retailers whose sabbath was a day other than Sunday, relative to those retailers who observed a Sunday sabbath.  In effect, the Act gave an advantage to Sunday sabbath observers by choosing their sabbath as a common day of rest, and burdened observers of a sabbath other than Sunday by forcing them to choose between closing their business an extra day or keeping their business open on their sabbath.  Dickson C.J. explained this concept of relative burden at p. 765 as follows:

 

                   A careful comparison of the effects of Sunday closing legislation on different religious groups clearly demonstrates the manner in which the burden flows from the legislation.  In the absence of legislative intervention, the Saturday observer and the Sunday observer would be on a roughly equal footing in competing for shares of the available consumer buying power.  Both might operate for a maximum of six days each week.  Both would be disadvantaged relative to non-observing retailers who would have the option of a seven day week.  On this account, however, they would have no complaint cognizable in law since the disability would be one flowing exclusively from their religious tenets:  I agree with Professor Petter [in “Not ‘Never on a Sunday’: R. v. Videoflicks Ltd. et al.” (1984-85), 49 Sask. Law Rev. 96] that the state is normally under no duty under s. 2 (a) to take affirmative action to eliminate the natural costs of religious practices.  But, exemptions aside, the Retail Business Holidays Act has the effect of leaving the Saturday observer at the same natural disadvantage relative to the non-observer and adding the new, purely statutory disadvantage of being closed an extra day relative to the Sunday observer.  Just as the Act makes it less costly for Sunday observers to practise their religious beliefs, it thereby makes it more expensive for some Jewish and Seventh-day Adventist retailers to practise theirs. [Emphasis added.]

 

 

As I understand this passage, it is on the basis that the legislation had the effect of imposing different burdens on different religions vis-à-vis non-observers that a s. 2 (a) infringement was found.  See also Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525.

 

1                        In the case of funding under the Education Act, private religious schools receive no state funding whereas public non-religious schools receive funding.  By analogy to the situation in Edwards Books, then, all parents whose religion requires them to send their children to a private religious school charging tuition would be equally disadvantaged relative to parents who have the option of sending their children to state-funded public schools.  All of the diverse religious groups represented by the appellants, and the many interveners on this appeal, suffer the same economic cost associated with sending their children to private religious schools.  While a distinction is made between these religious groups and the separate Roman Catholic schools, this distinction is constitutionally mandated and cannot be the subject of a Charter  attack.  The legislation is not the source of any distinction amongst all the groups whose exercise of their religious freedom involves an economic cost.  This situation is distinguishable from Edwards Books, where one religious group was suffering an additional burden not imposed on other religious groups vis-à-vis non-observers.  On this account, the appellants have no complaint cognizable in law since the disadvantage they must bear is one flowing exclusively from their religious tenets.

 

1                        In addition, failure to act in order to facilitate the practice of religion cannot be considered state interference with freedom of religion.  The fact that no funding is provided for private religious education cannot be considered to infringe the appellants’ freedom to educate their children in accordance with their religious beliefs where there is no restriction on religious schooling.  As submitted by the intervener, the Canadian Civil Liberties Association, there are many spheres of government action which hold religious significance for religious believers.  It does not follow that the government must pay for the religious dimensions of spheres in which it takes a role.  If this flowed from s. 2 (a), then religious marriages, religious corporations, and other religious community institutions such as churches and hospitals would all have a Charter  claim to public funding.  The same could also be said of the existing judicial system which is necessarily secular.  The appellants’ argument would lead to an obligation by the state to fund parallel religious justice systems founded on canon law or Talmudic law, for example.  These are clearly untenable suggestions.

 

1                

                   In conclusion, for the reasons given above, I am of the view that the failure to fund cannot constitute state interference with freedom of religion equivalent to a violation of s. 2 (a) of the Charter .  Moreover, the cost of sending their children to private religious schools is a natural cost of the appellants’ religion and does not, therefore, constitute an infringement of their freedom of religion protected by s. 2 (a) of the Charter .

 

8.  Section 15 : Equality Rights

 

1                        The appellants’ basic claim under this heading is that the funding of public schools denies them an equal benefit under the law on the basis of their religion, which constitutes a breach of s. 15  of the Charter .  The methodology for considering a s. 15  claim was originally set out by this Court in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, and R. v. Turpin, [1989] 1 S.C.R. 1296.  The two-step approach formulated therein was most recently re-stated by McLachlin J. in Miron v. Trudel, [1995] 2 S.C.R. 418, and by Cory and Iacobucci JJ. in Egan v. Canada, [1995] 2 S.C.R. 513, at p. 584 (paras. 130-31):

 

The first step is to determine whether, due to a distinction created by the questioned law, a claimant’s right to equality before the law, equality under the law, equal protection of the law or equal benefit of the law has been denied.  During this first step, the inquiry should focus upon whether the challenged law has drawn a distinction between the claimant and others, based on personal characteristics.

 

 

                   Not every distinction created by legislation gives rise to discrimination.  Therefore, the second step must be to determine whether the distinction created by the law results in discrimination.  In order to make this determination, it is necessary to consider first, whether the equality right was denied on the basis of a personal characteristic which is either enumerated in s. 15(1)  or which is analogous to those enumerated, and second, whether that distinction has the effect on the claimant of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to benefits or advantages which are available to others.

 

 

1                        The application of this methodology to the facts of this appeal returns us to the issues canvassed in the course of the analysis of the s. 2 (a) issue.  This reinforces the fact that the claim under s. 2 (a) and under s. 15  are narrowly inter-related in this case because of the comparative aspect of the questions involved.  As a result, it should not be surprising that the conclusion arrived at under the s. 2 (a) analysis will be reflected in the answer given to the s. 15  argument.

 

9.  Denial of Equal Benefit of the Law: Does the Act Create a Distinction?

 

1                        In this case, the appellants claim that they are denied a benefit under the law because the schools to which they send their children do not receive funding otherwise available to public schools.  The respondent replies that the only reason why the appellants’ schools do not receive funding is because they are private schools.  Obviously this distinction is not one based on personal characteristics of an individual or group.  Thus while the Education Act does create a distinction between public and private schools with respect to funding, it is not, on its face, a distinction that meets the threshold stage of the s. 15  inquiry.

 

1                        It remains to be determined whether the Education Act gives rise indirectly to a distinction based on personal characteristics.  Adverse effect discrimination has long been recognized by this Court as a type of discrimination that is prohibited under the Charter .  See Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536.  This concept was recently reformulated as follows in Egan, supra, at para. 138: “Adverse effect discrimination occurs when a law...is facially neutral but has a disproportionate impact on a group because of a particular characteristic of that group.”

 

1                        Here the Act does not appear to distinguish between the appellants and other groups on the basis of a particular characteristic common to the appellants.  However, it is clear that their claim is dependent on such a finding.  In my view, such an argument cannot be sustained.  While it is true that the appellants feel compelled to send their children to private school because of a personal characteristic, namely their religion, and therefore are unable to benefit from publicly-funded schooling, I fail to see how this is an effect arising from the statute.  The reason why the public school system is not acceptable to the appellants lies in its secular nature.  This secular nature is itself mandated by s. 2 (a) of the Charter  as held by several courts in this country.

 

1                        In Zylberberg v. Sudbury Board of Education (Director), supra, the Ontario Court of Appeal wrestled with the issue of religious exercises in public schools.  A regulation under the Education Act made opening religious exercises compulsory in public schools, though allowing for exemptions of students whose parents objected.  After an exhaustive review of the role of religion in Ontario schools and of the case law on freedom of religion, a majority of the Court concluded, at pp. 654 and 656,  that school prayer infringed upon freedom of religion and was not mitigated by a right to an exemption:

 

                   On its face, [the regulation] infringes the freedom of conscience and religion guaranteed by s. 2 (a) of the Charter .... The recitation of the Lord’s Prayer, which is a Christian prayer, and the reading of Scriptures from the Christian Bible impose Christian observances upon non-Christian pupils and religious observances on non-believers.

 

                                                                    ...

 

 [T]he right to be excused from class, or to be exempted from participating, does not overcome the infringement of the Charter  freedom of conscience and religion by the mandated religious exercises.  On the contrary, the exemption provision imposes a penalty on pupils from religious minorities who utilize it by stigmatizing them as non-conformists and setting them apart from their fellow students who are members of the dominant religion.

 

 

A similar conclusion was reached in British Columbia in the case of Russow v. British Columbia (Attorney General) (1989), 35 B.C.L.R. (2d) 29 (S.C.).  In both cases, the challenges had been brought by parents who opposed the practice of Christian exercises in public schools.

 

1                        A subsequent challenge to religious education in Ontario public schools was also successful.  In the Elgin County case, supra, the Ontario Court of Appeal once again declared that a regulation under the Education Act making periods of religious education a compulsory part of the public school curriculum was inconsistent with freedom of religion under s. 2 (a).  Moreover, it held that the actual curriculum of religious studies prescribed by the Elgin County Board of Education, and permitted under the Education Act, denied freedom of religion because it amounted to indoctrination in the Christian faith.  In so doing, the majority of the Court held, at pp. 360-61, that:

 

The purpose of the regulation, as recognized by both the Hope Commission and the Mackay Committee, was Christian indoctrination.

 

 

And, at p. 363, the majority concluded that state-authorized religious indoctrination violates s. 2 (a) because it “amounts to the imposition of majoritarian religious beliefs on minorities”.  Because the Court arrived at these conclusions on the s. 2 (a) claim, it did not express an opinion on the s. 15(1)  arguments presented by the appellants in that case.

 

1                        More recently, in Bal v. Ontario (Attorney General) (1994), 21 O.R. (3d) 681 (Gen. Div.), these same issues were considered from a different perspective.  As a result of the decisions in the Zylberberg and Elgin County cases, the Ontario Ministry of Education issued Policy Memorandum 112 entitled “Education about Religion in the Public Elementary and Secondary Schools”.  According to the memorandum, religious education in public schools is to be non-indoctrinational and not give primacy to any religious faith.  Regulations were later amended to reflect this new policy.

 

1                        Prior to the change in regulations, certain school boards allowed the operation of religious public schools alongside secular public schools.  The parents in the Bal appeal either sent their children to existing religious schools or wished to set new ones up.  They argued that the new regulations, which essentially prohibited these schools within the public system, infringed their rights under ss. 2  and 15  of the Charter .  Considering himself bound by the Ontario Court of Appeal’s decisions in the   Zylberberg and  the Elgin County cases, supra,  and Adler v. Ontario (1994), 19 O.R. (3d) 1, Winkler J. rejected the appellants’ claims.  In his view, the Elgin County decision “signif[ies] the end of an era of majoritarian Christian influence, and mark[s] the beginning of a period of secularism in education, based on an awareness of a changing societal fabric and Charter  protection for minority rights to freedom of religion”.  See Bal, supra, at p. 684.

 

1                        It follows that if the distinctions relied on by the appellants do not arise as a result of the legislation, no governmental action is involved to which s. 15  can attach.  In this regard, I adopt the following statement from the reasons of Dubin C.J. in Adler, at p. 18:

 

                   In this case, in my opinion, there was no government action that compelled the appellants to send their children to private, religious-based independent schools.  They were free to send their children to secular public schools maintained at public expense.  Their decision not to do so was solely a response to their religious beliefs and not a result of any government action.

 

 

1                        I therefore conclude that the appellants have not succeeded in demonstrating that the Education Act draws a distinction, either directly or indirectly, between the appellants and others, based on personal characteristics.  The fact the appellants belong to a group that is unable to take advantage of the public school system does not result from the Education Act itself.  It results from the combination of the appellants’ religious beliefs and the imperatives of the Charter  as they apply to the exercise of the province’s plenary power over education.  As a result, the threshold stage of a s. 15  inquiry is not met and there is no distinction to consider in the second stage, namely as to whether discrimination results from such a distinction.

 

1                        Even if the appellants had succeeded in showing that the legislation created a distinction, I do not believe they would have succeeded in demonstrating that this distinction amounts to discrimination on the basis of religion.  As observed by the Court of Appeal, the only ground of distinction in this case is between “public” institutions, which are funded by the government, and “private/independent” institutions, which do not receive funding from the government.  No private schools receive funding whether they are religious or secular.  No religion is given preferential treatment within the system.  The distinction between “private” and “public” institutions is neither an enumerated nor an analogous ground in s. 15  of the Charter .

 

1                        Accordingly, I would reject the appellants’ claim based on s. 15  of the Charter .  Because I have found no violation of either ss. 2 (a) or 15  of the Charter , it is unnecessary for me to embark upon a s. 1  analysis.

 

10.  School Health Support Services

 

1                        With regard to the question of School Health Support Services, I am in agreement with Iacobucci J. that these services are properly characterized as “education services” as opposed to strict “health services”.  However, given my disagreement with him on the constitutional status of the public education system in Ontario, I am unable to subscribe to his reasons for dismissing the appellants’ claim on this point.

 

1                        Nevertheless, it is my view that this claim must also fail.  Indeed, if the appellants have no basis for claiming a right to public funding for the education provided in private schools, they have no claim for additional “educational services” available only within the public school system.  There is no reason to distinguish funding for this aspect from other aspects of funding for educational purposes.  In addition, I must respectfully disagree with the conclusion of Weiler J.A. that funding for these services was funding for a non-denominational purpose and that the guarantees in s. 93(1)  and (3)  of the Constitution Act, 1867 , did not apply to insulate the funding of separate schools from review under s. 15  of the Charter .  The holding in the Reference Re Bill 30 decision applies to all aspects of funding of separate schools for educational purposes.  The right guaranteed by s. 93(1)  in this regard was the right to funding proportionate to that extended to public schools.  I, therefore, agree with the majority of the Court of Appeal on this issue.

 

11.  Conclusion

 

1                        I would dismiss the appeal and answer the stated constitutional questions in the same manner as Iacobucci J., but for the reasons stated above.

 


                   The following are the reasons of

 

1                        McLachlin J. (dissenting in part) -- The Ontario government provides funding for secular and Roman Catholic schools in the province.  Many people, often for religious reasons, choose not to educate their children in either the secular or the Roman Catholic system.  They see no alternative but to establish and send their children to private schools.  The province contributes nothing to the funding of these schools.  The issue on this appeal is whether this violates the guarantees of freedom of religion and equality of the Canadian Charter of Rights and Freedoms I agree with Justice Iacobucci and Justice Sopinka that the lack of support to private schools violates neither guarantee, although for different reasons.  On the subsidiary issue of whether the province’s refusal to fund health services to children in private religious schools violates their constitutional right to equal treatment, I would respectfully dissent and allow the appeal.

 

A.Denial of Funding to Independent Religious Schools

 

1.Is Section 93 of the Constitution Act, 1867 an Answer to the Appellants’ Charter  Claim?

 

1                        Before considering the Charter  issues, it is necessary to determine whether s. 93  of the Constitution Act, 1867  constitutes a code which ousts the operation of the Charter .  I agree with Sopinka J. that it does not.  Section 93  requires Ontario to fund schools for the Roman Catholic minority in Ontario and requires Quebec to fund schools for the Protestant minority in Quebec.  Neither its language nor its purpose suggests that it was intended to do more than guarantee school support for the Roman Catholic or Protestant minorities in the two provinces respectively.  Provinces exercising their plenary powers to provide education services must, subject to this restriction, comply with the Charter .

 

 

2.Does the Failure to Fund Minority Religious Schools Constitute a Limit on the  Guarantee of Freedom of Religion?

 

1                        The appellants advance two submissions under this head.  The first is that the requirement of compulsory education infringes their freedom of religion.  The second is that the failure to fund the minority religious schools imposes a burden on them not borne by persons of other religions or no religion, thereby infringing their freedom of religion.

 

1                        The first submission is easily resolved.  If the Education Act, R.S.O. 1990, c. E.2, required all children to go to either secular or Roman Catholic schools, it would impinge on the religious freedom of those whose beliefs require non-Roman Catholic religious education.  The Education Act does not do this.  Section 21 excuses children from school attendance if they are receiving satisfactory instruction elsewhere.  Parents whose beliefs do not permit them to educate their children in the secular or Roman Catholic school systems are free to educate their children in other schools or at home.  The requirement of mandatory education therefore does not conflict with the constitutional right of parents to educate their children as their religion dictates.  To quote Dubin C.J. (1994), 19 O.R. (3d) 1, at p. 14, “there is no conflict between s. 21 of the Act and the appellants’ religious freedom”.

 

1                        The second submission poses greater difficulty.  The argument rests on the proposition that the imposition of burdens on some religious minorities which people of other religions do not bear constitutes an infringement of freedom of religion.  This Court’s decisions in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, and R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, contain statements that appear to support this proposition.  In Edwards Books, Dickson C.J., quoting from Big M Drug Mart (pp. 336-37) stated at p. 758:

 

One of the major purposes of the Charter  is to protect, within reason, from compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others.  Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. [Emphasis added by Dickson C.J. in Edwards Books.]

 

 

Dickson C.J. went on to note that a provision which increases the cost or burden of practising one’s religion may violate that person’s freedom of religion.  He also expressly rejected the argument that the burden resulted not from state action, i.e., the legislation, but from the religious belief. At the same time, however, he was careful to indicate that not every burden or cost borne by a religious minority because of its beliefs will constitute an infringement of freedom of religion.  For example, if the cost were trivial or insubstantial, it would not constitute an infringement. 

 

1                        The burden complained of in this case is not one which constitutes an infringement of freedom of religion, in my view.  The burden at issue in Big M Drug Mart and Edwards Books was a state prohibition on business operations which presented religious minorities with the option of either violating their religious tenets by operating on religious holidays or suffering the financial loss which would flow from closing their businesses on both their own religious holidays and the majoritian holidays.  Special burdens placed on religious minorities in the operation of their businesses have a venerable and infamous status in the annals of religious persecution.  What was at stake in Big M Drug Mart and Edwards Books was nothing less than a state prohibition that put members of minority religions at a disadvantage in gaining their livelihood.  This Court, looking at the history and context of such measures, concluded that they might indeed constitute an infringement of freedom of religion.

 

1                        The burden at issue in the case at bar differs from that at issue in Big M Drug Mart and Edwards Books in two ways.  First, it does not involve a state prohibition on otherwise lawful conduct.  People remain free to educate their children whenever and however they choose, provided they meet prescribed standards.  While this may impose costs on them not borne by parents of children attending public secular schools, the cost issue is more appropriately considered under the equality provision of the Charter , s. 15 .

 

1                        The second distinction between this case and the Sunday-closing cases is that the sort of absence of benefit complained of in this case has no history of recognition as a violation of freedom of religion.  Absence of state funding for private religious practices, as distinct from prohibitions on such practices, has never been seen as religious persecution.  In determining the content of the guarantees contained in the Charter , the courts must look to the history of values enshrined.   That history provides no support for extending the guarantee of freedom of religion to  the provision of equal funding for religious practices, like religious education.  Never, to borrow the reasoning of Dubin C.J., has it been suggested that freedom of religion entitles one to state support for one’s religion.

 

1                        I conclude that no infringement of the guarantee of freedom of religion has been established.

 

3.Does the Failure to Fund Independent Religious Schools Infringe the Equality     Guarantee of the Charter ?

 

1                        Section 15  of the Charter  provides that every person is entitled to equal benefit of the law and not to be discriminated against on grounds such as that of religion.   Put in the context of this case, this means that the province of Ontario may not enact an education law which deprives some people of benefits which others receive, on the ground of their religion.

 

1                        The case for infringement of s. 15  of the Charter  is put on two grounds.  The first alleges treatment unequal to that of the funded Roman Catholic schools.  This argument is untenable in view of the special constitutional bargain protecting funding for Roman Catholic schools at the time of Confederation: Reference Re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148.  The second argument alleges treatment unequal to that of the funded secular schools.  It is to that argument that I now turn.

 

1                        The analysis under s. 15(1)  involves two steps.  First, the claimant must show a denial of equal protection or equal benefit of the law, as compared with some other person.  Second, the claimant must show that this denial constitutes discrimination, that is, that it rests on one of the grounds enumerated in s. 15(1)  or an analogous ground based on the stereotypical application of presumed group or personal characteristics: Miron v. Trudel, [1995] 2 S.C.R. 418; Egan v. Canada, [1995] 2 S.C.R. 513.

 

1                        The denial of equal protection or benefit of the law may appear on the face of the enactment, or may arise by reason of the effect which a facially neutral provision has on the person discriminated against.  It will be rare that a law expressly discriminates on religious grounds.  More often, discrimination based on religion is founded in the effect of a seemingly neutral provision.  For example, in Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561, this Court found that the facially neutral requirement that everyone on a construction site wear a hard hat discriminated against Sikhs on the basis of religion because of the religious requirement that Sikhs wear turbans.  This type of discrimination is referred to as adverse effect discrimination.

 

1                        The appellants concede that the education scheme of Ontario, apart from the special position of the Roman Catholic schools, is facially neutral.  They contend that notwithstanding this facial neutrality, the effect of the regulations is to discriminate against the users of independent religious schools as compared with the users of public secular schools.  They submit that the Court of Appeal erred in holding that it is sufficient that the province make secular public schools equally available without discrimination on the basis of religious affiliation.  In their view, s. 15  of the Charter   is violated when a provision has the effect of placing an unequal and disproportionate burden on members of a group on the basis of their religious beliefs.  They argue that, just as Mr. Bhinder’s religion required him to wear a turban, their religion requires them to send their children to private religious schools.  The effect in each case is to deny them a benefit on the ground of religion -- in Mr. Bhinder’s case the benefit of employment, in the appellants’ case the benefit of school funding.  In short, a benefit, school funding, is provided in a way that makes it unavailable to certain groups because of their religion.  This establishes, in their submission, both the elements required to show an infringement of s. 15  of the Charter  -- unequal treatment and discrimination.

 

1                        The respondents present two counter-arguments.  First, they deny unequal treatment on the ground that the funding of public secular schools treats all religions equally.  All may attend the public schools regardless of their religion, and no religious instruction is permitted in them.  This is sufficient to establish that the system on its face is neutral.  However, it fails to counter the submission that the funding system has the effect of denying a benefit to those whose religions do not permit them to send their children to public secular schools.  The distinction is between a school system which is formally open to all children and a school system which is in fact accessible to all children.  The evidence establishes that the Ontario public school system is not in fact accessible to all children.  There exists a minority of students whose parents, out of religious conviction, cannot send their children to public schools.  To these children, public education is as inaccessible as a job on the construction site was to Mr. Bhinder. 

 

1                        The respondents’ second argument is that even if adverse effect discrimination is established, it is not caused by the Education Act, but by the appellants’ religion.  The cause of the inequality, they submit, is not government action, but the appellants’ decision to belong to a religion which puts them in the position of having to reject the public secular schools and establish and fund their own independent schools.  With all deference to those who hold otherwise, I cannot accept this defence.  By definition the effect of a discriminatory measure will always be attributable to the religion, gender, disability and so on of the person who is affected by the measure.  If a charge of religious discrimination could be rebutted by the allegation that the person discriminated against chose the religion and hence must accept the adverse consequences of its dictates, there would be no such thing as discrimination.  This Court has consistently affirmed a substantive approach to equality.  The substantive approach to equality is founded on acceptance of the differences which lie at the heart of discrimination.  Be they differences of birth, like race or age, or be they differences of choice, as religion often is, the law proceeds from the premise that the individual is entitled to equal treatment in spite of such differences.  The state cannot “blame” the person discriminated against for having chosen the status which leads to the denial of benefit.  The person is entitled to the benefit regardless of that choice.  The essence of s.15  is that the state cannot use choices like the choice of religion as the basis for denying equal protection and benefit of the law.

 

1                        I conclude that while secular schooling is in theory available to all members of the public, the appellants’ religious beliefs preclude them from sending their children to public schools.  Therefore, they are adversely discriminated against by the lack of funding for schooling consistent with their religious beliefs.  The fact that they may have chosen their religion and with it the need to send their children to religious schools does not negate the discrimination.  This discrimination places a real and substantial financial burden on the appellants.  The appellants are not treated as equal before and under the Education Act and do not receive equal benefit of the law.  Therefore, the infringement of s. 15  is established.

 

4.Is the Infringement of Section 15  of the Charter  Justified Under Section 1 ?

 

1                        An infringement of one of the guarantees of the Charter  does not establish a breach of the Charter Section 1  of the Charter  proclaims that the state is entitled to limit the rights and freedoms set out in the Charter  provided that the limit is reasonable and demonstrably justifiable in a free and democratic society. 

 

1                        Is the denial of funding to private religious schools reasonable and demonstrably justifiable in a free and democratic society?   The onus is on the province of Ontario to establish that it is.  In order to do so, it must show: first, that the restriction of funding has an objective of pressing and substantial concern in a free and democratic society; and second, that the objective is proportionate to, or not outweighed by, the effect of the infringing measure: R. v. Oakes, [1986] 1 S.C.R. 103.  Proportionality generally requires proof that the measure is rationally connected to the objective; that it impairs the right or freedom as little as possible; and that there is proportionality between the effects of the infringing measure and the objective sought.

 

                   The Objective of the Denial of Funding

 

1                        The decision to fully fund public secular schools while denying any funding to independent religious schools (other than the constitutionally mandated funding for Roman Catholic schools) is at base a political decision.   Its objective, the record shows, is to foster a strong public secular school system attended by students of all cultural and religious groups.  Canada in general and Ontario in particular is a multicultural, multireligious society.  A multicultural multireligious society can only work, it is felt, if people of all groups understand and tolerate each other.  According to the Shapiro Report (Report of the Commission on Private Schools in Ontario (1985)), submitted in evidence, “the public school context represents ... the most promising potential for realizing a more fully tolerant society”.  Children of all races and religions learn together and play together.  No religion is touted over any other.  The goal is to provide a forum for the development of respect for the beliefs and customs of all cultural groups and for their ethical and moral values.  The strength of the public secular school system is its diversity -- diversity which its supporters believe will lead to increased understanding and respect for different cultures and beliefs.

 

1                        Against this, it is submitted that the real goal of denying funding is not to create a more tolerant society, but merely to avoid siphoning any funds from the public school system.  This contention goes to the effect of denying funding and is more properly considered at the stage of rational connection in the proportionality inquiry.

 

1                        It is also argued that the objective of fostering a multicultural ethic by denying funding to private schools and hence encouraging minorities to attend public schools cannot be accepted because it strikes at the core of the Charter  right.  It will have the effect, it is argued, of forcing some people to violate their religious beliefs.  This cannot, it is asserted, be a valid objective.  In essence, this argument asserts that the effect of the infringing measure -- the denial of a practice at the core of freedom of religion -- is such that it outweighs the social objective by which the province seeks to justify the intrusion of freedom of religion.  Since this assertion is really an argument that the effect of the measure is disproportionate to the objective, I prefer to consider it under that head.

 

1                        I conclude that the encouragement of a more tolerant harmonious multicultural society constitutes a pressing and substantial objective capable, provided its effect is duly proportionate, of justifying the infringement of s. 15 .

 

                   Proportionality

 

                   (i) Rational Connection

 

1                        The first question is whether there is a rational connection between the denial of funding to independent religious schools and the ultimate goal of promoting tolerance and understanding between people of different cultural and religious groups. 

                  

1                        The argument linking denial of  funding for independent religious schools to the ultimate objective of a more tolerant society goes like this.  By providing funding to secular schools where people of all religions are welcomed free of cost, the government encourages people of different cultures and creeds to educate their children together.  If funding were provided for private religious schools many of those who now send their children to secular schools would instead send their children to independent religious schools.  The public secular schools would lose some students from diverse backgrounds.  These students, instead of being educated in public multicultural multireligious schools, would be educated with homogeneous groups of people of similar beliefs.  In short, secular schools might become less diverse and the number of students receiving parochial educations would increase.  The overall effect would be to diminish the multicultural exposure of children in schools.  This lack of exposure, in turn, would diminish the mutual tolerance and understanding of Ontarians of diverse cultures and religions for one another.

 

1                        Scientific demonstration of cause and effect is not necessary to satisfy the requirement of a rational connection between the objective sought and the infringing measure.  Legislators can seldom demonstrate that the measures they propose for the betterment of society will inevitably have that effect.  What is required is that the measure not be arbitrary, unfair or based on irrational considerations:  Oakes, supra, at p. 139.  As a matter of common sense, can it be said that the measure or legislative scheme in question may promote (as opposed to inevitably accomplish) the objective sought?

 

1                        This test, in my view, is met in this appeal.  The denial of funding to separate schools is rationally connected to the goal of a more tolerant society.

 

                   (ii) Minimal Impairment

 

1                        Once it is established that the infringing measure is rationally connected to the objective by which the province seeks to justify it, the enquiry moves to the question of whether the measure impairs the right or freedom as little as possible.  Where social issues are at stake, courts approach the legislature’s decision as to what infringement is required to achieve the desired end with considerable deference.  It is not difficult to conjure up hypothetical solutions which might infringe the right in question less than the solution chosen by the legislature.  This alone is insufficient to allow the courts to declare that the legislature’s solution violates the Charter .  As long as the measure falls within a range of acceptable solutions to the problem, it will pass the minimal impairment test:  Edwards Books, supra, Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; R. v. Chaulk, [1990] 3 S.C.R. 1303.  Again, common sense is the guide.

 

1                        In the appeal at bar, it is impossible to say whether a less intrusive measure, such as partial funding for private religious schools, might achieve the same objective with less infringement of the guarantee of freedom of religion.  The Ontario Legislature has chosen a measure that falls within the range of reasonable responses to the problem of promoting a more tolerant multicultural society.

 

                   (iii)Proportionality Between the Effect of the Infringing Measure and the Objective

 

1                        The appellants argue that the effect of denial of funding is to infringe a right at the heart of their religious practice.  This infringement is so serious that it can never be justified, they assert.  To justify it would negate rather than limit freedom of religion.   While the argument was put forward to assert that the province’s objective was not pressing and substantial, it really amounts to an argument that the effect of the measure is so serious that it must outweigh the state’s objective of fostering a more tolerant society through multicultural education.

 

1                        Section 1  of the Charter  permits reasonable limitations of rights, not their annihilation.  It is not difficult to conceive of laws whose effect would be virtually to eviscerate a particular freedom or right, creating an effect so disproportionate to the goal by which they are sought to be justified that they could not be justified.  For example, it might be difficult to accept that a law preventing Muslims, Christians, Hindus, or some other religious group  from public worship could be justified on any ground.  At the same time, the Charter  permits limitation of rights provided the effect is proportionate to the objective the state asserts.  Virtually every aspect of human conduct is capable of being the subject of religious belief.  It is inevitable that some of the conduct sanctioned or prescribed by religious belief will conflict with the legal prescriptions of society or suffer limitation as the state pursues broader goals in the interest of society as a whole, giving rise to a breach of the guarantee of religious freedom or to an unequal treatment on the ground of religion.  To take an extreme example, a religious belief requiring corporal punishment of a child might conflict with a provision of the criminal law forbidding physical violence against children.  The question in each case is whether the effect of the limitation is proportionate to the state objective.   In this case the issue is whether the limitation on equality rights effected by the Education Act is disproportionate to the goal of encouraging social harmony.

 

1                        In my view, the effect of denying funding to independent religious schools is proportionate to the objective sought.  The goal of fostering multiracial and multicultural harmony is of great importance in a society as diverse as ours.  Against this must be weighed the effect of the measure -- to impose additional burdens upon parents whose religious beliefs preclude education of children in public secular schools.  The denial of funding does not strike at the heart of the religion; indeed, I have concluded that it does not violate religious freedom at all.  Even though it is true that the impugned scheme discriminates on the basis of religion, the record does not establish that the denial of funding compels anyone to violate their religious beliefs in a fashion which would violate s. 2 (a) of the Charter .  If the Act compelled attendance at public schools, then this might be argued to be the case.  But the Act permits other alternatives, including home study.  Such alternatives may impose burdens not carried by parents whose children attend publicly funded schools -- therein lies the inequality that results in a finding of infringement of s. 15  -- but it does not preclude the state from attempting to justify its program on the ground of overarching public concern.

 

5.Conclusion on the Issue of Constitutionality of Denial of Funding for Independent Religious Schools

 

1                        I conclude that while denial of funding for independent religious schools infringes the equality guarantee of the Charter , the infringement is justified under s. 1  of the Charter .

 

B.Funding to Assist Handicapped Children -- The School Health Support Services Program

 

1                        If the denial of funding for independent religious schools constitutes a violation of s. 15  of the Charter , so must the denial of funding for assistance for handicapped children attending such schools.  The only question is whether this denial is justified under s. 1  of the Charter .

 

1                        With deference to those who hold otherwise, I do not think the problem can be solved simply by labelling the denial of assistance to handicapped children in independent religious schools a matter of health and not of education or vice versa.  The program to assist handicapped school children, while it falls under the Health Insurance Act, R.S.O. 1990, c. H.6, is designated in Regulation 552, (R.R.O 1990, Reg. 552, s. 14(1)) as a “special education program” (emphasis added).  One of its purposes is to assist disabled children to obtain education which their disability might otherwise make difficult if not impossible.  Moreover, to label the matter a question of health does not obviate the inequality worked by restriction of the program to public secular and Roman Catholic schools.  The Act offers this assistance to children attending public secular schools and Roman Catholic schools.  It denies it to children attending independent religious schools.  Therefore, it treats them unequally, whether in terms of health or education.  The unequal treatment flows from the religious conviction of the parents whose belief compels them to educate their children outside the public secular system.  This is sufficient to establish discrimination contrary to s. 15  of the Charter .

 

1                        It is thus clear that the existing system discriminates against disabled children on the basis of their religion.  In situations where a private religious school has a program analogous to a public school special education program, students enrolled  in the program ought not to be denied the benefits of the Health Insurance Act, unless the state can justify the denial. 

                  

1                        The objective which served to justify denial of school funding -- the promotion of a more tolerant multicultural society -- might be capable of serving to justify the fact that Regulation 552 providing for school health service relies on definitions contained in the Education Act and therefore alludes only to public secular schools and Roman Catholic schools.  Rational connection is more problematic because of the presence of health as well as educational concerns underlying the Regulation.  Nevertheless, it might be argued that the Regulation will encourage disabled children of religious minorities to participate in the multicultural public school system.  The analysis founders, however, on the rocks of minimal impairment and proportionality.  Unlike funding of independent religious schools generally, the cost of extending school health services to disabled children in those schools is not great.  The effect of the denial is to add to the burden already imposed by lack of school funding, the additional burden, in the case of handicapped children, of coping with their disability without the assistance available to children of other religions.  It is not seriously suggested that this small amount of aid to this small group of children could adversely affect the diversity in the composition of students in the public secular school system and the ultimate goal of fostering a more tolerant society.  In these circumstances, I cannot conclude that the discrimination effected by the Regulation is demonstrably justified in a free and democratic society.  I would allow the appeal on this ground.  The appropriate remedy, in my view, is not to strike out Regulation 552, but to read into it a provision which, for the purpose of Regulation 552 extends the Education Act’s definition of “school” to include private denominational schools and broaden the Act’s definition of “special education program” to include programs that are comparable to special education programs in public schools or Roman Catholic schools.

 

 

 

C.Conclusion

 

1                        I would dismiss the appeal, except on the issue of health service to disabled children.  There I would allow the appeal, reading Regulation 552 (R.R.O. 1990) of the Health Insurance Act up to include children from independent religious schools in the School Health Support Services Program.


                   Appeal dismissed, McLachlin J. dissenting in part and L’Heureux‑Dubé J. dissenting.

 

                   Solicitors for the appellants Susie Adler, Mark Grossman, Paula Kezwer, Marcy Rapp and Riky Young:  Davies, Ward & Beck, Toronto.

 

                   Solicitors for the appellants Leo Elgersma, Harry Pott, Raymond Dostal, Harry Fernhout and the Ontario Alliance of Christian School Societies:  Stikeman, Elliott, Toronto.

 

                   Solicitor for the respondents:  The Attorney General for Ontario, Toronto.

 

                   Solicitor for the intervener the Attorney General of Quebec:  The Attorney General of Quebec, Ste‑Foy.

 

                   Solicitor for the intervener the Attorney General for Saskatchewan:  The Attorney General for Saskatchewan, Regina.

 

                   Solicitors for  the intervener the Ontario Multi‑Faith Coalition for Equity in Education:  Lerner & Associates, Toronto.

 

                   Solicitors for the intervener the Ontario Federation of Independent Schools:  Morris, Rose, Ledgett, Toronto.

 


                   Solicitors for the interveners the  Metropolitan Toronto School Board and the Ontario Public School Boards’ Association:  Brian A. Kelsey and William S. Challis, Toronto.

 

                   Solicitors for the intervener the Canadian Civil Liberties Association:  Tory, Tory, DesLauriers & Binnington, Toronto.

 

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