Case information

Constitutional law — Charter of Rights — Freedom of religion — Right to equality — Educational rights — Education funding — Parties — Standing — Public school closure in small town due to declining enrolments — Successful petition in community to reopen school as Catholic school — Same ratio of Catholic to non Catholic students as when school was operated by the public school division — Public school division challenging government funding for non Catholic students on constitutional grounds — Can a corporate body seek a declaration of invalidity against legislation on the basis that it is not protected by s. 93 of the Constitution Act, 1867, and violates the Charter? — Do ss. 93 of the Constitution Act, 1867, and s. 17 of the Saskatchewan Act, authorize, and thus immunize from Charter scrutiny, the admission or funding of non Catholics in Catholic separate schools? — Does the funding of non Catholics in Catholic separate schools infringe the State’s duty of religious neutrality and the obligation to equally treat all religious groups? — Can a Charter infringement caused by State funding of non Catholics in separate schools be justified in a free and democratic society? — Canadian Charter of Rights and Freedoms, ss. 2(a) and 15(1) — Constitution Act, 1867, s. 93 — Saskatchewan Act, S.C. 1905, c. 42, s. 17 — The Education Act, 1995, S.S. 1995, c. E 0.2, ss. 53, 85, 87, and 310 – The Education Funding Regulations, R.R.S. c. E 0.2 Reg 20, ss. 3 and 4 [repealed].

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

In the early 2000s, a public school in the Town of Theodore, Saskatchewan, closed due to declining enrolments. The closure was opposed by the Theodore community, which had lobbied to keep its school open. After those efforts failed, a petition was submitted to establish a Catholic separate school in the community. Theodore Public reopened as St. Theodore School, with many of the same non Catholic students in attendance. The applicant Public School Division, Good Spirit School Division No. 204 (“GSSD”), challenged the government funding for those non-Catholic students now attending a Catholic school. It brought suit against the respondents, the Government of Saskatchewan and the Catholic School Division, Christ the Teacher RCSSD No. 212, seeking declarations that the province’s education funding system is unconstitutional on Charter grounds. Following a 12 week trial, the Court of Queen’s Bench found that the provisions which enabled funding to Catholic schools respecting the attendance of non Catholic students constituted a breach of the state’s duty of religious neutrality under s. 2(a) and an infringement of equality rights under s. 15(1) of the Charter, infringements which were not justified under s. 1. The legislation was declared of no force or effect. A five member panel of the Court of Appeal unanimously allowed the respondents’ appeal and dismissed GSSD’s action. The court found three fundamental errors of law in the approach taken by the court below: (1) the case was framed too narrowly, which resulted in the analysis discounting the parallelism underpinning the province’s approach to education; (2) the principles of the Charter right to freedom of religion were not properly applied; and (3) the court below allowed one part of the constitution, the Charter, to invalidate another part of the constitution, s. 93 of the Constitution Act, 1867.