The latest intended use of the notwithstanding clause in Good Spirit School Division v Christ the Teacher Roman Catholic Separate School Division No. 212 and The Government of Saskatchewan on the public funding of non-Catholic students to attend Catholic schools raises intriguing questions on dialogue theory in Canada. Overlooked in the debates on education rights and the notwithstanding clause, is how the underlying tensions in Good Spirit point towards future developments of equality law in Canada: establishing rural remoteness as a ground of discrimination.
Over the past number of years, schools in rural Saskatchewan have rapidly been closing down and students transported to larger centres. This has a devastating impact on rural communities. Using provincial legislation, the community created the Theodore Roman Catholic School Division. The division has one school. At the time of trial, there were twenty-six students enrolled, only nine of which were Catholic. The motivation in creating the new school division had significantly less to do with protecting religious minorities and more to do with protecting the vitality of the rural community. In fact, testimony at trial revealed that the ‘idea to create a separate school division was brought forward by non-Catholic parents.’ Without this funding the school would not be able to operate, but this does divert funding from the public school system.
The Good Spirit School Division argued that this funding arrangement violates the freedom of religion and equality provisions in The Charter. Canada has a complicated system in place to protect minority religious education. To achieve and maintain the union of Canada, the denominational aspects of Catholic and Protestant minority schools are constitutional exempt from human rights review. The vast majority of the Good Spirit is spent arriving at a coherent interpretation of these constitutional provisions and conflicting case law. The court concludes that if the conduct falls outside of the essential proper functioning of religious minority schools (the denominational aspects test) it is open to human rights scrutiny. The essence of the Catholic school is to ensure that children receive an education in accordance with religious beliefs, not spreading Catholic beliefs to non-Catholic children. Thus, funding was not an essential aspect of Catholic schools and is open to human rights review.
The Charter analysis focused on whether the funding arrangement: (i) violates the state’s obligation to remain neutral to religious groups (section 2(a)(freedom of religion)) and (ii) has a discriminatory impact (section 15 (equality)). The court concluded that by funding non-Catholic students to attend Catholic school, the state is promoting the interests of Catholicism. Other religious groups in Saskatchewan are not given the privilege of public funding to educate non-believers. Thus, the state is not acting as a neutral intermediary violating s. 2(a) of the Charter. The equality arguments are similarly in tone. To determine if there has been discrimination, Good Spirit applies the Andrews test and the focuses on discriminatory impact. Providing funding for one faith to educate non-believers, but not providing similar funding to other faiths, sends the ‘message that some faiths are more valued than others’, violating s. 15.
In response, the Saskatchewan government has released a statement in the press indicating that it would invoke s. 33 and continue this funding arrangement notwithstanding the decision of the court.
The legal arguments in Good Spirit raise many points on democratic dialogue and education rights ripe for debate. However, the real question in this case was the funding of the public education system in rural locations. By focusing on historical compromises made at the time of confederation and religious discrimination, the decision misses the underlying issues at stake. The school was formed not to protect religious minorities but to protect the vitality and spirit of the rural community. Is the government’s decision to close and consolidate rural public education privileging urban communities at the disadvantage or rural communities? Is rural status becoming a new ground of discrimination? Good Spirit demonstrates that rural communities are under attack and there is evidence that rural and northern communities are disadvantaged on numerous indicators including access to nutritious food and health care. This is particularly true when rural status intersects with Aboriginal identity. Good Spirit, thus, raises a new challenge and promise for equality law: recognizing that rural and Northern communities face disadvantage and discriminatory impact based, at least in part, on geography.