State party's observations
4.1 By note of 29 April 1997, the State party agrees to the combined consideration of admissibility and merits of the communication by the Committee.
4.2 In its submission of February 1998, the State party denies that the facts of the case disclose violations of articles 2, 18, 26 and 17 of the Covenant.
4.3.1 With regard to the alleged violation of article 26, the State party contends the communication is inadmissible ratione materiae, or, in the alternative, does not constitute a violation. The State party recalls that a differentiation in treatment based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26. It refers to the Committee's jurisprudence in communication No. 191/1985 Blom v. Sweden, Views adopted on 4 April 1988, selected decisions volume 2, CCPR/C/OP/2., where the Committee found that the State party was not violating article 26 by not providing the same level of subsidy for private and public education, when the private system was not subject to State supervision. It also refers to the Committee's Views in communications Nos. 298/1988 and 299/1988 Lindgren and Lundquist v. Sweden, Views adopted on 9 November 1990 (CCPR/C/40/D/298-299/1988)., where the Committee decided that the State party could not be deemed to be under an obligation to provide the same benefits to private schools as to public schools, and that the preferential treatment given to public sector schooling was reasonable and based on objective criteria. The Committee also considered that the State party could not be deemed to discriminate against parents who freely choose not to avail themselves of benefits which are generally open to all.
4.3.2 The State party argues that its funding of public schools but not private schools is not discriminatory. All children of every or no religious denomination have the same right to attend free secular public schools maintained with tax funds. According to the State party, it is not a deprivation by the Government that a child or a parent voluntarily chooses to forego the exercise of the right to educational benefits provided in the public school system. The State party emphasizes that the province of Ontario does not fund any private schools, whether they are religious or not. The distinction made in the funding of schools is based not on religion, but on whether or not the school is a public or a private/independent institution.
4.3.3 According to the State party, the establishment of secular public institutions is consistent with the values of article 26 of the Covenant. Secular institutions do not discriminate against religion, they are a legitimate form of Government neutrality. According to the State party, a secular system is a tool which assists in preventing discrimination among citizens on the basis of their religious faiths. The State party makes no distinctions among different religious groups in its public education and does not limit any religious group's ability to establish private schools.
4.3.4 Apart from its obligations under the Constitution Act 1867, the State party provides no direct funding to religious schools. In such circumstances, the State party argues that it is not discriminatory to refuse funding for religious schools. In making its decision, the State party seeks to achieve the very values advanced by article 26, the creation of a tolerant society where there is respect and equality for all religious beliefs. The State party argues that it would defeat the purposes of article 26 itself if the Committee was to hold that because of the provisions in the Constitution Act 1867 requiring the funding of Roman Catholic schools, the State party now must fund all private religious schools, thus undermining its very ability to create and promote a tolerant society that truly protects religious freedom, when in the absence if the 1867 constitutional provision, it would have no obligation under the Covenant to fund any religious schools at all.
4.4.1. In relation to article 18, the State party refers to the travaux préparatoires which make it clear that article 18 does not include the right to require the State to fund private religious schools. During the drafting the question was expressly raised and answered in the negative.See Bossuyt, Guide to the Travaux Préparatoires of the ICCPR, 1987, at 369. As a consequence, the State party argues that the author's claim under article 18 is inadmissible ratione materiae. In the alternative, the State party argues that its policy meets the guarantee of freedom of religion contained in article 18, because it provides a public school system which is open to persons of all religious beliefs and which does not provide instruction in a particular religion or belief, and because there is freedom to establish private religious schools and parents are free to send their children to such religious schools. The State party denies that paragraph 4 of article 18 obligates States to subsidize private religious schools or religious education. The State party makes reference to Nowak, UN Covenant on Civil and Political Rights, CCPR commentary, at 330-333. According to the State party, the purpose of article 18 is to ensure that religious observance, beliefs and practices remain a private matter, free from State coercion or restraint. It is the State's obligation to provide an education open and accessible to all children regardless of religion. There is no obligation to either offer or finance religious instruction or indoctrination. While the province must ensure that religious freedom and religious differences are accommodated within the public school system, it has no obligation to fund individuals who, for religious reasons, exercise their freedom to opt out of the public school system.
4.4.2 The State party argues that failure to act in order to facilitate the practice of religion cannot be considered state interference with freedom of religion. It points out that there are many spheres of government action which hold religious significance for religious believers and the State party rejects the suggestion that it must pay for religious dimensions in spheres in which it takes a role, such as religious marriages and religious community institutions such as churches and hospitals.
4.4.3 In the alternative, if the Committee were to interpret article 18 as requiring States to fund religious schools, the State party argues that its limitation meets the requirements of paragraph 3 of article 18 as it is prescribed by law and is necessary to protect public order and the fundamental rights and freedoms of others. The objectives of the State party's education system are the provision of a tuition-free, secular public education, universally accessible to all residents without discrimination and the establishment of a public education system which fosters and promotes the values of a pluralist, democratic society, including social cohesion, religious tolerance and understanding. The State party argues that if it were required to fund private religious schools, this would have a detrimental impact on the public schools and hence the fostering of a tolerant, multicultural, non-discriminatory society in the province.
4.4.4 Public schools, in the State party's opinion, are a rational means of fostering social cohesion and respect for religious and other differences. Schools are better able to teach common understanding and shared values if they are less homogeneous. The State party submits that one of the strengths of a public system of education is that it provides a venue where people of all colours, races, national and ethnic origins, and religions interact and try to come to terms with one another's differences. In this way, the public schools build social cohesion, tolerance and understanding. Extending public school funding rights to private religious schools will undermine this ability and may result in a significant increase in the number and kind of private schools. This would have an adverse effect on the viability of the public school system which would become the system serving students not found admissible by any other system. Such potential fragmentation of the school system is an expensive and debilitating structure for society. Moreover, extending public school funding rights to private religious schools could compound the problems of religious coercion and ostracism sometimes faced by minority religious groups in homogeneous rural areas of the province. The majority religious group could reintroduce and even make compulsory the practice of school prayer and religious indoctrination and minority religious groups would have to conform or attend their own, virtually segregated schools. To the extent that full funding of private schools enables such schools to supplant public schools, the government objective of universal access to education will be impaired. Full public funding of private religious schools is likely to lead to increased public school closings and to the reduction of the range of programs and services a public system can afford to offer.
4.4.5 The State party concludes that if the province of Ontario were required to fund private religious schools, this would have a detrimental impact on the public schools, and hence the fostering of a tolerant, multicultural, non-discriminatory society in the province, thus undermining the fundamental rights and freedoms of others. According to the State party it has struck the appropriate balance by funding a public school system where members of all groups can learn together while retaining the freedom of parents to send children to private religious schools, at their own expense, if they do desire.
4.5.1 As to the author's allegation that he is a victim of a violation of article 18 in conjunction with article 2 of the Covenant, the State party recalls that article 2 does not establish an independent right but is a general undertaking by States and cannot be invoked by individuals under the Optional Protocol without reference to other specific articles of the Covenant. It cannot be argued that article 2 in combination with article 18 has been violated if there is no such right in article 18 itself.
4.5.2 Alternatively, the State party rejects a violation of article 2 because a differentiation based on reasonable and objective criteria does not amount to a distinction or discrimination within the meaning of article 2 of the Covenant. For substantive arguments concerning the issue of discrimination, it refers to its arguments relating to the alleged violation of article 26.
4.6.1 In respect to the alleged violation of article 27, the State party contends that the communication is inadmissible ratione materiae or in the alternative does not demonstrate a violation. According to the State party, the travaux préparatoires make it clear that article 27 does not include a right to require the State to fund private religious schools. The article only protects against State actions of a negative character: individuals "shall not be denied the right". A proposal to include an obligation to take positive measures was defeated. Nowak, UN Covenant on Civil and Political Rights, CCPR commentary at 481, 504. Although under article 27 a State party may be required to take certain positive actions, in the light of the intention of the drafters positive actions should be required only in rare circumstances. According to the State party, the province of Ontario has taken positive measures which protect the right of members of religious minorities to establish religious schools and to send their children to those schools. It is not further required to fund those schools.
4.6.2 In the alternative, restrictions on the rights contained in article 27 may occur where they have a reasonable and objective justification and are consistent with the provisions of the Covenant read as a whole. For the reasons given in relation to the creation of a tolerant society, Ontario's decision not to extend funding to all private religious schools meets this test for justification.
4.6.3 The State party refers to its arguments in relation to article 18 and reiterates that there can be no argument that article 27 in combination with article 2 has been violated if there is no such right in article 27 itself. In the alternative, there is no violation of article 2 because a differentiation based on reasonable and objective criteria does not amount to an invidious distinction or discrimination within the meaning of article 2. The State party refers to its arguments concerning article 26 above.
4.1 By note of 29 April 1997, the State party agrees to the combined consideration of admissibility and merits of the communication by the Committee.
4.2 In its submission of February 1998, the State party denies that the facts of the case disclose violations of articles 2, 18, 26 and 17 of the Covenant.
4.3.1 With regard to the alleged violation of article 26, the State party contends the communication is inadmissible ratione materiae, or, in the alternative, does not constitute a violation. The State party recalls that a differentiation in treatment based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26. It refers to the Committee's jurisprudence in communication No. 191/1985 Blom v. Sweden, Views adopted on 4 April 1988, selected decisions volume 2, CCPR/C/OP/2., where the Committee found that the State party was not violating article 26 by not providing the same level of subsidy for private and public education, when the private system was not subject to State supervision. It also refers to the Committee's Views in communications Nos. 298/1988 and 299/1988 Lindgren and Lundquist v. Sweden, Views adopted on 9 November 1990 (CCPR/C/40/D/298-299/1988)., where the Committee decided that the State party could not be deemed to be under an obligation to provide the same benefits to private schools as to public schools, and that the preferential treatment given to public sector schooling was reasonable and based on objective criteria. The Committee also considered that the State party could not be deemed to discriminate against parents who freely choose not to avail themselves of benefits which are generally open to all.
4.3.2 The State party argues that its funding of public schools but not private schools is not discriminatory. All children of every or no religious denomination have the same right to attend free secular public schools maintained with tax funds. According to the State party, it is not a deprivation by the Government that a child or a parent voluntarily chooses to forego the exercise of the right to educational benefits provided in the public school system. The State party emphasizes that the province of Ontario does not fund any private schools, whether they are religious or not. The distinction made in the funding of schools is based not on religion, but on whether or not the school is a public or a private/independent institution.
4.3.3 According to the State party, the establishment of secular public institutions is consistent with the values of article 26 of the Covenant. Secular institutions do not discriminate against religion, they are a legitimate form of Government neutrality. According to the State party, a secular system is a tool which assists in preventing discrimination among citizens on the basis of their religious faiths. The State party makes no distinctions among different religious groups in its public education and does not limit any religious group's ability to establish private schools.
4.3.4 Apart from its obligations under the Constitution Act 1867, the State party provides no direct funding to religious schools. In such circumstances, the State party argues that it is not discriminatory to refuse funding for religious schools. In making its decision, the State party seeks to achieve the very values advanced by article 26, the creation of a tolerant society where there is respect and equality for all religious beliefs. The State party argues that it would defeat the purposes of article 26 itself if the Committee was to hold that because of the provisions in the Constitution Act 1867 requiring the funding of Roman Catholic schools, the State party now must fund all private religious schools, thus undermining its very ability to create and promote a tolerant society that truly protects religious freedom, when in the absence if the 1867 constitutional provision, it would have no obligation under the Covenant to fund any religious schools at all.
4.4.1. In relation to article 18, the State party refers to the travaux préparatoires which make it clear that article 18 does not include the right to require the State to fund private religious schools. During the drafting the question was expressly raised and answered in the negative.See Bossuyt, Guide to the Travaux Préparatoires of the ICCPR, 1987, at 369. As a consequence, the State party argues that the author's claim under article 18 is inadmissible ratione materiae. In the alternative, the State party argues that its policy meets the guarantee of freedom of religion contained in article 18, because it provides a public school system which is open to persons of all religious beliefs and which does not provide instruction in a particular religion or belief, and because there is freedom to establish private religious schools and parents are free to send their children to such religious schools. The State party denies that paragraph 4 of article 18 obligates States to subsidize private religious schools or religious education. The State party makes reference to Nowak, UN Covenant on Civil and Political Rights, CCPR commentary, at 330-333. According to the State party, the purpose of article 18 is to ensure that religious observance, beliefs and practices remain a private matter, free from State coercion or restraint. It is the State's obligation to provide an education open and accessible to all children regardless of religion. There is no obligation to either offer or finance religious instruction or indoctrination. While the province must ensure that religious freedom and religious differences are accommodated within the public school system, it has no obligation to fund individuals who, for religious reasons, exercise their freedom to opt out of the public school system.
4.4.2 The State party argues that failure to act in order to facilitate the practice of religion cannot be considered state interference with freedom of religion. It points out that there are many spheres of government action which hold religious significance for religious believers and the State party rejects the suggestion that it must pay for religious dimensions in spheres in which it takes a role, such as religious marriages and religious community institutions such as churches and hospitals.
4.4.3 In the alternative, if the Committee were to interpret article 18 as requiring States to fund religious schools, the State party argues that its limitation meets the requirements of paragraph 3 of article 18 as it is prescribed by law and is necessary to protect public order and the fundamental rights and freedoms of others. The objectives of the State party's education system are the provision of a tuition-free, secular public education, universally accessible to all residents without discrimination and the establishment of a public education system which fosters and promotes the values of a pluralist, democratic society, including social cohesion, religious tolerance and understanding. The State party argues that if it were required to fund private religious schools, this would have a detrimental impact on the public schools and hence the fostering of a tolerant, multicultural, non-discriminatory society in the province.
4.4.4 Public schools, in the State party's opinion, are a rational means of fostering social cohesion and respect for religious and other differences. Schools are better able to teach common understanding and shared values if they are less homogeneous. The State party submits that one of the strengths of a public system of education is that it provides a venue where people of all colours, races, national and ethnic origins, and religions interact and try to come to terms with one another's differences. In this way, the public schools build social cohesion, tolerance and understanding. Extending public school funding rights to private religious schools will undermine this ability and may result in a significant increase in the number and kind of private schools. This would have an adverse effect on the viability of the public school system which would become the system serving students not found admissible by any other system. Such potential fragmentation of the school system is an expensive and debilitating structure for society. Moreover, extending public school funding rights to private religious schools could compound the problems of religious coercion and ostracism sometimes faced by minority religious groups in homogeneous rural areas of the province. The majority religious group could reintroduce and even make compulsory the practice of school prayer and religious indoctrination and minority religious groups would have to conform or attend their own, virtually segregated schools. To the extent that full funding of private schools enables such schools to supplant public schools, the government objective of universal access to education will be impaired. Full public funding of private religious schools is likely to lead to increased public school closings and to the reduction of the range of programs and services a public system can afford to offer.
4.4.5 The State party concludes that if the province of Ontario were required to fund private religious schools, this would have a detrimental impact on the public schools, and hence the fostering of a tolerant, multicultural, non-discriminatory society in the province, thus undermining the fundamental rights and freedoms of others. According to the State party it has struck the appropriate balance by funding a public school system where members of all groups can learn together while retaining the freedom of parents to send children to private religious schools, at their own expense, if they do desire.
4.5.1 As to the author's allegation that he is a victim of a violation of article 18 in conjunction with article 2 of the Covenant, the State party recalls that article 2 does not establish an independent right but is a general undertaking by States and cannot be invoked by individuals under the Optional Protocol without reference to other specific articles of the Covenant. It cannot be argued that article 2 in combination with article 18 has been violated if there is no such right in article 18 itself.
4.5.2 Alternatively, the State party rejects a violation of article 2 because a differentiation based on reasonable and objective criteria does not amount to a distinction or discrimination within the meaning of article 2 of the Covenant. For substantive arguments concerning the issue of discrimination, it refers to its arguments relating to the alleged violation of article 26.
4.6.1 In respect to the alleged violation of article 27, the State party contends that the communication is inadmissible ratione materiae or in the alternative does not demonstrate a violation. According to the State party, the travaux préparatoires make it clear that article 27 does not include a right to require the State to fund private religious schools. The article only protects against State actions of a negative character: individuals "shall not be denied the right". A proposal to include an obligation to take positive measures was defeated. Nowak, UN Covenant on Civil and Political Rights, CCPR commentary at 481, 504. Although under article 27 a State party may be required to take certain positive actions, in the light of the intention of the drafters positive actions should be required only in rare circumstances. According to the State party, the province of Ontario has taken positive measures which protect the right of members of religious minorities to establish religious schools and to send their children to those schools. It is not further required to fund those schools.
4.6.2 In the alternative, restrictions on the rights contained in article 27 may occur where they have a reasonable and objective justification and are consistent with the provisions of the Covenant read as a whole. For the reasons given in relation to the creation of a tolerant society, Ontario's decision not to extend funding to all private religious schools meets this test for justification.
4.6.3 The State party refers to its arguments in relation to article 18 and reiterates that there can be no argument that article 27 in combination with article 2 has been violated if there is no such right in article 27 itself. In the alternative, there is no violation of article 2 because a differentiation based on reasonable and objective criteria does not amount to an invidious distinction or discrimination within the meaning of article 2. The State party refers to its arguments concerning article 26 above.
