The facts
2.1 The Ontario public school system offers free education to all Ontario residents without discrimination on the basis of religion or on any other ground. Public schools may not engage in any religious indoctrination. Individuals enjoy the freedom to establish private schools and to send their children to these schools instead of the public schools. The only statutory requirement for opening a private school in Ontario is the submission of a "notice of intention to operate a private school". Ontario private schools are neither licensed nor do they require any prior Government approval. As of 30 September 1989, there were 64,699 students attending 494 private schools in Ontario. Enrolment in private schools represents 3.3 percent of the total day school enrolment in Ontario.
2.2 The province of Ontario's system of separate school funding originates with provisions in Canada's 1867 constitution. In 1867 Catholics represented 17% of the population of Ontario, while Protestants represented 82%. All other religions combined represented .2% of the population. At the time of Confederation it was a matter of concern that the new province of Ontario would be controlled by a Protestant majority that might exercise its power over education to take away the rights of its Roman Catholic minority. The solution was to guarantee their rights to denominational education, and to define those rights by referring to the state of the law at the time of Confederation.
2.3 As a consequence, the 1867 Canadian constitution contains explicit guarantees of denominational school rights in section 93. Section 93 of the Constitution Act, 1867 grants each province in Canada exclusive jurisdiction to enact laws regarding education, limited only by the denominational school rights granted in 1867. In Ontario, the section 93 power is exercised through the Education Act. Under the Education Act every separate school is entitled to full public funding. Separate schools are defined as Roman Catholic schools. The Education Act states: "1. (1) "separate school board" means a board that operates a school board for Roman Catholics;...122. (1) Every separate school shall share in the legislative grants in like manner as a public school". As a result, Roman Catholic schools are the only religious schools entitled to the same public funding as the public secular schools. [*The author was represented by Mr. Raj Anand from Scott and Aylen, a law firm in Toronto, Ontario, until 1998. ]
2.4 The Roman Catholic separate school system is not a private school system. Like the public school system it is funded through a publicly accountable, democratically elected board of education. Separate School Boards are elected by Roman Catholic ratepayers, and these school boards have the right to manage the denominational aspects of the separate schools. Unlike private schools, Roman Catholic separate schools are subject to all Ministry guidelines and regulations. Neither s.93 of the Constitution Act 1867 nor the Education Act provide for public funding to Roman Catholic private/independent schools. Ten private/independent Roman Catholic schools operate in Ontario and these schools receive no direct public financial support.
2.5 Private religious schools in Ontario receive financial aid in the form of (1) exemption from property taxes on non-profit private schools; (2) income tax deductions for tuition attributable to religious instruction; and (3) income tax deductions for charitable purposes. A 1985 report concluded that the level of public aid to Ontario private schools amounted to about one-sixth of the average total in cost per pupil enrolled in a private school. There is no province in Canada in which private schools receive funding on an equal basis to public schools. Direct funding of private schools ranges from 0% (Newfoundland, New Brunswick, Ontario) to 75% (Alberta).
2.6 The issue of public funding for non-Catholic religious schools in Ontario has been the subject of domestic litigation since 1978. The first case, brought 8 February 1978, sought to make religious instruction mandatory in specific schools, thereby integrating existing Hebrew schools into public schools. On 3 April 1978, affirmed 9 April 1979, Ontario courts found that mandatory religious instruction in public schools was not permitted.
2.7 In 1982 Canada's constitution was amended to include a Charter of Rights and Freedoms which contained an equality rights provision. In 1985 the Ontario government decided to amend the Education Act to extend public funding of Roman Catholic schools to include grades 11 to 13. Roman Catholic schools had been fully funded from kindergarten to grade 10 since the mid 1800's. The issue of the constitutionality of this law (Bill 30) in view of the Canadian Charter of Rights and Freedoms, was referred by the Ontario government to the Ontario Court of Appeal in 1985.
2.8 On 25 June 1987 in the Bill 30 case the Supreme Court of Canada upheld the constitutionality of the legislation which extended full funding to Roman Catholic schools. The majority opinion reasoned that section 93 of the Constitution Act 1867 and all the rights and privileges it afforded were immune from Charter scrutiny. Madam Justice Wilson, writing the majority opinion stated: "It was never intended ... that the Charter could be used to invalidate other provisions of the constitution, particularly a provision such as s.93 which represented a fundamental part of the Confederation compromise."
2.9 At the same time the Supreme Court of Canada, in the majority opinion of Wilson, J. affirmed: "These educational rights, granted specifically to ... Roman Catholics in Ontario, make it impossible to treat all Canadians equally. The country was founded upon the recognition of special or unequal educational rights for specific religious groups in Ontario ..." In a concurring opinion in the Supreme Court, Estey J. conceded: "It is axiomatic (and many counsel before this court conceded the point) that if the Charter has any application to Bill 30, this Bill would be found discriminatory and in violation of ss. 2(a) and 15 of the Charter of Rights."
2.10 In a further case, Adler v. Ontario, individuals from the Calvinistic or Reformed Christian tradition, and members of the Sikh, Hindu, Muslim, and Jewish faiths challenged the constitutionality of Ontario's Education Act, claiming a violation of the Charter's provisions on freedom of religion and equality. They argued that the Education Act, by requiring attendance at school, discriminated against those whose conscience or beliefs prevented them from sending their children to either the publicly funded secular or publicly funded Roman Catholic schools, because of the high costs associated with their children's religious education. A declaration was also sought stating that the applicants were entitled to funding equivalent to that of public and Roman Catholic schools. The Ontario Court of Appeal determined that the crux of Adler was an attempt to revisit the issue which the Supreme Court of Canada had already disposed of in the Bill 30 case. Chief Justice Dubin stated that the Bill 30 case was "really quite decisive of the discrimination issue in these appeals." They also rejected the argument based on freedom of religion.
2.11 On appeal, the Supreme Court of Canada by judgement of 21 November 1996, confirmed that its decision in the Bill 30 case was determinative in the Adler litigation, and found that the funding of Roman Catholic separate schools could not give rise to an infringement of the Charter because the province of Ontario was constitutionally obligated to provide such funding.
