Fawcett: In a Saskatchewan court, future of Catholic education hangs in balance

18 March 2019

Appears in: Archdiocesan News

As these words are being written, the future of Catholic education in Canada hangs in the balance.

The Saskatchewan Court of Appeals has announced that they are reserving judgment on the controversial Theodore case. The case was heard March 12-13 in Regina.

This was the case where the Court of Queen’s Bench ruled that, based on Justice Donald Layh’s authoritative reading of section 17 of the Saskatchewan Act, it would be unconstitutional for the government to provide funding for non-Catholic students attending publicly-funded Catholic schools (also known as “separate schools”)

The Saskatchewan Catholic School Board Association has said the case is about strengthening choice. Both the Alberta Catholic School Trustees Association and the Public School Boards’ Association are among the intervenors in the case.

Statement SCSBA March13

The purpose of the protection of separate schools in the Saskatchewan Act of 1905, Justice Layh informs us, was only to ensure that Catholic students got a Catholic education.

Paying for non-Catholic students to attend these schools is contrary to their purpose. (This is in spite of the fact that non-Catholic students were attending Catholic schools in Saskatchewan in 1905, which Justice Layh admits almost in passing in paragraph 237 of his ruling.)

If non-Catholic parents want to send their children to Catholic schools, they’ll need to pay for it themselves – while still paying taxes to support the public schools, of course.

If this interpretation of the Saskatchewan Act is allowed to stand, it would be a huge blow to Saskatchewan’s Catholic schools, which would experience a sharp reduction in funding. But Saskatchewan is not the only place that will be affected.

That interpretation would also have implications for Alberta, with its identical constitutional arrangement (section 17 of our own Alberta Act of 1905). Indeed, since both acts claim separate school protections under section 93 of the British North America Act, this could even affect Catholic schools in Ontario, which are regulated by the same part of the BNA Act. In other words, this could result in a seismic shift across our nation.

We should devoutly hope and pray for a wise decision from the Court of Appeals; history has shown how disastrous bad court rulings on Catholic schools can be for our nation. Back in the 19th century, some ill-advised rulings on Catholic education in New Brunswick and Manitoba resulted in social catastrophe across the country, leading ultimately to the fall of the federal government.

For now, the teachers and students of Catholic schools wait in abeyance.

Of course, this case will likely reignite the age-old public debate about whether we should be providing full (or any) funding to Catholic schools. We can expect to hear, from that vocal anti-Catholic schools minority (which sounds a lot bigger than it is) the same familiar arguments that always surface when this controversy is stirred: it’s against separation of church and state; it’s discriminatory; it’s too expensive; etc.

Sadly, because of a widespread ignorance of Canadian history, a lot of people might be vulnerable to these arguments.

There are already a lot of good prima facie reasons to keep Catholic schools, many of which have to do with student success. Statistics consistently show that Catholic schools have higher graduation rates, especially among First Nations students,and have been known produce higher test scores even when those scores are dipping overall across school boards.

Education Minister David Eggen has praised Catholic school boards for doing a “great job” writing GSA policies.

Moreover, they serve as a glowing example of care for LGBTQ+ students. Education Minister David Eggen has praised Catholic school boards for doing a “great job” writing GSA policies “in compliance with the law and in keeping with their faith beliefs.”

But, beyond all this, we must ask: Why does Canada have constitutional protections for religious schools at all?

Too often section 93 is discussed as if it was merely a historical accident. What you often hear is that the French and the English were in conflict and the provisional compromise of allowing each group to have its own publicly funded schools was a calculated political move to make them get along with each other so that everyone would agree to Confederation.  The implication is unmistakable: this compromise is archaic (the French largely being no longer Catholic) and has long outlived its usefulness.

But, in fact, there was a moral logic to why separate school protections are in our constitution that remains effective today, a moral logic that has to do with religious liberty and with multiculturalism

Why Catholic Schools Matter for Religious Liberty

Section 93 was the brainchild of two men: Thomas D’Arcy McGee and Alexander Tilloch Galt. It was intended to protect both Catholic and Protestant minority communities and their right to schooling in accordance with their faith. McGee, one of the most important Fathers of Confederation, was the first and main author of this article, and we must understand where he was coming from.

McGee was a champion of the Scott Act of 1863, which was passed in response to the “common schools” project of Upper Canada’s chief education superintendent, former Methodist minister Egerton Ryerson.

Egerton Ryerson

Ryerson wanted to impose mandatory and universal education which would not teach any specific doctrines but only a generic Christian morality, because he wanted the schools to be a tool of cultural assimilation and homogenization. What he wanted was uniformity. That meant he didn’t want any competing denominational schools to break up his monopoly.

To his irritation, Catholic citizens could not send their children to his schools. They believed that education was, as McGee put it, “a religious question. It concerns the mind, the spirit, the immortal soul, as well as the perishable body; a religious matter.” Catholics therefore “in conscience divorce religious from secular instruction in schools which they support”.

Moreover, the Church’s hierarchy believed that this arrangement infringed on the Church’s ability to evangelize. Toronto’s Bishop Armand-Francois-Marie de Charbonnel wrote to Ryerson reminding him that, in the Great Commission, Christ had given “the mission of instruction” to His Apostles and their heirs, and this “right, so sacred and inalienable” to preach the Gospel needed to be respected by all civil governments. (This shows, contra the Queen’s Bench of Saskatchewan, that the purpose of separate schools was not “segregation”, but evangelization; it was the content of the instruction, not the nature of the student body, that was at issue.)

While Ryerson grudgingly allowed Catholic separate schools to exist, Catholics did not necessarily have a right to have one in their area, and if they did, the only financial support they received from the government was for the pay of the teacher.

The schoolhouse, textbooks, and all other expenses were entirely paid for by the parents with no government assistance. To add insult to injury, these parents not only had to pay for their own schools out of their own pocket, but on top of that, they also had to pay taxes to support Ryerson’s “mixed” public schools

This is why it is faintly amusing to hear people protest that it is an outrage and an injustice that their tax dollars are going towards supporting schools they don’t agree with. People making these complaints should reflect that this is exactly how Canadian Catholics felt in the early days of our country, except that they had it much worse than our noisy contemporaries.

What McGee and others recognized is that this was a religious liberty issue. Catholics were conscience-bound to provide their children with a Catholic education. Fine; the state (more or less) did not prohibit them from starting their own schools. But this was not good enough. If the government announces that you are “free” to send your children to Catholic schools, but the cost of doing so is prohibitive (in part because the government is sapping your resources to pay for another school), then this “freedom” is illusory.

It’s like saying that the average Canadian citizen is “free” to fly to New Zealand every weekend, or that the poor are “free” to eat cake. If the government wanted to ensure Catholics have freedom to provide a Catholic education, they had to make this financially possible for them.

McGee, who had witnessed oppression of Catholics in both Ireland and America, felt so strongly about this that he defected from the Reform party to the Conservatives to support the 1863 Scott Act, which granted the right to have separate Catholic schools as well as the right for citizens to direct their local tax rates (as well as municipal grants) towards maintaining these schools.

This is why he boldly took to the floor of the House to declare that “those who plead religious objections to the divorce of religion from school teaching are entitled in a free State to have their religious freedom respected by the secular authority.”

This was McGee’s understanding of religious liberty. He would go on to enshrine that understanding in section 93 of the British North America Act

But that constitutional principle was not always enforced. In New Brunswick, the government shut down all Catholic schools in 1871 and compelled taxation to support the public schools. Many Catholics ended up refusing to pay these taxes, which led to violent riots.

In 1891, the Manitoba government passed an “Act Respecting Public Schools” which ended Catholic separate schools in the province, even though those schools had been established by legislation in 1870. Catholics could still start their own schools, but they would have to pay for them entirely by themselves without any government aid whatsoever, and, as in Upper Canada, they would have to pay all the taxes for the public schools on top of this. Catholics, once again, protested this as an attack on their freedom of conscience and religious expression.

This generated a raging controversy which went all the way to the Judicial Committee of the Privy Council (at the time, the highest court for Canadians) which astonishingly ruled against Catholics in the infamous Barrett decision of 1892.

The council claimed that this whole problem was the Catholics’ fault: if only they could change their consciences to comply with the government, none of this would be an issue!   This ruling was so awful that even the Privy Council realized it and tried to reverse itself with the subsequent Brophy case three years later, but, by that point, the damage was done.

This is why, in the later 1905 Alberta and Saskatchewan Acts, the protection for separate schools was made so unambiguous in section 17. Religious liberty was going to be upheld in these new prairie provinces; there would not be another debacle like Manitoba.

Section 93 was was not a mere attempt to solve a specific historical problem that no longer applies today: it was an expression of a sophisticated understanding of religious freedom which continues to this day.

Why Catholic Schools Matter for Multiculturalism

As mentioned, Section 93 was devised by McGee and Alexander Tilloch Galt. McGee was an Irish-born Catholic, who brought a petition full of thousands of Irish names to the House to demand for separate school rights, while Galt was a Scottish-born Protestant. This fact should help put the lie to the common claim that section 93 was a simple compromise between English and French.

We need to recognize how important Catholic schools have been in the history of Canadian multiculturalism. In the late 1800s, Archbishop Adelard Langevin of St. Boniface, uncannily anticipating our modern understanding of multiculturalism, had a vision of a Canada filled with ethnic communities maintaining their respective cultures through their Catholic schools rather than being absorbed into the Anglo-Saxon Protestant homogeneity.

He promoted the German, Polish, and Ukrainian languages in schools, churches, and newspapers. In many ways, he was right. For as long as Saskatchewan has been a province, most of its German schools have been Catholic. In Alberta, Ukrainian programs continue in Catholic boards to this day despite being dropped by Edmonton’s public school system.  Although Catholic schools have been an important part of French Canadian culture, they have been a bulwark of multiculturalism for many other communities, as well.

On the other hand, there is a nasty but consistent theme of bigotry and xenophobia in the history of opposition to separate schools. Ryerson himself, as part of his program of using the school system to assimilate all citizens into one cultural mould, also came up with the idea for the residential school system, which also sought to scrub out distinctive culture and spirituality in favour of a generic social morality.

In Manitoba, anti-French groups like the McCarthyites and the so-called Equal Rights Association opposed Catholic schools because they believed French children needed to be assimilated (lawyer and politician D’Alton McCarthy believed the school’s job was “to take up our French Canadians and make them British”).  In Alberta and Saskatchewan, some of the most visible demonstrations against publicly-funded Catholic schools came from none other than the Ku Klux Klan

Obviously, most contemporary people calling for separate schools to be defunded are not racists or bigots, but they should recognize that the structure of their arguments has its foundation in a mentality that fundamentally rejects the multicultural makeup of our society.

These arguments tend to assume society would be more harmonious if we all shared the same “mixed” educational and cultural experience. This sounds innocuous, but there is a genuine threat to authentic multiculturalism hidden underneath it. (This should also be kept in mind whenever anyone brings up that Quebec successfully abolished their separate school system. Quebec is not exactly a model of a strong multicultural society.)

Having established all this, let’s consider the arguments we always hear:

“But what about separation of church and state?”

Here is the hard reality: separation of church and state is an American constitutional principle, not a Canadian one. The preamble to the Charter, which states that “Canada is founded upon principles that recognize the supremacy of God”, is not mere fluff. The very fact that separate religious schools are constitutionally protected should prove this.

This is related to multiculturalism, and looking at D’Arcy McGee’s experience can help us understand this

When McGee left Ireland to live in Boston, he was expecting America to be much more peaceful than his native land because of its grand claims about freedom and its First Amendment protections of religious liberty. This was not the case. Violent anti-Catholic bigotry was rampant there, too.

But when he went north, he found to his surprise that even though there were clearly defined and distinct Catholic and Protestant communities, there was much more genuine peace and social harmony.  The Anglican British rulers of Canada had given privileges to the Catholic Church in the 1774 Quebec Act; in exchange, the French Catholics were loyal to a British monarch who also happened to be the Supreme Governor of the Church of England. These two groups had frankly acknowledged their own identity and each other’s identity, and had found ways to co-exist. This discovery deserves to be much better remembered than it is.

Whereas America favoured a “melting pot” model of society (which McGee found did nothing to quell anti-Irish and anti-Catholic sentiments), Canada has always been (at least nominally) committed to multiculturalism.  We (usually) believe the government and society should foster and encourage a diversity of cultures.

But culture, which includes beliefs and practices, cannot be separated from a community’s religion; there is a reason why “culture” and “cult” have a common etymological root. If the government is going to encourage different cultures, that necessarily means it must be involved, at least somewhat, in the promotion of certain religious beliefs.

For a perfect example of this, consider: If we think the government should not be advancing any religious beliefs, then the government should not be promoting or fostering First Nations culture and spirituality. Yet most Canadians understand that, because of our specific history and because of the kind of nation we are, putting public support behind this is a good thing.

The maintenance of publicly-funded separate Catholic schools is not different in principle. After all, while Canada is not committed to “separation of church and state”, it does recognize religious liberty, which – as we saw before – is precisely why publicly funded Catholic education is important.

It should finally be noted that there is no such thing as a purely “neutral” education system. Simply avoiding any reference to God is not the same as having no position about God. As Bishop Peter McIntyre of Charlottetown wrote in 1873, “A child brought up without hearing God mentioned in connection with Science, will naturally be led to think that Science has no co-ordination to God–that God has naught to do with civil affairs–that perhaps he does not know the truths discovered by modern investigations…”

Moreover, It is impossible to teach moral values “neutrally”. There must be some sort of system of belief attached to these values.  As the Canadian philosopher and “father of Canadian nationalism” George Grant pointed out, one cannot say that the state has no business promoting certain beliefs because the very existence of a free society depends on people holding certain beliefs (i.e. that we should not resort to violence over every slight, we should not indulge every desire, etc.).

Not only is the government already involved with propagating a certain set of beliefs by virtue of having a public education system at all, but, as the globally regarded Canadian philosopher of the secular, Charles Taylor, notes, these beliefs are often “quasi-sacred”.

If people take issue with the government funding a school system that propagates a certain specific “religion”, they should really take issue with the idea of a single school system dedicated to teaching a specific kind of social morality. (This has always been a problem: Archbishop Alexandre Taché of St. Boniface and the Protestant lawyer John Ewart both recognized that the so-called “neutral” public schools in Manitoba thinly-disguised Protestant schools.)

These “quasi-sacred” ideals can sometimes clash with Catholic teaching. Consider sex education. The moral interpretations of sexuality that public schools and Catholic schools will teach, even though they are using the same curricular material, is going to be vastly different. Catholics (and others with traditional sexual ethics) understandably object to their tax dollars going towards the propagation of a moral system they disagree with.

This is why it makes sense for the government to sponsor (at least) two different school systems. No matter what, education will always be value-laden and “religious”, which means that if the government is going to fund education and if it wants to be truly multicultural and not just impose a very specific cultural morality on all its citizens, it ought to provide more than one meaningful option for students

“Isn’t it unfair that Catholic schools have this privilege, but not other religious schools?”

The ethnic and religious demographics of Alberta have admittedly changed considerably since 1905. Does this mean the arrangement for Catholic schools (which not only receive full public funding but also have their own school boards) has become outdated or unfair?

The first point to be raised here is that it wasn’t a Catholic idea to withhold public funds from non-Catholic religious schools; it was the secular state that did that. In Lower Canada (now Quebec), Protestant “dissentient” schools were publicly funded. In Upper Canada, meanwhile, the Anglican Bishop John Strachan tried to establish Anglican schools, but was prevented by Ryerson, who was also trying to kill Catholic schools.

In Manitoba, Rev. Louis Lafleche helped set up a Presbyterian school system. In Newfoundland, Catholics ran their own publicly-funded schools alongside a Pentecostal board, a Seventh-Day Adventist school board, and so on (until 1997, all schools in Newfoundland were denominational). Catholics have never had a problem with this, but the advocates of a single secular school system did.

Secondly, there actually are a few Protestant separate schools in operation. St. Albert established a Protestant Separate School District in the 1950s. Burkevale Protestant Separate School continues to operate in Ontario. Until recently, Saskatchewan had the Englefeld Protestant Separate School Division, though it merged with another district after the Theodore case.

Thirdly, private religious schools in Alberta receive up to 75% of their funding from the government. It would be totally unobjectionable to most Catholics if they received even more. Normally, the biggest opponents of these schools are not Catholics, but the same people who want to close Catholic schools (who also, incidentally, tend to be opponents of homeschooling)

It is true that we have more religious diversity than we did in 1905, but it seems odd to argue that, because we have more diversity in our population, we should have less diversity in our educational options. Instead, we should be looking at creative ways to foster different educational systems that reflect our diverse society.

That being said, three further points should be noted.

One is that many religious people who are not Catholic still find Catholic education the best option for raising their children with values they share and agree with. Due to privacy law, the exact statistics of non-Catholic children in Catholic schools cannot be determined precisely, but several non-Catholic witnesses testified in the Theodore case to this effect; this piece by a United Church member in British Columbia explains her love for Catholic schools; and the Globe and Mail has covered the phenomenon of Muslim students in Ontario attending Catholic schools.

Even non-Catholic religious schools tend to support Catholic separate schools rather than resenting or envying them. Keith Penner, the principal of a Protestant school and the president of the Alberta Council on Religious Freedom, which represents many different religious traditions in Alberta, puts it this way in an e-mail:

“I support Catholic education because choice is important…Catholic schools and the associated apparatus are the big players in an important arena. Without them, we small, independent faith based schools would be quickly crushed by the juggernaut of secular public school monolith…Because there is a Catholic funded school system, we faith based independent schools can state that “faith matters in education” and we should be supported. If the Catholic schools were shuttered and absorbed into a single public education system, the question of whether faith matters would no longer have practical significance and faith will have been officially relegated to the home and church.”

The Grandin LRT station in Edmonton is named after Bishop Vital-Justin Grandin.

Secondly, if Catholic schools have a unique position in Alberta, it is because Catholicism has a unique role in Alberta. This is why there is a statue of a nun at the Legislature Building; it is why there is a mural of Bishop Vital-Justin Grandin at the LRT Station which bears his name; it is why the province is full of towns named after missionary priests, like Lacombe, Leduc, and Vegreville. Catholicism is an unique part of Albertan history and identity, and it should not be offensive that Catholic schools have a similarly unique status.

Thirdly, even though demographics may be changing overall, Catholics are the most well-represented religious group in Alberta, making up nearly a fourth of the population (a figure which may get higher as the Filipino and Goan Indian communities grow).

This should be remembered when people complain about tax dollars going to Catholic schools; one fourth of the taxpayers are Catholics themselves. (At one point, a pro-separate school group in Ontario formed calling itself the Catholic Taxpayers Association.  Perhaps certain Albertans also need to be reminded of the existence of Catholic taxpayers.)

“Isn’t it cheaper to have a single system?”

This is probably the most pragmatic argument offered, but it is also a misguided one.

Firstly, before getting into the numbers at all, it should be established that some things are simply worth paying for. The higher graduation rates, higher test scores, increased diversity, and increased religious freedom are worth spending a bit extra on.

But are we really spending that much? Let’s look at the numbers that opponents of Catholic schools have proposed, but keep in mind that the overall education budget is $8.4 billion.

Former Education Minister David King has said that $60 million is wasted on separate school boards. That sure sounds like a lot, until you remember that it’s only 0.7% of the education budget.

Pat Cochrane, chair of the Together for Students campaign (launched in October by the Public School Boards’ Association of Alberta) suggested that between $250 million and $260 million could be saved. OK: that would bring us up to around 2.9%, which is perhaps not a dramatic and startling increase over our earlier figure of 0.7%.

Karen Kerr of Secular Alberta has suggested a higher number still: “If Alberta funded its Catholic schools at 50 per cent of per-pupil funding – the same level as in British Columbia -Alberta taxpayers would save a staggering $880 million annually.” In this forecast, we are now up to 10% of the education budget.

(There is a chilling tautology here: if we spend less on students, we will save some money. Remember, opponents of separate schools are “Together for Students”.

Notice the lack of consistency in these projections, which should make us suspicious of the certainty with which they are proclaimed. During the Manitoba School Question, critics of Catholic schools claimed that they were low-quality and would produce inferior graduates, and history has conclusively refuted them. We should have learned to be skeptical of confident predictions which justify attacks on separate schools.

These projected savings are not as grand as they initially sound, but we also need to ask whether these alleged savings would exist at all.

First of all, educator and University of Calgary professor Kent Donlevy has pointed out that, in merging the two systems, you still need to maintain (and to pay for) a structure that contains the same number of students, teachers, therapists, buses, and so on (these last two, along with facilities, bulk purchasing, IT arrangements, sports complexes, and so on, are generally shared between public and Catholic boards already).

In other words, the same amount of money is being spent in these areas; there are no “savings” to speak of.

Also, studies have shown that merging school boards can counter-intuitively end up being more expensive. Part of this is the sheer cost of consolidating different systems, though it can also have to do with rising salaries for members of the personnel, and given how high superintendent salaries have gotten in Alberta, it is not implausible something like that could happen in this scenario.

The financial cost of merging the two systems alone would be punishing, but this is to say nothing of the personal cost on the 26% of Catholic students and families who would experience a total upheaval of their education and the loss of a meaningful faith-based experience–all to save on a few percentage points in the provincial budget.


Only time will tell what will happen in Saskatchewan (and what will happen after that). But whatever happens in the courts, citizens should know why Alberta and Canada have this unique and important constitutional principle of separate schools. It is not some awkward anomaly we should seek to get rid of. It is a brilliant and prescient social framework for religious liberty and multiculturalism. We should understand it, be proud of it, and make sure our politicians hear about it.

-Brett Fawcett is a teacher and columnist. He has degrees in theology and education and is the winner of the 2018 Lieutenant Governor’s Award for Excellence in Social Studies Education.

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