Since 2005, the Theodore case has brought up questions about constitutional rights and whether non-Catholic students have the right to attend Catholic schools. Now, 11 years later, the Saskatchewan Catholic Schools Boards Association waits to hear from one man about its future role within the province.
So, how did the Theodore case happen? And, why?
CCSTA wanted to give a backgrounder as well as an update on the case. We’re going to outline how it first started, how the trial went and the impact it may have on Catholic education across Canada.
In 2005, York School Division (now Good Spirit School Division #204 (GSSD)) filed a legal complaint against what is now Christ the Teacher Roman Catholic School Division #212 (CTRCSD) and the Government of Saskatchewan.
The complaint alleges that the creation of the new school division after the closure of Theodore Public School did not meet the criteria of being a separate school—serving Catholics who are the minority religion in the region. They allege it was created merely as a means to prevent the school from closing and children being bussed to a nearby town, and they are challenging the legal status of the division.
Their argument is that per student grants paid to a Catholic school division for non-Catholic students is discriminatory against public schools under the Charter of Rights and Freedoms. Basically, that non-Catholic students should not be able to attend a Catholic school.
To add to that, public boards have expressed the opinion that the mandate of Catholic education in Saskatchewan is, or ought to be, limited to the education of Catholic students, exclusively. As a result, they are in disagreement with any broader mandate of Catholic education to reflect an inclusiveness that extends beyond the Catholic community. Public boards say the existence, size and shape of the separate school system impacts the ability of public boards to access funds and to deliver and manage services.
They are not disputing the validity of accepting per-student funding for Catholic students attending public schools.
Since 2005, GSSD has requested that the court make changes to the complaint, broadening the scope of the case and adding complaints. Now, in addition to challenging funding, it challenges the constitutional rights of minority-faith separate school divisions in Saskatchewan.
What does this mean? Essentially, that non-Catholic students attending a Catholic School shouldn’t be allowed to do so. Instead, the GSSD argues these students shouldn’t be allowed to choose whether they should attend a public or separate school; rather, the government should only allow these students one choice: the public system.
The 12-week Trial
The 12-week trial took place in Yorkton and started in November, 2015. Following a five-week trial, they re-convened in May, 2015 for another seven weeks (with breaks integrated throughout). When the trial wrapped up in mid-July, one thing was for sure: there was significant information presented from all three sides involved – the public school board (the plaintiff), the Catholic school board (the defence) and the provincial government (the defence).
The GSSD (public board) had approximately 16 witnesses testify and made 300 submissions. As for pages of transcripts, there are 6,162 pages (35 volumes). There were over 600 exhibits—several of which were hundreds of pages each—between the three parties and almost 11 weeks of testimony from 16 witnesses from the Plaintiff (over seven weeks), 13 witnesses called by the Catholic school board (over two and a half weeks), and four witnesses by the Government. All parties filed final submissions that were to be 95 pages and under. Closing submissions were made by the parties over two and a half days.
It took the plaintiff nine weeks to run through their witnesses and submissions while the government and Catholic school board took three weeks combined.
“They were meticulous in the way they approached it,” says Saskatchewan Catholic School Boards Association Executive Director Ken Loehndorf about the GSSD. “Their Director of Education, for instance, was on the stand over the course of seven days.”
According to Ken, during most of the trial it remained unclear what they were seeking. Was it that non-Catholic students couldn’t be funded if they attended a Catholic school? Or was it that non-Catholic students should not be allowed to attend Catholic schools and instead enroll in the public school system?
“In the last week of trial, the judge was still looking for clarification from them,” says Ken. “Another key issue that we have been trying to say for last 10 years is that they (the public board) doesn’t have standing, which means they don’t have the ability to ask questions about our constitutional entitlement. The only people who can ask about constitutional entitlement is the minority themselves.”
That minority, as it turns out, is not the non-Catholic students attending the school; rather, the minority in this case is always the Catholic parents or rate payers who have the right to form a Catholic School Division if in fact they are the minority within the school attendance area. The public board countered they do have a standing, arguing that the topic is of public interest.
“They spent their whole time trying to show they have standing and can ask the questions,” says Ken.
“They said there is a public interest. They couldn’t show they were part of the minority, but if there is a significant public interest, then the court may allow the questions to be asked. Although only one school division listed as the plaintiff (Good Spirit), in order to prove they have public interest. they tried to bring in all the public boards in the province as well.”
Witnessing the Trial
Ken sat in on the trial and listened to all the witnesses. While it was a long process, Ken says he left the court room on that last day with a sense of awe.
“What a learning experience for me. I left after 12 weeks feeling a sense of awe at the work our forefathers did at that time,” he explains. “It just amazed me they’d have the foresight to work hard to create something that’s so special.” He added that their lawyers worked hard to ensure the judge understood the 1905 Saskatchewan Act and the purpose behind it.
On top of the history lessons, the judge heard from parents of non-Catholic students attending the Catholic schools. “They were testifying to their experience and it was heart-warming. Hearing these parents speak to the court about their strong views on wanting to attend Catholic schools is a real treat.
It was a blessing, and I left feeling really good about Catholic education and what’s happening in our province.”
Possible Impact across Canada
While Ken says he feels optimistic about the judge’s ruling, he says this court case is a crucial piece to Catholic education history, both from a provincial and national level.
“The Theodore case outcome could possibly have an extreme effect on Catholic education systems across the country, specifically for Saskatchewan as well as Alberta and Ontario,” says Ken, as Catholic schools in these three provinces have full government funding. “Should the judge rule against the Catholic system in Saskatchewan, then it (may) mean non-Catholic students attending Catholic schools will no longer be funded by the government, or, worst case, are not allowed to attend Catholic schools at all.
It will likely lead to the same questions being asked in Alberta and Ontario.”
How does this process differ from Newfoundland’s experience? It has to do with who is leading the case. In Newfoundland, the provincial government hosted a referendum, asking the public to vote on its preference to have publicly-funded denominational education.
The majority of people in province said, ‘we don’t care about denominational education anymore’, and because of the referendum, the Newfoundland provincial government could prove to the federal government that there’s a lack of support for public funding to denominational schools. The federal government then changed the provincial constitution to allow the province to eliminate public funding for denominational education, including Catholic schools. In Newfoundland, the provincial government led the change. In Saskatchewan, that’s not the case.
It’s the public school board leading the charge in Saskatchewan.
“They think non-Catholic parents shouldn’t have a choice and the government should force them to attend public schools,” Ken says. “If the judge rules (in their favour), the worst-case scenario is chaos in the educational system in Saskatchewan, and we’d instantly lose a large percentage of our student population.”
With that, Ken says the Catholic School system does feel support from the provincial government.
“We met with the Minister of Education recently and he reassured us that there is no desire to be rid of the Catholic education system in Saskatchewan. We have strong support of government, and all in all, we’re feeling good today about the support we’re getting from them,” says Ken, adding that the case ruling could turn that around. “That said, this court case will force the government’s hand if the court rules against Catholic education.”
And, while the Theodore case looks at constitutional rights, the Catholic school system continues to expand. In September, 2017, nine new Catholic schools will open across four Saskatchewan communities.
The Judge’s Decision
Following the 12-week trial, the Judge, Justice Layh, has to review the 6,162 pages of transcripts as well as the more than 600 exhibits presented by both the plaintiff and the defendants. At the end of the trial, Justice Layh outlined that it was a privilege to serve as judge in this court case. He emphasized the fact that he sees this court case as one of the most significant cases in the history of this province. Since the groups couldn’t come up with a compromise, the final decision will be direct and one that will not result in compromise.
“One group will walk away happy and one group will walk away unhappy,” explains Ken.
Should the judge rule in the public board’s favour, he’ll have to define what it means to be a Catholic. That way, it will be definitive as to who can and cannot attend a Catholic school. “Right now, it’s essentially a self-declaration for Catholics, and each Catholic board has developed their own attendance policy related to accepting non Catholic students. “For the court to rule on this, it will have to define what being Catholic looks like.”
The judge pledged to work hard and assured the group that he understands the significance of this case and he is prepared to give it the time and energy needed to render a comprehensive judgement. With that, he didn’t indicate a timeline for his decision, but Ken says they don’t expect any word until the New Year.
Should the ruling not be in favour of Catholic schools, Ken says they will very likely appeal it, which means it could go to the Supreme Court.
Until then, they wait.
“Our lawyers will simply get an email outlining the judge’s decision,” explains Ken. “We can only guess when that happens, and until then, we have to stay optimistic that Catholic schools have a firm and necessary place in Saskatchewan’s education system. We are very hopeful. But at the end of the day, this rests in one man’s hands.”
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