CONSTITUTIONAL POSITION of CATHOLIC SCHOOL BOARDS in REGARD to the ONTARIO SEX-EDUCATIONCURRICULUM

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CONSTITUTIONAL POSITION of CATHOLIC SCHOOL BOARDS in REGARD to the ONTARIO SEX-EDUCATIONCURRICULUM

June 9 2015 , revised June 29, revised July 9 2015

C. Gwendolyn Landolt
National Vice-President
REAL Women of Canada

I have now had the opportunity to review all the relevant material on this critical issue of the proposed Ontario sex-education curriculum.  My conclusions are as follows:

1. I would be hesitant to accept any conclusion that only the Catholic School Boards have the sole decision-making authority on the sex education curriculum.  Rather, it seems, there are other members of the Catholic establishment who would also be involved in such a decision.  This would include the Institute for Catholic Education (ICE), Bishops, Directors of Education, Superintendents, as well as the Catholic School Trustees.  Also, in 2014, a controversial Divisional Court case Erazo v. Dufferin-Peel Catholic District School Board provided relief to a family, who wished to withdraw their children from religious studies, Mass and religious retreats at a Catholic high school in Brampton.  This decision relates to the exemption of non-Catholic students attending Catholic Schools as provided by the Education Act.  The Education Act also, however, describes schools as “communities”.  All children are part of this Catholic “community” and are expected to participate in the life of the community, including in the school’s curriculum, provided always that the school’s curriculum is based on a Catholic perspective.  If the curriculum in the Catholic Schools fails to provide a Catholic perspective, then Catholic parents have the right to withdraw their children from the curriculum, and to challenge the curriculum’s acceptance in the Catholic school.

This right was apparent in Daly et al v. Attorney General of Ontario (1999) when individual separate school supporters, together with the trustees, brought an application before the Ontario Court of Appeal.  In its Judgment, the Court refers to the aim of a Catholic school as being the creation of a community of believers with a distinct sense of the Catholic culture.

2. Both Premier Wynne and Education Minister Sandals have also indicated that parents can withdraw their children from aspects of the program they found problematic. It is significant, however, that the latter have stated that some aspects of the new curriculum cannot be opted out, since they deal with human rights issues and equality, such as homosexual rights, same-sex families, etc.  In other words, they claim, children cannot be exempted from these so-called aspects of the curriculum, i.e. human rights provisions (National Post, February 23, 2015).   In this context, Catholic boards have played a “wait and see” approach.

3. It would appear, however, that the statements by the provincial officials prohibiting the withdrawal of children on some human rights matters, are in conflict with the constitutional right of Catholic schools.  This is because defining an issue as a “human right” does not mean that these issues must be accepted by the Catholic Boards, if they are in conflict with Catholic teachings and offend its “distinct sense of the Catholic culture”.

4. The Ontario Education Act was amended in 2006 (when Kathleen Wynne was the Minister of Education) to provide that the Minister may establish policies, guidelines and standard with respect to equivalent learning and require boards to develop and offer equivalent learning opportunities to their pupils.

This section also goes on to provide that the Minister may designate . . . programs, courses of study or other activities that are approved for the purpose of equivalent learning.

This provision appears to give extensive jurisdiction to the Minister as to whether a course is “equivalent” or not to that which was provided by the Ministry.  In other words, any sex education course developed by the Catholic School Boards could be subject to the approval of the Minister.

 5. This latter provision appears to conflict with Sections 1(4) and 1(4.1) of the Education Act which provides that the Education Act cannot adversely affect any right or privilege guaranteed by Section 93 of the Constitution Act (1867) which provides as follows:

93.  In and for each Province the Legislature may exclusively make Laws in relation to Education,  subject and according to the following Provisions:

(1) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union;

(2) All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen’s Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen’s Protestant and Roman Catholic Subjects in Quebec;

(3) Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen’s Subjects in relation to Education;

(4) In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section.

Further, Section 29 of the Charter of Rights provides that there can be no abrogation or derogation from any rights or privileges guaranteed under the Constitution of Canada in respect of “denominational, separate or dissentient schools”.

The recent Loyola High School v. Quebec (Attorney General) 2015 decision of the Supreme Court of Canada dealt with a similar issue of ministerial approval of an “equivalent” program from a Catholic high school, in respect of the implementation of the Quebec Ethics and Religious Culture curriculum.  That case stands for the proposition that a private Catholic school retains the right to teach its own faith from its own Catholic perspective, rather than some purported “neutral” perspective, in accordance with the freedom of religion provisions in the Charter of Rights.  This decision relates to a private Catholic School, but the principle is the same in regard to public funded Catholic Schools, in regard to freedom of religion, and is consistent with and confirms denominational rights pursuant to S.93 of the Constitution Act (1867).

Consequently, I would be of the opinion that the Catholic Schools can not be compelled to implement the Ontario sex education curriculum.

It is noted that this conclusion is contrary to the opinion dated June 2, 2015, provided by the lawyer, Nadya Tymochenko, of the law firm of Miller Thomson directed to the Halton Catholic District School Board.  In this latter opinion, Ms. Tymochenko stated that the Minister of Education, pursuant to Section 230(a) of the Education Act could issue a Directive to the Catholic Board to comply with the sex education program and, if failing to do so, this could result in a “an Order of Cabinet vesting control of the school board in the Ministry of Education”.

I would strongly disagree with this latter conclusion for the constitutional reasons stated above, as well as for the problem that would arise should the Ministry try to do so, as this would give rise to perceived intolerance and religious insensitivity.

The opinion of Ms. Tymochenko which was directed to the Halton Catholic District School Board, also concluded inter alia that parents need only be “consulted”, but cannot be a part of the decision on the sex-education curriculum. This conclusion is not supported by the case law.

In view of these questionable conclusions by Ms. Tymochenko, I would recommend that the Ontario Catholic School Trustees obtain independent legal counsel on this matter.

Conclusion

It would be my opinion that the Catholic School Boards are not required under the Constitution to implement those parts of the Physical Education & Health (which includes sex-education) curriculum that are contrary to Catholic teachings.

If the Ministry of Education should try to force the issue (which I very much doubt it would do), the Catholic authorities could protect themselves by way of seeking an injunction, or, interestingly enough, follow the two-step remedial procedure provided in Section 93 of the Constitution Act 1867 which is as follows:

(a) Appealing this decision to the Ontario Cabinet (Governor General in Council); and

 (b) If the Cabinet does not duly execute the provisions of Section 93 of the Constitution Act 1867, then the matter be referred to the Parliament of Canada to make remedial laws for the execution of Section 93 of the Constitution Act 1867.

It is doubtful, however, that a federal cabinet would want to be drawn into such a controversial issue.

As stated above, however, I very much believe it would not come to this.  The Catholic Boards hold a very strong position under Constitutional Law.

C. Gwendolyn Landolt
National Vice-President
REAL Women of Canada