Greg Oliver is the President of the Canadian Secular Alliance. There is important work with a constitutional challenge with immediate relevance to the formal irreligious community at the moment. I reached out to talk about it. Here we talk about OPEN and the CSA, Section 93 of the BNA Act, and the morality or ethics behind the constitutional challenge.
Scott Douglas Jacobsen: Let’s set some groundwork regarding OPEN, the CSA, and Section 93 of the BNA Act.
Greg Oliver: We are currently fundraising for a legal challenge that we intend to pursue. So far, we have fundraised over $60,000, but these things can be quite pricey and take many years. So we have more to raise. We are now at the stage now where we are exploring our options for legal teams to at least to get the ball rolling.
Jacobsen: With regards to the morality or the ethics behind the constitutional challenge of Section 93 of the BNA Act, what is it? Or, what are they?
Oliver: First, you need to understand why there are fully funded schools for Catholics only in Ontario, Alberta, and Saskatchewan. Basically, it dates back to the 19th century sectarian dynamic that existed between Catholics and Protestants at the time of Confederation.
Between 1841 and 1867, Quebec and Ontario were a single province called the Province of Canada. They had denominational schools for the minority faiths in each respective region. The last relevant legislation for what is now Ontario that was passed before 1867 was the 1863 Scott Act.
At the time of Confederation, denominational schools were not popular in Ontario. The Scott Act was actually voted down in Ontario, but it was overwhelmingly voted in favor for in Quebec, which at the time was very theocratic. The primary reason denominational schools exist is because of the insistence of Quebec at the time of Confederation.
Section 93 of the British North America Act essentially stipulated that any province that entered Confederation could grandfather in whatever denominational schools that they had at the time that they entered. It was viewed as a grand bargain to protect English Protestants in Quebec and French Catholics in Ontario at the time of Confederation.
At the time of Confederation, only Ontario and Quebec had denominational schools. Later, when Alberta, Manitoba, Saskatchewan, and Newfoundland entered Confederation, they all retained their denominational schools – but Manitoba and Newfoundland later got rid of theirs.
Then in 1997, Quebec got rid of theirs. So now we are at a stage where 3 provinces still have denominational schools, but Quebec is the primary reason that it existed in the first place and they no longer have them.
The reason this is important to us is that our mandate is to promote separation between religion and state. We believe strongly that in a society with a plurality of religious worldviews that the only fair way to run society is to have no preference for one faith over another. Or for religion to be preferred over no religion – or vice versa.
We view denominational schools as one of the more flagrant violations of this principle left in Canadian society today. Not only does it privilege the religious over the non-religious by indoctrinating children into a specific religion with taxpayer dollars, but it also privileges Catholics over other faiths.
Jacobsen: Looking from the inside out, what have been some of the actions from the Roman Catholic sector in particular in reaction to the constitutional challenge, as this will be challenging the vested interest of the leadership?
Oliver: I can only guess that they will be ready to fight back, but, ultimately, it will be up to the courts. Section 93 as it is currently interpreted will be seen as constitutional or not. One piece of legislation relevant to this case is Bill 30.
In the late 1980s, Ontario extended full funding to Catholic high schools, even though it had only been taught up to grade 8 since Confederation. There was a case that went to the Supreme Court called Reference re Bill 30.
It judged that what existed at the time of Confederation for Ontario, which was only up until grade 8, was equivalent to high school in the contemporary age. They ruled that it was constitutional to have full funding for Catholic high schools in Ontario.
In that judgment they also stressed the importance of the grand bargain with Quebec in the formation of the country. They had publicly funded Protestant schools at the time. In 1997, they withdrew them. It was a unanimous vote in the National Assembly. This challenge is going to tackle those elements of the decision and ask the courts to re-examine what they decided on back then.
We also intend to raise some arguments to examine exactly what was grandfathered in at the time of confederation. The funding that existed back then was only about 60-66% of what was given to secular public schools. Section 93 was intended to protect what already existed, but over the decades denominational schools ballooned from 5% to 31% of the student population and they now receive over $400 more per student in funding according to published government statistics – and other sources suggest it’s much more. If Section 93 were interpreted as originally intended, funding for denominational schools would be severely affected and it would likely require abandonment of the entire system in Ontario – and perhaps elsewhere.
Jacobsen: Any final thoughts?
Oliver: The status quo is also impractical. There are tremendous duplication costs. Right now Ontario runs two school systems for each official language. Irrespective of the inequality; four school systems cost a lot more to operate than two. Though the exact savings depend on what the replacement would look like, it is widely believed to be over $1 billion per year.
There are over 600 schools in Ontario that are less than half full. This is much higher than it otherwise would be. Costs to bus kids to school are higher. There are more administration costs. You need twice as many trustees, superintendents and other administrative workers. The numbers are proportionately smaller, but this is the same in Saskatchewan and Alberta as well.
These savings could go to more beneficial causes for society such as healthcare, education, and so on. Duplication costs don’t help society. And separating kids based on the religion of their parents isn’t good for social cohesion either.
Jacobsen: Thank you for the opportunity and your time, Greg.
Image Credit: Canadian Secular Alliance.