Sask. can keep funding non-Catholic students at Catholic schools, as Supreme Court dismisses leave application

The Supreme Court of Canada has dismissed an application for leave to appeal on a long-standing dispute over government funding for Catholic schools in Saskatchewan.

Thursday's decision from Canada's highest court ends a 16-year court battle between Public Schools of Saskatchewan — an organization that represents 15 public school boards in the province and advocates for public education — and the Saskatchewan Catholic School Boards Association.

The dismissal of the public school organization's application for leave to appeal means that non-Catholic students in the province will continue to receive government funding to attend Catholic schools in Saskatchewan.

Tom Fortosky, executive director of the Saskatchewan Catholic School Boards Association, says the Supreme Court's decision comes as a relief.

"[It's] a very emotional moment.... Really what we want to do now is just get back to doing what we do best, which is educating children," he said.

The saga began in 2003, when the public Good Spirit School Division decided to close the only school in Theodore, Sask. The school had served both Catholic and non-Catholic students.

In order to keep their school, local parents decided to start a new one under a separate school board.

That new school division bought the existing school in the village and renamed it St. Theodore Roman Catholic School. The majority of students switched to the Catholic school system, despite not being Catholic.

The Good Spirit division took the matter to court in 2005, arguing that the constitutional protection of Catholic schools does not include the right for those schools to receive government funding for non–Catholic students.

Fortosky says that line of thinking is problematic for families.

"From our perspective, this was about parental choice," he said.

"If the funding didn't come with the child, there would be a practical barrier for parents who wish to choose a Catholic faith-based education for their children."

The court battle launched in 2005 led to a landmark decision in 2017, in which Saskatchewan Court of Queen's Bench Justice Donald Layh ruled it was unconstitutional for the province to fund non-Catholic students at Catholic schools.

Funding "non-minority faith students" in faith-based schools violated both the Charter of Rights and "the state's duty of religious neutrality," Layh wrote.

The case made its way to Saskatchewan's Court of Appeal, which delivered a unanimous decision in March 2020, saying separate schools could receive provincial government funding for students who are not Catholic.

The appeal court said the trial judge made "fundamental errors of law," and said considering the matter as one involving funding for non-Catholics in a Catholic school was too narrow. The question should be considered in the context of two publicly funded school systems, the appeal court said.

"It is an effect of this parallel public system of education that non-Catholic students may attend public, separate schools, but it is also an effect that Catholic students may attend public, secular schools," the 2020 decision said.

Public Schools of Saskatchewan was seeking leave to appeal that decision at the Supreme Court.

Dismissal

Thursday's dismissal of the application came as a disappointment to Norm Dray, executive director of Public Schools of Saskatchewan.

"What's happening is wrong for education in Saskatchewan.... We don't believe that there should be two systems that get government funding for all students," Dray said.

Catholic schools are set up to educate Catholic students, he said, "and we have no trouble with with Catholic schools existing for that purpose."

"What we don't accept is that they have a mandate to teach all students … [including] non-Catholics. And we don't believe they should get government funding for that."

In a statement on Tuesday, Saskatchewan Premier Scott Moe said his government is pleased with the Supreme Court's decision.

"Our government strongly supports parent and student choice in education, including Saskatchewan's public, separate and faith-based schools," said Moe.