September, Cardus policy institute, which publishes Convivium, released a legal opinion on the Ontario government's Accepting Schools Act. The opinion, written by leading constitutional scholar Eugene Meehan, QC, found that the Act (popularly known as Bill 13) clearly violates the denominational schooling rights of Ontario Catholics. Here, he explains in lay language the problems with the legislation
Convivium: Much of the media and public con-troversy around Bill 13 centred on the creation of so-called Gay-Straight Alliance clubs in Ontario's Catholic schools. But the legal analysis you did for LexView argued there's a much wider problem. What are the top three legal problems with the Accepting Schools Act?
Eugene Meehan: The top three legal problems are as follows: The legislation infringes the constitutionally protected right of a minority to organize and run its own schools according to the teachings of its faith. The legislation fails to recognize that there is a meaningful difference between public and denominational schools. For example, in moving from a balanced anti-bullying policy to one that focuses on homosexual-related bullying, it imposes legal obligations that conflict with Roman Catholic teaching. The legislation imposes new responsibilities regarding bullying on principals, schools and boards, but then gives the final say with respect to such policies to the Minister—a policy that is in line with a school's denominational aspects can then be set aside. See for example the Respecting Difference policy put forward by the Church.
C: Is Bill 13 bad legislation through and through—or are there elements of it you see as redeeming?
EM:The majority of the legislation is within the jurisdiction of the provincial government and does not infringe on the rights of denominational schools. The key issues are not with the general purpose of the legislation (i.e. anti-bullying) but with the details and how it is implemented. For instance, instead of leaving the focus on bullying in general, it zooms in on homosexual-related bullying to the exclusion of other types. It also goes beyond simply requiring schools and boards to have anti-bullying policies to directing what anti-bullying pro-grams must look like. The micromanaging aspects of the legislation are the cause for concern.
C: You maintain in your legal analysis that people with standing could go to the federal cabinet and have the legislation corrected or even overturned. What do you mean by having standing? Is asking the federal government to overturn provincial law really an option for Canadians? How do they do that?
EM: In law, having standing refers to a party's ability to show that it has sufficient legal interest in a matter. The basic test in court is for a plaintiff to establish that they are 'exceptionally prejudiced' by a law. Where a party is not directly affected, it can also seek discretionary public-interest standing—this is often seen where a repre-sentative organization steps in to bring a challenge because there are no suitable plaintiffs.
For a court challenge, standing issues may arise if the party that brings the case isn't directly affected. If the Church, school boards, principals, trustees, etc. don't bring a challenge, it may fall on a Catholic organization to do so. For an appeal to the federal cabinet, a party's standing may influence whether action is taken. In the Manitoba Schools Question case, petitions to the federal cabinet were made by the Church, trustees and school boards, a group that was representative of the denominational schools.
C: You say Bill 13 appears to violate constitutional guarantees in section 93 of the Constitution Act, 1867. But isn't that section itself a relic of an earlier Canada that, practically speaking, no longer exists? Why should any government be bound by it? Surely, constitu-tional provisions have to speak to modern realities?
EM: The Constitution is the legal bedrock of our country. It is a democratic document intended to endure for ages to come. While it is adapted for application to new issues, the meaning of its rules is to be constant. Changes to it should be made by a democratic process; it provides for such amendments.
Many aspects of 'an earlier Canada' still exist—for one, there are still minority religious groups that are seeking to protect their religious rights. The Constitution is still relevant in terms of giving the political executive power, giving the legislatures power, dividing those powers provincially and feder-ally, and providing for our courts. Why is a provision regarding education and denominational schools any less worthy of protection?
As Thomas M. Cooley said in A Treatise on the Constitutional Limitations, 'A constitution is not to be made to mean one thing at one time, and another at some subsequent time when the circumstances may have so changed as perhaps to make a different rule in the case seem desirable.'
The appeal to the federal cabinet is a political remedy, and in that respect it gives the federal cabinet the discretion to address modern realities as it sees fit.
Bottom line: a deal is a deal. When you shake on a deal for the founding constitution of our country, you should be able to rely on its continued and consistent application.
C: Isn't it a violation of the Canadian Charter of Rights and Freedoms to give, in this case, Catholics special rights vis-à-vis other Canadians. Religious freedom is one thing, but don't the courts insist that religious rights be balanced against competing rights such as gender and sexual identity rights? Doesn't the Charter trump section 93 specifically to prevent that kind of inequality?
EM:Canadian courts have dealt with this very issue. Section 93 and the rights it guarantees are exempt from Charter application. Section 93 protections cannot be enlarged through the operation of subsection 2(a) of the Charter, nor can it be restricted by Charter provisions. As noted by the Supreme Court in Adler v. Ontario, which dealt with whether there was a constitutional obligation to fund private denominational schools, section 93 is the product of a historical compromise and does not represent a guarantee of fundamental freedoms.
C: What happens next in terms of the legal process? You've published an opinion in LexView. Where does it go from here? If a group with standing does take the matter forward, will the opinion form the basis of the complaint?
EM: For legal process, there are various options: A party could bring a court challenge on the basis that the legislation violates section 93 de-nominational school rights. A Charter challenge may also be based on a breach of religious freedom.
A student or other party may consider that a school or principal has breached the legislation and may launch its own court challenge. In that case, a party may get involved at that stage to argue the constitu-tionality of the law.
For political process, a party may appeal to the federal cabinet. In either case, the opinion in Lex-View may serve to guide the arguments used in the pleadings.