Adler v. Ontario

Adler v. Ontario
Collection
Supreme Court Judgments
Date
1996-11-21
Report
[1996] 3 SCR 609
Case number
24347
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Ontario
Subjects
Constitutional law
Notes
SCC Case Information: 24347
Decision Content
Adler v. Ontario, [1996] 3 S.C.R. 609
Susie Adler, Mark Grossman, Paula Kezwer,
Marcy Rapp and Riky Young Appellants
v.
Her Majesty The Queen in Right of Ontario,
the Minister of Education and the Minister of Health Respondents
and between
Leo Elgersma, Harry Pott, Raymond Dostal,
Harry Fernhout and the Ontario Alliance of
Christian School Societies Appellants
v.
The Attorney General for Ontario,
the Minister of Education and the Minister of Health Respondents
and
The Attorney General of Quebec,
the Attorney General for Saskatchewan,
the Ontario Multi‑Faith Coalition for Equity in Education,
the Ontario Federation of Independent Schools,
the Metropolitan Toronto School Board and
the Ontario Public School Boards’ Association and
the Canadian Civil Liberties Association Interveners
Indexed as: Adler v. Ontario
File No.: 24347.
1996: January 23, 24; 1996: November 21.
Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights (freedom of religion (s. 2 (a)) and equality rights (s. 15(1) )) and Constitution Act, 1867 (education rights of Roman Catholics and Protestants in Ontario and Quebec respectively (s. 93 )) ‑‑ Education funding ‑‑ Dissentient religion‑based schools ‑‑ Secular and Roman Catholic schools receiving both funding and School Health Support Services for disabled students ‑‑ Dissentient religion‑based schools receiving neither ‑‑ Whether denial of funding to religion‑based independent schools an infringement of s. 2 (a) Charter guarantee of freedom of religion ‑‑ If so, whether justified under s. 1 ‑‑ Whether denial of funding to dissentient religion‑based schools an infringement of equality provisions of s. 15 of the Charter ‑‑ If so, whether justified under s. 1 ‑‑Whether denial of School Health Support Services to dissentient religion‑based schools an infringement of s. 2 (a) Charter guarantee of freedom of religion ‑‑ If so, whether justified under s. 1 ‑‑ Whether denial of School Health Support Services to dissentient religion‑based schools an infringement of equality provisions of s. 15 of the Charter ‑‑ If so, whether justified under s. 1 ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 2 (a), 15(1) , 27 ‑‑ Constitution Act, 1867, s. 93(1) , (2) , (3) , (4) ‑‑ Education Act, R.S.O. 1990, c. E.2, ss. 1(1), 21(1)(a), (b), (2)(a), 70(1)(a), (b) ‑‑ R.R.O. 1990, Reg. 552, ss. 13(1), 14(1), (2).
The appellants, by reason of religious or conscientious beliefs, send their children to private religious schools. The “Adler appellants” sought a declaration that non‑funding of Jewish schools in Ontario was unconstitutional. The “Elgersma appellants” sought, among other relief, a declaration that the non‑funding of independent Christian schools infringed their Charter rights. Both applications included claims with respect to the School Health Support Services Program (“SHSSP”) which provides health support services at school to students. The trial judge found that the appellants’ religious and equality rights guaranteed under the Canadian Charter of Rights and Freedoms were infringed but that the legislation was justified under s. 1 . The Court of Appeal found that s. 2 (a) of the Charter did not provide a positive entitlement to state support for the exercise of one’s religious practice and that any infringement was justified under s. 1 . The majority found that there was not sufficient factual foundation with respect to the School Health Support Services Program.
The constitutional questions before this Court queried: (1) whether the definitions of "board" and "school" in s. 1(1) of the Education Act, together with the annual general legislative grants, infringe or deny the appellants' freedom of religion under s. 2 (a) of the Charter or their s. 15(1) equality rights by not providing funding to dissentient religion‑based schools, and if so, is this non‑funding justified under s. 1 , and (2) , whether s. 14 of Regulation 552, R.R.O. 1990, which prescribed school health support services as insured services to an insured person who is placed in a special education program in a "school" as defined in s. 1(1) of the Education Act, but not to an insured person in a dissentient religion‑based school, infringes or denies the appellants' freedom of religion under s. 2 (a) of the Charter or their s. 15(1) equality rights by not providing these services to dissentient religion‑based independent schools, and if so, was this withholding of services justified under s. 1 .
Held (McLachlin J. dissenting in part and L’Heureux‑Dubé J. dissenting): The appeal should be dismissed.
Funded Education
Per Lamer C.J. and La Forest, Gonthier, Cory and Iacobucci JJ.: Section 93 of the Constitution Act, 1867 is the product of a historical compromise crucial to Confederation and forms a comprehensive code with respect to denominational school rights which cannot be enlarged through the operation of s. 2 (a) of the Charter . It does not represent a guarantee of fundamental freedoms. The appellants, given that they cannot bring themselves within the terms of s. 93 's guarantees, have no claim to public funding for their schools. To decide otherwise by accepting the appellants’ claim that s. 2 (a) requires public funding of their dissentient religion‑based schools would be to hold one section of the Constitution violative of another.
Section 93(1) requires the Ontario government to fund Roman Catholic separate schools fully. The claim that the government’s choice to fund Roman Catholic separate schools but not other religious schools contravened the equality provisions of s. 15(1) of the Charter should be rejected for two reasons. First, the decision falls “fairly and squarely” within s. 29 of the Charter which explicitly exempts from Charter challenge all rights and privileges “guaranteed” under the Constitution in respect of denominational, separate or dissentient schools. Second, the decision is nonetheless “immune” from Charter review because it was made pursuant to the plenary power in relation to education granted to the provincial legislatures as part of the Confederation compromise. One part of the Constitution cannot be used to interfere with rights protected by a different part of that same document.
Public schools are contemplated by the terms of s. 93 , as it applies to Ontario. In order to claim the protection of s. 93 , it must be shown that there was a right or privilege with respect to denominational schooling which was enjoyed by a class of persons by law at the time of union. This section raised denominational school rights and privileges, which were created by ordinary pre‑Confederation legislation and which were equated by that legislation with those of the public schools, to the status of constitutional norms. The result is that public schools are part and parcel of s. 93 's comprehensive code. Accordingly, public schools are impliedly but nonetheless clearly within the terms of the regime set up by s. 93 and, consequently, receive a protection against constitutional or Charter attack. This protection exists despite the fact that public school rights are not themselves constitutionally entrenched. It is the province’s plenary power to legislate with regard to public schools which are open to all members of society without distinction that is constitutionally entrenched.
The province remains free to exercise its plenary power with regard to education in whatever way it sees fit, subject to the restrictions relating to separate schools imposed by s. 93(1) . The province’s legislative power is not limited to the public and Roman Catholic school systems. However, legislation in respect of education could be subject to Charter scrutiny whenever the government decides to go beyond the confines of this special mandate to fund Roman Catholic separate schools and public schools.
Per Sopinka and Major JJ.: Nothing in s. 93(3) of the Constitution Act, 1867 restricts extending funding to others. This provision specifically contemplates the exercise of the plenary power to create a “System of Separate or Dissentient Schools” where one does not exist. Neither the legislation funding public schools nor legislation extending funding to the appellants’ schools would be within the terms of s. 93(3) . It would not affect any right or privilege of the Protestant or Roman Catholic minority and it would not establish a system of separate or dissentient schools.
When the province exercises its plenary power outside of the areas specified in s. 93(1) and (3) , any distinctions violating the Charter are not “expressly permitted” or even contemplated. Legislation in such cases is no different from legislation under any of the heads of s. 92 . Giving effect to the Charter will not invalidate any power conferred by s. 93 .
Certain rights and privileges of the Protestant majoritarian schools do not ipso facto receive constitutional protection because they are relevant in identifying the rights and privileges of Roman Catholic schools. The rights and privileges of public schools are merely the benchmarks for ascertaining the rights and privileges of separate schools. Certain provisions of pre‑Confederation statutes gave separate schools the same rights as enjoyed by public schools. While the terms of those statutes are relevant to ascertain what these rights and privileges are, the statutes themselves are not given constitutional status. Only the rights and privileges of separate schools are given constitutional protection.
Legislation under the plenary power relating to funding for secular schools is not insulated from Charter attack. In this regard such legislation is no different in character than legislation passed under any of the powers in s. 92 of the Constitution Act, 1867 . The exercise of the plenary power in relation to the matters specifically authorized by s. 93(3) , however, is immune. Section 93(3) specifically authorizes distinctions to be made that would otherwise contravene the Charter . The plenary power itself was no different in character than any of the powers in s. 92 .
Some overlap exists between the claims based on s. 2 (a) and s. 15 of the Charter . Neither section is infringed even if the non‑funding of private religious schools imposes an economic disadvantage in relation to parents who send their children to secular public school. Nothing in the Education Act relating to mandatory education per se involves a breach of appellants’ rights under s. 2 (a) of the Charter . The Act allows for the provision of education within a religious school or at home and does not compel the appellants to act in any way that infringes their freedom of religion.
The distinction made between the Roman Catholic schools and other religious schools is constitutionally mandated and cannot be the subject of a Charter attack. The legislation is not the source of any distinction amongst all the groups whose exercise of their religious freedom involves an economic cost. Any disadvantage flows exclusively from their religious tenets. Failure to act in order to facilitate the practice of religion cannot be considered state interference with freedom of religion. Not providing funding for private religious education does not infringe the freedom to educate children in accordance with religious beliefs where there is no restriction on religious schooling. Moreover, the cost of sending their children to private religious schools is a natural cost of the appellants’ religion and does not, therefore, constitute an infringement of their freedom of religion protected by s. 2 (a) of the Charter .
The distinction in the Education Act between public and private school funding does not meet the threshold stage of the s. 15 inquiry. The Act, as well, does not give rise to adverse effect discrimination. No distinction is made between the appellants and other groups on the basis of a particular characteristic common to the appellants. That the appellants feel compelled to send their children to private school because of a personal characteristic (religion) with the effect that they are unable to benefit from publicly funded schooling is not an effect arising from the statute.
If the distinctions relied on by the appellants do not arise as a result of the legislation, no governmental action is involved to which s. 15 can attach. No government action compelled the appellants to send their children to private, religious‑based independent schools. They were free to send their children to secular public schools maintained at public expense. Their decision not to do so was solely a response to their religious beliefs and not a result of any government action.
The threshold stage of a s. 15 inquiry is not met and there is no distinction to consider in the second stage, namely as to whether or not discrimination results from such a distinction. No distinction based on personal characteristics was shown to be drawn by the Education Act (either directly or indirectly) between the appellants and others. Not being able to take advantage of the public school system does not result from the Education Act but rather from the combination of the appellants’ religious beliefs and the imperatives of the Charter as they apply to the exercise of the province’s plenary power over education.
Even if the appellants had succeeded in showing that the legislation created a distinction, they would not have succeeded in demonstrating that this distinction amounts to discrimination on the basis of religion. The only ground of distinction in this case is between “public” institutions, which are funded by the government, and “private/independent” institutions, which do not receive funding from the government. No private schools receive funding whether they are religious or secular. No religion is given preferential treatment within the system. The distinction between “private” and “public” institutions is neither an enumerated nor an analogous ground in s. 15 of the Charter .
Per McLachlin J. (dissenting in part): Section 93 of the Constitution Act, 1867 is not a code ousting the operation of the Charter and was not intended to do more than guarantee school support for the Roman Catholic or Protestant minorities in Ontario and Quebec respectively. Provinces exercising their plenary powers to provide education services must, subject to this restriction, comply with the Charter .
The s. 2 (a) Charter guarantee of freedom of religion was not infringed. The requirement of mandatory education does not conflict with the constitutional right of parents to educate their children as their religion dictates. The Education Act does not require children to attend either secular or Roman Catholic schools. Indeed, s. 21 excuses children from school attendance if they are receiving satisfactory instruction elsewhere. In determining the content of the guarantees contained in the Charter , the courts must look to the history of the values it enshrines. That history provides no support for extending the guarantee of freedom of religion to the provision of equal funding for religious practices, like religious education. Freedom of religion does not entitle one to state support for one’s religion.
The argument that the s. 15 equality provisions of the Charter was infringed by the unequal funding provided Roman Catholic schools was untenable given the special constitutional bargain protecting funding for Roman Catholic schools in Ontario at the time of Confederation. Section 15 was nevertheless infringed because of the unequal funding vis‑à‑vis funded secular schools. Although the public school system is neutral on its face, the funding system nevertheless results in adverse effect discrimination in that it has the effect of denying a benefit to those whose religions do not permit their adherents to send their children to public secular schools. This adverse effect discrimination is caused by the Education Act and not by the appellants’ religion. The law proceeds from the premise that the individual is entitled to equal treatment in spite of those differences. The state cannot “blame” the person discriminated against for being of the status or for having chosen the status which leads to the denial of benefit.
The encouragement of a more tolerant harmonious multicultural society constitutes a pressing and substantial objective capable, provided its effect is duly proportionate, of justifying the infringement of s. 15 . The public school system represents the most promising potential for realizing a more fully tolerant society. The legislative scheme promotes the objective sought. The denial of funding to separate schools is rationally connected to the goal of a more tolerant society. It is impossible to say whether a less intrusive measure, such as partial funding for private religious schools, might achieve the same objective with less infringement of the guarantee of freedom of religion. Given the deference accorded the legislature on social issues, the minimal impairment test is met. The effect of denying funding to independent religious schools was proportionate to the objective sought.
Per L’Heureux‑Dubé J. (dissenting): The only school support guaranteed by s. 93 of the Constitution Act, 1867 is that required of Ontario and Quebec to their respective Roman Catholic and Protestant minorities. Provinces exercising their plenary powers to provide education must, subject to this requirement, comply with the Charter .
The failure to fund the independent religious schools does not constitute a limit on the guarantee of freedom of religion. Given the exemption from public education included in its s. 21, the Education Act does not compel the appellants to violate the tenets of their religion with respect to education. The denial of a benefit on the basis of the appellants’ religion is more appropriately addressed under s. 15 of the Charter .
An individual, to make out a violation of his or her rights under s. 15(1) of the Charter , must demonstrate: (1) a legislative distinction; (2) that this distinction results in a denial of one of the four equality rights on the basis of the rights claimant’s membership in an identifiable group; and (3) that this distinction is “discriminatory” within the meaning of s. 15 . The examination of whether the distinction is discriminatory should be undertaken from a subjective‑objective approach, i.e., from the point of view of the reasonable person, dispassionate and fully apprised of the circumstances, possessed of similar attributes to, and under similar circumstances as, the group of which the rights claimant is a member. In determining whether discrimination has occurred, it is necessary to reconstruct the context in which the distinction arises. Two categories of factors prove particularly instructive: (1) the nature of the group adversely affected by the distinction and (2) the nature of the interest adversely affected by the distinction. This approach is primarily effects‑oriented in its contextual determination of the impact of the legislation in question on a particular group. Inherent in this model is a recognition of the importance of adverse impact discrimination in present‑day society.
The legislature creates a distinction between the appellants and others who are able to access publicly funded education in the surrounding social context. As found at trial, remaining a member of the particular religious communities in question and acting in accordance with the tenets of these faiths required that the children be educated in a manner consistent with the faith and therefore outside of the public or Roman Catholic schools. Control over the education of their children was essential to the continuation of the religious communities in question. This distinction results in the denial of the claimants’ s. 15 right to equal benefit of the law on the basis of their membership in an identifiable group.
State action which discriminates on the basis of religion cannot be excused on the grounds that religion is a choice and that the individuals may choose to avoid the negative impact which arises from the state’s response to their religious identity. Discrimination on the basis of religion would become an empty concept.
The degree of choice which a person may be expected to have in identifying with a particular group, while relevant to a determination of discrimination, must be assessed from the subjective‑objective perspective. In this case the appellants would see themselves as not having a choice.
Section 2 (a) of the Charter is primarily concerned with the necessary limits to be placed on the state in its potentially coercive interference with the original, objectively perceived religious “choice” that individuals make. Section 15 ensures that consequences in behaviour and belief, which flow from this initial choice and are not perceived by the rights claimant as optional, are not impacted upon by state action in such a way as to attack the inherent dignity and consideration due all human persons. The protections afforded in s. 15 may thus be of greater scope than those in s. 2 (a).
Accommodation as understood in human rights law is applicable to the rights enumerated in s. 15 of the Charter . The exemption for religious parents contained in s. 21 of the Education Act does not constitute the accommodation necessary under s. 15 to ensure equal access in real terms. Rather, it addresses the potential coercive aspect of mandatory secular education alone, and thus allows the impugned legislation to meet the requirements of s. 2 (a). In a case of unequal benefit, accommodation will mean taking the steps necessary to ensure access of these parents without discrimination. Given the complete denial of this benefit to those who cannot access it for religious reasons, the equal benefit of a publicly funded education has been denied the appellants on the basis of a distinction which relates to their membership in an identifiable group.
This distinction is capable of promoting or perpetuating a view that the appellants are, by virtue of their religious beliefs, less capable or worthy of recognition or value as human beings or members of Canadian society equally deserving of concern, respect, and consideration. Consideration must be given to both the nature of the group affected and the nature of the interest. Dissentient minority religious groups have suffered severely from the historic disadvantage which has adhered to religious identity. They are necessarily discrete and insular minorities given the forces of secularization in society. The consequences which flow from the denial of an economic benefit are necessarily incidental to protecting the dignity and value of the appellants. Denial of any funding to the appellants constitutes not only a financial prejudice, but also a complete non‑recognition of their children’s educational needs and the children’s and parents’ fundamental interest in the continuation of their faith. In applying s. 15 in the context of the denial of funding for education to those who cannot access it for religious reasons, s. 27 of the Charter (dealing with the preservation and enhancement of a multicultural heritage) supports a finding that the interests at stake, the preservation and continuation of the communities in question, form interests fundamental to the purposes of the Charter . The Education Act funding scheme represents a prima facie violation of the s. 15 guarantee of equal benefit of the law.
While deference has been granted the state in its legislative role by the courts in undertaking a s. 1 analysis, this deference has been designed to give better effect to the general purposes of the Charter . Generally, where the nature of the rights infringement falls far from Charter values and where the legislative objective promotes these values, deference will be shown. As a corollary, however, where the nature of the infringement lies at the core of the rights protected in the Charter and the social objective is meant to serve the interest of the majority as a whole, as represented by state action, courts must be vigilant to ensure that the state has demonstrated its justification for the infringement. A less deferential stance should be taken and a greater onus remain on the state to justify its encroachment on the Charter right in question. In each case, therefore, only after the objective of the legislation has been identified can the appropriate degree of deference be determined. “Social” legislation per se will not, in the absence of these factors, warrant deference. Indeed, cases will be rare where it is found reasonable in a free and democratic society to discriminate.
The objectives of providing free public education and of fostering tolerance are clearly pressing and substantial in a democratic society. The former objective dictates that the latter be linked to the discouragement of non‑secular education. The value underlying the legislation is the provision of education in a manner which fulfills the majoritarian interests of a secular society and it is the majoritarian interests, and not the interests of vulnerable and discrete social groups, which are threatened by the funding of religious schools. The infringement, by contrast, affects members of an insular religious minority within a minority to the extent of touching upon its members’ ability to maintain their practices and therefore upon its ability to survive as a community. The degree of judicial deference allowed in other cases is not warranted here. The state must clearly discharge the burdens of evidence and proof which are mandated under s. 1 .
A rational connection was established between funding choices and the maintenance of universally open and religiously tolerant schools. Full funding for dissentient schools was shown to be linked to the possible outflow of a large number of students from the public school system. The legislation, however, did not minimally impair the rights in question. Complete denial of funding is the most excessive impairment possible and not one of a range of permissible alternatives. Partial funding could be provided without affecting the objectives of the legislation and would ensure a less severe impairment. It could ensure some recognition of these communities and assist in their continuation, all the while maintaining the generally secular, universal and socially tolerant nature of the public school system. Finally, the salutary effects of the legislation, being essentially financial in nature, did not outweigh the deleterious impact.
School Health Support Services
Per Lamer C.J. and La Forest, Gonthier, Cory and Iacobucci JJ.: The School Health Support Services Program is immune from Charter scrutiny. These services, which should be characterized as education services as opposed to health services, are designed to ensure that children with special needs have full access to the public school system. The program is therefore simply a manifestation of the Ontario government’s fulfilling its mandate to provide an education designed for all members of the community. It is accordingly immune from Charter scrutiny. Given the characterization of these services as “education services” rather than “health services”, the failure to extend these services to private religious schools does not violate either s. 2 (a) or s. 15(1) of the Charter .
Per Sopinka and Major JJ.: The School Health Support Services are properly characterized as “education services” as opposed to strict “health services”. If the appellants have no basis for claiming a right to public funding for the education provided in private schools, they have no claim for additional “educational services” available only within the public school system. There is no reason to distinguish funding for this aspect from other aspects of funding for educational purposes.
Per McLachlin J. (dissenting): The unequal treatment given disabled children attending independent religious schools flows from the religious conviction of their parents whose belief compels them to educate their children outside the public secular system. Labelling the denial of assistance as an education matter does not obviate the inequality the restriction creates. This unequal treatment is discrimination contrary to s. 15 of the Charter .
The objective of promoting a more tolerant multicultural society might be capable of justifying the impugned regulation which relies on definitions contained in the Education Act and therefore alludes only to public secular schools and Roman Catholic schools. Rational connection is more problematic. The Regulation might be argued to be a measure to encourage disabled children of religious minorities to participate in the multicultural public school system. The infringement, however, is not minimally impaired. The cost of extending these school health services is not great and denying these services to disabled children in non‑funded schools adds to their burden of coping. The discrimination effected by the Regulation is not justifiable under s. 1 .
A provision should be read into Regulation 552, extending the Education Act’s definition of “school” to include private denominational schools and broadening the Act’s definition of “special education program” to include programs that are comparable to special education programs in public schools or Roman Catholic schools.
Per L’Heureux‑Dubé J. (dissenting): The services to disabled students provided under the Health Insurance Act in the public and separate schools as part of a “special education program” form an integral part of the education services funded in the province under the Education Act. Denying this funding as part of the complete denial of funding to these schools infringes s. 15 of the Charter . Providing services which make it possible for disabled students to attend publicly funded schools furthers the objectives of the Education Act in creating a non‑discriminatory, universal system of education. The denial of the health support program, however, is not rationally connected to the objectives of providing universal education without discrimination. Furthermore, denying disabled children access to the independent schools will not, in any significant way, further enhance the social diversity and harmony in the public school system because religious reasons prevent their parents from sending them to the secular system in any event. It was unnecessary to undertake a determination of whether a minimal impairment has been imposed or whether the effects are proportionate to the objective.
A provision should be read into Regulation 552 which expands the definition of “school” in the Education Act to include private denominational schools and extends the Education Act’s definition of special education programs to include those equivalent to the ones offered in the separate or public school systems.
Cases Cited
By Iacobucci J.
Applied: Reference Re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; considered: Mahe v. Alberta, [1990] 1 S.C.R. 342; referred to: Reference re Education Act (Que.), [1993] 2 S.C.R. 511; Reference re Adoption Act, [1938] S.C.R. 398; Greater Montreal Protestant School Board v. Quebec (Attorney General), [1989] 1 S.C.R. 377; Société des Acadiens du Nouveau‑Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549; Reference re Public Schools Act (Man.), [1993] 1 S.C.R. 839; Attorney General of Quebec v. Greater Hull School Board, [1984] 2 S.C.R. 575; Roman Catholic Separate School Trustees for Tiny v. The King, [1928] A.C. 363; Brophy v. Attorney‑General of Manitoba, [1895] A.C. 202.
By Sopinka J.
Applied: Reference Re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; considered: R. v. Jones, [1986] 2 S.C.R. 284; distinguished: Mahe v. Alberta, [1990] 1 S.C.R. 342; Zylberberg v. Sudbury Board of Education (Director) (1988), 65 O.R. (2d) 641; Canadian Civil Liberties Assn. v. Ontario (Minister of Education) (1990), 71 O.R. (2d) 341; referred to: Hirsch v. Protestant Board of School Commissioners of Montreal, [1928] A.C. 200; Brophy v. Attorney‑General of Manitoba, [1895] A.C. 202; Reference re Adoption Act, [1938] S.C.R. 398; Attorney General of Quebec v. Greater Hull School Board, [1984] 2 S.C.R. 575; Greater Montreal Protestant School Board v. Quebec (Attorney General), [1989] 1 S.C.R. 377; Reference re Education Act (Que.), [1993] 2 S.C.R. 511; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; R. v. Turpin, [1989] 1 S.C.R. 1296; Miron v. Trudel, [1995] 2 S.C.R. 418; Egan v. Canada, [1995] 2 S.C.R. 513; Ontario Human Rights Commission v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Russow v. British Columbia (Attorney General) (1989), 35 B.C.L.R. (2d) 29; Bal v. Ontario (Attorney General) (1994), 21 O.R. (3d) 681.
By McLachlin J. (dissenting in part)
Applied: Reference Re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; distinguished: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; referred to: Miron v. Trudel, [1995] 2 S.C.R. 418; Egan v. Canada, [1995] 2 S.C.R. 513; Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561; R. v. Oakes, [1986] 1 S.C.R. 103; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; R. v. Chaulk, [1990] 3 S.C.R. 1303.
By L’Heureux‑Dubé J. (dissenting)
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Egan v. Canada, [1995] 2 S.C.R. 513; Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561; Miron v. Trudel, [1995] 2 S.C.R. 418; Ontario Human Rights Commission v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; R. v. Oakes, [1986] 1 S.C.R. 103; National Trust Co. v. Christian Community of Universal Brotherhood Ltd., [1941] S.C.R. 601; Saumur v. City of Quebec, [1953] 2 S.C.R. 299; Roncarelli v. Duplessis, [1959] S.C.R. 121; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v. Jones, [1986] 2 S.C.R. 284; Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Schachter v. Canada, [1992] 2 S.C.R. 679.
Statutes and Regulations Cited
Act respecting Common Schools in Upper Canada, C.S.U.C. 1859, c. 64, ss. 27(16), 169.
Act to restore to Roman Catholics in Upper Canada certain rights in respect to Separate Schools, S. Prov. C. 1863, c. 5, ss. 7, 9, 14, 20.
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (a), 15 , 23 , 27 .
Constitution Act, 1867, ss. 92 , 93(1) , (2) , (3) , (4) .
Constitution Act, 1982, s. 29 .
Education Act, R.S.O. 1990, c. E.2, ss. 1(1), 21(1)(a), (b), (2)(a), 70(1)(a), (b).
Health Insurance Act, R.S.O. 1990, c. H.6, s. 45.
R.R.O. 1990, Reg. 552, ss. 13(1), 14(1), (2).
School Act, S.A. 1988, c. S-3.1, s. 16.
Authors Cited
Carignan, Pierre. “La raison d’être de l’article 93 de la Loi constitutionnelle de 1867 à la lumière de la législation préexistante en matière d’éducation” (1986), 20 R.J.T. 375.
Hogg, Peter W. Constitutional Law of Canada, vol. 2, 3rd ed. (Supplemented). Scarborough, Ont.: Carswell, 1992 (loose-leaf).
Ontario. Commission on Private Schools in Ontario. Report of the Commission on Private Schools in Ontario (Shapiro Report). Toronto: 1985.
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APPEAL from a judgment of the Ontario Court of Appeal (1994), 19 O.R. (3d) 1, 116 D.L.R. (4th) 1, 73 O.A.C. 81, 22 C.R.R. (2d) 205, dismissing an appeal from a judgment of Anderson J. (1992), 9 O.R. (3d) 676, 94 D.L.R. (4th) 417. Appeal dismissed, McLachlin J. dissenting in part and L’Heureux‑Dubé J. dissenting.
Edward M. Morgan, for the appellants Susie Adler, Mark Grossman, Paula Kezwer, Marcy Rapp and Riky Young.
David M. Brown and Elizabeth Pillon, for the appellants Leo Elgersma, Harry Pott, Raymond Dostal, Harry Fernhout and the Ontario Alliance of Christian School Societies.
Robert E. Charney and Hart Schwartz, for the respondents.
Isabelle Harnois, for the intervener the Attorney General of Quebec.
Thomson Irvine, for the intervener the Attorney General for Saskatchewan.
Peter R. Jervis and David D. Conklin, for the intervener the Ontario Multi‑Faith Coalition for Equity in Education.
John A. Olthuis and H. W. Roger Townshend, for the intervener the Ontario Federation of Independent Schools.
Brian A. Kelsey, Q.C., and William S. Challis, for the interveners the Metropolitan Toronto School Board and the Ontario Public School Boards’ Association.
Patricia D. S. Jackson and Clare E. Burns, for the intervener the Canadian Civil Liberties Association.
The judgment of Lamer C.J. and La Forest, Gonthier, Cory and Iacobucci JJ. was delivered by
1. Iacobucci J. -- This appeal involves the question of whether the current education funding scheme in the province of Ontario violates the appellants' religious and equality rights as guaranteed by ss. 2 (a) and 15 of the Canadian Charter of Rights and Freedoms . The appeal also raises the question of whether the provision of school health support services only to students in the public school system violates the appellants' ss. 2 (a) and 15 Charter rights.
I. Background
2. The appellants are parents who, by reason of religious or conscientious beliefs, send their children to private religious schools. The first five appellants (the "Adler appellants") are parents of children attending Jewish day schools. The "Elgersma appellants" are four parents whose children attend independent Christian schools, and a non-profit corporation, the Ontario Alliance of Christian School Societies ("OACSS"), which is active in the promotion of Christian elementary and secondary education.
3. The Adler appellants sought a declaration that the non-funding of Jewish day schools in Ontario was unconstitutional. Full-time Jewish day schools have existed in Ontario since 1949 and now have an enrolment of approximately 10,000 students. The schools provide Jewish religious instruction and Judaic studies in addition to secular studies at both the elementary and high school levels in conformity with Ministry of Education guidelines, although they receive no direct funding from the Government of Ontario. Their costs are met through tuition fees, funds raised by the schools, and other fund-raising activities of the Jewish community.
4. The Elgersma appellants sought, along with