Defunding Yukon’s Catholic schools won’t be easily done

Internet comments usually aren't much of a gauge of anything except for certain people's propensity for snark when cloaked in the comfortable robes of anonymity.

Internet comments usually aren’t much of a gauge of anything except for certain people’s propensity for snark when cloaked in the comfortable robes of anonymity. But I think it is fair to conclude from the volume and intensity of comments to the News’ story about the Yukon Green Party proposal to abolish the territory’s separate Catholic school system that this is an issue that evokes extremely strong feelings on both sides.

Not being a serious contender for territorial leadership, the Yukon Greens have the advantage of being able to stir the pot without fear of real-world electoral consequences. It could even draw a few extra votes for the nascent party from the handful of single-issue voters who are quite moved by this subject.

But with almost a thousand Yukon children attending publicly funded Catholic schools, it is unlikely that any of the three mainstream political parties is going to alienate and mobilize such a potentially large bloc of voters.

Even if they wanted to do away with Catholic education they’d have to convince Parliament to amend the Yukon Act first. The Yukon Act requires that “the minority of the ratepayers in that part of Yukon, whether Protestant or Roman Catholic, may establish separate schools” – or, in other words the Yukon government, is required to provide Catholic schools if parents want them.

All that sounds like a lot of effort just to alienate a group of voters that presumably cross political lines.

Much ink has been spilled over the fairness of our country’s “historical compromise” whereby Catholics enjoy the privilege of publicly funded religious education in certain provinces while followers of other religions enjoy no such funding.

There is definitely a certain amount of dissonance between that privilege and the Charter’s guarantee that everyone “has the right to the… equal benefit of the law without discrimination and, in particular, without discrimination based on… religion”. Whatever the practical and political implications, the notion that we should fund all religious schools or fund none at all has a certain ethical coherence to it. The best argument that defenders of the status quo can marshal in favour of their position is tradition, which, in my view at least, is a weak argument on any substantive issue of public policy.

Not surprisingly, the Supreme Court of Canada has had to wrestle with the legal contradiction between that one section of our country’s constitution, which says that people of all religions are entitled to equal treatment, and others, which require that certain provincial governments fund certain religious schools.

In the 1996 Adler decision, the high court came down on the side of Catholic schools deciding that the specific rights enjoyed by denominational schools trumped the more general right to equal religious treatment. So as far as the provinces are concerned – barring a change of heart by the court’s justices – the legal issues are effectively settled. Funding one but not others is constitutional.

But the Yukon’s status as a territory rather than a province does raise an interesting and untested legal question about whether the same conclusion could be reached about our situation here, were anyone ever so inclined to insist that the Yukon government establish a separate school system for any non-Christian religion.

Unlike the constitutional provisions insulating Catholic schools in certain provinces from Charter scrutiny, the Yukon Act is just an ordinary law. This means it cannot claim equal status with the Charter of Rights in the hierarchy of laws, and the reasoning in Adler would arguably not apply. As such, I think that were anyone to ever challenge the restriction on “separate schools” in the Yukon to “Protestant or Roman Catholic” religions on the basis that it infringes the Charter’s equality guarantee, there would be a decent legal argument that the Yukon government has to fund them all.

Of course, funding all is not a terribly palatable solution either. Such a proposal effectively killed the campaign of John Tory’s Ontario Progressive Conservatives in the 2007 provincial election. And since the primary rationale given by the Yukon Greens for abolishing the Catholic school system is the financial savings, extending the privilege of separate schools to other religions would only exacerbate the inefficiency of maintaining multiple parallel school systems.

So let’s review: Our territorial politicians have three options. They can stand in the path of historical inertia and irritate a bloc of voters by abolishing a school system those voters regard as being something akin to a sacred right. Or they can blow up the budget by creating a patchwork of religious schools no one is really strongly pushing for. Or they can continue to defend, through their silence, an indefensible, unequal and arguably unlawful status quo.

With options like those, it is no wonder the only party making noise about this issue is the one without a seat in the legislature.

Kyle Carruthers is a born-and-raised Yukoner who lives and practises law in Whitehorse.