The Yukon government could get rid of religious school funding without amending either the Yukon Act or the Education Act.
It would have to end a 51-year agreement with the Catholic Episcopal Corporation that was signed in 1962 when the corporation sold two of its private schools – Christ the King Elementary and Christ the King high school – to the Yukon, and the Department of Education began running them with public money.
That agreement – and not the Yukon Act or the Education Act – provides the government’s obligation to fund Catholic schools, explained Tom Ullyett, assistant deputy minister for the Department of Justice.
“The Education Act also doesn’t explicitly protect separate funding. It only refers to the 1962 agreement, saying that it is still in effect. If there was to be a change in funding, the parties – I’ll say the minister and the bishop, but formally it is the commissioner and the Episcopal corporation – would have to go to that agreement and use that as their basis for discussions about funding,” Ullyett said.
The Yukon Act does mention a separate school system for the territory, but not a publicly funded one. The act says that religious minority “ratepayers” may set up their own school system – whether Catholic of Protestant – but they would have to pay for it themselves. That hasn’t been happening since the early 1900s, when the Yukon government first started giving grants to the Catholic Church to run its schools.
“The Yukon Act, you can just sort of push that aside because it describes a model of funding that hasn’t been in place since modern times, and of course it’s an act of Parliament, and so on,” Ullyett said.
Like most agreements, the 1962 document does not provide terms that give either party the power to unilaterally end the agreement. Ullyett compared the agreement to a rental contract.
“Generally speaking, though, with any contract, if there has been a fundamental breach of the contract, generally under contract law that does allow one party to say, ‘OK, the agreement is over,’” Ullyett said.
A fundamental breach isn’t a simple disagreement or even a violation of the contract. Ullyett explained that a fundamental breach would be something that goes right to the core intent of the document. He would not speculate about what might constitute a fundamental breach in this case. He did say that the 1962 agreement contains commitments by both parties to abide by all territorial and federal laws.
“Those are two pretty important clauses. The parties have agreed between them that they will observe the laws, whether it’s federal laws like the Human Rights Act or the Charter of Rights and Freedoms, or whether it’s decisions of the courts. This is what (Education Minister Scott Kent) has referred to, that the church’s policy has to be on-side with the law because that’s what they agreed to in 1962 and he wants to make sure that that is still the case. Those are important clauses in the agreement, there’s no question about it,” Ullyett said.
Last week, Kent published an open letter to Bishop Gary Gordon, who is responsible for Whitehorse Catholic schools. In it, Kent said that Vanier Catholic Secondary School must fall in line with departmental policy on sexual orientation, and that current church teachings are likely a violation of Yukon and federal law.
Those teachings came under fire earlier this month when parents complained that a policy document written by the bishop and available publicly on Vanier’s website was discriminatory towards gays, calling homosexuality a “disorder” and homosexual acts an “intrinsic moral evil.” The policy also bans gay-straight alliances because the church doesn’t condone using words like gay, lesbian, or queer.
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