Adler v. Ontario

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.

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.

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.

The Elgersma appellants sought, along with other relief, a declaration that the non-funding of independent Christian schools infringed their rights as guaranteed under the Charter. There are now 73 Christian schools in Ontario. Membership in each individual school society is open to all adult, active Christian church members who assent to the society's aims and confessional principles, who pay the prescribed membership fee, and who are willing to be actively involved in the work of the society. Most society members belong to the Christian Reformed Church. OACSS member schools, like Jewish day schools, do not receive government funding. Funds are obtained from parental tuition pledges, community donations, and other fund-raising activities.

Both the Adler and the Elgersma applications include claims with respect to School Health Support Services Program (SHSSP). Matan Kezwer, the son of the appellant Paula Kezwer, has a hearing and speech impairment. The appellants claim that if Matan were enrolled in a public or Roman Catholic separate school, he would qualify for school health support services. Furthermore, they claim that the failure to fund such services at Matan’s Jewish day school violates his Charter rights.

Walter Elgersma, the son of the appellant Leo Elgersma, attends a Christian day school. He was born with spina bifida and hydrocephalus and, as a consequence, needs periodic medical attention throughout the course of the day, in addition to wheelchair accessible transportation to and from school. These services are not provided at his present school.

Joel Pott is the son of the appellant Harry Pott. He is a non-verbal, developmentally handicapped child with autistic tendencies and behavioural problems. Harry Pott deposed that Joel requires special attention of the sort provided under the SHSSP. At the time of the hearing, Joel was attending a Roman Catholic separate school in Kingston. His parents want to send him to an independent Christian school, but the school lacks the funding to provide the special services which the Potts say that Joel needs. Both the Elgersmas and the Potts claim that the government’s refusal to extend the school health support services to independent Christian schools violates their children’s rights under ss. 2(a) and 15(1) of the Charter.

Anderson J. accepted the Adler appellants’ evidence that the religious education necessary for their practice of the Jewish religion can only be achieved in a Jewish day school environment. Similarly, with regard to the Elgersma appellants, Anderson J. found that the dictates of their religion required them to educate their children in accordance with the principles of the Christian Reformed Church and that this was not possible in the province’s publicly funded schools.

Anderson J. accepted the appellants' arguments relating to ss. 2(a) and 15(1) of the Charter. He noted from the outset that the funding of Roman Catholic separate schools was not a relevant consideration in determining any of the rights of the appellants. He based this conclusion on Reference Re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148 (Reference Re Bill 30) which upheld the constitutionality of full funding for Roman Catholic separate schools under s. 93 of the Constitution Act, 1867. According to Anderson J., at p. 693, funding for Roman Catholic separate schools was a constitutional anomaly having its roots in a historical political compromise “made as an incident of the Confederation of 1867” and, as such, was not subject to Charter scrutiny.

However, the motions court judge concluded that government funding for public secular schools coupled with the non-funding of independent religious schools violated the appellants’ s. 15(1) equality rights. He reasoned that the Education Act created a distinction based on religion in so far as it provided the benefit of a free education to people whose children attend public schools, but denied that benefit to people who, because of religious convictions, sent their children to private parochial schools.

Anderson J. also held that the appellants' freedom of religion as guaranteed by s. 2(a) of the Charter had been infringed. He found that the Education Act made school attendance mandatory and that, for parents who were precluded by religious and conscientious belief from taking advantage of the publicly funded school system, the price of escape was the payment of tuition fees. The legislation, thus, imposed a cost or burden on parents such as the appellants.

13. However, Anderson J. concluded that the legislation in question was saved by s. 1 of the Charter. In his view, the legislative objectives, including the provision of tuition-free, secular, universally accessible public education, and the establishment of a public education system fostering and promoting the values of a pluralistic, democratic society, were of sufficient importance to warrant overriding a constitutionally protected right or freedom. He found there to be a rational connection between those objectives and the means chosen to achieve them. He held that the “degree of impairment” of the appellants’ rights was “within permissible limits”. Finally, he held that the benefits of the legislation were proportionate to its adverse effects on the appellants.

B. Ontario Court of Appeal (1994), 19 O.R. (3d) 1

(a) Dubin C.J. (for the majority)

14. Dubin C.J. held that Anderson J. had erred in finding a s. 2(a) violation. In his view, s. 2(a) did not provide a positive entitlement to state support for the exercise of one's religion. A breach can only consist in state action which denies or limits religious practice.

15. Dubin C.J. found that Anderson J. had made two further errors. The first was the motions court judge’s finding that s. 21 of the Education Act made school attendance mandatory. Dubin C.J. noted that the Act only made education (as opposed to school attendance) compulsory and that children need not attend school so long as they receive satisfactory instruction elsewhere. Dubin C.J. found that this provision for excusing children from public schools provided a sufficient protection for religious freedom.

-- (1) In this section,

“home care facility” means,

(a) a local board of health of a municipality or a health unit, or

(b) an agency,

approved by the Minister to provide home care services;

“home care services” means,

(a) the services that are provided, on a visitation basis, by a nurse or a nursing assistant,

(b) the services provided, on a visiting basis, by a physiotherapist, occupational therapist, speech therapist, social worker or nutritionist,

(c) the provision of dressings and medical supplies,

(d) the provision of diagnostic and laboratory services,

(e) the provision of hospital and sickroom equipment,

(f) the provision of transportation services to and from the home to a hospital, health facility or the attending physician’s office, as the case may be;

-- (1) In this section,

“home care facility” means a home care facility as defined in subsection 13(1);

“school” means a school as defined in subsection 1(1) of the Education Act;

“school health support services” means,

(a) the services that are provided, on a visitation basis, by a nurse, physiotherapist, occupational therapist, speech therapist or nutritionist,

(b) the training, supervision or consultation services of a nurse, physiotherapist, occupational therapist, speech therapist or nutritionist to support personnel referred to in the definition of “special education services” in subsection 1(1) of the Education Act, and

(c) the provision of dressings and medical supplies necessary for the services referred to in clause (a), ...

“special education program” means a special education program as defined in subsection 1(1) of the Education Act;

. . .

(2) School health support services provided by a home care facility to an insured person who is placed in a special education program in a school are prescribed as insured services.

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Education Act, R.S.O. 1990, c. E.2

1.-- (1) In this Act and the regulations, except where otherwise provided in the Act or regulations,

. . .

“exceptional pupil” means a pupil whose behavioural, communicational, intellectual, physical or multiple exceptionalities are such that he or she is considered to need placement in a special education program by a committee established under subparagraph iii of paragraph 5 of subsection 11(1), of the board,

(a) of which the pupil is a resident pupil,

(b) that admits or enrols the pupil other than pursuant to an agreement with another board for the provision of education, or

(c) to which the cost of education in respect of the pupil is payable by the Minister; (“élève en difficulté”) R.S.O. 1980, c. 129, s. 1(1), pars. 20, 21.

. . .

"private school" means an institution at which instruction is provided at any time between the hours of 9 a.m. and 4 p.m. on any school day for five or more pupils who are of or over compulsory school age in any of the subjects of the elementary or secondary school courses of study and that is not a school as defined in this section; ("école privée")

...

"school" means,

(a) the body of public school pupils or separate school pupils or secondary school pupils that is organized as a unit for educational purposes under the jurisdiction of the appropriate board, or

(b) the body of pupils enrolled in any of the elementary or secondary school courses of study in an educational institution operated by the Government of Ontario,

and includes the teachers and other staff members associated with such unit or institution and the lands and premises used in connection therewith; ("école")

...

“special education program” means, in respect of an exceptional pupil, an educational program that is based on and modified by the results of continuous assessment and evaluation and that includes a plan containing specific objectives and an outline of educational services that meets the needs of the exceptional pupil; (“programme d’enseignement à l’enfance en difficulté”)

“special education services” means facilities and resources, including support personnel and equipment, necessary for developing and implementing a special education program; (“services à l’enfance en difficulté”)

....

Dubin C.J. went on to hold, at p. 14, that the state action complained of was not, in fact, responsible for creating the alleged burden for the Adler and Elgersma appellants:

Further, there is no evidence that any of the appellants' children receive education because of s. 21 of the Act, or that the appellants would choose to forgo educating their children in the absence of that section. There is no evidence that compulsory education is inconsistent with any of the appellants' religious beliefs, and, therefore, there is no conflict between s. 21 of the Act and the appellants' religious freedom.

In the opinion of the majority in the Court of Appeal, the appellants' decision not to send their children to public school was entirely attributable to their religious beliefs and not to any government action. Thus, what was complained of was not government action, but rather, government inaction which in the circumstances of this case could not be the subject of a s. 2(a) Charter challenge.

Dubin C.J. then considered the arguments relating to equality rights. He agreed with Anderson J. that, pursuant to Reference Re Bill 30, the funding of Roman Catholic separate schools was not a basis for holding that the Education Act contravened s. 15 of the Charter.

Having disposed of the arguments relating to funding for separate schools, Dubin C.J. turned to the claim that the funding of secular public schools constituted discrimination on the basis of religion. He held, at p. 24, that if the lack of government funding for private schools created a distinction, that distinction was not one based on religion:

The public school system is solely secular and, in my view, because it is secular, it cannot found a claim of discrimination because it does not provide public funds for religious education under private auspices.

Dubin C.J. stated that even if the appellants' Charter rights had been infringed, the absence of funding for the religious schools was a reasonable limit under s. 1 of the Charter.

With respect to the SHSSP, Dubin C.J. stated that there was not a sufficient factual foundation upon which to base the constitutional challenge. In his view, there was no proof that any of the appellants' children would have qualified for the school health support services if the services had been extended to independent schools. In any event, according to Dubin C.J., the program was not merely a matter of health services, as contended by the appellants, but was inextricably tied to the educational services provided in the public and separate schools for handicapped children.

(b) Weiler J.A. (dissenting in part)

21. Weiler J.A. agreed with the majority judgment on the issues relating to public funding for private religious schools.

-- (1) Unless excused under this section,

(a) every child who attains the age of six years on or before the first school day in September in any year shall attend an elementary or secondary school on every school day from the first school day in September in that year until the child attains the age of sixteen years; and

(b) every child who attains the age of six years after the first school day in September in any year shall attend an elementary or secondary school on every school day from the first school day in September in the next succeeding year until the last school day in June in the year in which the child attains the age of sixteen years.

(2) A child is excused from attendance at school if,

(a) the child is receiving satisfactory instruction at home or elsewhere;

. . .

With regard to the school health support services question, Weiler J.A. agreed with Dubin C.J. that the record disclosed no evidence to support the standing of the Kezwers and the Potts to challenge the regulation. However, in her view, the evidence did show that Walter Elgersma would be eligible to receive support services under SHSSP if he attended a public or separate school. Therefore, Walter Elgersma was directly affected by the legislation in question and his parents did have a genuine interest in the outcome of the legislation. Further, she said, at pp. 40-41 that "[t]he present action by Walter Elgersma's father appears to be the only reasonable and effective way to bring the legislation's validity before the court". Weiler J.A. accordingly found that there was “an adequate contextual basis” to grant standing.

Weiler J.A. held that s. 93 of the Constitution Act, 1867 had no bearing on the matter, and that it was appropriate to consider the applicability of the Charter. She found that the school health services regulation was legislation in relation to health, not education and concluded that the appellants’ children were denied equal benefit of the law and that the funding scheme constituted discrimination on the basis of religion. She held that the denial of equal benefit of the law was not a reasonable limit under s. 1 of the Charter. With regard to the appropriate remedy, she held that reading into the regulation an expanded definition of school, as opposed to nullification, would be the more consistent with the government’s purpose in enacting the legislation.

By order of Lamer C.J. dated May 16, 1995, the following constitutional questions were stated:

1. Do the definitions of "board" and "school" in s. 1(1) of the Education Act, R.S.O. 1990, c. E.2, together with the annual General Legislative Grants promulgated under s. 11(3)(a) and (b) thereof, infringe or deny the appellants' freedom of religion under s. 2(a) of the Canadian Charter of Rights and Freedoms by not providing funding to religious-based independent schools?

2. (a) Do the definitions of "board" and "school" in s. 1(1) of the Education Act, R.S.O. 1990, c. E.2, together with the annual General Legislative Grants promulgated under s. 11(3)(a) and (b) thereof, infringe or deny the appellants' equality rights under s. 15(1) of the Canadian Charter of Rights and Freedoms by providing funding to public school boards but not to religious-based independent schools?

(b) Do the definitions of "board" and "school" in s. 1(1) of the Education Act, R.S.O. 1990, c. E.2, together with the annual General Legislative Grants promulgated under s. 11(3)(a) and (b) thereof, infringe or deny the appellants' equality rights under s. 15(1) of the Canadian Charter of Rights and Freedoms by providing funding to Roman Catholic separate school boards but not to religious-based independent schools?

3. If the answer to Question 1 or 2 is in the affirmative, is the non-funding of religious-based independent schools justified as a reasonable limit pursuant to s. 1 of the Canadian Charter of Rights and Freedoms?

4. (a) Does s. 14 of Regulation 552, R.R.O. 1990, made under s. 45 of the Health Insurance Act, R.S.O. 1990, c. H.6, infringe the appellants' freedom of religion under s. 2(a) of the Canadian Charter of Rights and Freedoms by prescribing 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 religious-based independent school?

(b) Does s. 14 of Regulation 552, R.R.O. 1990, made under s. 45 of the Health Insurance Act, R.S.O. 1990, c. H.6, infringe the appellants' equality rights under s. 15(1) of the Canadian Charter of Rights and Freedoms by prescribing 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 religious-based independent school?

5. If the answer to Question 4(a) or 4(b) is in the affirmative, is the prescribing of 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 religious-based independent school justified as a reasonable limit pursuant to s. 1 of the Canadian Charter of Rights and Freedoms?

As I see the issues before us, this case is to be resolved with reference to s. 93 of the Constitution Act, 1867. Section 93 grants to the provinces the power to legislate with regard to education. This grant is subject to certain restrictive conditions, among them s. 93(1) which provides that no law may prejudicially affect any right or privilege with respect to denominational schools which any class of persons had at the time of Union. The effect of this subsection is to entrench constitutionally a special status for such classes of persons, granting them rights which are denied to others.

The appellants advance, in essence, two Charter arguments. The first is that s. 2(a)’s guarantee of freedom of religion requires the province of Ontario to provide public funding for independent religious schools. The second is that, by funding Roman Catholic separate schools and secular public schools at the same time as it denies funding to independent religious schools, the province is discriminating against the appellants on the basis of religion contrary to s. 15(1).

I propose to deal with these arguments in turn. As will be explained more fully below, it is my opinion that the s. 2(a) claim fails because any claim to public support for religious education must be grounded in s. 93(1) which is a “comprehensive code” of denominational school rights. With regard to the appellants’ equality argument, this claim fails because the funding of Roman Catholic separate schools and public schools is within the contemplation of the terms of s. 93 and is, therefore, immune from Charter scrutiny.

In my view, any analysis of denominational school rights must take as its starting point the guarantees contained in s. 93(1). If the rights claimed are not found in this subsection, I fail to see how other sections of the Constitution, in particular s. 2(a) of the Charter, can be used to enlarge upon s. 93's constitutionally blessed scheme for public funding of denominational schools.

Section 93 is the product of an historical compromise which was a crucial step along the road leading to Confederation. As Gonthier J. said in Reference re Education Act (Que.), [1993] 2 S.C.R. 511, at p. 529:

Section 93 is unanimously recognized as the expression of a desire for political compromise. It served to moderate religious conflicts which threatened the birth of the Union.

Without this “solemn pact”, this “cardinal term” of Union, there would have been no Confederation. See Wilson J.’s discussion of the history of s. 93 in Reference Re Bill 30, supra, at pp. 1173-74; and the judgment of Duff C.J. in Reference re Adoption Act, [1938] S.C.R. 398, at p. 402.

As a child born of historical exigency, s. 93 does not represent a guarantee of fundamental freedoms. Beetz J. stated, in Greater Montreal Protestant School Board v. Quebec (Attorney General), [1989] 1 S.C.R. 377, at p. 401:

While it may be rooted in notions of tolerance and diversity, the exception in s. 93 is not a blanket affirmation of freedom of religion or freedom of conscience . . . . [and] should not be construed as a Charter human right or freedom or, to use the expression of Professor Peter Hogg, a “small bill of rights for the protection of minority religious groups”....

And see Reference re Education Act (Que), supra, at pp. 539-40.

A useful analogy can be drawn between s. 93 and the minority language guarantees contained in s. 23 of the Charter. Like s. 93, s. 23 has its origins in political compromise. See Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549, at p. 578; Reference re Public Schools Act (Man.), [1993] 1 S.C.R. 839, at p. 851.

Furthermore, both sections grant special status to particular classes of people. Dickson C.J. discussed the entrenched inequality created by s. 23 in Mahe v. Alberta, [1990] 1 S.C.R. 342. In this case, a group of parents claimed that their children were being denied the French language educational facilities to which they were entitled under s. 23 of the Charter. The parents argued that s. 23 should be interpreted in light of the words of s. 15(1) of the Charter. Speaking for a unanimous court, Dickson C.J. rejected this argument. In his words, s. 23 provides a “comprehensive code”, a unique source for minority language educational rights. See Mahe, supra, at p. 369. The Court recognized that this would create inequalities: English speakers living in francophone provinces and French speakers living in anglophone provinces would enjoy rights which are denied to other linguistic groups. However, it is the words of the Constitution itself which create this “special status”. As Dickson C.J. said at p. 369:

[Section 23] is, if anything, an exception to the provisions of ss. 15 and 27 in that it accords these groups, the English and the French, special status in comparison to all other linguistic groups in Canada.

Section 93(1) confers a similarly privileged status on those religious minorities which, at the time of Confederation, enjoyed legal rights with respect to denominational schools. In Reference Re Bill 30, Wilson J. acknowledged at p. 1197 that this special status may “sit uncomfortably with the concept of equality embodied in the Charter”, but it must nonetheless be respected. In his concurring judgment, Estey J. drew a similar conclusion, saying that the purpose of s. 93 was “to provide the province with the jurisdiction to legislate in a prima facie selective and distinguishing manner”. See Reference Re Bill 30, supra, at p. 1206.

As Dickson C.J. concluded in Mahe, at p. 369, to use s. 15(1)’s equality rights as an interpretive aid to s. 23 would unacceptably distort the meaning and scope of the educational guarantees:

... it would be totally incongruous to invoke in aid of the interpretation of a provision which grants special rights to a select group of individuals, the principle of equality intended to be universally applicable to “every individual”.

In my opinion, the reasoning used in Mahe is equally applicable to the appellants’ attempt to use s. 2(a) in combination with s. 15(1) to expand on s. 93's religious educational guarantees. Thus, just as s. 23 is a comprehensive code with respect to minority language education rights, s. 93 is a comprehensive code with respect to denominational school rights. As a result, s. 2(a) of the Charter cannot be used to enlarge this comprehensive code. Given that the appellants cannot bring themselves within the terms of s. 93's guarantees, they have no claim to public funding for their schools. To emphasize, in Ontario, s. 93(1) entrenches certain rights with respect to public funding of religious education. However, these rights are limited to those which were enjoyed at the time of Confederation. To decide otherwise by accepting the appellants’ claim that s. 2(a) requires public funding of their religious schools would be to hold one section of the Constitution violative of another -- a result which Reference Re Bill 30 tells us to avoid, as will be further discussed below.

In Reference Re Bill 30, Wilson J., writing for the majority, upheld Ontario legislation which extended full funding to the province’s Roman Catholic separate schools. Her decision rested on two alternative findings.

First, she found that Bill 30 was a valid exercise of provincial power under the combined effect of the opening words of s. 93 and s. 93(3). See Reference Re Bill 30, at p. 1176. Second, she presented an alternative finding which was that, at the time of Confederation, separate schools were entitled to public funding for secondary education. Thus, s. 93(1) requires the Ontario government to fund fully Roman Catholic separate schools. Seen in this light, Bill 30 simply righted an old wrong.

Wilson J. went on to address the claim that the government’s choice to fund Roman Catholic separate schools but not other religious schools contravened s. 15(1) of the Charter. The Adler and Elgersma appellants are advancing what amounts to the same argument in the present case. Wilson J. rejected this argument for two reasons. First, she found that, in the event that Bill 30 was passed pursuant to s. 93(1), it would fall “fairly and squarely” (at p. 1196) 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, she found that, in the event that Bill 30 was passed pursuant to the opening words of s. 93 and s. 93(3), it was nonetheless “immune” from Charter review because it was “legislation enacted pursuant to the plenary power in relation to education granted to the provincial legislatures as part of the Confederation compromise”. See Reference Re Bill 30, at p. 1198. This was true regardless of the fact that this unequal funding might, as I mentioned above, “sit uncomfortably with the concept of equality embodied in the Charter”. In other words, Wilson J. at p. 1197 refused to use one part of the Constitution to interfere with rights protected by a different part of that same document: “It was never intended, in my opinion, that the Charter could be used to invalidate other provisions of the Constitution. . . .”

Following the same line of reasoning used by Wilson J. in the Reference Re Bill 30, I find that public funding for the province’s separate schools cannot form the basis for the appellants’ Charter claim.

The appellants advanced a further argument which was that, even assuming that Roman Catholic separate schools are given a privileged place in our constitutional scheme, public schools are given no such protection. According to this argument, the fact that the government funds public schools but not private religious schools is analogous to the government funding, for example, private Christian schools but not private Islamic schools. As the reasoning goes, public schools are not a part of the scheme envisioned by s. 93 and are, thus, open to Charter challenge.

In my view, this argument is mistaken in supposing that public schools are not contemplated by the terms of s. 93, as it applies to Ontario. On the contrary, the public school system is an integral part of the s. 93 scheme. When the province funds public schools, it is, in the words of Wilson J. in Reference Re Bill 30, at p. 1198, legislating “pursuant to the plenary power in relation to education granted to the provincial legislatures as part of the Confederation compromise”. A closer examination of s. 93, in particular s. 93(1), as it applies to the province of Ontario, will help to illustrate that the public school system is impliedly, but nonetheless clearly, contemplated by the terms of that section.

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. See Attorney General of Quebec v. Greater Hull School Board, [1984] 2 S.C.R. 575, at p. 582. Thus, for Ontario, s. 93(1) requires an examination of the law as it stood in 1867, with regard to denominational schooling. As Wilson J. said in Reference Re Bill 30, at pp. 1177-78, “Our task therefore is to examine the laws in force prior to Confederation to see what rights or privileges they gave”. In the words of Gonthier J., in Reference re Education Act (Que.), supra, at p. 539, “[Section 93] is in a sense a snapshot of the legislative situation in 1867”.

An Act to restore to Roman Catholics in Upper Canada certain rights in respect to Separate Schools, S. Prov. C. 1863, c. 5 (Scott Act), was the last piece of legislation relating to denominational schools in Upper Canada enacted before Confederation. In essence, what this legislation did was to define the rights and privileges of Roman Catholic separate schools in terms of the rights and privileges of the province’s common schools. The preamble reads:

WHEREAS it is just and proper to restore to Roman Catholics in Upper Canada certain rights which they formerly enjoyed in respect to separate Schools, and to bring the provisions of the Law respecting Separate Schools more in harmony with the provisions of the Law respecting Common Schools. . . . [Emphasis added.]

This close linkage between the separate and public schools was made most clearly through s. 7 which gave the separate school trustees “all the powers in respect of Separate Schools, that the Trustees of Common Schools have and possess under the provisions of the Act relating to Common Schools” and through s. 9 which gave the separate school trustees all “the same duties . . . as Trustees of Common Schools”. Section 20 of the Scott Act required that separate schools receive a proportionate share of the funds annually granted by the legislature to support the common schools. Even the qualification of separate school teachers was to be determined according to the same standards used in the public schools. In Roman Catholic Separate School Trustees for Tiny v. The King, [1928] A.C. 363 (P.C.), at p. 387, Viscount Haldane went so far as to say that, in 1867, “[t]he separate school was only a special form of common school. . . .” For a full discussion of the history of separate school legislation in the province see Wilson J.’s discussion in the Reference Re Bill 30, supra, at pp. 1176 ff, and Viscount Haldane’s speech in Tiny, supra, at pp. 376 ff.

The effect of s. 93(1) is to create what Professor Pierre Carignan, in “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, has called the [translation] “constitutionalization mechanism” whereby denominational school rights and privileges created by ordinary legislation are raised to the status of constitutional norms. See Reference re Education Act (Que.), supra, at p. 531; Greater Montreal Protestant School Board, supra, at p. 418. What the relevant pre-Confederation legislation did was to equate the rights and privileges of separate schools to those of public schools. The result is that public schools are part and parcel of s. 93's comprehensive code. Accordingly, as I noted above, public schools are impliedly but nonetheless clearly within the terms of the regime set up by s. 93.

This inclusion of public schools in the Constitution is consistent with the historical purpose of s. 93. As was explained by the Privy Council in Brophy v. Attorney-General of Manitoba, [1895] A.C. 202, at p. 214, during the negotiations leading up to Confederation, Roman Catholic separate school supporters expressed concern that the existing public school system, open as it was to children of all races and religions, could not meet the needs of the Roman Catholic community:

They regarded it as essential that the education of their children should be in accordance with the teaching of their Church, and considered that such an education could not be obtained in public schools designed for all the members of the community alike, whatever their creed. . . .

Thus, when separate school supporters were negotiating the terms of s. 93, they were negotiating against the back-drop of the existing common school system. The hallmark of these common schools was that they were not organized (in the relevant legislation) along denominational lines and were, therefore, open to all members of the community without distinction, (with the exception of those for whom a separate school had been established). As Professor Carignan says, at p. 428, [translation] “[i]n the context of public education, the structures set up by Parliament itself are designed for children of all beliefs and all races”. As Wilson J. pointed out in Reference Re Bill 30, supra, at p. 1193, at the time s. 93 was being negotiated, it was assumed that publicly funded non-denominational schools would always be a part of the political landscape:

The security afforded the Roman Catholic minority through the tying of funding for its schools to a proportion of the funding for the common schools was in the certainty that the Legislature would never cut off funding for the common schools.

At the time of Confederation, Roman Catholic parents could choose to support either the local separate schools or the local common schools. Section 14 of the Scott Act lays out the registration procedure to be followed. If a parent chose to register as a separate school supporter, then his or her child would be eligible to attend only the local separate school. An Act respecting Common Schools in Upper Canada, C.S.U.C. 1859, c. 64, s. 27(16). In other words, Roman Catholic parents could choose between two publicly funded educational systems -- one Roman Catholic, the other non-denominational. Section 93 gives constitutional protection to this publicly funded choice. Therefore, the public school system is an integral part of the Confederation compromise and, consequently, receives 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. This is what creates the immunity from Charter scrutiny. To paraphrase Wilson J., in Reference Re Bill 30, supra, at p. 1198, funding for public schools is insulated from Charter attack as legislation enacted pursuant to the plenary education power granted to the provincial legislatures as part of the Confederation compromise. If the plenary power is so insulated, then so is the proper exercise of it.

One thing should, however, be made clear. 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). Section 93 grants to the province of Ontario the power to legislate with regard to public schools and separate schools. However, nothing in these reasons should be taken to mean that the province’s legislative power is limited to these two school systems. In other words, the province could, if it so chose, pass legislation extending funding to denominational schools other than Roman Catholic schools without infringing the rights guaranteed to Roman Catholic separate schools under s. 93(1). See the words of Gonthier J., writing for the Court, in Reference re Education Act (Que.), supra, at p. 551. However, an ability to pass such legislation does not amount to an obligation to do so. To emphasize, s. 93 defines the extent of the obligations of the province to set up and fund denominational schools when public schools are established. In this respect, it is a comprehensive code thereby excluding a different or broader obligation regarding denominational schools, while not restricting the plenary power of the province to establish and fund such other schools as it may decide.

Furthermore, it should be pointed out that all of this is not to say that no legislation in respect of public schools is subject to Charter scrutiny, just as this court’s ruling in Reference Re Bill 30 did not hold that no legislation in respect of separate schools was subject to Charter scrutiny. Rather, it is merely the fact of their existence, the fact that the government funds schools which are, in the words of the Lord Chancellor, in Brophy, supra, at p. 214, “designed for all the members of the community alike, whatever their creed” that is immune from Charter challenge. Whenever the government decides to go beyond the confines of this special mandate, the Charter could be successfully invoked to strike down the legislation in question.

For these reasons, I find that the funding of public schools coupled with the non-funding of private religious schools is immune from Charter attack and therefore does not violate s. 15(1) of the Charter.

(c) School Health Support Services

With regard to the question of whether any of the appellants have standing to challenge the SHSSP, I agree with the reasons of Weiler J.A. While the record does not show that either Matan Kezwer or Joel Pott would be eligible for the SHSSP if they were enrolled in a public school, Walter Elgersma is “in a different category”. A government witness, Ms. Spalding-Martin, acknowledged that the health services Walter requires are eligible for funding under the SHSSP. For these reasons, it is my view that Leo Elgersma, as Walter’s father, should be granted standing to challenge the SHSSP.

In 1980, the Education Act was amended by Bill 82 which laid the foundation for the SHSSP. The purpose of the Bill was to ensure universal access to public education. The Minister of Education emphasized this goal of accessibility to the public schools:

This bill does two things. First, the basis of universal access contained within the bill guarantees the right of all children, condition notwithstanding, to be enrolled in a school. No longer will retarded children be enrolled after an assessment procedure established in law which has in fact denied universality of access. [Legislature of Ontario Debates, 4th sess., 31st parl., May 23, 1980, p. 2135, per Hon. B. Stephenson, Minister of Education.]

In addition to the provision for the SHSSP, this legislation included a requirement that every school board provide special education programs for all children who could benefit, including those with intellectual, communication, behavioural and physical disabilities.

The SHSSP was implemented through s. 14 of Regulation 552, R.R.O. 1990, made under s. 45 of the Health Insurance Act, R.S.O. 1990, c. H.6. In essence, this regulation provides that certain health-related services provided by a “home care facility” to children in public and separate schools are publicly insured services.

With respect to whether the failure to extend the SHSSP to private religious schools violates either s. 2(a) or s. 15(1) of the Charter, I am in agreement with Dubin C.J.'s resolution of the matter. He characterized the services as “education services” as opposed to “health services”. It is true, as the Elgersma appellants maintain, that catheterization does not look much like an educational service. However, it is necessary to look at the context in which these services are provided. The services are delivered in the public schools. They are designed to ensure that children with special needs have full access to the public school system whose constitutionally protected purpose is to provide education to all members of the community. This purpose is made clear in the speech of the Minister of Education, quoted above. Put another way, the provision of the health services to those qualified is simply a means to an end, a way to ensure access to education. Therefore, the SHSSP is simply a manifestation of the Ontario government’s fulfilling its mandate to provide an education designed for all members of the community and is, thus, immune from Charter scrutiny.

Accordingly, I would dismiss the appeal and answer the stated constitutional questions as follows:

1. No.

2(a). No.

2(b). No.

3. Not necessary to answer.

4(a). No.

4(b). No.

5. Not necessary to answer.

The following are the reasons delivered by

L’Heureux-Dubé J. (dissenting) -- This appeal raises the question of whether the provincial scheme -- which denies funding to independent denominational schools established by parents who, for religious reasons, are unable to educate their children in the public schools -- violates the freedom of religion and equality guarantees in the Canadian Charter of Rights and Freedoms.

I have had the advantage of reading my colleagues’ reasons. I am in agreement with Justice McLachlin that s. 93 of the Constitution Act, 1867 does not provide an answer to the appellants’ Charter claim. While s. 93 requires the provinces of Ontario and Quebec to provide funding for schools serving the Roman Catholic and Protestant minorities, respectively, this is the only school support which is constitutionally guaranteed under that section. Where provinces otherwise exercise their plenary powers to provide education, they must, subject to this requirement, comply with the Charter.

I also agree with McLachlin J.’s reasons which find that 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, R.S.O. 1990, c. E.2, does not compel the appellants to violate the tenets of their religion with respect to education. The burden complained of by the appellants, viz. the cost of sending their children to private schools, being not a prohibition of a religious practice but rather the absence of funding for one, has not historically been considered a violation of the freedom of religion. While these parents do bear a cost which is not imposed on parents who can send their children to public schools, this lack of benefit is more appropriately addressed under s. 15 of the Charter, the equality guarantee.

I, like McLachlin J., do find that the denial of funding to independent denominational schools effects a prima facie violation of s. 15, albeit following a different route. Where I depart most significantly from the reasons of McLachlin J. is in my finding that the funding scheme in the Education Act cannot be saved under s. 1, and, accordingly, I cannot agree with the result she reaches on that issue.

On the other hand, this analysis leads me also to find that a denial of health support services for children with disabilities who attend the independent religious schools is impermissible under s. 1, and, consequently, I do agree with the result on this issue which was reached by McLachlin J.

In Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 171 and at pp. 174-75, McIntyre J. for the court gave this definition of what constitutes discrimination:

It is clear that the purpose of s. 15 is to ensure equality in the formulation and application of the law. The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration. It has a large remedial component.

. . .

I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.

In Egan v. Canada, [1995] 2 S.C.R. 513, I developed an approach to interpreting and applying the equality guarantee of the Charter which had the primary objective of giving effect to its purpose, that is, the elimination of discrimination, as opposed to focusing on the enumerated or analogous grounds of the provision. I was concerned that, by focusing on the grounds, we risked ignoring state action which, given its impact on a particular group, would effect or encourage inequality in the surrounding socio-economic context. I advocated “putting ‘discrimination’ first”, at para. 55, through the following principled, three-stage method of analysis:

In my view, for an individual to make out a violation of their rights under s. 15(1) of the Charter, he or she must demonstrate the following three things:

(1) that there is 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;

(3) that this distinction is “discriminatory” within the meaning of s. 15.

In elaborating the content of the third stage of the analysis I also found, at para. 56, that:

A distinction is discriminatory within the meaning of s. 15 where it is capable of either promoting or perpetuating the view that the individual adversely affected by this distinction is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration. This examination should be undertaken from a subjective-objective perspective: 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.

Furthermore, 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. Where the group identified by the distinction is socially vulnerable and delineated by characteristics which are popularly conceived of as fundamental to personhood, the distinction is more likely to be considered discriminatory. Where the interest involves an economic benefit, protection of the right to the benefit must be incidental to protection of the worth and dignity of a human person. (See Egan, supra, at paras. 58 to 65.)

An evaluation of the interest at stake must, however, reach beyond economic prejudice to the constitutional and societal significance of the interest or interests adversely affected. Distinctions which restrict access to a fundamental social institution or affect an aspect of full membership in Canadian society are more likely to constitute discrimination. Also, as I concluded in Egan, supra, at para. 64:

It stands to reason that a group’s interests will be more adversely affected in cases involving complete exclusion or non-recognition than in cases where the legislative distinction does recognize or accommodate the group, but does so in a manner that is simply more restrictive than some would like. [Emphasis in original.]

In the end, the distinction must be shown to violate a basic right to equal human dignity and worth in the context of both the nature of the group and the interest. 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 our present-day society, which, as my colleagues Justices Sopinka and McLachlin have stated, is a principle which has been clearly recognized by this Court. (See Egan, supra, at para. 78.)

Our initial tasks involve determining, first, whether a distinction is created by the legislation between the appellants and others in the surrounding social context; and second, whether this distinction results in the denial of one of the claimants’ four basic equality rights on the basis of their membership in an identifiable group. The basic equality guarantees include: equality before the law, equality under the law, equal protection of the law, and equal benefit of the law.

In the Education Act scheme, parents have three choices in undertaking the mandatory education of their children: enrollment in Roman Catholic religious schools, in the public schools, or, if for some reason, the parents cannot or do not want to send their children to these schools, in an alternative educational environment which the state considers a satisfactory substitute. In the first two options, the costs of the children’s education are paid by the state. Under the third option, parents provide for their children’s education at their own expense.

The distinction affecting the appellants arises in regard to the third option. For some parents who make this choice, membership in an identifiable group is not a factor; theirs is truly an individual preference. For these parents the public education system is accessible without discrimination, as it is to those who choose the first two options. For others, including the appellants in this case, membership in an identifiable group precludes their accessing the other, publicly funded, options. Evidence submitted by the appellants and accepted by the trial judge establishes that to remain a member of the particular religious communities in question, and to act in accordance with the tenets of these faiths, the appellants are required to educate their children in a manner consistent with this faith and therefore outside of the public or the separate schools. Also established by the appellants’ evidence according to the judgment of first instance was the finding that control over the education of their children was essential to the continuation of the religious communities in question. None of the parties before our court has contested the bona fides of the religious beliefs held by the appellants.

While the legislature may not have intended to create this distinction, the effect of the legislative choice is to distinguish between parents who can access the public schools, and those, like the appellants, who cannot, for religious reasons. This distinction results in the total denial of the equal benefit of funded education for the appellants on the basis of their membership in an identifiable group, a group made up of small religious minority communities.

70. My colleague, Sopinka J., finds that the religions of the appellants cause the denial of the benefit as opposed to the legislation. Adopting the judgment of the Ontario Court of Appeal (1994), 19 O.R. (3d) 1, as delivered by Dubin C.J., he concludes that the legislature has created an education system which, owing to its secular nature, accommodates all parents of all religious beliefs. In the view of Sopinka J., it is the religion of the appellants which precludes their access to this publicly funded service, a religion which the appellants have chosen freely without state coercion. McLachlin J. presents the differing view, that the chosen aspect of religion does not have a part to play in determining whether discrimination has taken place. In her opinion, if state action which discriminates on the basis of religion can 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 will become an empty concept. I agree.

-- (1) Subject to subsection (2) and to the regulations, every board shall provide adequate accommodation for the trainable retarded pupils,

(a) who are exceptional pupils of the board; and

(b) in respect of whom a placement in a school or class for trainable retarded pupils has been made by a committee established under paragraph 5 of subsection 11(1),

Health Insurance Act, Regulation 552, R.R.O. 1990

While I stated in Egan, supra, that the degree of choice which a person may be expected to have in identifying with a particular group will be relevant to our determination, this analysis must be undertaken from the subjective-objective perspective which I have outlined above. We must determine whether the individual in question, in the circumstances, would consider him- or herself to have a choice. For members of religious communities, particularly those of the appellants, this is clearly not the case. What might be termed an objective choice of a particular religion from the court’s point of view, will, from the religious adherent’s perspective, entail a moral imperative. Also, commitment and adherence to the beliefs and practices of one’s religion define one’s membership in the particular religious community. From the point of view of the community and its members, these are not optional but essential defining features of leading a moral life.

While s. 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, s. 15 ensures that consequences in behaviour and belief, which flow from this initial choice and are not perceived by the rights claimant as optional, not be impacted upon by state action in such a way as to attack the inherent dignity and consideration which are due all human persons. The protections afforded in s. 15 may thus be of greater scope than those in s. 2(a), as our concern moves from the coercive aspect of the state action to its impact on the individuals’ and groups’ sense of dignity and worth in the socio-economic context of the day.

In accordance with its inherent focus on human dignity and worth, s. 15 may require not only that the state program be formally open to all members of society, but also that it include extra steps, or accommodation, to ensure equal access, in real terms, by all members of society to the benefit in question. The principle of accommodation for religious beliefs is well accepted in Canadian human rights law, as evidenced by the case of Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561, to which my colleague McLachlin J. refers. This principle has been incorporated into the substantive approach to equality which was first articulated in Andrews, supra, and has remained, in principle, that adopted by the majority of this Court. (See Miron v. Trudel, [1995] 2 S.C.R. 418; Egan, supra.)

In Andrews, supra, at p. 175, McIntyre J., writing for the majority on this issue, recognized that general principles of human rights law will apply to the interpretation of s. 15 of the Charter. Moreover, in developing a definition of discrimination, he referred specifically at p. 173 to the case of Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, which expresses the principle of accommodation as forming a necessary aspect of determining whether facially neutral actions are discriminatory. Professor Peter W. Hogg also asserts that the application of s. 15 of the Charter will involve the concept of accommodation, especially given its prohibition of adverse effects discrimination. As he explains in Constitutional Law of Canada (vol. 2, 3rd ed. 1992 (Supplemented)), at pp. 52-32 and 52-33 (referring to a point made by Dale Gibson, The Law of the Charter: Equality Rights (1990), at p. 133):

[I]t is a necessary corollary of the rule that discrimination may be indirect and unintended that a law may have to make reasonable accommodation for those who, by reason of religious affiliation or disability (for example), are discriminated against by otherwise neutral laws.

Decisions by this court on the basis of the freedom of religion guarantee in s. 2(a) have also recognized that accommodation or differential treatment may be necessary to avoid indirect coercion under state action. (See R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, per Dickson J. (as he then was), at p. 347; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713.)

While one might argue that the exemption for religious parents contained in s. 21 of the Education Act constitutes the necessary accommodation, in my view, such accommodation addresses the potential coercive aspect of mandatory secular education alone, and thus allows the impugned legislation to meet the requirements of s. 2(a). However, it does not achieve the necessary accommodation required under s. 15 where unequal access to a benefit is involved. In a case of unequal benefit, accommodation will mean taking the steps necessary to ensure access to these parents without discrimination. Given the complete denial of this benefit to those who cannot access it for religious reasons, I conclude that 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.

The final step to take within a s. 15 analysis is to ask whether the distinction is one 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. As I stated above, in carrying out this final stage of the analysis, consideration must be given to both the nature of the group affected and the nature of the interest. These together make up the all-important social context in which the distinction arises.

In Egan, supra, at para. 59, I explained that the kinds of questions which arise in the analogous grounds approach to determining whether a particular group comes within the purview of the s. 15 guarantee continue to be instructive in deciding whether the nature of the group supports a finding of discrimination in a particular social context:

Furthermore, it is important to ask ourselves questions such as “Is the adversely affected group already a victim of historical disadvantage?”; “Is this distinction reasonably capable of aggravating or perpetuating that disadvantage?”; “Are group members currently socially vulnerable to stereotyping, social prejudice, and/or marginalization?”; and “Does this distinction expose them to the reasonable possibility of future social vulnerability to stereotyping, social prejudice and/or marginalization?” Membership in a “discrete and insular minority”, lacking in political power and thus susceptible to having its interests overlooked, is yet another consideration that may be taken into account.

While under the grounds-oriented approach to equality these questions would be seen as unnecessary given that religion is an enumerated ground, I find it important to consider them in determining the discriminatory effects of the legislation in question in this appeal. In answering these queries with respect to the appellants’ religious communities, it becomes evident that they constitute the quintessential group deserving of protection under s. 15.

The group to which the Adler and Elgersma appellants belong includes religious communities which might be termed minorities-within-minorities. As the appellants claim and the courts below have accepted, these are small religious groups which have attempted to protect their adherents from the assimilating effects of secular society. They have struggled to maintain a space for a lifestyle which is infused with religious belief and practice.

Dissentient minority religious groups have probably suffered most severely from the historic disadvantage which has adhered to religious identity. Examples abound in earlier jurisprudence of this Court. (See 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.) In today’s secular society, it stands to reason that religious subgroups which have attempted to maintain a non-secular lifestyle are even more vulnerable to stereotype, social prejudice and marginalization.

These communities also constitute discrete and insular minorities, as their attempts to maintain a religious life leads them to distance themselves somewhat from the secular institutions of the larger society around them. While some may say this is their choice, we must remember that, in evaluating discriminatory effects of state action, we are concerned with its potential impact within the broader societal context. Insularity has become necessary to maintaining the religious lifestyle practised by the appellants by virtue of the powerful economic and other forces of secularization in society. Such insularity clearly carries with it the danger of such a group’s interests being overlooked. The questions which I concluded above to be indicative of the vulnerability of a particular group to discrimination would all be answered in the affirmative for the appellants. They constitute a group which is most clearly intended to receive Charter protection under s. 15.

As for the nature of the interest involved, as I have already stated, financial prejudice alone will not support a finding of discrimination. However, in this case, as in Egan, supra, the consequences which flow from the denial of an economic benefit are necessarily incidental to protecting the dignity and value of the appellants. Both of the lower courts accepted the appellants’ evidence that education of their children in accordance with religious practices and beliefs was essential to their membership in the religious communities in question as well as to the very survival of these communities. The educational practices of religious communities merit special attention given their necessity to future membership in these faiths. Thus, mandatory, publicly funded state education policies may attract a greater degree of Charter scrutiny under s. 15 than other institutions which will not have as great an impact on the continuation of the religious community in question.

In Egan, supra, at para. 86, I made the following observation:

Official state recognition of the legitimacy and acceptance in society of a particular type of status or relationship may be of greater value and importance to those affected than any pecuniary gain flowing from that recognition.

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.

The interests at stake for the appellants, being the recognition and continuation of these communities, are clearly recognized as relevant to the fundamental purposes of the Charter. This conclusion can be drawn from the incorporation of the principle of accommodation in the interpretation of s. 2(a) and s. 15. Moreover, it is consonant with the interpretive guidance of s. 27 which reads as follows:

27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

In applying this provision to the application of the freedom of religion guarantee of the Charter in Big M Drug Mart Ltd. and Edwards Books and Art Ltd., supra, Dickson C.J. held that religion forms an integral part of the multicultural heritage of Canada. The interests underlined in s. 27, they being both “the preservation and enhancement of the multicultural heritage of Canadians” (emphasis added) thus informed an approach to freedom of religion which could impose on the state the duty to accommodate religious minorities where the adverse and coercive impact of a secular law required it. (See Big M Drug Mart Ltd., supra, at pp. 337-38; Edwards Books and Art Ltd., supra, at p. 758.) 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 supports a finding that the interests at stake, the preservation and continuation of the communities in question, do form interests fundamental to the purposes of the Charter.

At issue here are the efforts of small, insular religious minority communities seeking to survive in a large, secular society. As such, the complete non-recognition of this group strikes at the very heart of the principles underlying s. 15. This provision, more than any other in the Charter, is intended to protect socially vulnerable groups from the discriminatory will of the majority as expressed through state action. The distinction created under the Education Act gives the clear message to these parents that their beliefs and practices are less worthy of consideration and value than those of the majoritarian secular society. They are not granted the same degree of concern, dignity and worth as other parents. I conclude that the Education Act funding scheme results in a prima facie violation of s. 15's guarantee of equal benefit of the law without discrimination. To use the metaphor which I developed in Egan, we cannot imagine a deeper scar being inflicted on a more insular group by the denial of a more fundamental interest; it is the very survival of these communities which is threatened.

A violation of s. 15(1) may be saved under s. 1 if the impugned distinction is demonstrably justifiable in our free and democratic society. I am of the opinion, however, that the instant violation cannot be salvaged by s. 1, as it is not proportionately tailored to the pressing objectives of the legislation.

As an introduction to the s. 1 analysis of the legislation in question, I find it necessary to make some observations regarding the general purposes of this provision and how these should inform the degree of judicial deference accorded the legislature’s choice in a particular case.

As is well known, the case of R. v. Oakes, [1986] 1 S.C.R. 103, provided the first occasion for this Court to develop the principles of judicial review of the state’s justification for limits imposed on a Charter right, in accordance with s. 1. An approach was developed, subsequently referred to as the “Oakes test”, which was meant to provide a universal and onerous standard of review of the evidence and argument submitted by state representatives in defence of a prima facie breach of the Charter.

In Oakes, supra, writing for the Court on this issue, Dickson C.J. applied a purposive approach to interpreting s. 1. He noted that, while constitutionally guaranteeing the rights and freedoms of the Charter, s. 1 also gave a clear signal that these entitlements were not unlimited in scope. However, for limits to be considered “reasonable”, they must be justified in a “free and democratic society” and therefore necessarily informed by the values and principles underlying the Charter itself:

Inclusion of these words as the final standard of justification for limits on rights and freedoms refers the Court to the very purpose for which the Charter was originally entrenched in the Constitution: Canadian society is to be free and democratic. The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified. [Oakes, supra, at p. 136.]

In subsequent applications of the Oakes test, this Court has varied the standard of justification with respect to proof and the evidentiary burden placed on the state, granting a greater degree of deference to the legislative choice in cases of “social legislation”, that is, legislation with a valid objective related to social justice. For example, a less onerous burden has been placed on the state where the legislature was seeking to balance Charter rights and/or values, (Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825), otherwise protect a socially vulnerable group (Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927), balance competing interests of various social groups (McKinney v. University of Guelph, [1990] 3 S.C.R. 229), or address conflicting social science evidence as to the cause of a social problem (RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199).

As La Forest J. concluded in his dissenting reasons in RJR-MacDonald, supra, at para. 63, in determining the degree of flexibility and deference to be shown Parliament in a s. 1 analysis, this jurisprudence directs courts to take a contextual approach to the legislation in question, to evaluate both the nature of the right infringement and that of the social interest or values meant to be promoted by the legislation. For example, where the objective of the legislation promotes the protection of a socially vulnerable group and the nature of the infringement lies far from the core Charter values, deference will be warranted.

93. No issue was taken by the majority in that case with this characterization of the task facing courts except as regards the necessity of maintaining a limit to judicial deference. As McLachlin J. stated for the majority on this point, at para. 129:

While remaining sensitive to the social and political context of the impugned law and allowing for difficulties of proof inherent in that context, the courts must nevertheless insist that before the state can override constitutional rights, there be a reasoned demonstration of the good which the law may achieve in relation to the seriousness of the infringement. It is the task of the courts to maintain this bottom line if the rights conferred by our constitution are to have force and meaning....No matter how important Parliament’s goal may seem, if the state has not demonstrated that the means by which it seeks to achieve its goal are reasonable and proportionate to the infringement of rights, then the law must perforce fail.

In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions: --

(1) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union:

(2) All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen’s Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen’s Protestant and Roman Catholic Subjects in Quebec:

(3) Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen’s Subjects in relation to Education:

(4) In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section.

Canadian Charter of Rights and Freedoms

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

Thus, 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 better give effect to the general purposes of the Charter and with an understanding that Charter values may at times require a sensitive balancing. Deference has not been found warranted where to do so would frustrate the very values of the Charter, but rather to give better effect thereto and to allow the legislature the flexibility to make these difficult policy choices.

A corollary to this principle should also be articulated: 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. Indeed, cases will be rare where it is found reasonable in a free and democratic society to discriminate. (See Andrews, supra, per Wilson J., at p. 154.)

As I stated in Egan, supra, at para. 75 “social” legislation per se will not, in the absence of these factors, warrant deference. This finding was echoed by the other dissenting judges in that case. Cory and Iacobucci JJ. particularly expressed concern about a deferential stance allowing governments to justify any discriminatory impact on the basis that they are balancing the financial needs of various groups. (See Egan, supra, at para. 216.) In deciding whether deference is in order, the guiding principles have always been and continue to be those embodied in the Charter as articulated by Dickson C.J. in Oakes, supra.

The first task in assessing whether the limit to the right in question is reasonably justified as required under s. 1 will involve determining whether the restriction on funding has an objective of pressing and substantial concern in a free and democratic society. A contextual approach in this case reveals the principal objectives of the legislation to be: first, to provide a large, publicly funded, system of education intended to be universally open and free to all, without discrimination; and second, to foster the values of a pluralist, democratic society, including the values of cohesion, religious tolerance and understanding. It would be misleading to look at either goal in isolation from the other. The choice of increasing social tolerance through encouraging the coming together of members of all communities is predicated on a system of education which is meant to be universal, and thus meet the needs of the majority of parents.

In such a system, the objective of encouraging religious tolerance becomes linked to discouraging non-secular education. However, such a link is not inevitable. In fact, it is not the goal of encouraging social tolerance and understanding that creates a difficulty for the appellants, but rather the secular nature of the education. For example, as the Adler appellants submitted and one of the respondents’ experts testified, the environment in the Jewish day schools was very conducive to social tolerance, successful integration, and acceptance of others.

Having identified the objectives of the legislation in question, I must now turn to the question of the degree of deference to be shown the legislature in reviewing the respondents’ arguments and evidence to support the legislation. The circumstances in the case on appeal differ greatly from those previous cases where deference has been found appropriate. The value underlying the legislation in this appeal is the provision of education in a manner which fulfills the majoritarian interests of a secular society. Arguably, it is not vulnerable and discrete social groups which are threatened by the funding of religious schools but rather the interests of the majority of citizens.

In comparison with this interest, the right infringement affects members of an insular religious minority within a minority. Moreover, the infringement impacts on an interest which is, as accepted by the courts below, essential to the survival of their communities and practices. Rather than being consonant with the values underlying the Charter, as articulated by Dickson C.J. in Oakes, supra, deference in such a case would promote the very problem the Charter is meant to remedy, that is, the unlimited and discriminatory impact of the interests and needs of the majority on the rights of a small and relatively powerless minority. The degree of judicial deference allowed in other cases is thus not warranted in this case. The state must clearly discharge the burdens of evidence and proof which are mandated under s. 1.

I agree with the Court of Appeal’s finding in this case that the objectives of providing free public education and of fostering tolerance are clearly pressing and substantial in a democratic society. In R. v. Jones, [1986] 2 S.C.R. 284, at p. 299, the reasons of La Forest J., dissenting but not on this point, clearly establish this conclusion. However, before discussing the proportionality element of the inquiry, I note that this same objective is no less pressing and substantial in the education systems in the five other provinces of Canada where independent religious schools receive partial funding, as indicated by the respondents’ evidence.

To reiterate my earlier conclusion, in the proportionality aspects of the s. 1 analysis, a more rigorous burden should thus rest with the respondents than has rested, perhaps, in other cases of “social legislation”. The first step in assessing the proportionality between the objective sought through the legislation and the right infringement, is to ask whether the state has demonstrated a rational connection between restricting funding and the maintenance of a public school system which is open to all and fosters social tolerance. As I stated in Egan, supra, at para. 73, here the state is required to establish the relevance of the distinction created to the objective of the legislation.

In the case before us, the question becomes: has it been proven on a balance of probabilities that a denial of funding will further the purposes of the legislation? The respondents have argued that if full funding is provided to independent schools, there will be an outflow of students from the public school system of potentially so great a magnitude as to change that system in a fundamental manner. The connection sought here is between the provision of funding and the schooling parents choose for their children. I find that this link has been established by the evidence led by the respondents, through the expert testimony and reports as regards the possible effects on parental behaviour of increased funding and the report cited of a jurisdiction where full funding is provided. Also, while partial funding in other provinces resulted in a relatively low increase in the number of independent schools, this effect could be expected to be of greater and unpredictable magnitude were full funding provided. A rational connection has thus been established by the respondents between funding choices and the maintenance of universally open and religiously tolerant schools.

The respondents have, however, failed to discharge the burden of proving that the means used, in this case, a complete denial of funding, constitute a minimal impairment of the right in question. As has been established in the jurisprudence following Oakes, supra, and recently reiterated in the majority reasons on this point in RJR-MacDonald, supra, at para. 160,

[i]f the law falls within a range of reasonable alternatives, the courts will not find [a legislative choice] overbroad merely because they can conceive of an alternative which might better tailor objective to infringement: see Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123, at pp. 1196-97; R. v. Chaulk, [1990] 3 S.C.R. 1303, at pp. 1340-41; Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084, at pp. 1105-06. On the other hand, if the government fails to explain why a significantly less intrusive and equally effective measure was not chosen, the law may fail.

I had made a similar observation in Egan, supra, at para. 75.

In this case, the appellants made the alternate submission that partial funding should be provided to the independent schools. The respondents’ evidence and argument nonetheless focused primarily on the potential effects of full funding to independent schools on the current system. This evidence consisted mainly of the opinion of expert witnesses and one study of the private school system in Ontario dating from 1985, the “Shapiro Report” (Report of the Commission on Private Schools in Ontario (1985)). Moreover, the evidence which they did lead as to the effects of partial funding points to a very limited impact on the current public system. In the evidence submitted by the respondents, estimates as to the increase in enrollment in independent schools in the event of partial funding ranged from 3 percent of the total enrollment in the public schools, to approximately 6 percent. Clearly, the loss of 3 percent to 6 percent of the students currently enrolled in public schools would not undermine the primary objectives of creating a large, universally open public school system, where people of varying beliefs and backgrounds will come together. In fact, the source of the 3 percent estimate, the Shapiro Report, concluded that some funding to independent schools could be extended without significantly impinging on the larger public system.

While partial funding is, on the evidence submitted by the respondents, a means for reasonably impairing the right in question, yet fulfilling the objectives of the legislation, this option was not implemented by the legislature. I thus cannot agree with the conclusion that it is impossible to say whether a less intrusive measure such as partial funding might achieve the same objective with less of an infringement. In fact, partial direct funding to independent religious schools, is currently provided in five Canadian provinces, namely, Quebec, Manitoba, Saskatchewan, Alberta, and British Columbia. In these provinces, the minimum and maximum amounts of funding vary. Expressed as a percentage of the public school rate, the maximum rates of funding for independent religious schools in the provinces range from 50 percent to 75 percent. Partial funding would actually further the objective of providing a universally accessible education system and promote the value of religious tolerance in this context where some religious communities cannot be accommodated in the secular system.

A further principle established in the majority reasons of RJR-MacDonald, supra, on the basis of preceding jurisprudence is that a complete ban or denial of a right, will be more difficult to uphold than a partial one, even where the exercise of the right in question falls far from the core values upheld in the Charter. Complete bans will only be permissible where the government can show that this is absolutely necessary to further its objective. (See RJR-MacDonald, supra, per McLachlin J., at para. 163.) For example, in the majority reasons of RJR-MacDonald, a complete ban on advertising was not seen as a demonstrably justified incursion on freedom of expression. This principle was applied more recently in Ross, supra. In this case, as the complete exclusion of the teacher from the classroom was the only means to remedy the discriminatory effects of the teacher’s invidious expression on his students, it was found to be justified. La Forest J., writing for the majority in Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22, at p. 47, indicates that this principle also applies to the total denial of a right to the equal benefit of a program funded by the Federal government.

Given the necessity of a less deferential approach in the case on appeal for the reasons I mentioned earlier, and the fact that the infringement of the appellants’ equality right arises from a lack of funding, I find that the complete denial of funding is the most excessive impairment possible, not one of a range of permissible alternatives. In essence, the respondent made no effort to impair minimally the equality right in question. Furthermore, the respondents’ own evidence regarding partial funding in other provinces supports the finding that the objectives of a public, secular school system which fosters tolerance will not be eroded unduly by such accommodation. Partial funding could thus be provided without affecting the objectives and would ensure a less severe impairment. This measure 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.

The respondents have argued that partial funding is already provided indirectly through property tax exemptions and tuition and charitable donation deductions in the federal income tax legislation. However, these do not relate to the direct provincial funding which is given the other schools in addition to revenues from property taxes. Moreover, they are not co-extensive with the costs borne by the parents; a large portion of this indirect support is from federal legislation over which the province has no control; and the benefit of the tax deduction will be greater for parents with increased economic resources. As Cory and Iacobucci JJ. explained in Egan, supra, at paras. 151 to 161 and paras. 199 to 208, it is not acceptable to find legislation constitutionally valid on the basis of benefits provided in the legislation of another jurisdiction which are neither co-extensive with the benefit lost nor available to all who fall within the identifiable group. Other concerns relating to the funding of independent schools which have been identified by the respondents relate to accountability and the necessary promotion of tolerant values through hiring practices and other means. These could be addressed in fashioning the appropriate funding mechanism.

In my view, the minimal impairment element of the Oakes test has not been satisfied in this case. The respondents failed to show why a measure less intrusive than a complete denial of the right in question was not adequate to promote the objectives of the legislation. The following conclusion which I drew in Egan, supra, at para. 75, applies equally to the case before us:

In fact, to defer to the legislative prerogative in circumstances where social science views do not substantially conflict, and where there is a reasonable, alternative means of fulfilling the legislative objective in a way that would materially lessen the magnitude of the rights violation, would frustrate the purpose of the Charter.

Finally, while it is unnecessary to pursue the analysis, I note that the salutary effects of the legislation do not outweigh the deleterious impact on the claimants. No evidence has been adduced by the respondents that a total denial of funding is required to further the goals of creating a large, public education system which fosters the development of social tolerance and harmony. The respondents led no evidence establishing that the fiscal impact of partial funding would carry with it fundamental changes in the nature or extent of the public school system. We must also remember that the students of the independent religious schools would have a right to public expenditures were the public schools accessible to them.

This case involves a severe breach of an insular minority group’s equality rights, for the purposes of furthering majoritarian interests, in circumstances where the benefits are largely financial. In Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at pp. 218-20, Wilson J. held that budgetary considerations alone will not constitute a reasonable justification for an infringement of a Charter right, a result which has not been overruled by this Court. At most, these considerations will come into play in the fashioning of a remedy, as indicated in Schachter v. Canada, [1992] 2 S.C.R. 679. Partial funding would strongly attenuate the discriminatory effects of legislation which completely denies any funding and thus any recognition of these communities’ educational needs. The salutary effects of the exclusion, being essentially financial, are not proportional to the serious infringement of the constitutional rights in question.

In conclusion, the respondents have not discharged their burden under s. 1. The funding scheme created in the Education Act represents an impermissible violation of the appellants’ right to equal benefit of the law under s. 15 of the Charter.

The School Health Support Service Plan

I find it unnecessary to analyse the school health services separately from the general question of funding for independent schools. I agree with McLachlin J. that, given their designation as a part of a “special education program”, the services to disabled students provided under the Health Insurance Act, R.R.O. 1990, Reg. 552, s. 14 in the public and separate schools, form an integral part of the education services funded in the province under the Education Act. Denial of funding for school health services in the independent schools, as part of the complete denial of funding to these schools, thus also infringes s. 15 of the Charter.

Regulation 552 which extends these services to those schools which receive public funds under the Education Act, clearly links these services to the objectives of that Act. It is evident that 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.

McLachlin J., however, additionally finds that the denial of the health support services program to independent religious schools is rationally connected to the objectives of the legislation. I cannot agree, given the characterization of the legislative objectives which I believe is warranted in the context. The twofold objectives involve the provision of education which is universally open to all students without discrimination and the encouragement of social tolerance and harmony. These objectives were undertaken in a scheme which allowed parents to opt out of the secular system. Given that the state has already recognized that parents may not be able to educate their children in the secular system, denying disabled children access to the services which make attendance at independent schools possible for them conflicts directly with the primary goal of the legislation, to provide education for all children in Ontario.

Moreover, as parents of children in the independent schools are unable, for religious reasons, to send their children to the secular public schools, it is difficult to imagine how denying these children access to the independent schools will, in any significant way, further enhance the social diversity and harmony in the public school system. Such a policy seems likely to encourage such parents to educate these children at home, thereby losing the many benefits of education in a school environment, and compounding the marginalization and isolation of children with disabilities from these communities. The denial of the school health support services to independent schools clearly is not rationally supportable on the objectives of the legislation.

As I find no rational connection between the denial of school health support services to children in independent denominational schools, it is unnecessary to undertake a determination of whether a minimal impairment has been imposed or whether the effects are proportionate to the objective. The discrimination caused by Regulation 552 is not demonstrably justified in a free and democratic society. In my view, the appropriate remedy with respect to the school health services, is that recommended by McLachlin J. 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 Roman Catholic and public school systems.

I would allow the appeal with costs throughout. The appropriate disposition is to declare the current Education Act unconstitutional on the grounds of its violation of s. 15(1) of the Charter. However, this declaration should be suspended in its effect for two years so as to allow the provincial government the opportunity to undertake the necessary inquiry as to the level of direct funding to independent denominational schools which can be supported in the present system without unduly undermining the central objectives of the legislation. A reasonable, carefully tailored alternative legislative scheme of education funding must be chosen, one which minimally impairs the rights in question. Other reasonable requirements, such as accountability measures, for the independent schools may also be established.

With respect to the health support services, the “reading in” remedy proposed by McLachlin J. is appropriate. This should take effect immediately and should be maintained under the future legislative choices which aim to impair minimally the rights in question.

Finally, I would answer the constitutional questions as follows: