This week we reproduce yet another aspect of Judge Papageorgiou’s decision that warrants
reiteration and even emphasis. It is important that our readers and the wider public understand the exhaustive lengths to which Judge Papageorgiou went in order to explore and to analyse the issues underlying counsels’ arguments. Her decision is significant and potentially historic.
In her 46-page judgement Judge Papageorgiou concluded that “there is a reasonable chance that the Grassroots Applicants will be able to satisfy the test in Bedford and Carter.” (That is: the legal test that must be met to allow the courts to begin the process of re-assessing the full applicability of the 1996 Adler case in the societal and legal situation today).
It was the Supreme Court’s decision in Adler that enabled Ontario to fund the religious education of the children of one religion alone to the exclusion of children of other religions. The court did not prohibit Ontario from funding the religious educations of children of other religions. Nevertheless, ever since that decision, Ontario has adamantly and insistently refused to provide any funding to independent schools including the schools of other religions.
As most readers however know, all the western provinces and Quebec, do provide some funding to their independent schools. Ontario is the outlier.
In arriving at her decision to allow GAJE the opportunity to begin the “Adler discussion” in court, Judge Papageorgiou created a path of ten discrete stepping stones of evidence and logic. The eighth stepping stone dealt with “the arguments presented by the Grassroots Applicants regarding social, political and legal developments in support of their position that they meet the test in Bedford and Carter.” This part of the judge’s reasoning comprised 20 of the 46 pages of her judgment and was itself divided into eight different categories of social, political and legal developments.
The third category the judge cited was: “The Constitutional Amendment s. 93A.”
This section deals with the lynchpin argument of the government of Ontario that funding only Catholic schools, but no other religious schools, is legally justified under the Constitution of Canada. That Constitution of 1867 enshrined an agreement that Quebec would protect its Protestant minority schools, and Ontario would protect its Catholic minority schools. The Supreme Court in 1996 ruled it was that agreement of 1867 that prevented any challenge to its ongoing validity based on the Charter of Rights and Freedoms adopted in 1982. It is on this basis that Ontario refuses to reconsider the fairness of its current educational funding policy.
Less than a year after the Adler decision, however, the Quebec government abandoned the 1867 agreement through a Constitutional amendment that was subsequently approved by parliament, as required by law.
GAJE raises the possibility that this Constitutional amendment by Quebec is an important new development that should be taken into account when assessing the application of the Adler case to the society that has evolved in Ontario since 1996.
The following is excerpted from Judge Papageorgiou’s decision on this argument by GAJE.
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“[142] As noted by Myers J. in Havercroft v. Ontario, 2022 ONSC 6651, 519 C.R.R. (2d) 351,
at paras. 55-57, there was a change in the amending formula in 1982 such that all provinces
could alter the constitutional rights of their own residents without affecting anyone elsewhere by
agreement between that province and the federal government. This is set out in s. 43 of the
[143] In April 1997, just months following the Adler decision, Quebec repealed the constitutional protection afforded to Protestant schools in Quebec: see Constitution Amendment, 1997, (Québec), SI/97-141 (the “Quebec Amendment”).
[144] The federal government readily agreed to this amendment and on December 19, 1997, the Constitution Act, 1867 was then amended by adding s. 93A, which states, “subsections 93(1) to (4) do not apply to Quebec.”
[145] Therefore, the provision interpreted by the Supreme Court in Adler was different than the current s. 93 of the Constitution. The Grassroots Applicants argue that if the purposive approach begins with the language of the provision in question, then it is plain that courts must consider the whole of the Constitution, including this amendment, as part of the interpretive exercise.
[146] Further, the Supreme Court has indicated that while the primary interpretative approach is one that begins with the text, it also takes into account Canadian law and history: Quebec v. 9147, at paras. 7-8. That law and history arguably includes Quebec’s subsequent decision to amend s. 93, supported by the Canadian government, to remove half of the bargain that was made at Confederation.
[147] The Grassroots Applicants argue that the historical compromise no longer exists in the same way it did in 1867 or at the time of the Adler decision in 1996. They assert that Quebec and the federal government walked away from the compromise when they authorized the 1997 constitutional amendment. They argue that it is no longer possible to shield Ontario’s failure to fund other religious schools by relying on a historical compromise that has already been amended with the Canadian government’s consent to reflect modern social and political realities.
[148] Ontario argues that the Adler Court was aware of Quebec’s proposed amendment and implicitly took it into account because Sopinka and Major JJ. referenced an “upcoming amendment”: Adler, at paras. 164-165. This appears to be what Myers J. also understood in Havercroft.
[149] However, Canada’s submissions on the issue indicates that prior to Adler, it was Newfoundland that was pursuing a constitutional amendment to Term 17 of the Terms of Union between Newfoundland and Canada, which applied “in lieu of section 93”: see Constitution Amendment, 1998 (Newfoundland Act), SI/98-25 (the “Newfoundland Amendment”).
[150] Canada says that it was shortly thereafter that Quebec initiated an amendment to s. 93 which became s. 93A.
[151] It is not entirely clear on this record whether the Adler Court was aware of the upcoming Quebec Amendment or the Newfoundland Amendment. It seems to me that it is unlikely that it was aware of s. 93A because the decision focusses so heavily on the constitutional bargain involving Quebec and Ontario. Had Quebec been about to walk away from that bargain, in my view, this would have been reflected in the decision.
[152] Therefore, based on the record before me, there is a reasonable argument that the Adler Court did not take into account s. 93A in its interpretation of s. 93.
[153] There is also a reasonable argument that the above changes made by Quebec and Newfoundland, with the federal government’s consent, demonstrate their collective acknowledgement that the constitutional bargain made in 1867 is no longer reflective of current social and political realities in Canada. These changes are relevant to the “living tree” analysis because the Supreme Court has reiterated that changes in social facts and legislation can shape the development of constitutional analysis: Comeau, at para. 33.
[154] The Moving Parties also argue that the interpretation of s. 93 cannot be affected by an amendment that only affects one province. I agree with the Grassroots Applicants’ position that there is nothing in s. 43 of the Constitution that states any such amendments do not affect the interpretation of s. 93. Indeed, since such amendments require the consent of the federal government, there is a reasonable argument that they are relevant to the interpretation of the Constitution.
[155] The Moving Parties also point out that s. 93A has been referenced in other cases without
any change in interpretation. However, none of these cases considered the arguments made by
the Grassroots Applicants here, in the context of the specific case and issue advanced by the
Grassroots Applicants.
[156] While these cases may have relevance if the matter is argued on its merits, they are not binding precedents which have decided that the amendment in s. 93A is irrelevant to the overall interpretive exercise. There is a reasonable argument that the amendment in s. 93A, as well as the social and political changes that led to it, are relevant to the interpretation of s. 93.
[157] Finally, there is a legitimate question as to why Ontario should continue to be immunized given the amending formula which gives Ontario almost full control over s. 93, in light of all the changes asserted by the Grassroots Applicants, and the principle of state neutrality in particular.
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We have provided this extensive quotation from Judge Papageorgiou’s decision because her reasons cut to the heart of Ontario’s reliance on the Adler decision’s affirmation of the agreement of 1867 enshrining reciprocal protection of minority rights in Quebec and in Ontario.
“Finally,” Judge Papageorgiou wrote, “there is a legitimate question as to why Ontario should continue to be immunized given the amending formula which gives Ontario almost full control over s. 93, in light of all the changes asserted by the Grassroots Applicants, and the principle of state neutrality in particular.”
In other words, Judge Papageorgiou agreed that, by bringing our application to court, GAJE is raising “legitimate questions.” All we ask at this stage, is that we be given the opportunity to raise those questions in court. The Government of Ontario, however, does not want GAJE to have that opportunity. It has brought a motion for leave to appeal Judge Papageorgiou’s decision.
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If you are upset that Ontario is trying to shut down GAJE’s case before we have had a hearing on the merits of the case, we urge you to let your Member of the Provincial Parliament know.
And if you wish to support GAJE’s lawsuit, please click here.
For further information, please contact Israel Mida at: imida1818@gmail.com
Charitable receipts for donations for income tax purposes will be issued by Mizrachi Canada. Your donations will be used for the sole purpose of underwriting the costs of the lawsuit.
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Shabbat shalom and chag samayach.
Grassroots for Affordable Jewish Education (GAJE)
October 6, 2023
Grassroots for Affordable Jewish Education 