Adler v. Ontario

The Ontario Government provides funding for both secular public and Roman Catholic separate schools in the province under the Education Act 1990 (Ont), but contributes nothing to the funding of private religious schools. Several parents who, in accordance with their religious beliefs, send their children to private religious schools sought declarations that the Government’s failure to fund such schools was unconstitutional on the grounds that it violated the guarantees under the Charter of Rights and Freedoms to freedom of religion (s 2(a)) and equality (s 15(1)). Those appellants who are parents of disabled children also claimed that the Government’s refusal to extend the School Health Support Services Program (SHSSP), created under the Health Insurance Act 1990 (Ont), to private religious schools violated their children’s rights under ss 2(a) and 15(1). The provincial Government’s power in s 93 of the Constitution Act 1867 to legislate with regard to education is subject to the proviso that no law may ‘prejudicially affect any right or privilege with respect to denominational schools which any class of persons have by law in the province at the [time of] Union’ (s 93(1)). The trial judge held that the appellants’ constitutional rights had been infringed but that the infringements were justified under s 1 of the Charter. The Ontario Court of Appeal dismissed the appeal, holding that, even if the appellant’s rights had been infringed, the absence of funding for the religious schools was a reasonable limit under s 1. With respect to the SHSSP, the majority of the court held that there was not a sufficient factual foundation upon which to base the constitutional challenge as there was no proof that any of the appellants’ children would have qualified if the SHSSP had been extended to private schools. The appellants appealed to the Supreme Court.

[Adapted from INTERIGHTS summary, with permission]

Dismissing the appeal, the court held that:

1. Section 93(1) is a ‘comprehensive code’ with respect to denominational school rights and, therefore, s 2(a) cannot be used to enlarge it. As the appellants cannot bring themselves within the terms of s 93’s guarantees, they have no claim to public funding for their schools.
2. Section 93(1), although not itself a guarantee of fundamental freedoms, entrenches certain rights with respect to public funding of religious education but these rights are limited to those which were enjoyed at the time of Confederation. To decide otherwise would be to hold one section of the Constitution violative of another (Mahe v Alberta [1990] 1 SCR 342 (Can SC) and Reference re Bill 30, an Act to amend the Education Act (Ontario) [1987] 1 SCR 1148 (Can SC) applied).
3. The funding of separate Roman Catholic schools and public schools, coupled with the non-funding of private religious schools, does not violate s 15(1). Funding of Roman Catholic separate schools is expressly protected by s 93 (Reference re Bill 30 (above) applied) and, as the public school system is also an integral part of the s 93 scheme (as it applies to Ontario), the province’s constitutionally entrenched plenary power to legislate with regard to public schools is also protected against constitutional or Charter attack.
4. One of the appellants, whose child would be eligible for services under the SHSSP if enrolled in a public school, should be granted standing to challenge it.
5. In determining whether the failure to extend the SHSSP to private religious schools violates ss 2(1) or 15, it is necessary to look at the context in which the services are provided. The services are properly characterised as ‘education’ rather than ‘health’ services. 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. The SHSSP is simply a manifestation of the Ontario Government fulfilling its mandate to provide an education designed for all members of the community and is, therefore, immune from Charter scrutiny;
6. Legislation for the funding of separate Roman Catholic schools does not create a distinction and inequality that violates ss 2(a) and 15 since it is supported by both ss 93(1) and (3) and is, therefore, immune from Charter attack (Reference re Bill 30 (above) followed).
7. Section 93 makes no mention of protection of the rights and privileges of the public schools. Moreover, entrenching rights and privileges of public schools relative to a benchmark of 1867 places the province in a strait-jacket which impedes the progressive reform of educational authorities. The province’s plenary power is, therefore, subject to the Charter.
8. The failure to fund private religious schools does not amount to state interference with freedom of religion equivalent to a violation of s 2(a). Whilst the appellants enjoy a fundamental constitutional right to send their children to the religious school of their choice (B (R) v Children’s Aid Society of Metropolitan Toronto [1995] 1 SCR 315 (Can SC); [1996] 2 CHRLD 279 considered), there is nothing in the Education Act that prevents them from exercising this aspect of their freedom of religion since it allows for the provision of education within a religious school or at home.
9. The Education Act does not distinguish, either directly or indirectly, between the appellants and others based on personal characteristics and so the threshold stage of a s 15 inquiry is not met (dicta of McLachlin J in Miron v Trudel[1995] 2 SCR 418 (Can SC); [1996] 2 CHRLD 190 and Cory and Iacobucci J in Egan v Canada [1995] 2 SCR 513, 584 (Can SC); [1996] 2 CHRLD 182 applied). The fact that the appellants belong to a group that is unable to take advantage of the public school system does not result from the Education Act itself but rather from the combination of the appellants’ religious beliefs and the imperatives of the Charter as they apply to the exercise of the province’s plenary power over education. As the distinctions relied on by the appellants do not arise as a result of the legislation, no governmental action is involved to which s 15 can attach.
10. Even if the appellants had succeeded in showing that the Education Act created a distinction, they would not have succeeded in demonstrating that this distinction amounts to discrimination on the basis of religion. The only ground of distinction in this case is between government-funded ‘public’ institutions and ‘private/independent’ institutions, which do not receive government funding. No religion is given preferential treatment within the system as no private schools receive funding whether they are religious or secular.
11. School health support services are properly characterised as ‘education services’ as opposed to strict ‘health services’. If the appellants have no basis for claiming a right to public funding for the education provided in private schools, they have no claim for additional ‘educational services’ available only within the public school system. There is no reason to distinguish funding for this aspect from other aspects of funding for educational purposes. Therefore, this claim must also fail.

[Adapted from INTERIGHTS summary, with permission]

"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 chracterized the services as 'educational services' as opposed to 'health services'. It  is true . . . 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 . . . 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." Page 651.