Sask. Public Schools wants Supreme Court to rule on non-Catholic student funding

Two weeks ago, Saskatchewan's Court of Appeal ruled it's OK for separate schools to receive provincial government funding for students who are not Catholic. Now Public Schools of Saskatchewan says it wants to take the case to the Supreme Court of Canada. 

Court ruled in favour of public schools in 2017, then Sask. Court of Appeal overturned the decision in March

A female teacher stands at the front of a classroom as several students seated at their desks raise their hand.
Saskatchewan Public Schools is seeking leave to appeal the 'Theodore case' to the Supreme Court of Canada, after what it calls two very different decisions by the Saskatchewan Court of Queen's Bench in 2017, and the Saskatchewan Court of Appeal in 2020. (Syda Productions/Shutterstock)

Two weeks ago, Saskatchewan's Court of Appeal ruled it's OK for separate schools to receive provincial government funding for students who are not Catholic. Now, Public Schools of Saskatchewan says it wants to take the case to the Supreme Court of Canada. 

On Thursday, the body representing public school boards in Saskatchewan announced its intention to seek leave to appeal the case to the Supreme Court of Canada on behalf of the Good Spirit School division.

"We believe the case has national implications. There are separate schools in two other provinces: Alberta and Ontario. And put together with Saskatchewan, we think it has national implications and that the Supreme Court is the right place to settle it," said Saskatchewan Public Schools (SPS) executive director Norm Dray. 

Dray said it's a matter of clarifying the roles of the two types of publicly-funded schools.

"Let's be clear, this is not about whether Catholic schools should exist in Saskatchewan. The right to have separate schools is guaranteed in the Constitution. And we've never quibbled with that," he said.

Saskatchewan Catholic School Boards Association executive director Tom Fortosky said the association is "disappointed, but not surprised" by SPS's announcement.

"We had hoped that a unanimous decision by five superior court justices, in this case, that the case would have been settled," he said. 

Fortosky said the association's time could be better spent on students and education, rather than in the courtroom. 

"We had hoped that it wouldn't have come to this further step, but we'll be in there, fighting the good fight. We're the minority in this case. We didn't start this case. And we'll have to see it through," he said. 

Long-standing dispute

This is the latest development in a case which saw the provincial government and its Catholic school system engaged in a court fight with one of Saskatchewan's public school divisions.

It all began in 2003, in Theodore, Sask., when the public Good Spirit School Division decided to close the only school in the community. That school had served both Catholic and non-Catholic students. 

Parents wanted to keep their local school, and decided to start a new one under a separate school board, rather than the public one. The school division bought the village's school and renamed it St. Theodore Roman Catholic School, with the majority of students switching to go to school within the Catholic system. 

That's what led the Good Spirit division to fight the province and the Catholic division in court in 2005. Good Spirit argued the constitutional protection of Catholic schools does not include the right for Catholic schools to receive government funding for non-Catholic students.

Eventually, that led to a landmark ruling in 2017, in which Justice Donald Layh ruled it was unconstitutional for the province to fund non-Catholic students at Catholic schools. Funding "non-minority faith students" in faith-based schools violates both the Charter of Rights and "the state's duty of religious neutrality," Layh wrote.

2020 appeal decision

The case made its way to Saskatchewan's Court of Appeal, which delivered a unanimous decision on March 25 of this year, saying the trial judge made "fundamental errors of law."

The appeal court said considering the matter as one that only involves funding for non-Catholics in a Catholic school is too narrow. The question must be considered in the context of two school systems, the appeal court said, both of which are funded by the public.

"It is an effect of this parallel public system of education that non-Catholic students may attend public, separate schools, but it is also an effect that Catholic students may attend public, secular schools," the court ruled in its March decision.

Saskatchewan Education Minister Gordon Wyant sent CBC a written statement about the development in the case. He said he would be making no further comment because it could potentially come before the court. 

"I respect the right of the Public Schools of Saskatchewan to seek leave to appeal the decision handed down by the Saskatchewan Court of Appeal. We recognize that the overall outcome of this issue is important to the delivery of education in Saskatchewan, and await the Supreme Court of Canada's decision on whether they will hear the case," it said. 

With files from CBC's Ashleigh Mattern and Kendall Latimer