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One of the last vestiges of state-sanctioned discrimination continues to thrive in Ontario, incubated by our complicity and protected by politicians’ abiding fear of stirring up controversy.

In this province, children who cannot prove Catholicity may not be granted admission to publicly funded elementary schools (though some boards have relaxed their policies in recent years), and teachers who are otherwise fully qualified will be denied teaching positions if they belong to the wrong faith. This discrimination is happening in a fully public system, financed entirely using public tax dollars.

Things were a lot more straightforward back in 1867, when Section 93 of the Constitution Act was drafted to protect the minority Roman Catholic population’s right to educate their children in accordance with the teachings of their Church. Some 155 years later, the situation is decidedly more complex, with Canada now home to a plethora of minority religious populations, all of which – in theory – are supposed to be equal before the law. But today, only one religious minority gets to operate denominational schools using the public purse, and only one is permitted to discriminate when offering admissions, employment, and certain roles within schools.

That permission is not without limits, as affirmed by a recent court case brought forward by a student who was barred from running for student trustee because she is Orthodox Christian – not Catholic. Daria Kandaharian, who is now a first-year student at York University in Toronto, launched a lawsuit against the York Region Catholic School Board charging that her Charter rights were violated when she was prevented from running for the position at St. Maximilian Kolbe Catholic High School in Aurora, Ont. She argued that the board’s policy requiring student trustees be Roman Catholic violated her s. 15(1) and s. 2(a) Charter rights, which protect religious freedoms and entitle every person to “equal protection and equal benefit of the law without discrimination.”

A ruling from Ontario’s Superior Court of Justice agreed. In its decision, the Court reasoned that the protection offered by s. 93(1) of the Constitution Act does not apply, since ”the role of student trustee bears no relationship to any right or privilege held by Catholic separate schools at the time of Confederation.” It further reasoned that “the prospect of students who are not Catholic representing a Catholic school as a student trustee would have no prejudicial affect [sic] on such a right or privilege even if it existed at that time,” because student trustees cannot vote, they do not affect the timing of votes, and they do not count toward quorum. The Court also dismissed the Board’s argument that the 5,000 or so non-Catholic students currently enrolled in its schools could have opted to attend secular public schools instead, writing that their choice “does not relieve the school board of its obligation to treat its student without discrimination.”

The case is a landmark win for non-Catholic students who have been denied the opportunity to serve as student trustees on school boards, but it is hardly a repudiation of the inherent contradiction of running a publicly funded denominational school in the province of Ontario in 2022. Other provinces, such as Quebec and Newfoundland, scrapped their publicly funded Catholic school systems decades ago, but Ontario persists with its plainly unjust (and expensive, and redundant) taxpayer-funded religious education. As a result, there is an enduring tension between those operating a Catholic education system and trying to impart teachings in accordance with the Catholic Church (including, in one example, assigning students to make anti-abortion posters for marks and encouraging them to submit them in a Right to Life Coalition contest) and a secular society where church and state are supposed to be separate, and where discrimination based on religion runs afoul of the Charter of Rights and Freedoms.

The courts are a check against what might appear to be the Catholic school system’s unrestricted ability to exercise its rights and privileges in a way that conflicts with other Canadian law. And indeed, the courts have served as that check, including when a gay teen had to fight to take his boyfriend to his Catholic school prom in 2002. In that case, the Court reasoned that ”it cannot be said that the conduct in question in this case goes to the essential denominational nature of the school,” and that the protections afforded by 93(1) of the Constitution Act cannot be so broadly applied as to distort their original purpose.

But the original purpose – the protection of a minority population to educate their children in accordance with the teachings of their church – is no longer relevant or defensible in 2022. A piecemeal approach to challenging the system, one lawsuit at a time, won’t fix what is fundamentally an archaic and unfair separate system. Only bold action and political courage will.

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