|St. John Fisher and St. Thomas More|
The Evidence of Deliberate Unlawful Conduct
If, as Mr. McGuinty insists, Catholic school principals will have “no choice” in the matter is not sufficient evidence that his conduct is “deliberate”, I don’t know what is. Surely Mr. McGuinty is “bound to know” that his Gay Pride statement contradicts the assurances given by the Provincial Legislature in the Religious Freedom Act, R.S.O. 1990, which says that the “free exercise and enjoyment of religious profession and worship, without discrimination or preference, provided the same be not made an excuse for acts of licentiousness, or a justification of practices inconsistent with the peace and safety of the Province, is by the constitution and laws of this Province assured to all Her Majesty’s subjects within the same.”
Surely Mr. McGuinty is “bound to know” that every authority given by the Education Act (Ontario) is required by law to be “exercised in a manner consistent with and respectful of the rights and privileges guaranteed by section 93 of the Constitution Act, 1867 [“Section 93”] and by section 23 of the Canadian Charter of Rights and Freedoms.” [ss. 1(4) and (4.1)]. These rights and privileges are incidences of the civil status of every faithful Catholic separate school ratepayer in the Province of Ontario.
Surely Mr. McGuinty is “bound to know” that clauses 230.19(1)(a) and 257.52(1)(a) of the Education Act (Ontario) demonstrate that the Ontario Legislature concedes that the jurisprudence on the scope of Section 93 means that the Government of Ontario and its agents, including the Minister of Education and the Premier, have no authority to “interfere with or control…the denominational aspects of a Roman Catholic Board.”
Surely Mr. Guinty is “bound to know” that the Section 93 jurisprudence, boiled down to its bare essence, means that “section 93(1) of the Constitution Act, 1867 guarantees denominational school boards in Ontario the right to fair and equitable funding, and to control over the denominational aspects of their education program, as well as those non-denominational aspects necessary to deliver the denominational elements”: Ontario English Catholic Teachers’ Assn. v. Ontario (Attorney General),  1 S.C.R. 470, 2001 SCC 15. These boards owe a fiduciary duty to their faithful ratepayers to properly exercise this power of control on their behalf.
Surely Mr. McGuinty knows that student-led groups are either part of the curriculum of a school (his Ministry of Education’s own documents describe their activities as “co-curricular”), and therefore that their activities are denominational aspects of a Catholic school’s educational program, or (at the very least) non-denominational aspects of its education program that a Catholic board must have the right to control to ensure that they do not contradict Catholic teaching. This control is necessary, because if their activities contradict what is taught in the more formal part of the curriculum, they will undermine the judicially recognized aim of Catholic schools, which is to lead Catholic students to accept the Catholic faith.
Surely Mr. McGuinty knows that his government’s Human Rights Commission has been misleading educational authorities in the Province of Ontario when its representatives tell them, in connection with the promotion of the EIE, that the requirements of the Human Rights Code (Ontario) “trump” the provisions of the Education Act (Ontario), and, by implication, the denominational rights of Catholic electors and parents under Section 93. In fact, explicit provisions of the Code say exactly the opposite [see section 19].
Surely Mr. McGuinty is “bound to know” that the courts have consistently “read down” the anti-discrimination provisions of provincial human rights codes to make sure that they are consistent with Section 93 and that they recognize that a service provider like a Catholic school board has a right to NOT associate with persons who do not share its Catholic beliefs.
Surely Mr. McGuinty is “bound to know” that the Supreme Court of Canada has confirmed, on several occasions, that when Catholic school boards legitimately exercise their denominational rights, the exercise of those rights is immune from Charter challenge or scrutiny [see Gosselin (Tutor of) v. Quebec (Attorney General), 2005 SCC 15,  1 S.C.R. 238, and the other cases referred to therein].
In light of all these things Mr. McGuinty is “bound to know”, he cannot legitimately claim that he has lawful authority to coerce Catholic boards to comply with the “GSA” requirement on the ground that if he fails to do so, the Ministry of Education and Catholic boards will be exposed to Charter and Code claims from disgruntled students who claim to have a same-sex attraction.
I wrote this piece as the feast days of Saints Thomas More and John Fisher were approaching. Whether or not Dalton McGuinty will ever be held accountable for what he has done will depend on whether or not the Catholic bishops, the separate school board trustees, and the faithful Catholic teachers and ratepayers have the guts to challenge him and his government in the courts. Mr. McGuinty seems to be confident that no such saints can be found among us in the 21st century.
Geoff Cauchi, LL.B.