 |
| St. Thomas More |
(Note to our readers: This two-part blog entry is written by lawyer Geoff Cauchi. Everyday for Life Canada is pleased to share this special posting with our readers. We thank Mr. Cauchi for the insightful historical legal background and the ramifications of Bill 13 for public education and for religious liberty in Ontario. The content is also important reading for every Canadian who believes in the freedom of religion, in a Christian/Catholic education and in parental rights.)
“That, in the presence of expanding
administrative regulation of economic activities, such a step and its
consequences are to be suffered by the victim without recourse or remedy, that
an administration according to law is to be superseded by action dictated by
and according to the arbitrary likes, dislikes and irrelevant purposes of
public officers acting beyond their duty, would signalize the beginning of
disintegration of the rule of law as a fundamental postulate of our constitutional
structure” Roncarelli v. Duplessis, [1959] S.C.R. 121, per Rand J.
With the passage of
Bill 13 – Accepting Schools Act --- Premier Dalton McGuinty has
completed his mission to plunge the province of Ontario into a profound
constitutional crisis in public education the likes of which this country has
not seen since the “Manitoba Schools Question” at the end of the 19th century.
At a Gay Pride event in Toronto on the
weekend of July 2-3, 2011, Premier Dalton McGuinty assaulted the sensibilities of the Catholics of Ontario by
having MPP Glen Murray (Toronto Centre) deliver, on his behalf, an address that
signaled his intention to use his office to force all school boards, even
Catholic ones, to establish and maintain “student support groups for LGBT
students”. And by “student support
groups”, he means groups under the leadership of individuals who will most
certainly urge attendees to reject Catholic teaching on the subject of
homosexuality. A school
system with a constitutionally protected and mandated authority to persuade its
Catholic students to adopt a Catholic lifestyle cannot tolerate such a
result. Bill 13, which comes into force on
September 1, 2012, now puts the force of civil law behind this political
agenda.
The Premier now exposes his government
to an appeal of a political, as opposed to a “legal” nature, to the Governor
General in council, under subsection 93(3) of the Constitution Act,
1867. He has also exposed
himself, his office, the Ministry of Education, and school boards, trustees,
and administrators who capitulate to his coercive orders to a variety of legal
actions. In this piece, I wish to
focus on his potential personal liability to faithful Catholic electors,
principals and teachers based on the tort of misfeasance of public office.
In Odhavji
Estate v. Woodhouse, [2003] 3 S.C.R. 263,
2003 SCC 69, Justice Iacobucci, speaking for Supreme Court of Canada,
summarized the elements of this tort in the following passage: “I
am of the opinion that the tort of misfeasance in a public office is an
intentional tort whose distinguishing elements are twofold: (i) deliberate
unlawful conduct in the exercise of public functions; and (ii) awareness that
the conduct is unlawful and likely to injure the plaintiff. Alongside
deliberate unlawful conduct and the requisite knowledge, a plaintiff must also
prove the other requirements common to all torts. More specifically, the
plaintiff must prove that the tortious conduct was the legal cause of his or
her injuries, and that the injuries suffered are compensable in tort law.” (para. 32)
The Premier
said: “I know that [the groups]
have been controversial in some schools. We need to move beyond that….And I am proud that
effective this September, high school students who want their school to have a
student support group for LGBT students will have one … This is not a matter
of choice for school boards or principals. If students want it, they will have it.” [Lifesitenews.com, July 4, 2011].
One of the most
important cases in Canadian constitutional legal history is the 1959 case of Roncarelli
v. Duplessis. There are
interesting similarities between the impugned conduct of Maurice Duplessis in
his capacity as the Attorney-General of Quebec in that case, and Mr. McGuinty’s
current attempt in his capacity as Premier of Ontario to bully the Ontario
Bishops and the Catholic Schools into forcing their Catholic teachers to
establish and supervise either “Gay Straight Alliance” groups, or groups that
operate under a different title but which have the same sinister and unlawful
purpose, which is to “get inside” the existing, presumably Catholic, belief
system of the attending students and replace it with one more in line with the
political ideology of gay activists. This gay activist effort is unconstitutional, as well
as sinister and unlawful, because the Premier is putting the entire weight of
the Government of Ontario behind it, and in the process running roughshod over
the denominational rights of faithful Catholic electors under section 93 of the
Constitution Act, 1867.
In Roncarelli,
the plaintiff operated a restaurant and the Quebec Liquor Commission, without
prior notice to him, one day announced that his liquor license was
cancelled. It was not
disputed that the license was cancelled because he “was an adherent of a
religious sect or group known as the Witnesses of Jehovah” and for the purpose
of preventing him “from continuing to furnish bail for members of that sect
summoned before the Recorder’s Court on charges of contravening certain city
by-laws respecting the distribution of printed material.” At that time, the Jehovah’s
Witnesses in Quebec had been carrying on an active campaign involving the
distribution of printed pamphlets and other material that was offensive to many
Christians, and Catholics in particular. Justice Abbott of the Supreme Court of Canada said he
had “no doubt that at that time many believed this material to be seditious.”
It was also not
disputed that the Manager of the Quebec Liquor Commission would not have
cancelled the liquor license of Mr. Roncarelli but for the order and authorization
of Duplessis, who occupied the office of Attorney-General for Quebec, and who
had no statutory power to interfere in the administration or direction of the
Quebec Liquor Commission.
On appeal of the case
to the Supreme Court of Canada, the Court held that Duplessis was personally
liable in damages to Mr. Roncarelli. Justice Rand said: “The act of [Duplessis] through the instrumentality of
the Commission brought about a breach of an implied public statutory duty
toward [Mr. Roncarelli]; it was a gross abuse of legal power expressly intended
to punish him for an act wholly irrelevant to the statute, a punishment which
inflicted on him, as it was intended to do, the destruction of his economic
life as a restaurant keeper within the Province. Whatever may be the immunity of the Commission or its
member from an action for damages, there is none in [Duplessis]. He was under duty in relation to [Mr.
Roncarelli] and his act was an intrusion upon the functions of a statutory
body. The injury done by him
was a fault engaging liability within the principles of the underlying public
law of Quebec.”
In Odhavji Estate,
the Supreme Court of Canada said: “Although Roncarelli was decided at least in part on the basis of
the Quebec civil law of delictual responsibility, it is widely regarded as
having established that misfeasance in a public office is a recognized tort in
Canada.” ( per Iacobucci, J. at para. 19). In Roncarelli, Justice Rand said: “It was urged by Mr. Beaulieu
[Duplessis’ legal counsel] that [Duplessis], as the incumbent of an office of state, so long as he was
proceeding in ‘good faith’, was free to act in a matter of this nature
virtually as he pleased.” Justice Rand summarily dismissed this argument, insisting that carrying
out a statute according to its intent and for its purpose in “good faith” does
“not mean for the purposes of punishing a person for exercising an
unchallengeable right; it does not mean arbitrarily and illegally attempting to
divest a citizen of an incident of his civil status.”
Justice Abbott
said: “I have no doubt that in
taking the action which he did, [Duplessis] was convinced that he was acting in
what he conceived to be the best interests of the people of his Province but
this, of course, has no relevance to the issue of his responsibility in damages
for any acts done in excess of his legal authority. I have no doubt also that [Duplessis] knew and was
bound to know [emphasis added] as Attorney-General that neither as
Premier of the Province nor as Attorney-General was he authorized in law to
interfere with the administration of the Quebec Liquor Commission or give an
order or an authorization to any officer of that body to exercise a
discretionary authority entrusted to such officer by the statute.”
Justice Martland
said: “Is…. [Duplessis’] position
altered by the fact that apparently he thought it was his right and duty to act
as he did? I do not think that
it is. The question of whether or
not his acts were done by him in the exercise of his functions is not to
be determined on the basis of his own appreciation of those functions, but must be determined according to
law. [Duplessis] apparently
assumed that he was justified in using any means he thought fit to deal with
the situation which confronted him.
In my view, when he deliberately elected to use means which were
entirely outside his powers and were unlawful, he did not act in the exercise
of his functions as a public official.”
The Lessons of Roncarelli Applied to McGuinty’s
Promotion of the Equity and Inclusion Education Policy (the “EIE”)
Duplessis claimed to
be a member of the Catholic Church. Premier McGuinty has also claimed to be a member of the Catholic Church,
although, judging by his actions in recent years, I doubt that he claims to be
anything more than a nominal Catholic. Duplessis had an animus against Jehovah’s
Witnesses because they were publishing what today would have been called hate
literature directed at Catholics and the Catholic Church, and tried to do
something to stop it.Today, Premier McGuinty has an animus against his own Church and its
teachings on the subject of homosexuality, and takes the ideological position
that its approach to persons who claim a same-sex attraction causes such
persons harm. He therefore
has sided with a special interest group, the gay activists, against his own
Church and its schools, in their effort to gain access to Catholic students for
the purpose of propagandizing them in the group’s ideological and political
positions.
Like Duplessis,
Premier McGuinty thinks he has the right to “do as he pleases” to accomplish
his political goals. McGuinty signaled his intent to use, as Duplessis used, unlawful means
to accomplish them, and then carried out that intent. There are many elements of the EIE itself (the
offensive curriculum requirements, the infringement on the parental right to
receive notice of bullying events at the school, the requirement to refer
students to external organizations that mock, ridicule, and/or reject Catholic
teaching, the requirement to discipline students for repeating, supporting or
promoting Catholic teaching on homosexuality), that the Catholic schools have
the constitutional right to amend to make them consistent with Catholic
teaching, but his declared intent
to force Catholic schools to comply with one particular requirement ---- that
they establish and maintain student-led support groups modeled on the Gay
Straight Alliance Groups promoted by gay activists ----is especially egregious
governmental conduct. (Please go to Part II for the conclusion of this blog entry)
Geoff Cauchi, LL.B.