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Adler v. Ontario, [1996] 3 SCR 609

Facts:

Appellants seeking a declaration that non-funding of religious schools other than Roman Catholic schools is unconstitutional – 2(a) requires that Ontario provide funding for independent religious schools, and 15(1) is violated because of religious discrimination by the province.

Ratio:

Religious minorities not already recognized by s.93 are not entitled to public funding. These minorities cannot use the Charter to defeat the express provisions of s.93 of the Constitution.

Analysis:

Iacobucci J.: To be analyzed under s.93 of the Constitution, which provides that provincial legislature has authority to legislate with regards to education
*S.93 is a “complete and comprehensive code” wrt denomination schools
*2(a) claim fails because it must be grounded in 93(1) – funding of Roman Catholic separate schools and public school within terms of s.93 and immune from Charter review – and s.93 should NOT be construed as a fundamental religious freedom
**It reflects a compromise for denominational schools existing at the time of Confederation – does not reflect Charter values
**Political decision entrenched in the Constitution – absolute status
*S.15 review for Roman Catholic schools is also shielded from review because of s.93
*S.15 review for public schools is shielded as well, because pre-Confederation legislation equated privileges of “separate” schools with “public” schools
**S.93 doesn’t make sense unless a public system existed, so it is shielded
*Province is not restricted from providing funding to different denominational schools, but is not obligated to do so either

The following justices held that public schools not immunized from Charter:

Sopinka J. (Concurring, 5 reasons) holds that public schools are not shielded from Charter, but no violation
**Failure to act in order to facilitate the practice of religion cannot be considered state interference with freedom of religion
**Appellant’s argument would lead to a positive obligation on the state to fund parallel religious justice systems, corporations, institutions, etc
**“Negative impact springing from personal choice” – this seems in tension with Edwards Books, which pointed this out is an indirect burden

McLachlin J. (dissent in part): Lack of support for private schools does not violate s.2 or s.15
*Provinces exercising plenary powers must comply with the Charter
*Absence of state funding for private religious practices has never been seen as state persecution – no 2(a) infringement
*Adverse discrimination against people choosing to educate their children consistent with religious beliefs but having no funding – violation of s.15
*S.1 Justification
**Pressing and substantial objective: promotion of multi-cultural heritage
**Rational Connection: Common sense – funding promotes diversity
**Minimal Impairment: No apparent alternative violates the right less
**Effect Proportionality: Promoting diversity outweighs financial burden

L’Heureux Dube (dissenting): This group is most clearly deserving of s.15 protection
*S.1 fails on minimal impairment: partial funding points to a very limited impact on the current public system, and would promote the value of religious tolerance

Comments:

UN ruled Ontario funding scheme violated international rights.


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