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Adler v. Ontario, [1996] 3 SCR 609


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.


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.


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


UN ruled Ontario funding scheme violated international rights.

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