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We Don't Need No (Catholic) Education — But Why Can't It Be Saved by Section 1? A Comment on Good Spirit School Division No. 204

In Good Spirit School Division No. 204 v. Christ the Teacher Roman Catholic Separate School Division No 212 and The Government of Saskatchewan, the Saskatchewan Court of Queen's Bench had its first opportunity to consider the interaction between s. 93 of the Constitution Act, 1867 and the Charter of Rights and Freedoms in the context of Saskatchewan’s publicly-funded separate Roman Catholic school system. In a comprehensive 478 paragraph decision, Layh J. concluded that the protections of s. 93 of the Constitution Act, 1867 do not extend to non-Catholic students attending Catholic schools. As a result, he found that this violation of the duty of state neutrality infringed s. 2(a) of the Charter and amounted to discrimination on the ground of religion, contrary to s. s. 15 of the Charter. He concluded that this infringement was not justified under s. 1. Justice Layh suspended the declaration of invalidity for approximately 14 months, but the effect of his decision would be far-reaching: if it continues to stand, the government is constitutionally prohibited from providing funding to Catholic schools for non-Catholic students. This has the potential to affect thousands of students across the province. 
In this brief comment, I intend to focus on the shortest but, ultimately, one of the most important parts of Layh J.’s reasoning: his analysis under s. 1 of the Charter. This comment analyzes four main flaws that I have identified in Layh J.’s s. 1 analysis. First, his analysis denies the pressing and substantial nature of the government’s objective by rejecting a link between the objective and the means used to attain this objective. This collapses the proportionality analysis into a single inquiry and fails to grant the legislature an appropriate measure of deference to pursue legitimate policy goals. Second, his reasons in the s. 1 analysis do not fully grapple with the inconsistencies between R. v. Big M Drug Mart and R. v. Oakes with respect to justifications under s. 1, and in my view his reasoning inappropriately elevates the former over the latter. This tends to ignore over 30 years of jurisprudence that has developed under Oakes, reverting to a pre-Oakes method of analysis. Third, Layh J. denies the possibility of minimal impairment in the context of state funding for religious schools, as his reasoning tends to suggest that no Charter breach of this nature can ever be found to be minimally impairing of the Charter right. This forecloses the possibility of justifying a rights infringement in this context, contrary to the text of s. 1 of the Charter. Fourth and finally, Layh J.’s reasons fail to appropriately identify and balance the salutary and deleterious effects of the law, focusing on the practical harm to the litigants rather than the more abstract benefits and impacts wrought by the rights-infringing law. 
There is obvious tension between s. 93 of the Constitution Act, 1867 and the Charter of Rights and Freedoms, creating what has been referred to as “entrenched inequality”. This comment suggests that s. 1 of the Charter is the appropriate way in which to respectfully reconcile the existence of both of these constitutional documents in a manner that does not give preference to one over the other. A robust s. 1 analysis recognizes that government funding for religious-based schools is, paradoxically, both constitutionally suspect and constitutionally required. The s. 1 analysis is vital because it provides an avenue through which to balance these two realities by allowing the government room to justify a rights infringement in the context of funding for religious-based schools. The flaw in Layh J.’s reasons is that this avenue is blocked.