It’s time to reopen a 21-year-old Supreme Court of Canada decision that upheld Ontario’s policy of funding public and Roman Catholic schools, but not other religious schools, as constitutional, lawyers and advocates for Jewish day schools say.
A legal opinion recently written by renowned human rights lawyer David Matas suggests that the time is ripe for the issues raised by Adler v. Ontario, which was decided in 1996, to be re-examined by the courts.
Changes in international law, in particular, as well as a number of Canadian legal cases in the intervening years, suggest that the Adler decision is “incorrect” and should be reconsidered, Matas wrote in a brief for Grassroots for Affordable Jewish Education (GAJE), an Ontario-based advocacy group.
“Getting matters right here outweighs the importance of maintaining precedent,” Matas wrote.
Following the Adler decision, the UN Human Rights Committee found that Ontario had violated international law by funding Catholic schools, but not others, according to the brief written by Matas, a Winnipeg-based lawyer.
“The fact that the violation is caused by the Constitution of Canada is no justification or excuse for this violation,” Matas wrote.
In interpreting the Charter, Canadian courts “have taken cognizance of international law,” Matas said in an interview.
The philosophy of the court has also shifted since the Adler decision, he said. “Not only the personnel of the court has changed, they don’t have the same adherence to precedent, or their own decisions that they have had in the past,” he said.
The effect of the Adler decision has led to a Jewish day school system that is unfairly burdened by high tuition costs, says Mordechai Ben-Dat, a member of GAJE.
Five other provincial governments partially fund private religious schools, which is what GAJE is seeking, he said.
Even Quebec – which, like Ontario, had constitutional protections for denominational schools at the time of Confederation – has transformed its funding model to a secular one, and provides funding for a number of private schools, Ben-Dat said.
The process of going back to court is a lengthy one, which would take about three years, Ben-Dat said.
It is also expensive and GAJE is looking for financial assistance. A new federal program that is being set up to fund court challenges is one possibility, Ben-Dat said. The group has also approached the Centre for Israel and Jewish Affairs (CIJA), to see if it is willing to join the campaign, he said.
CIJA is “consulting with legal experts,” and will meet with GAJE to discuss the possibility of funding a legal challenge, said Noah Shack, CIJA’s interim vice-president for the Greater Toronto Area.
For its part, the Ontario government is not eager to see the decision reopened. “Our focus remains on maintaining the current stable, publicly funded education system, which includes supporting all four of our publicly funded systems, and ensuring it remains one of the best in the world. We will continue to uphold the constitutional and statutory framework for education in Ontario, and there are no plans to revisit the issue of funding private schools,” the Education Ministry said in a statement.
Ultimately, the court may be the only option available to generate new sources of funding for Jewish schools. After former Ontario Progressive Conservative leader John Tory made funding for private schools a dominant issue in a provincial election that he lost a decade ago, the issue has become “politically toxic,” Matas said.
“Part of the reason you go to court for minority rights is that the majority aren’t going to necessarily respect the rights of the minority, so you need the protection of the charter.”