Saturday, 20 October 2012

Constitutional Realities & Denominational Rights

While I am firmly on the record as opposing the continuation of special denominational rights for Ontario's Catholics, I am deeply troubled by some of the arguments being made by those attempting to overturn the status quo via the courts. I applaud Reva Landau and the Canadian Civil Liberties Association (CCLA) for bringing attention to the issue, the forum is entirely inappropriate.

Again, I agree with the crux of the argument put forward against perpetuating these so-called rights. These are, however, purely moral arguments for equality. They are not legal or constitutional arguments.

First, yes, the Confederation compact essentially between Quebec and Ontario has been broken by Quebec. The end of religious education and the introduction of language-based education was a clear repudiation and a reneging on the compact. Second, again yes, the conditions present in 1867 have dissipated. Catholics are no longer a threatened minority in a hostile Protestant province. They are now firmly within the majority and -  in some case, particularly in relation to the LGBT community - ardent oppressors. Three, again yes, the situation violates the principle of the Charter and international human rights. Clearly the special status is repugnant, even to many Catholics.

This is, however, a political matter. It is up to Ontario's government to deal the death blow to the compact, not the courts. It is not for the courts to interpret Quebec's exit from the agreement as a sign that the contract no longer stands. This is not a legal contract, it is a constitutional one.

Second, the courts lack the power - even if the will may not be lacking - to strike down or reinterpret any component of the constitution by declaring certain sections null and void. This will not happen. Moreover, if it did, we would have a profound problem. For a court to simply ignore an existing provision, even if it is old and out of date, and even if the impetus for it has long since ceased to be a factor, would be a gross overstep of judicial power. 

Third, the exemption from Charter scrutiny is built explicitly into that document. There is no way around it so long as politicians have no desire to depart from the status quo. The litigants may as well argue that sections 1 - the limitations clause - and 33 - the notwithstanding clause - are unconstitutional because they restrict rights. These build-in limits must be addressed through the political process, not a judicial one.

Finally, these clauses are not 'context dependent'. Yes, the constitution is clearly conceptualized as a 'living tree', but this is not the kind of change that underpins this idea. Again, the explicit exceptions preclude the application of this doctrine. 

This is a case with no firm grounding in constitutional law or, indeed, common sense. The Court's time is better spent addressing the more limited questions questions but not outright abolition, something that is, once again, solely within the realm of political decision-making. The focus should remain on the original clause itself. What are the limitations of denominational school rights? Are they explicitly limited to those 'as they existed' at the time of Confederation? Moreover, does the right to the separate schooling in any way limit the province's right under section 92 to control education? If the answer is that they are limited, then there is legal recourse. A Charter challenge, it seems, would be better aimed at undermining the expansion of the rights as a violation, rather than at their existence. Again, the existence of the rights - whether they are justified or not - is not really at issue.

By overshooting for a more complete erasure of the existing Catholic system, it is likely that this case will go nowhere. It is unlikely that the Supreme Court, with an already full docket, will want to address the question of striking down the right in full. It's a non-starter. The more limited question, about the extent of rights before they begin to run afoul of the Charter, is the more fruitful path. 

In the end, this case is less likely to be important for the jurisprudence it produces than the public discourse it begins. The continued existence of special denomination rights for a fraction of the population - particularly when it is used to justify oppression of difference - is a constitutional aberration of a bygone era. The fact remains, however, that no section of the Constitution may be used to override another. The question, from a legal perspective, is one of limits. The question about the continuance of the practice, however, is one the Courts will leave to the politicians. 


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