Convention Abbreviation: CCPR
Human Rights Committee
Sixty-seventh sessions
18 October - 5 November 1999
ANNEX
Views
of the Human Rights Committee under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights-Sixty-seventh session -Communication Nº 694/1996 */ **/
Submitted by: Arieh Hollis Waldman
(Initially represented by Mr. Raj Anand from Scott & Aylen, a law firm in Toronto, Ontario)
Alleged victim: The author
State party: Canada
Date of communication: 29 February 1996
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 3 November 1999
Having
concluded its consideration of communication No.694/1996 submitted to
the Human Rights Committee on behalf of Arieh Hollis Waldman, under the
Optional Protocol to the International Covenant on Civil and Political
Rights,
Having
taken into account all written information made available to it by the
author of the communication, his counsel and the State party,
Adopts the following:
Views under article 5, paragraph 4, of the Optional Protocol
1.1
The author of the communication is Mr. Arieh Hollis Waldman, a Canadian
citizen residing in the province of Ontario. He claims to be a victim
of a violation of articles 26, and articles 18(1), 18(4) and 27 taken in
conjunction with article 2(1).*
1.2
The author is a father of two school-age children and a member of the
Jewish faith who enrols his children in a private Jewish day school. In
the province of Ontario Roman Catholic schools are the only non-secular
schools receiving full and direct public funding. Other religious
schools must fund through private sources, including the charging of
tuition fees.
1.3
In 1994 Mr. Waldman paid $14,050 in tuition fees for his children to
attend Bialik Hebrew Day School in Toronto, Ontario. This amount was
reduced by a federal tax credit system to $10,810.89. These tuition fees
were paid out of a net household income of $73,367.26. In addition, the
author is required to pay local property taxes to fund a public school
system he does not use.
The facts
2.1
The Ontario public school system offers free education to all Ontario
residents without discrimination on the basis of religion or on any
other ground. Public schools may not engage in any religious
indoctrination. Individuals enjoy the freedom to establish private
schools and to send their children to these schools instead of the
public schools. The only statutory requirement for opening a private
school in Ontario is the submission of a "notice of intention to operate
a private school". Ontario private schools are neither licensed nor do
they require any prior Government approval. As of 30 September 1989,
there were 64,699 students attending 494 private schools in Ontario.
Enrolment in private schools represents 3.3 percent of the total day
school enrolment in Ontario.
2.2
The province of Ontario's system of separate school funding originates
with provisions in Canada's 1867 constitution. In 1867 Catholics
represented 17% of the population of Ontario, while Protestants
represented 82%. All other religions combined represented .2% of the
population. At the time of Confederation it was a matter of concern that
the new province of Ontario would be controlled by a Protestant
majority that might exercise its power over education to take away the
rights of its Roman Catholic minority. The solution was to guarantee
their rights to denominational education, and to define those rights by
referring to the state of the law at the time of Confederation.
2.3
As a consequence, the 1867 Canadian constitution contains explicit
guarantees of denominational school rights in section 93. Section 93 of
the Constitution Act, 1867 grants each province in Canada exclusive
jurisdiction to enact laws regarding education, limited only by the
denominational school rights granted in 1867. In Ontario, the section 93
power is exercised through the Education Act. Under the Education Act
every separate school is entitled to full public funding. Separate
schools are defined as Roman Catholic schools. The Education Act states:
"1. (1) "separate school board" means a board that operates a school
board for Roman Catholics...122. (1) Every separate school shall share
in the legislative grants in like manner as a public school". As a
result, Roman Catholic schools are the only religious schools entitled
to the same public funding as the public secular schools. [*The author
was represented by Mr. Raj Anand from Scott and Aylen, a law firm in
Toronto, Ontario, until 1998.]
2.4
The Roman Catholic separate school system is not a private school
system. Like the public school system it is funded through a publicly
accountable, democratically elected board of education. Separate School
Boards are elected by Roman Catholic ratepayers, and these school boards
have the right to manage the denominational aspects of the separate
schools. Unlike private schools, Roman Catholic separate schools are
subject to all Ministry guidelines and regulations. Neither s.93 of the
Constitution Act 1867 nor the Education Act provide for public funding
to Roman Catholic private/independent schools. Ten private/independent
Roman Catholic schools operate in Ontario and these schools receive no
direct public financial support.
2.5
Private religious schools in Ontario receive financial aid in the form
of (1) exemption from property taxes on non-profit private schools; (2)
income tax deductions for tuition attributable to religious instruction;
and (3) income tax deductions for charitable purposes. A 1985 report
concluded that the level of public aid to Ontario private schools
amounted to about one-sixth of the average total in cost per pupil
enrolled in a private school. There is no province in Canada in which
private schools receive funding on an equal basis to public schools.
Direct funding of private schools ranges from 0% (Newfoundland, New
Brunswick, Ontario) to 75% (Alberta).
2.6
The issue of public funding for non-Catholic religious schools in
Ontario has been the subject of domestic litigation since 1978. The
first case, brought 8 February 1978, sought to make religious
instruction mandatory in specific schools, thereby integrating existing
Hebrew schools into public schools. On 3 April 1978, affirmed 9 April
1979, Ontario courts found that mandatory religious instruction in
public schools was not permitted.
2.7
In 1982 Canada's constitution was amended to include a Charter of
Rights and Freedoms, which contained an equality rights provision. In
1985 the Ontario government decided to amend the Education Act to extend
public funding of Roman Catholic schools to include grades 11 to 13.
Roman Catholic schools had been fully funded from kindergarten to grade
10 since the mid 1800's. The issue of the constitutionality of this law
(Bill 30) in view of the Canadian Charter of Rights and Freedoms was
referred by the Ontario government to the Ontario Court of Appeal in
1985.
2.8
On 25 June 1987 in the Bill 30 case the Supreme Court of Canada upheld
the constitutionality of the legislation, which extended full funding to
Roman Catholic schools. The majority opinion reasoned that section 93
of the Constitution Act 1867 and all the rights and privileges it
afforded were immune from Charter scrutiny. Madam Justice Wilson,
writing the majority opinion stated: "It was never intended ... that the
Charter could be used to invalidate other provisions of the
constitution, particularly a provision such as s.93 which represented a
fundamental part of the Confederation compromise."
2.9
At the same time the Supreme Court of Canada, in the majority opinion
of Wilson, J. affirmed: "These educational rights, granted specifically
to ... Roman Catholics in Ontario, make it impossible to treat all
Canadians equally. The country was founded upon the recognition of
special or unequal educational rights for specific religious groups in
Ontario ..." In a concurring opinion in the Supreme Court, Estey J.
conceded: "It is axiomatic (and many counsel before this court conceded
the point) that if the Charter has any application to Bill 30, this Bill
would be found discriminatory and in violation of ss. 2(a) and 15 of
the Charter of Rights."
2.10
In a further case, Adler v. Ontario, individuals from the Calvinistic
or Reformed Christian tradition, and members of the Sikh, Hindu, Muslim,
and Jewish faiths challenged the constitutionality of Ontario's
Education Act, claiming a violation of the Charter's provisions on
freedom of religion and equality. They argued that the Education Act, by
requiring attendance at school, discriminated against those whose
conscience or beliefs prevented them from sending their children to
either the publicly funded secular or publicly funded Roman Catholic
schools, because of the high costs associated with their children's
religious education. A declaration was also sought stating that the
applicants were entitled to funding equivalent to that of public and
Roman Catholic schools. The Ontario Court of Appeal determined that the
crux of Adler was an attempt to revisit the issue, which the Supreme
Court of Canada had already disposed of in the Bill 30 case. Chief
Justice Dubin stated that the Bill 30 case was "really quite decisive of
the discrimination issue in these appeals." They also rejected the
argument based on freedom of religion.
2.11
On appeal, the Supreme Court of Canada by judgement of 21 November
1996, confirmed that its decision in the Bill 30 case was determinative
in the Adler litigation, and found that the funding of Roman Catholic
separate schools could not give rise to an infringement of the Charter
because the province of Ontario was constitutionally obligated to
provide such funding.
The complaint
3.1
The author contends that the legislative grant of power to fund Roman
Catholic schools authorized by section 93 of the Constitution Act of
Canada 1867, and carried out under sections 122 and 128 of the Education
Act (Ontario) violates Article 26 of the Covenant. The author states
that these provisions create a distinction or preference which is based
on religion and which has the effect of impairing the enjoyment or
exercise by all persons, on an equal footing, of their religious rights
and freedoms. He argues that the conferral of a benefit on a single
religious group cannot be sustained. When a right to publicly financed
religious education is recognized by a State party, no differentiation
should be made among individuals on the basis of the nature of their
particular beliefs. The author maintains that the provision of full
funding exclusively to Roman Catholic schools cannot be considered
reasonable. The historical rationale for the Ontario government's
discriminatory funding practice, that of protection of Roman Catholic
minority rights from the Protestant majority, has now disappeared, and
if anything has been transferred to other minority religious communities
in Ontario. A 1991 census is quoted as indicating that 44% of the
population is Protestant, 36% is Catholic, and 8% have other religious
affiliations. It is also unreasonable in view of the fact that other
Canadian provinces and territories do not discriminate on the basis of
religion in allocating education funding.
3.2
The author also claims that Ontario's school funding practices violate
Article 18(1) taken in conjunction with Article 2. The author states
that he experiences financial hardship in order to provide his children
with a Jewish education, a hardship which is not experienced by a Roman
Catholic parent seeking to provide his children with a Roman Catholic
education. The author claims that such hardship significantly impairs,
in a discriminatory fashion, the enjoyment of the right to manifest
one's religion, including the freedom to provide a religious education
for one's children, or to establish religious schools.
3.3
The author further points out that this violation is not sustainable
under the limitation provisions of article 18(3), which only permits
those limitations which are prescribed by law and are necessary to
protect public safety, order, health or morals, or the fundamental
rights and freedom of others. According to the author, a limitation
established to protect morals may not be based on a single tradition.
3.4
The author further asserts that when a right to publicly financed
religious education is recognized by a State party, no differentiation
should be made on the basis of religion. The full and direct public
funding of Roman Catholic schools in Ontario does not equally respect
the liberty of non-Roman Catholics to choose an education in conformity
with a parent's religious convictions, contrary to Article 18(4) taken
together with Article 2.
3.5
The author states that Article 27 recognizes that separate school
systems are crucial to the practice of religion, that these schools form
an essential link in preserving community identity and the survival of
minority religious groups and that positive action may be required to
ensure that the rights of religious minorities are protected. Since
Roman Catholics are the only religious minority to receive full and
direct funding for religious education from the government of Ontario,
Article 27 has not been applied, as required by Article 2, without
distinction on the basis of religion.
State party's observations
4.1
By note of 29 April 1997, the State party agrees to the combined
consideration of admissibility and merits of the communication by the
Committee.
4.2
In its submission of February 1998, the State party denies that the
facts of the case disclose violations of articles 2, 18, 26 and 17 of
the Covenant.
4.3.1
With regard to the alleged violation of article 26, the State party
contends the communication is inadmissible ratione materiae, or, in the
alternative, does not constitute a violation. The State party recalls
that a differentiation in treatment based on reasonable and objective
criteria do not amount to prohibited discrimination within the meaning
of article 26. It refers to the Committee's jurisprudence in
communication No. 191/1985 Blom v. Sweden, Views adopted on 4 April
1988, selected decisions volume 2, CCPR/C/OP/2., where the Committee
found that the State party was not violating article 26 by not providing
the same level of subsidy for private and public education, when the
private system was not subject to State supervision. It also refers to
the Committee's Views in communications Nos. 298/1988 and 299/1988
Lindgren and Lundquist v. Sweden, Views adopted on 9 November 1990
(CCPR/C/40/D/298-299/1988)., where the Committee decided that the State
party could not be deemed to be under an obligation to provide the same
benefits to private schools as to public schools, and that the
preferential treatment given to public sector schooling was reasonable
and based on objective criteria. The Committee also considered that the
State party could not be deemed to discriminate against parents who
freely choose not to avail themselves of benefits, which are generally
open to all.
4.3.2
The State party argues that its funding of public schools but not
private schools is not discriminatory. All children of every/or no
religious denomination has the same right to attend free secular public
schools maintained with tax funds. According to the State party, it is
not a deprivation by the Government that a child or a parent voluntarily
chooses to forego the exercise of the right to educational benefits
provided in the public school system. The State party emphasizes that
the province of Ontario does not fund any private schools, whether they
are religious or not. The distinction made in the funding of schools is
based not on religion, but on whether or not the school is a public or a
private/independent institution.
4.3.3
According to the State party, the establishment of secular public
institutions is consistent with the values of article 26 of the
Covenant. Secular institutions do not discriminate against religion;
they are a legitimate form of Government neutrality. According to the
State party, a secular system is a tool, which assists in preventing
discrimination among citizens on the basis of their religious faiths.
The State party makes no distinctions among different religious groups
in its public education and does not limit any religious group's ability
to establish private schools.
4.3.4
Apart from its obligations under the Constitution Act 1867, the State
party provides no direct funding to religious schools. In such
circumstances, the State party argues that it is not discriminatory to
refuse funding for religious schools. In making its decision, the State
party seeks to achieve the very values advanced by article 26, the
creation of a tolerant society where there is respect and equality for
all religious beliefs. The State party argues that it would defeat the
purposes of article 26 itself if the Committee was to hold that because
of the provisions in the Constitution Act 1867 requiring the funding of
Roman Catholic schools, the State party now must fund all private
religious schools, thus undermining its very ability to create and
promote a tolerant society that truly protects religious freedom, when
in the absence if the 1867 constitutional provision, it would have no
obligation under the Covenant to fund any religious schools at all.
4.4.1.
In relation to article 18, the State party refers to the travaux
préparatoires which make it clear that article 18 does not include the
right to require the State to fund private religious schools. During the
drafting the question was expressly raised and answered in the
negative. See Bossuyt, Guide to the Travaux Préparatoires of the ICCPR,
1987, at 369. As a consequence, the State party argues that the author's
claim under article 18 is inadmissible ratione materiae. In the
alternative, the State party argues that its policy meets the guarantee
of freedom of religion contained in article 18, because it provides a
public school system which is open to persons of all religious beliefs
and which does not provide instruction in a particular religion or
belief, and because there is freedom to establish private religious
schools and parents are free to send their children to such religious
schools. The State party denies that paragraph 4 of article 18 obligates
States to subsidize private religious schools or religious education.
The State party makes reference to Nowak, UN Covenant on Civil and
Political Rights, CCPR commentary, at 330-333. According to the State
party, the purpose of article 18 is to ensure that religious observance;
beliefs and practices remain a private matter, free from State coercion
or restraint. It is the State's obligation to provide an education open
and accessible to all children regardless of religion. There is no
obligation to either offer or finance religious instruction or
indoctrination. While the province must ensure that religious freedom
and religious differences are accommodated within the public school
system, it has no obligation to fund individuals who, for religious
reasons, exercise their freedom to opt out of the public school system.
4.4.2
The State party argues that failure to act in order to facilitate the
practice of religion cannot be considered state interference with
freedom of religion. It points out that there are many spheres of
government action, which hold religious significance for religious
believers and the State party rejects the suggestion that it must pay
for religious dimensions in spheres in which it takes a role, such as
religious marriages and religious community institutions such as
churches and hospitals.
4.4.3
In the alternative, if the Committee were to interpret article 18 as
requiring States to fund religious schools, the State party argues that
its limitation meets the requirements of paragraph 3 of article 18 as it
is prescribed by law and is necessary to protect public order and the
fundamental rights and freedoms of others. The objectives of the State
party's education system are the provision of a tuition-free, secular
public education, universally accessible to all residents without
discrimination and the establishment of a public education system which
fosters and promotes the values of a pluralist, democratic society,
including social cohesion, religious tolerance and understanding. The
State party argues that if it were required to fund private religious
schools, this would have a detrimental impact on the public schools and
hence the fostering of a tolerant, multicultural, non-discriminatory
society in the province.
4.4.4
Public schools, in the State party's opinion, are a rational means of
fostering social cohesion and respect for religious and other
differences. Schools are better able to teach common understanding and
shared values if they are less homogeneous. The State party submits that
one of the strengths of a public system of education is that it
provides a venue where people of all colours, races, national and ethnic
origins, and religions interact and try to come to terms with one
another's differences. In this way, the public schools build social
cohesion, tolerance and understanding. Extending public school funding
rights to private religious schools will undermine this ability and may
result in a significant increase in the number and kind of private
schools. This would have an adverse effect on the viability of the
public school system, which would become the system-serving students not
found admissible by any other system. Such potential fragmentation of
the school system is an expensive and debilitating structure for
society. Moreover, extending public school funding rights to private
religious schools could compound the problems of religious coercion and
ostracism sometimes faced by minority religious groups in homogeneous
rural areas of the province. The majority religious group could
reintroduce and even make compulsory the practice of school prayer and
religious indoctrination and minority religious groups would have to
conform or attend their own, virtually segregated schools. To the extent
that full funding of private schools enables such schools to supplant
public schools, the government objective of universal access to
education will be impaired. Full public funding of private religious
schools is likely to lead to increased public school closings and to the
reduction of the range of programs and services a public system can
afford to offer.
4.4.5
The State party concludes that if the province of Ontario were required
to fund private religious schools, this would have a detrimental impact
on the public schools, and hence the fostering of a tolerant,
multicultural, non-discriminatory society in the province, thus
undermining the fundamental rights and freedoms of others. According to
the State party it has struck the appropriate balance by funding a
public school system where members of all groups can learn together
while retaining the freedom of parents to send children to private
religious schools, at their own expense, if they do desire.
4.5.1
As to the author's allegation that he is a victim of a violation of
article 18 in conjunction with article 2 of the Covenant, the State
party recalls that article 2 does not establish an independent right but
is a general undertaking by States and cannot be invoked by individuals
under the Optional Protocol without reference to other specific
articles of the Covenant. It cannot be argued that article 2 in
combination with article 18 has been violated if there is no such right
in article 18 in itself.
4.5.2
Alternatively, the State party rejects a violation of article 2 because
a differentiation based on reasonable and objective criteria does not
amount to a distinction or discrimination within the meaning of article 2
of the Covenant. For substantive arguments concerning the issue of
discrimination, it refers to its arguments relating to the alleged
violation of article 26.
4.6.1
In respect to the alleged violation of article 27, the State party
contends that the communication is inadmissible ratione materiae or in
the alternative does not demonstrate a violation. According to the State
party, the travaux préparatoires make it clear that article 27 does not
include a right to require the State to fund private religious schools.
The article only protects against State actions of a negative
character: individuals "shall not be denied the right". A proposal to
include an obligation to take positive measures was defeated. Nowak, UN
Covenant on Civil and Political Rights, CCPR commentary at 481, 504.
Although under article 27 a State party may be required to take certain
positive actions, in the light of the intention of the drafters positive
actions should be required only in rare circumstances. According to the
State party, the province of Ontario has taken positive measures, which
protect the right of members of religious minorities to establish
religious schools and to send their children to those schools. It is not
further required to fund those schools.
4.6.2
In the alternative, restrictions on the rights contained in article 27
may occur where they have a reasonable and objective justification and
are consistent with the provisions of the Covenant read as a whole. For
the reasons given in relation to the creation of a tolerant society,
Ontario's decision not to extend funding to all private religious
schools meets this test for justification.
4.6.3
The State party refers to its arguments in relation to article 18 and
reiterates that there can be no argument that article 27 in combination
with article 2 has been violated if there is no such right in article 27
itself. In the alternative, there is no violation of article 2 because a
differentiation based on reasonable and an objective criterion does not
amount to an invidious distinction or discrimination within the meaning
of article 2. The State party refers to its arguments concerning
article 26 above.
Author's comments
5.1
Counsel submits that the State party has admitted the discriminatory
nature of the educational funding, and based this on a constitutional
obligation. Counsel argues that article 26 of the Covenant does not
allow exceptions for discriminatory constitutional laws and that
historical anomalies cannot thwart the application of the equality
provisions of the Covenant. Counsel rejects as circular the State
party's argument that the difference between the funding of Roman
Catholic schools and other religious schools is one between public and
private schools. Counsel notes that the public quality of Roman Catholic
schools is a bureaucratic construct assigned to one group of ratepayers
based on their religious affiliation to the discriminatory exclusion of
all other ratepayers.
5.2
Counsel rejects the State party's argument that the extension of
non-discriminatory public funding to other religious schools would harm
the goals of a tolerant, multi-cultural, non-discriminatory society, and
argues that on the contrary, the current circumstance of discriminatory
and selective funding of only one religious denomination in the
establishment and operation of religious schools is highly detrimental
to fostering a tolerant, non-discriminatory society in the province and
encourages the divided society among religious lines that it claims to
defeat.
5.3
According to counsel, the State party's argument that the claim under
article 18 is inadmissible ratione materiae because article 18 does not
include a right to require the State to fund public schools is a
misrepresentation of the author's submissions. Counsel argues that
article 18(1) includes the right to teach religion and the right to
educate one's children in a religious school. If this is possible for
some and not for others on discriminatory grounds, then article 18 is
violated in conjunction with article 2. According to counsel, in order
to give article 2 its full and proper meaning, it must have the effect
of requiring non-discrimination on the listed grounds with respect to
the rights and freedoms in the Covenant, even if in the absence of
discrimination, no violation of the Covenant existed. If a violation of
the Covenant was always required without the application or
consideration of article 2, article 2 would be superfluous, in counsel's
opinion. Counsel refers to the jurisprudence of the European Court of
Human Rights in relation to article 14 of the European Convention on
Human Rights, which recognizes that a measure which in itself is in
conformity with the requirements of the article enshrining the right or
freedom in question may however infringe this article when read in
conjunction with article 14 for the reason that it is of a
discriminatory nature. (Judgement of 23 July 1968, relating to certain
aspects of the laws on the use of languages in education in Belgium)
Counsel clarifies that he does not claim a violation of article 18 on
its own, but only in conjunction with article 2, because the funding of
only Roman Catholic schools results in discriminatory support for Roman
Catholic education.
5.4
According to counsel, the State party makes the same error in replying
to his claims under article 27 in conjunction with article 2. He argues
that, since Roman Catholic schools are the only religious minority to
receive full and direct funding for religious education from the
Government of Ontario, article 27 has not been applied, as required by
article 2, without distinction on the basis of religion.
5.5
Counsel agrees with the State party that the fact alone that it does
not provide the same level of funding for private as for public schools
cannot be deemed to be discriminatory. He acknowledges that the public
school system in Ontario would have greater resources if the Government
would cease funding any religious schools. In the absence of
discrimination, the withdrawal of such funding is a policy decision,
which is for the Government to take. Counsel notes that the amendment of
the provision of the Canadian Constitution Act 1867 requires only the
agreement of the Government of the province affected and the federal
Government. Such amendments have been recently passed in Quebec and
Newfoundland to reduce historical commitments to publicly funded
education for selective religious denominations.
5.6
Counsel maintains that when a right to publicly financed religious
education, is recognized by States parties, no differentiation shall be
made among individuals on the basis of the nature of their particular
beliefs. The practice of exclusively funding Roman Catholic religious
education in Ontario therefore violates the Covenant. Counsel therefore
seeks funding for all religious schools, which meet provincial standards
in Ontario at a level equivalent to the funding, if any, received by
Roman Catholic schools in Ontario.
State party's further observations
6.1
In a further reply, the State party emphasizes that the recent
constitutional amendments affecting education in Quebec and Newfoundland
do not bring about the remedy sought by the author of equivalent
funding for all religious schools. The changes in Quebec preserve the
denominational status of Catholic and Protestant schools in that
province, and protect that status through an alternate constitutional
means, by way of the notwithstanding clause in the Charter. The changes
in Newfoundland demonstrate a clear rejection of the very remedy sought
by the author, since it has replaced its religious based school system,
where 8 different religions representing 90% of the population each had
the right to set up their own publicly funded schools, with a singular
public system where religious observance will be permitted at the
request of parents.
6.2
In respect of counsel's argument concerning article 2 of the Covenant,
the State party rejects his suggestion that article 2 can convert laws
or Government actions otherwise consistent with the rights and freedoms
of the Covenant, into contraventions. In the State party's opinion, the
author seeks to raise equality arguments by combining article 2 with
articles 18 and 27 respectively. It is the equality guarantee in article
26 of the Covenant that is the proper context for raising such issues.
The State party notes that article 26 has no equivalent in the European
Convention for the Protection of Fundamental Human Rights and
Fundamental Freedoms. The State party argues that a complainant who is
unsuccessful under article 26 should not be entitled to an identical
re-examination of the issue simply by combining article 2 with various
substantive Covenant provisions.
6.3
The State party further observes that article 2 of the Covenant
requires the State to respect and ensure to all individuals within its
territory the rights recognized in the present Covenant. The funding of
denominational separate schools in Ontario is not required to ensure the
rights contained in articles 18 and 27 of the Covenant, neither is it
related to, or in addition to, the obligations created by those
articles. The funding arises solely out of the constitutional obligation
under section 93(1) of the Constitution Act 1867, not out of any
obligation under, in conformity with, nor the augmenting of any right in
any of the articles of the Covenant.
Author's further comments
7.
By submission of 15 March 1999, the author notes that the State party's
rationale for the discriminatory treatment of religious schools, the
desire to foster multiracial and multicultural harmony through
maximizing public funding for the secular school system, would actually
require the withdrawal of special funding for Roman Catholic separate
schools. He further points out that the fact that Quebec had to resort
to the notwithstanding clause in the Charter in order to preserve its
funding for separate schools indicates that this system is in violation
of the equality rights contained in the Charter, and by consequence of
article 26 of the Covenant. The author refers to the constitutional
changes in respect of the education system in Newfoundland and states
that it is indicative of the fact that constitutional change in relation
to denominational schools is possible even over the objections of those
with vested interests.
State party's further observations
8.1
In a further reply to the author's comments, the State party contests
the author's interpretation of the use of the notwithstanding clause in
Quebec. According to the State party, the amendment to section 93 of the
Constitution Act, 1867, took away the constitutional protection for
Protestant and Catholic denominational schools in Quebec in order to
replace them with linguistic school boards. Continued constitutional
protection for the denominational schools, however, is provided through
the alternate method of the notwithstanding clause. According to the
State party, this shows that the issue of denominational school funding
continues to involve the present day complex balancing of diverse needs
and interests.
8.2
The State party notes that in his comments, the author for the first
time indicates that a possible remedy for the alleged discrimination
would be the elimination of funding for the Roman Catholic separate
schools. So far, the State party's reply to the author's communication
has focused on his claim that the failure to extend funding constituted a
violation of the Covenant, not on a claim that the failure to eliminate
funding from the Roman Catholic separate school system is violative of
the Covenant. The State party notes that in another communication (No.
816/1998, Tadman et al. v. Canada) presented to the Committee under the
Optional Protocol this question has been addressed and therefore it
requests the Committee to consider jointly the two communications.
8.3
In case the Committee does not join the consideration of the two
communications, the State party provides further arguments concerning
this matter. In this context, the State party explains that without the
protection of the rights of the Roman Catholic minority, the founding of
Canada would not have been possible and that the separate school system
remained a controversial issue, at times endangering the national unity
in Canada. The State party explains that the funding is, seen by the
Roman Catholic community as correction of a historical wrong.
8.4
The State party submits that there are reasonable and objective grounds
for not eliminating funding to Roman Catholic separate schools in
Ontario. The elimination would be perceived as undoing the bargain made
at Confederation to protect the interests of a vulnerable minority in
the province and would be met with outrage and resistance by the Roman
Catholic community. It would also result in a certain degree of economic
turmoil, including claims for compensation of facilities or lands
provided for Roman Catholic schools. Further, the protection of minority
rights, including minority religion and education rights, is a
principle underlying the Canadian constitutional order and militates
against elimination of funding for the Roman Catholic separate schools.
Elimination of funding for separate schools in Ontario would further
lead to pressure on other Canadian provinces to eliminate their
protections for minorities within their border.
Issues and proceedings before the Committee
9.1
Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of
procedure, decide whether or not it is admissible under the Optional
Protocol to the Covenant.
9.2
The Committee notes that the State party has challenged the
admissibility of the communication ratione materiae. The Committee,
however, considers that the author's claim of discrimination, in itself
and in conjunction with articles 18 and 27, is not incompatible with the
provisions of the Covenant. The State party has not raised any other
objections and accordingly the Committee finds the communication
admissible. The Committee does not consider that there would be any
difficulty or disadvantage to the parties in proceeding to consider this
case on its own without joinder as requested by the State party.
10.1
The Human Rights Committee has considered the present communication in
the light of all the information made available to it by the parties, as
provided in article 5, paragraph 1, of the Optional Protocol.
10.2
The issue before the Committee is whether public funding for Roman
Catholic schools, but not for schools of the author's religion, which
results in him having to meet the full cost of education in a religious
school, constitutes a violation of the author's rights under the
Covenant.
10.3
The State party has argued that no discrimination has occurred, since
the distinction is based on objective and reasonable criteria: the
privileged treatment of Roman Catholic schools is enshrined in the
Constitution; as Roman Catholic schools are incorporated as a distinct
part of the public school system, the differentiation is between private
and public schools, not between private Roman Catholic schools and
private schools of other denominations; and the aims of the public
secular education system are compatible with the Covenant.
10.4 The Committee begins by noting that the fact that a distinction is
enshrined in the Constitution does not render it reasonable and objective. In
the instant case, the distinction was made in 1867 to protect the Roman
Catholics in Ontario. The material before the Committee does not show that
members of the Roman Catholic community or any identifiable section of that
community are now in a disadvantaged position compared to those members of the
Jewish community that wish to secure the education of their children in
religious schools. Accordingly, the Committee rejects the State party's
argument that the preferential treatment of Roman Catholic schools is
non-discriminatory because of its Constitutional obligation.
10.5
With regard to the State party's argument that it is reasonable to
differentiate in the allocation of public funds between private and
public schools, the Committee notes that it is not possible for members
of religious denominations other than Roman Catholic to have their
religious schools incorporated within the public school system. In the
instant case, the author has sent his children to a private religious
school, not because he wishes a private non-Government dependent
education for his children, but because the publicly funded school
system makes no provision for his religious denomination, whereas
publicly funded religious schools are available to members of the Roman
Catholic faith. On the basis of the facts before it, the Committee
considers that the differences in treatment between Roman Catholic
religious schools, which are publicly funded as a distinct part of the
public education system, and schools of the author's religion, which are
private by necessity, cannot be considered reasonable and objective.
10.6
The Committee has noted the State party's argument that the aims of the
State party's secular public education system are compatible with the
principle of non-discrimination laid down in the Covenant. The Committee
does not take issue with this argument but notes, however, that the
proclaimed aims of the system do not justify the exclusive funding of
Roman Catholic religious schools. It has also noted the author's
submission that the public school system in Ontario would have greater
resources if the Government would cease funding any religious schools.
In this context, the Committee observes that the Covenant does not
oblige States parties to fund schools, which are established on a
religious basis. However, if a State party chooses to provide public
funding to religious schools, it should make this funding available
without discrimination. This means that providing funding for the
schools of one religious group and not for another must be based on
reasonable and objective criteria. In the instant case, the Committee
concludes that the material before it does not show that the
differential treatment between the Roman Catholic faith and the author's
religious denomination is based on such criteria. Consequently, there
has been a violation of the author's rights under article 26 of the
Covenant to equal and effective protection against discrimination.
10.7
The Committee has noted the author's arguments that the same facts also
constitute a violation of articles 18 and 27, read in conjunction with
article 2(1) of the Covenant. The Committee is of the opinion that in
view of its conclusions in regard to article 26, no additional issue
arises for its consideration under articles 18, 27 and 2(1) of the
Covenant.
11.
The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the facts before it disclose a violation of
article 26 of the Covenant.
12.
Under article 2, paragraph 3(a), of the Covenant, the State party is
under the obligation to provide an effective remedy that will eliminate
this discrimination.
13.
Bearing in mind that, by becoming a State party to the Optional
Protocol, the State party has recognized the competence of the Committee
to determine whether there has been a violation of the Covenant or not
and that, pursuant to article 2 of the Covenant, the State party has
undertaken to ensure to all individuals within its territory and subject
to its jurisdiction the rights recognized in the Covenant and to
provide an effective and enforceable remedy in case a violation has been
established, the Committee wishes to receive from the State party,
within ninety days, information about the measures taken to give effect
to the Committee's Views. The State party is also requested to publish
the Committee's Views.
____________________________________________________________
*The
following members of the Committee participated in the examination of
the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr.
Prafullachandra N. Bhagwati, Ms. Christine Chanet, Lord Colville, Ms.
Elizabeth Evatt, Mr. Louis Henkin, Mr. Eckart Klein, Mr. David Kretzmer,
Mr. Rajsoomer Lallah, Ms. Cecilia Medina Quiroga, Mr. Fausto Pocar, Mr.
Martin Scheinin, Mr. Hipólito Solari Yrigoyen, Mr. Roman Wieruszewski
and Mr. Abdallah Zakhia. Pursuant to rule 85 of the Committee’s rules of
procedure Mr. Maxwell Yalden did not participate in the examination of
the case.
**The text of an individual opinion by member Martin Scheinin is appended to this document.
[Adopted
in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian
as part of the Committee's annual report to the General Assembly.]
Appendix
Individual opinion by member Martin Scheinin (concurring)
While
I concur with the Committee's finding that the author is a victim of a
violation of article 26 of the Covenant, I wish to explain my reasons
for such a conclusion.
1.
The Covenant does not require the separation of church and state,
although countries that do not make such a separation often encounter
specific problems in securing their compliance with articles 18, 26 and
27 of the Covenant. Varying arrangements are in place in states parties
to the Covenant, ranging from full separation to the existence of a
constitutionally enforced state church. As the Committee has expressed
in its General Comment No. 22 [48] on article 18, the fact that a
religion is recognized as a state religion or that it is established as
official or traditional or that its followers comprise the majority of
the population, "shall not result in any impairment of the enjoyment of
any of the rights under the Covenant, including articles 18 and 27, nor
in any discrimination against adherents to other religions or
non-believers" (para. 9).
2.
The plurality of acceptable arrangements in the relationship between
state and religion relates also to education. In some countries, all
forms of religious instruction or observance are prohibited in public
schools, and religious education, protected under article 18 (4), takes
place either outside school hours or in private schools. In some other
countries there is religious education in the official or majority
religion in public schools, with provision for full exemption for
adherents of other religions and non-religious persons. In a third group
of countries instruction in several or even all religions is offered,
on the basis of demand, within the public system of education. A fourth
arrangement is the inclusion in public school curricula of neutral and
objective instruction in the general history of religions and ethics.
All these arrangements allow for compliance with the Covenant. As was
specifically stated in the Committee's General Comment No. 22 [48],
"public education that includes instruction in a particular religion or
belief is inconsistent with article 18 (4) unless provision is made for
non-discriminatory exemptions or alternatives that would accommodate the
wishes of parents and guardians" (para. 6). This statement reflects the
Committee's findings in the case of Hartikainen et al. v. Finland
(Communication No. 40/1978).
3.
In the present case the Committee correctly focused its attention on
article 26. Although both General Comment No. 22 [48] and the
Hartikainen case are related to article 18, there is a considerable
degree of interdependence between that provision and the
non-discrimination clause in article 26. In general, arrangements in the
field of religious education that are in compliance with article 18 are
likely to be in conformity with article 26 as well, because
non-discrimination is a fundamental component in the test under article
18 (4). In the cases of Blom v. Sweden (Communication No. 191/1985) and
Lundgren et al. and Hjord et al. v. Sweden (Communications 288 and
299/1988) the Committee elaborated its position in the question what
constitutes discrimination in the field of education. While the
Committee left open whether the Covenant entails, in certain situations,
an obligation to provide some public funding for private schools, it
concluded that the fact that private schools, freely chosen by the
parents and their children, do not receive the same level of funding as
public schools does not amount to discrimination.
4.
In the Province of Ontario, the system of public schools provides for
religious instruction in one religion but adherents of other religious
denominations must arrange for their religious education either outside
school hours or by establishing private religious schools. Although
arrangements exist for indirect public funding to existing private
schools, the level of such funding is only a fraction of the costs
incurred to the families, whereas public Roman Catholic schools are
free. This difference in treatment between adherents of the Roman
Catholic religion and such adherents of other religions that wish to
provide religious schools for their children is, in the Committee's
view, discriminatory. While I concur with this finding I wish to point
out that the existence of public Roman Catholic schools in Ontario is
related to a historical arrangement for minority protection and hence
needs to be addressed not only under article 26 of the Covenant but also
under articles 27 and 18. The question whether the arrangement in
question should be discontinued is a matter of public policy and the
general design of the educational system within the State party, not a
requirement under the Covenant.
5.
When implementing the Committee's views in the present case the State
party should in my opinion bear in mind that article 27 imposes positive
obligations for States to promote religious instruction in minority
religionsand that providing such education as an optional arrangement
within the public education system is one permissible arrangement to
that end. Providing for publicly funded education in minority languages
for those who wish to receive such education is not as such
discriminatory, although care must of course be taken that possible
distinctions between different minority languages are based on objective
and reasonable grounds. The same rule applies in relation to religious
education in minority religions. In order to avoid discrimination in
funding religious (or linguistic) education for some but not all
minorities States may legitimately base themselves on whether there is a
constant demand for such education. For many religious minorities the
existence of a fully secular alternative within the public school system
is sufficient, as the communities in question wish to arrange for
religious education outside school hours and outside school premises.
And if demands for religious schools do arise, one legitimate criterion
for deciding whether it would amount to discrimination not to establish a
public minority school or not to provide comparable public funding to a
private minority school is whether there is a sufficient number of
children to attend such a school so that it could operate as a viable
part in the overall system of education. In the present case this
condition was met. Consequently, the level of indirect public funding
allocated to the education of the author's children amounted to
discrimination when compared to the full funding of public Roman
Catholic schools in Ontario.
Martin Scheinin (signed)
©1996-2001
__________________________________________________________
Office of the United Nations High Commissioner for Human Rights
Geneva, Switzerland
TERMS
Author (Plaintiff): Arieh Waldman, State: Government of Canada, U.N. Judiciary Body: The Committee
__________________________________________________________
