WHO GOVERNS

Who governs?
Friday, November 05, 1999
National Post

Today, the United Nations' human rights committee will release its decision on whether Ontario's practice of funding Catholic schools but not those of other denominations violates the UN Covenant on Civil and Political Rights, which Canada signed in 1976. Few legal observers doubt Arieh Waldman, a Toronto man who has spent $95,000 educating his sons at Jewish day schools and is challenging the law, will win the day.

That decision is likely to be just the first step in a prolonged political and constitutional battle over education funding. In a parallel case before the same UN committee, another applicant -- the Friends of Public Education in Ontario -- wants all religious school funding abolished. If that cause were to win, lawsuits would pop up across Ontario from Catholic dioceses that have donated the land, buildings and resources to Catholic academies.

In considering this brouhaha, we should distinguish between the merits of Mr.Waldman's case and the legitimacy of the UN's intervention.

Mr. Waldman passionately argues that Catholic school funding should be extended to Jewish parochial schools and schools of other religious faiths. And there is plainly a strong case for this on grounds of religious equality.

The modest case against it is historic, budgetary and practical. Catholic school funding is guaranteed by the Constitution and has been upheld in successive court decisions. It was originally placed in the Constitution as part of a historic bargain that protected the rights of the large Catholic minority at the time of Confederation. And extending such funding to all religious schools would be costly (and, incidentally, would raise difficult questions about which religions should qualify).

The best solution all round would be education reform that gave all parents a voucher for each child, which they could exchange for a place in any school, religious or secular. Whatever the ideal solution, however, this mixture of religious rights, constitutional guarantees for minorities, political compromise and budgetary calculations is a quintessentially Canadian problem.

And since Canada is a democratic self-governing nation, it should be settled by Canadians. Allowing a UN committee to determine whether Ontario should subsidize religious schools would be a gross and unjustifiable intrusion on Canada's democratic sovereignty.

Indeed, that is its attraction for some. Anne Bayefsky of York University's Osgoode Hall law school, who decided to bring Mr. Waldman's case before the UN, explained why this week: "International law doesn't care where the law comes from." In fact, it comes from international lawyers like Ms. Bayefsky, whom we did not elect, cannot remove, and whose law-making we can therefore neither amend nor repeal.

Some justify this on the grounds that Canada signed the covenant. Not even Pierre Trudeau's government, however, understood just how vague, sweeping and intrusive the covenant would prove to be. To give it authority in domestic law would be to transfer almost any political decision -- for instance, class-size ratios and curriculum content -- from elected Canadian authorities to unelected international diplomats and lawyers.

It would also overturn Canada's federal constitutional structure. For the provinces, which enjoy constitutional jurisdiction over education, would have to submit to an international human rights instrument that Ottawa negotiated without their participation.

And in the process, legal rights we take for granted would be lost. Unlike Canadian courts, the UN committee has no process of cross-examination to determine the accuracy of documentary evidence. It has no rules of intervention and does not guarantee that a person or group whose rights are directly impacted by a decision be heard. The committee denied, for instance, the right of the Ontario Catholic School Trustees' Association to be present before the tribunal.

Until now, Canada has amended domestic law in line with the UN committee's decisions. It must no longer do so. And if the courts treat such decisions as binding in Canadian law, then Canada must withdraw its signature from the covenant. Human rights come before human rights covenants