Nancy Reid

In recent years, several cases before the courts have challenged the extent of the jurisdiction the BNA Act gives to Roman Catholic School Boards, particularly as it impinges on the rights of teachers. All of the cases in Ontario have so far resulted in upholding the rights of school boards to discipline or dismiss teachers for denominational cause.

In the case of Porter et al. (1978) for example, the Ontario Appeal Court upheld the right of the Essex County Separate School Board to dismiss two teachers who had contracted civil marriages outside the church on the grounds that this conduct, which contravened the church teaching on marriage, "publicly and seriously infringed on the denominational rights of the school."¹ As my case was winding down, news came that a case fought by the Ontario English Catholics Teachers' Association (OECTA) against the Dufferin Peel RCSSB had been lost. This involved the status of non-catholic teachers and, in particular, their right to equal opportunity for promotion. The board successfully argued against promoting non-Catholic teachers on the grounds that it would undermine the denominational character of the school.

In my case, the conduct in question was not the kind of lifestyle issue which had previously formed denominational rights cases, such as invalid marriage or pregnancy out of "wedlock," nor was my Catholicism in question. The argument presented by the Superintendent of Personnel was that the articles I had published, critical of the Pope, amounted to a negative influence on the students in my classroom and threatened the Catholic character of my school (though not a whiff of complaint about my teaching had ever surfaced during the course of a twenty year career). In other words, my case concerned the right of Catholic teachers to freedom of expression on controversial issues of the Church.

Catholic teachers' right to freedom of expression, a right guaranteed under the Charter, is not as straightforward as that of their colleagues in the other public system. According to Section 52 (1) of the Charter, any previous law that is shown to be inconsistent with any of the Charter's provisions is of no force or effect. It would appear that there are clear inconsistencies between the powers of denominational school boards and the provisions of the Charter if denominational rights mean that individual freedom of expression can be curtailed. However, Section 29 of the Charter states: "Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools." Freedom of expression, then, can conceivably be limited if it is seen to interfere with the denominational nature of a school.