A School Divided: A Historicist Legal Analysis of Good Spirit School Division No 204 v Christ Teacher Roman Catholic Separate School Division No 212

Open Access

Abstract

On the cusp of a judgment by the Saskatchewan Court of Appeal, this article examines the 2017 Saskatchewan Court of Queen's Bench decision in Good Spirit School Division No 204 v Christ the Teacher Roman Catholic Separate School Division No 212. In this case, the SKQB ruled that non-Catholic students attending a publicly funded Catholic school were not entitled to per-student funding grants administered by the provincial government. This article reviews the case using a historicist lens informed by the philosophy of Edmund Burke, which the author suggests is appropriate in the Canadian constitutional context. Through this constitutional lens, the author examines the constitutional history of separate school funding in Saskatchewan and other Canadian jurisdictions. The author suggests that this history reveals the premium on educational choice that has informed educational policy in Canada. With this history in mind, the article turns to the SKQB judgment. It suggests that the application of several of the key interpretive tools was flawed in light of this history, the development of Charter jurisprudence, and a richer understanding of "state neutrality" in the Canadian context.