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Catholic parents can challenge Wynne’s sex-ed on their own, argue lawyers

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TORONTO, June 17, 2015 (LifeSiteNews) -- Notwithstanding a legal opinion given to the Halton Catholic school trustees, Ontario’s Liberal government cannot force the province’s publicly funded Catholic schools to implement its controversial sex-ed curriculum, because Catholics have an inviolable constitutional right to denominational education, say two legal experts.

And in the absence of an appropriate Catholic alternative, Catholic electors – including parents – can sue the Ontario government to stop the curriculum, say Gwen Landolt, retired lawyer and national vice-president of REAL Women of Canada, and Mississauga lawyer Geoff Cauchi.

Landolt drafted her legal opinion after Halton’s Catholic school board rejected a motion June 2 that asked for a year’s delay in implementing the sex-ed curriculum to allow for further consultation.

She says the legal advice that Toronto-based law firm Miller Thomson gave the Halton Catholic trustees was “wrong, wrong, wrong.”

Meanwhile, Toronto’s Catholic trustees received similar advice at a June 11 board meeting, according to Toronto Star’s Louise Brown, with lawyers telling trustees they had a “legal obligation to comply with provincial (curriculum choices) and not to do so would be unlawful.”

But the opinion of Miller Thomson’s Nadya Tymochenko was convincing enough for Halton chair Jane Michael, whose vote broke a four-four tie to defeat the motion to delay, put forward by trustee Anthony Danko.

Tymochenko opined that “failure to implement the curriculum as required could result in an investigation by the Ministry of Education and a direction by the Minister ordering compliance.”

“If the Ministry of Education has a concern that something has been omitted or not been followed, then they can bring in investigators or supervisors, so our hands would be tied until we implemented the curriculum,” Michael told LifeSiteNews. “I’m not going to work as a trustee if we’re going to be supervised.”

“Legally, I would refute that one hundred percent,” says Landolt. “Starting at square one, the bishops don’t have to accept that curriculum, period. Or alternatively, they can put in their own equivalent.”

Landolt’s opinion is published on REAL Women of Canada’s website and notes that Ontario’s Education Act recognizes Catholics’ denominational rights, which are guaranteed under Section 93 of the 1867 Constitution Act.

That’s echoed by lawyer Cauchi, who pointed out that Canada’s highest courts “several times have said the ministry has the general power to set the curriculum, but it’s constrained by right of the Catholic trustees to adapt it. … That is a principle of law that is as solid as saying that the Criminal Code has a provision against murder.”

“Even if the ministry goes in and takes over, they can’t do anything about denominational issues,” he told LifeSiteNews. “They have no power to control or direct denominational issues.”

Cauchi noted that Tymochenko’s “definitive statement that ‘amending curriculum expectations identified in the Ministry of Education’s health and physical education curriculum is not a responsibility or duty of trustees’ could not be more wrong.”

Catholics’ constitutional rights to denominational education “belong to us as electors, collectively. It’s not the bishops’ rights, it’s not the Catholic institutions’ rights, it is all of the Catholic electors,” Cauchi stressed. “And the job of enforcing them in the civil arena belongs to the trustees.”

Trustees are akin to a board of directors running a corporation on behalf of shareholders, he explained. “That’s why it’s so important that the trustees do what they’re supposed to do. We depend upon them to exercise our rights for us.”

The bishops have no standing in this civil process, nor do they “need to delegate this to some other body,” such as the Institute for Catholic Education (ICE).

However, if the trustees “refuse to act,” then other Catholic electors could launch a legal challenge against the curriculum, Cauchi contended.

Landolt also says Catholic stakeholders, including parents, could “bring a legal action” if “the whole church establishment decides to accept Ms. [Premier Kathleen] Wynne’s curriculum.” And Catholic authorities could seek an injunction to protect their constitutional rights if the ministry “tries to force the issue.”

After the ministry released the sex-ed curriculum in February, Toronto’s Cardinal Thomas Collins stated on behalf of the bishops that “Catholic schools have a responsibility to follow curriculum set out by the Ministry of Education,” but in a manner consistent with Catholic teaching. ICE is to adapt the curriculum through the “Catholic lens” of the bishops’ family life program, Fully Alive.

According to a June 1 letter ICE sent to the directors of education in Catholic boards, a group of writers will prepare resources through the summer, as coordinated by Cathy Horgan, formerly the director of the Brant Haldimand Norfolk Catholic District School board. The work is to be vetted by theologians and it’s expected the bishops will approve it at their October plenary.

Cauchi, Landolt, and retired canon lawyer Msgr. Foy all have grave concerns about the upcoming Catholic version.

“If you bring in an equivalent, you should certainly not be teaching gender and consent,” said Landolt, noting that Wynne and Education Minister Liz Sandals claim students cannot opt out of the sections of the sex-ed curriculum that “deal with human rights issues and equality, such as homosexual rights, same-sex families.”

Indeed, the controversial sex-ed agenda falls under the Liberals’ 2009 Equity and Inclusive Education Strategy goal of “revising the curriculum to ensure that gender-based violence, homophobia, sexual harassment, and inappropriate sexual behavior are discussed and addressed in the classroom.”

The equity strategy was introduced by Wynne as education minister, when her deputy was Ben Levin, now serving a three-year sentence on charges of child pornography.

An updated Memorandum 119 in the 2014 equity strategy guidelines states “gender identity and gender expression are dimensions of diversity under the Ontario human rights code.” Prohibited grounds for discrimination include “sexual orientation, gender identity, gender expression.”

“You can call anything a human right,” Landolt says, “but Catholics don’t have to go along with it,” adding that “a human right which is international and unequivocal is religious freedom.”

Just how ICE will deal with these “human rights” issues in the Catholic version of the sex-ed curriculum is the question. “We’re going to have to wait and see, but hopefully they’re going to change the whole kit and caboodle,” Landolt told LifeSiteNews, “not just the teacher responses.”

But Halton Catholic board chair Jane Michael says she’s not worried and is content to wait until October to see what ICE has prepared. 

Her bishop, Douglas Crosby of Hamilton “encouraged the board to work closely with Catholic partners, especially the Institute for Catholic Education, which has never failed the Catholic community in producing superior programs for the education of our students,” Michael told LifeSiteNews.

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“We have used the Fully Alive program for over 30 years, there’s never been a problem, and there’s not going to be one now, in my eyes. I trust my bishops, I trust ICE. I have no reason not to.”

But Cauchi and canon lawyer Msgr. Foy have two words to say to that: Fully Alive.

Msgr. Foy notes in a statement on his website that ICE “has a sad track record of providing the inappropriate and harmful Fully Alive program,” and recommends Fully Alive be “removed since it is harmful and not faithful to Church guidelines, by teaching explicit sexual information to children before puberty.”

“If the fiasco over Fully Alive didn’t happen, the laity and the trustees could trust the bishops and ICE at this time, but because Fully Alive happened, we cannot trust them,” Cauchi told LifeSiteNews.

“The trustees are personally bound to follow Catholic teaching, and so they should take direction from the bishops,” he pointed out. “But the bishops are also bound to take direction from the magisterium, so if they do not direct the trustees to follow what the magisterium teaches, the trustees are allowed to follow the magisterium of the church.”

It is, Cauchi says, comparable to the situation that led to the signing of the Magna Carta on June 15, 800 years ago. “The nobles said they would pledge their loyalty to the king, if the king was loyal to God.”

“That’s the deal. That’s the compact.”

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