How the SCC Handed the Ontario Election to Dalton McGuinty and the Liberals

Wow, what a week! Al Gore gets the Nobel Peace Prize as the consolation prize for losing the presidency in 2000 and the Supreme Court of Canada (“SCC”) hands the Ontario election to Dalton McGuinty and the Liberals. Okay, so we did not have our own Bush v Gore, 531 US 98 (2000), but Dalton McGuinty’s victory can be traced directly to the SCC’s 1996 decision in Adler v Ontario, [1996] 3 SCR 609 [Adler].

In Adler, parents of children attending non-Catholic faith-based schools argued that the Province of Ontario’s refusal to fund their schools violated the Charter. Specifically, they argued that Ontario’s policy was discriminatory under section 15 of the Charter and also violated their freedom of religion under section 2 of the Charter. All nine justices heard two days of argument in January 1996 and ruled against the parents by a 7-2 margin later that year. The justices decisively punted the issue back to the political arena.

In the middle of the first mandate of the Common Sense Revolution, Mike Harris had other issues to deal with, but in his second mandate Harris introduced a private school tax credit for parents who sent their kids to any private schools, not just the faith-based ones. Killing the dreaded Private School Tax Credit and restoring the neglected public school system became a rallying cry for the McGuinty Liberals in 2003 and when they rode into office after their October 4, 2003 victory, McGuinty quickly called back the Legislature and one of his first orders of business was to rescind the tax credit.

A year later and John Tory had become leader of the Ontario PCs but he appeared oblivious to the decades of political strife in the province over the issue of funding for faith-based education, Catholic, non-Catholic or otherwise. With the issue of faith-based schooling, Tory handed the election to Dalton McGuinty on a silver platter. We can only wonder what the Election of 2007 would have been about if Justice L’Heureux-Dubé and Justice McLachlin had carried the day at the Court back in 1996. But that was not to be. And this is how the Court handed the 2007 election to Dalton McGuinty . . . with a little bit of help from John Tory.