A constitutional lawyer named Albertos Polizogopoulos presented a legal opinion on Bill 13 to the Social Policy committee, on behalf of his client, The Coalition For Parental Rights in Education. It outlined six problematic sections which likely make Bill 13 unconstitutional. Watch the 11 minutes worth of videos to hear the lawyer briefly summarize the legal opinion.
Download the entire 43-page opinion, complete with case law references, demonstrating that Bill 13 is unconstitutional in many respects. This is a thorough legal opinion that needs to get in the hands of every Ontario MPP, pastor and religious leader.
(Note: the sound quality is poor because the camera was not permitted to get close. You may need to turn the volume to maximum.)
We have provided a synopsis of the lawyer's presentation:
Problem # 1 - Gives preferential treatment to one group over others (i.e. LGBTTIQ students)
The preamble of the Bill singles out one group of students over most others. Legislating preferential treatment of one group over another is problematic in practice, policy and law. This violates Section 15 of the Charter and potentially sections 2a and 2b as well.
Amendment proposed: remove from the preamble the words "including LGBTTIQ (lesbian, gay, bisexual, transgendered, transsexual, two-spirited, intersexed, queer and questioning people)". This will eliminate the problem of special status and priority protection for one group over others, thereby making Bill 13 equally protective for all individuals, and therefore more inclusive.
Problem # 2 - Uses the problematic term, "homophobia'
The lawyer explained that the term "is yet to be treated jurisprudentially or legislatively. It is a subjective... and controversial term that should definitely be removed". As such, it has differrent meanings for different people in different contexts.
Amendment proposed: remove the controversial term from the bill's preamble.
Problem # 3 - Subjective definition for 'bullying'
"It is the very subjective nature [of the definition] that is problematic because any type of behaviour could be found to fit that definition". The wording "would be likely to cause" that is contained in the definition, removes intent as a requisite for an act to be considered bullying, making it purely subjective.
Amendment proposed: replace Bill 13's definition of bullying with that of Bill 14 (the alternate Progressive Conservative bullying bill)
Problem # 4 - Requires an Equity policy and gives Minister authority to re-write it, even in separate schools
Bill 13 requires every publicly-funded school board to implement an "Equity" policy, and furthermore, gives special new power to the government. This section of the bill takes democratic power out of the hands of local boards. Polizogopoulos explained to MPPs: "Bill 13 gives the Minister [of Education] authority to require and direct all school boards to implement changes to their Equity policies...This must remain the responsibility of individual school boards".
This section also infringes upon the denominational rights of Catholic school boards, as Polizogopoulos explained to the committee: "Ontario students have a legal right to a taxpayer funded education that is either non-religious or Catholic, but nobody has the right to insist that Catholic schools and Catholic policies become either non-religious or non-Catholic".
Furthermore, this section of the bill is redundant because PPM 119 already requires school boards to write and implement an Equity policy.
Amendment proposed: remove the section of Bill 13 which requires school boards to implement an Equity policy and which grants the Minister the power to re-write it.
Problem # 5 - Third party use of schools
Bill 13 requires school boards who rent space to 3rd parties to make them sign an agreement stating they will adhere to the "provincial code of conduct". This does not belong in a bullying bill. Many faith groups and churches rent space from public schools to conduct worship services. Given many of these churches may have teachings on sexual morality that are at odds with the prevailing government's world view, this clause in Bill 13 may violate Section 15 of the Charter, religious freedom, and freedom of assembly.
Amendment proposed: remove this clause from Bill 13.
Problem # 6 - Board-endorsed clubs (GSAs)
Bill 13 singles out four types of students to grant special club status. It fails to consider the existence of other occurrences of bullying which happen statistically at much higher frequency than those singled out in Bill 13.
Polizogopoulos warned MPPs that: "demanding Gay-Straight Alliances violates freedom of religion, conscience, association and potentially, even violation the freedom of expression of many students, parents and teachers. It is also a clear and direct violation and infringement on the constitutionally-guaranteed denominational rights of Catholic school boards. Any interference with the denominational rights or religious autonomy of Catholic school boards would be a clear violation of Section 93(1) of the Constitution as well as Section 257 of the Education Act, and potentially section 29 of the Charter".
Amendment proposed: removed the section mandating four types of student clubs.
Problem # 7 - Application to private schools
The constitutional lawyer told committee members the problem and the necessary amendment to resolve it: "There remains uncertainty as to whether or not Bill 13 will apply to private schools. This committee can eliminate any ambiguity by simply specifying in the preamble of Bill 13 that it is not intended to affect the ability of private schools to determine their operation or curriculum".
Additional Presentation by the Evangelical Fellowship of Canada
On the same day, the Evangelical Fellowship of Canada also made a presentation to the Bill 13 Standing Committee. Watch it below.