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Civil Rights in Public Education www.CRIPEweb.org |
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ABSOLUTE POWER
Sections 93(3) and 22(2) constitute the only federal restraint, albeit a
temporary one, of the absolute power over education granted to the provinces
at Confederation. What began as a “confederation bargain” between Ontario
and Quebec became an accommodation with other provinces for reasons which
won’t be discussed here.
These
sections are in the box below. Read them over very carefully; ask yourself
what their purpose is, and what situation they foresaw happening to require
their inclusion?
BACK
TO THE DRAMA
The
Archbishop’s appeal to the Governor General in Council, i.e. the Cabinet of
the new Federal Government, now headed by Sir John Thompson, was received.
The Cabinet, having been put in a position of deciding if the appeal was
legally valid, decided instead to refer six questions to the Supreme Court
of Canada.
In this case, called Brophy,
judgment came in February, 1894 with three of the five judges favouring
Manitoba.
MINORITY RIGHTS AFFECTED
Litigation then moved to the British Privy Council which upheld that the
minority rights of the Roman Catholics in Manitoba were affected by
the school legislation of 1890. (See box on page 4.)
At this point, the
court had NO AUTHORITY in the matter, nor would it have authority today,
the court was consulted only for its OPINION.
APPEAL
TO FEDERAL CABINET
Now,
with this opinion in hand, the process returned to the route provided by
the constitution, and the matter returned to the federal government in
the form of an appeal to the Governor General in Council, that is, the
federal Cabinet.
ORDERS
ISSUED TO MANITOBA
The
appeal before the Cabinet by Archbishop Langevin was successful, so orders
were issued to the Manitoba Premier to restore to the Roman Catholics the
right to their own publicly-funded separate schools.
MANITOBA STOOD FIRM
“The government of Manitoba
saw no need of haste. The chastening order from Ottawa having been read in
the Legislature, that body was adjourned for three months to permit public
opinion to make head. When the Assembly reconvened on June 17, 1895,
Premier Greenway moved the adoption of a polite but firm memorial to
Ottawa refusing to
carry out the Order,
warning the federal government
of legal and practical impediments to enforcing such an order, and
suggesting an investigation of the school situation before and after the Act
of 1890.”
A LOOK
AT THE LAST SECTION
The
procedure from this point is set forth in the Manitoba Act sec. 22(3) and in
identical terms for Ontario in sec. 93(4). Please note that every step
along the way was foreseen by the framers of the Constitution, and written
in for precisely this purpose.
Sections 93(4) and 22(3) reads:-
In case any such Provincial Law as from Time to Time seems to the Governor
General in Council requisite for the due Execution of the Provisions of this
Section is not made, or in case any Decision of the Governor General in
Council on any Appeal under this Section is not duly executed by the proper
Provincial Authority in that Behalf, then and in every such Case, and as far
only as the Circumstances of each Case require, the Parliament of Canada may
make remedial Laws for the due Execution of the Provisions of this Section
and of any Decision of the Governor General in Council under this Section.
“MAY”
INTERVENE
This
section means that if the provincial government fails to execute the
decision of the Cabinet, then the federal Parliament MAY intervene
and the province could feel the full weight of remedial legislation. It was
not expected that a province would invite the possibility of such a
rebuff.
AND
NOW TO PARLIAMENT
The
dispute was thus transferred from the Cabinet to Parliament, an outcome
which had been recognized during the argument. Lord Watson had remarked, “I
apprehend that the Appeal to the Governor is an Appeal to the Governor’s
discretion. It is a political administrative Appeal and not a judicial
Appeal in any proper sense of the term, and in the same way after he has
decided, the same latitude of discretion is given to the Dominion
Parliament. They MAY legislate OR NOT as they see fit.”
PARLIAMENT RULES NOT THE COURTS
This fact was confirmed in
Ottawa. “The Cabinet assumed at first a judicial posture until McCarthy
extracted from the Prime Minister the admission that its function was of
necessity, political; IT WAS FREE TO ACT OR NOT TO ACT, and its action was
SUBJECT TO THE APPROVAL OF, AND IMPLEMENTATION OF, PARLIAMENT.”
The Constitution of Canada is the supreme law of Canada,
and in the
case of tampering with denominational schools, this supreme law refers
authority back to Parliament, the elected representatives of the people.
NOT
CARVED IN STONE
The constitution does not
block any reform regarding denominational schools,
and, on the contrary, provides
a route through which reform is possible—without any change in the
constitution.
Section 22 of the Manitoba Act of 1871, equivalent to Ontario’s section 93
of the Constitution Act, 1867, contains to this day the original wording
regarding separate schools, and yet Manitoba has not provided full public
funding for a Roman Catholic separate school system since 1890 when such
funding was abolished by a bill passed in the Manitoba legislature.
INTERPRETATION OF CONSTITUTIONAL WORDING BY THE PRIVY COUNCIL It is appropriate to look at some of the wording of the judgment mentioned on page 5 column 3 (called Brophy for the appellant). In it, Lord Halsbury L.C. considered s. 93 of the Constitution Act, 1867 and commented on page 220: It is admitted that the 3rd and 4th subsections of section 93 were not intended to have effect MERELY when a provincial legislature had exceeded the limit imposed on its powers by sub-sec. 1, for sub-sec. 3 gives an appeal to the Governor General, not only where a system of separate or dissentient schools existed in a province at the time of the Union, but also where in any province such a system was ‘thereafter established by the legislature of the province’. Note the use of the word “merely”. It very clearly infers that the primary purpose of section 93(3) is to take effect when a province exceeds the limit imposed under 93(1). Referring again to Tiny, in his analysis of section 93(3), Viscount Haldane said: “Whenever an Act or decision of a Provincial authority affecting any right or privilege of the minority, Protestant or Roman Catholic, in relation to education is challenged, an appeal is to lie to the Governor-General in Council, as distinguished from the Courts of law.” This is because section 93(3) or 22(2) state that there “shall” be an appeal “. . . to the Governor General in Council from any Provincial Authority affecting any Right or Privilege . . .” In other words, the only recourse a complainant has to legislation contrary to section 93(1) or 22(1) is to the Governor General, because of the words “shall” and “any”. I have emphasized the word “any” and refer again to Lord Halsbury for what the word “any” means. He stated on p.219 of Brophy: The question arises, does the sub-section extend to rights and privileges acquired by legislation subsequent to the Union? It extends in terms to “any” right or privilege of the minority affected by an Act passed by the legislature, and would therefore seem to embrace all rights and privileges existing at the time when such Act was passed. Their Lord-ships see no justification for putting a limitation on language thus unlimited. There is nothing in the surrounding circumstances, or in the apparent intention of the legislature, to warrant any such limitation. Quite the contrary. From the above, it follows that a decision against Manitoba in the argument under section 22(1) would have served only to hasten the appeal to the Governor General, and would not have resulted in the automatic return of school privileges to Roman Catholics.MANITOBA AGAIN STOOD FIRM The federal government, now led by Sir Mackenzie Bowell, “did not attempt remedial legislation during the session of 1895. It was content with further expostulation and threat of action. Manitoba stood firm. Again, as in 1892, it submitted the question to the people, and again was sustained by a large majority.” An election to confirm that the legislature was, indeed, carrying out the will of the people was not necessary, but it certainly strengthened Manitoba’s hand. A precarious situation in the Bowell government meant that Sir Charles Tupper took over as Prime Minister and a Remedial Bill was not introduced to the House. Instead, a deputation of three was sent to Manitoba to see whether discussions could lead to a settlement. The only accomplishment was an agreement to make two important concessions in the proposed Remedial Bill. REMEDIAL BILL INTRODUCED When Tupper introduced the Remedial Bill to Parliament, Laurier of the Liberals, despite pressure from the Roman Catholic Church, rose “to ask this Parliament not to proceed any further with this Bill.” Eighteen Conservatives voted against their party, but with a majority of twenty-four, it passed into committee of the whole. Despite the fact that the House was held in session for more than four days, the Bill was talked out and on April 15th Tupper gave in. A general election was called for July 23rd. The election brought Laurier to power with a majority of 76-68. If one counts the others who opposed the Remedial Bill, a vote in the House would have been 81-68 for a policy of “Hands off Manitoba”. MANITOBA STILL FIRM, NO SEPARATE SCHOOLS Laurier’s ministry proceeded at once to negotiate with the Manitoba government. The compromise was called the Laurier-Greenway agreement. “On the main issue the Province held firm. There were to be no separate schools. That is to say, Provincial grants were not available for denominational schools and all Roman Catholics paid their taxes to public schools.” Thus ended the drama of the “Manitoba school question”. Ontario could do the same Ontario, using its plenary power over education, could do exactly the same thing as Manitoba, i.e. by introducing a Bill in the Legislature to that effect. Whether challenged or not, abolition of the discriminatory public funding of separate schools would be approved, Manitoba having set the precedent.<Previous page - Next page>
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