BACKGROUND

  The systems of education in both Upper and Lower Canada (Ontario and Quebec) were similar before 1843.

   Quebec’s schools at Confederation were determined by an 1861 act which applied only to Lower Canada (Quebec).

    By 1867, in Lower Canada, the law had instituted a public system of education. The financing of the system was principally assured by govern­ment grants and property taxes.

TYPES OF SCHOOLS

   The administration was entrust­ed in great part to the local boards with neutral structures to operate what were called “common” schools. 

   Whoever wished, without regard to his religion, could be an elector and apply to become a trustee of a common school. The schools were open to all without regard to religion. All were obliged to pay the fees imposed by the trustees.  Common schools were later legally defined by the Supreme Court of Canada as “non-denominational” and have no constitutional protection. 

   However, the law did not forbid the boards of common schools from impressing upon them a religious character. In fact the law held this to be the reality.

   Because of this ability to imprint a religious character onto their schools, persons who objected could estab­lish another board. This dissident board had the same powers and responsibilities as the majority board for its “dissentient” schools.

   In turn, the dissident board could imprint a religious character on its schools. Only the children of dissidents had the right to attend the dissident schools, but they were not obliged to do so. They could continue to attend the school of the majority.

MONTREAL & QUEBEC CITY

  In Montreal and Quebec City, a special arrangement established a Protestant Board and a Catholic Board with appointed trustees who had to be of the belief of the school board. In these two cities, there was no school board for the "non-Catholics and non-Protestants."

   Therefore, each of these systems had to be common schools, open to all which the Supreme Court of Canada later legally defined as “denomina-tional” schools because of the religious nature of the Boards   In 1867, the rights and privileges to be carried forward into the Union of the two provinces were stated in Paragraphs 93(1) and (2) of the Constitution.

    93.  In and for each Province the Legislature may exclusively make laws in relation to Education, subject and according to the following Provisions:-

93 (1)  Nothing in any such law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union.

93 (2)  which applies only to Quebec, states:  All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen’s Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen's Protestant and Roman Catholic Subjects in Quebec."

THE QUIET REVOLUTION

   During what is called the Quiet Revolution, Quebec broke with its church-centred past and be­came a modern secular society. Separation of church and state was inevitable. The old Quebec had seen faith-language-culture as inseparable and nearly inter­changeable. The Quiet Revolu­tion has kept only two of those pillars—language and cul­ture—as bases of Quebec's new projet de societe. The inevitable question: why consider religion in schools?

   Nationalists in the province of Quebec have realized for some time that the survival of the French lang­uage is dependent on the young. The schools, therefore, are the front line of defence.

LANGUAGE-BASED SCHOOL SYSTEM DESIRED

   For this reason, previous gov­ernments, both Partie Quebecois (P.Q.) and Liberal, have endeavoured to es­tablish a school system based solely on language. Section 93 of the Can­adian Constitution, however, has been cited by the courts as the stumbling block to the abolition of the religiously based school system in order to replace it with a linguistically based system.

   In the late 1980s, the Liberal government gave it another try.  Education Minister Claude Ryan said that “...it is no longer possible to reflect the totality of the Quebec population solely through a (Roman) Catholic or Protestant prism.”

BILL 107

   Ryan referred the parts of his bill, Bill 107, which replaces denominational boards of education by linguistic boards, to the Quebec Court of Appeal for a ruling before putting the law into effect..

   The Bill survived the hearing, the Court having said: “It is only this right to dissent which is a right protected by the Constitution….the Constitution protects consciences and not school boards.”

BILL 102

   A revised Bill, Bill 102, was assented to on December 20, 1990.  Under “explanatory notes, the text says: “This bill amends the Education Act to allow the right to confessional dissent to be exercised concurrently with the implementation of language-based school boards and the reduction of the territory of a confessional school board.”

   On June 17, 1993, the Supreme Court ruled on the total Bill 107 “as amended”.  Bill 102 was one amendment.

SUPREME COURT DECISION

   The Supreme Court said: “The creation of a denominationally neutral system of school boards, organized on the basis of language, is a valid exercise of provincial powers. As the dismantling of the existing system does not affect the right to dissent or the denominational rights themselves, it is not an infringement of s. 93 of the Constitution…this means chiefly that the right to dissent must be maintained outside Quebec and Montreal and that in those two cities, Catholics and Protestants must con­tinue to have access to denomina­tional schools.”

   The reason for the necessity of retaining the denominational schools in Montreal and Quebec city is that “denominational schools” are protected by section 93(1).

ANOTHER PUBLIC REVIEW

   In 1995 Quebec had another P.Q. government (equally anxious to change the school system) that began another public review into the future of Protestant and Roman Catholic school boards.  Following the preparation of a position paper by an inquiry board, public hearings were held throughout Quebec with recommendations handed to the Premier in June.

   In 1996 the PQ government in Quebec retreated from its promise of an early change to linguistic school boards.

   The apparent reason was two-fold: resistance from Roman Catholics who want to keep religious instruc­tion, and because of the constitu­tional protection for denominational boards in Montreal and Quebec City.

TOO MANY FLAWS

   Also, not many cared for the un­wieldy system proposed in order to get around a constitutional amend­ment, and a lot more people didn't care for the proposal at all.

   The plan would have created con­sider-able potential for well-organized religious factions to take control of boards and schools.

   In some boards, any school, even if it were the only local school, could be officially designated Catholic or Protestant according to the wishes of a majority of parents.

COUNCIL COULD VETO

   At the board level, a Catholic or Protestant council could be created within any board with veto power over board policies affecting the re­ligious character of the denomina­tion's schools in such areas as cur­riculum and discipline.

   The proposal was thought out so poorly that the possibility existed for English school boards to fall under local francophone control.

   The Legislature could have invoked section 93(3) to get rid of the provision for dissent, as did Manitoba to get rid of its separate schools, but the denominational sticker was in 93(1).

   93(3)  Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen’s subjects in relation to Education:

   The only choice then appeared to be a constitutional amendment to achieve the changes, first promised for the English community.

      Section 43 of the Constitution Act, 1982 allows a province to make a constitutional change which affects only itself “where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of…” the province.

    The amendment proposed by the government was to exempt the province of Quebec from the application of sections 93(1) to (4) leaving only the opening paragraph intact: “In and for each province the Legislature may exclusively make laws in relation to Education, subject and according to the following Provisions:”

SPECIAL JOINT COMMITTEE

   A Special Joint Committee was formed and heard submissions from all affected groups.  Some agreed with the proposal while others felt the protection provided by section 93 should be expanded to cover all religious groups where numbers warrant – the very system that Newfoundland was in the process of abolishing. The Committee did not report anything about a so-called “constitutional bargain”.

   In the end, the Special Joint Committee recommended that both Houses of Parliament adopt the resolution to amend section 93 of the Constitution Act, 1867, in the form tabled in the House of Commons on October 1, 1997 and in the Senate on October 9, 1997.

   In a free vote, the House of Commons passed the amendment by a vote of 204 to 59 on November 18, 1997.

CONSTITUTION CHANGED

   Section 93 of the Constitution for Quebec now reads:

93.  In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions:-

93A.  Paragraphs (1) to (4) of section 93 do not apply to Quebec.

Ontario could do the same

    The very same procedure of applying for a constitutional amendment could be done by Ontario.