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 copied below. Read them over very carefully; ask your self what their purpose is, and what situation they foresaw happening to require their inclusion?
Section 93(3) for Ontario reads as follows:-
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:
Section 22(2) which applies to Manitoba, reads as follows:-
22(2) An Appeal shall lie to the Governor General in Council from any Act or Decision of the Legislature of the Province, or 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:
These sections, 93(3) and 22(2), say essentially the same thing, but note that for Ontario it is specifically spelled out to apply to separate schools existing “at the union” as well as being “thereafter established”.
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.
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.
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.
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 Tup-per 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.