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Research Note #2
The constitution does
not prevent the abolition of separate schools
As indicated in Research Note
#1, the Constitution Act, 1867, contains provisions to prevent the premature
or frivolous abrogation of the privilege of public funding for Protestant
and Roman Catholic schools in the provinces of Quebec and Ontario.
First of all it is instructive to know that the
Hon. Michael Bryant, Attorney General of Ontario, wrote in a letter of
December 2005, that: “Ontario continues to uphold its constitutional
obligations by providing full funding to public and Roman Catholic
schools.” With such a pronouncement coming from the legal branch of the
provincial government, it is no wonder that there is the perception that
this is the truth.
However, when
pressed for the section of the constitution which spells out such an
obligation, the office could not do so, because there is none, and responded
with “...neither the Attorney General nor his Ministry’s staff is permitted
to provide legal advice or opinion to members of the public…”
Note that Bryant
had already given me his "legal opinion" that the constitution obligated the
province to fund Roman Catholic schools, but when pressed, he changed his
mind and said he couldn't give me the section.
The truth is
that in 1867 certain provincial education acts were in place, and were to
stay in place until times change and there was no longer any reason to give
church schools any special privilege. When the Legislature decides that the
time is right to make a change, s. 93(3) spells out the process for doing
so, a procedure which is entirely political. All the courts are for is to
determine if a provincial act has affected “…any right or privilege of the
Protestant or Roman Catholic minority…” The rest is up to the politicians,
that is, the will of the people. The Constitution gives the provinces
absolute power over education with one provision for federal oversight – s.
93(4) - a mandated process for change which guards against frivolous or
premature abrogation of privileges granted at an earlier time for a reason
that no longer exists. Read it yourself.
Extract from the Constitution Act, 1867
93.
In and for each Province the Legislature may exclusively make Laws in
relation to Education, subject and according to the following Provisions: -
(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:
(2) 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:
(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:
(4) 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.
The Constitution does
not prevent the abolition of separate schools
Manitoba became a province of Canada in 1870. The Canadian Constitution for
Manitoba contains educational provisions, section 22, essentially identical
to Ontario and Quebec’s section 93. The following is a précis of a portion
of C. B. Sissons’ 1959 book, “Church and State in Canadian Education”. The
Ryerson Press, Toronto, 1959.
By
1890, settlement trends in Manitoba had sharply reduced the Roman Catholic
portion of the population and then there followed a combination of incidents
of both a religious and political nature which turned a majority of
Manitobans against the French and the Roman Catholic Church. Therefore,
using its absolute power over education as provided by the Constitution, the
Manitoba School Act of 1890 was passed by the legislature and separate
schools were immediately abolished.
The Roman Catholic hierarchy sought reversal through the courts. The final
word came from the British Privy Council that “…merely established the fact,
obvious enough, that the Province was within its constitutional rights in
passing that legislation.” The next tactic was to use Manitoba’s section
22(2) [equivalent to Ontario’s section 93 (3)] which says: “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.” Note use of the third word
“shall”, no other route is permitted.
For the sole purpose of determining if the appeal was valid, the Cabinet
referred six questions to the Supreme Court of Canada. The Supreme Court
favoured Manitoba, but the British Privy Council upheld the view that the
minority rights of the Roman Catholics in Manitoba were affected by
the school legislation of 1890.
With this opinion in hand, the
process returned to the route provided by the Constitution and the matter
lay in the lap of the Governor General in Council, that is, the federal
Cabinet. The appeal was successful, so orders were issued to the Manitoba
Premier to restore to the Roman Catholics the privilege of their own
publicly-funded separate schools. Manitoba refused to carry out the order.
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). Note that every step along the way was foreseen by
the framers of the Constitution, and written in for precisely this purpose.
The Cabinet was free to act, or not to act, to disallow the legislation.
Also, any decision to act was subject to the approval of Parliament. A
subsequent election brought Wilfrid Laurier to power in Ottawa. In
negotiation with the Manitoba government, a compromise was agreed upon, but
on the main issue of public funds for separate schools, the Province stood
firm. “That is to say, Provincial grants were not available for
denominational schools and all Roman Catholics paid their taxes to public
schools.” Today, the province of Manitoba provides partial funding to
private and religious schools - all religious schools are treated equally.
Ontario could do exactly as did
Manitoba, but probably with little or no federal opposition as evidenced by
the majority free vote in the Commons for Quebec and Newfoundland’s
constitutional changes which eliminated church control over public funds for
church schools.
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