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Research
Note #3
Why did Quebec opt
for a constitutional amendment?
As explained in Research Note
#2, no constitutional amendment was necessary to eliminate the public
funding of the Roman Catholic separate schools in Manitoba. In fact, if you
look at the very latest copy of the Canadian Constitution, you will find
that the “constitutional guarantee” for Manitoba’s Roman Catholic separate
schools is still, today, in 2007, “entrenched” in the Constitution Act,
1867. Today, in Manitoba, all religious schools receive the same partial
funding – no religious school receives full funding.
However, the best way to get
out of any perceived obligation to adhere to out-dated rules is to opt for a
clean constitutional change to replace the old rules with exactly what one
wishes to have govern the province in the foreseeable future. A
constitutional change which affects only one province can be made with the
agreement of the Province and the federal Parliament and can be initiated by
one of the Province, the House of Commons, or the Senate. Quebec initiated
its constitutional amendment, Parliament agreed in November 1997, and the
Constitution was changed to allow Quebec to eliminate church control over
public funds for its denominational and dissentient schools.
Section 93(1) of the
Constitution Act, 1867 says: “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.” Used as
such, it has a legal meaning. The Supreme Court of Canada has defined these
“denominational schools” as those schools existing in Montreal and Quebec
City. Quebec’s other church schools are defined as “dissentient” schools.
It can therefore be argued that “denominational” schools are “entrenched” in
the constitution whereas “separate” and “dissentient” schools are not so
entrenched because of the ability to use section 93(3) to get rid of them.
The Gage Canadian Dictionary
defines “denominational” as “having to do with some religious denomination,
or denominations; controlled by a religious denomination; sectarian”.
However, since the word “denomination” or “denominational” is neither
defined nor used in the Ontario Education Act, it can be argued that its use
in section 93(1) has no meaning for Ontario, just Quebec.
The word “separate” is used in
section 93(3), and “separate school” is defined and used in the Ontario
Education Act, so it can be argued that Ontario’s separate schools are
governed by section 93(3) of the Constitution Act, 1867, and therefore can
be removed by an act passed in the Ontario Legislature which is granted
absolute power over education in the opening words of section 93 of the
Constitution Act, 1867.
It is precisely because of the
above that Ontario’s Attorney General was unable to name the section of the
Constitution Act, 1867, which, he claimed, obligated Ontario to provide
public funds for Ontario’s Roman Catholic separate school system. No such
section exists, but Attorney General Bryant, and others, continually and
purposely tell people things which are not true.
Do not be misled.
The history of school system
development in Canada can be
confusing. Before the first union in 1841, Upper Canada (Ontario) and Lower Canada (Quebec) developed on their own to accommodate their individual
circumstances.
Quebec
had a system of common schools which were, in fact, Roman Catholic in
practice and teaching. Religious minorities were able to dissent and form a
dissentient school.
In 1841 the two Canadas joined together, each with its own laws
respecting schools, but the principle of dissent became common to both.
Quebecers formed dissentient schools, Ontarians formed separate schools.
Between 1841 and 1867 the common legislature made certain compromises,
mostly for Ontario.
At Confederation in 1867, with the joining of
Quebec, Ontario, New
Brunswick and Nova Scotia, existing educational legislation was frozen in
the new Constitution under section 93.
Through the opening words of section 93, the provinces were
given absolute power over education. However, to protect religious
minorities from the premature or frivolous abrogation of their privileges to
separate or dissentient schools, section 93(3) demanded an appeal to the
federal parliament of Canada if and when a minority felt it was threatened
by the absolute provincial power, which could remove the privilege of
minorities to have their own fully-funded schools.
Manitoba joined Canada in 1871. The constitution for Manitoba
gave the same protection for its separate schools as
Ontario has for its separate schools. But in 1890, after being in
Canada for only 19 years, Manitobans decided that the time was right to
abolish the Roman Catholic separate school system. It did this through an
act passed by the provincial legislature. Although the minority appealed for
re-establishment, the federal government agreed, but refused to force the
issue.
In Quebec, the 1861 statute in their education act was frozen,
as written, into the 1867 Constitution. As well as providing for
dissentient schools, it required the establishment of both Roman Catholic
and Protestant common schools in Montreal and Quebec City which were by law
open to the children of any religion. Note that these are common schools and
not dissentient schools.
The Supreme Court of Canada has found that the common schools in
the two cities were, by law, denominational.
For the rest of the province, sections 27 to 33 of the 1861
Statute required the establishment of common schools. Courts have held that
these schools are non-denominational
Under section 55 of the 1861 Statute, the religious minority in
each school municipality outside of the cities of Montreal and Quebec,
whether it might be Roman Catholic or Protestant, had the right to establish
dissentient schools.
Summarizing, Quebec has common schools in the cities of
Montreal and Quebec which are denominational, and common schools in the
rest of the province (some of which are also dissentient) which are
considered to be non-denominational
Section 93(1) of the Constitution says: "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."
Note the reference to Denominational Schools only.
Section 93(3) states: "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."
Thus it can be argued that a constitutional amendment is
required to abolish denominational schools but NOT separate or dissentient
schools.
Quebec could have abolished its dissentient schools at will, as
may Ontario abolish its separate schools at will, as did Manitoba, but
Quebec needed a constitutional amendment to abolish the schools defined as
denominational in Montreal and Quebec city because of section 93(1).
By the way, Newfoundland needed
a constitutional amendment to rid itself of church control over its schools
because it had no education section similar to Ontario and Manitoba.
The common pitfall
Supporters
of separate schools in Ontario often refer to section 93(1) (top of page) as
the section that “entrenches” Roman Catholic separate schools in the
Constitution. The problem, however, is that they have been misled into
believing that the word “denominational” has an ordinary dictionary meaning
which would describe their Roman Catholic separate school as a school for
the Roman Catholic denomination of the Christian religion. But since legal
texts such as the Canadian Constitution and the Ontario Education Act need
agreed-upon legal definitions for the terms used, ordinary everyday meanings
cannot be ascribed to them.
Not the last word
The above is
what I understand to be how all this works, but I have found authoritative
government and legal sources which give other interpretations which are
broader; not more restrictive.
However, on
one thing they all agree – the province of Ontario has the power to abolish
the public funding of the Roman Catholic separate school system without a
constitutional amendment.
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