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Civil Rights in Public Education www.CRIPEweb.org |
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Research Note #4
The
Supreme Court Decision on Bill 30
Bill Davis, Premier of
Ontario in 1984, for whatever reason, decided on his own, that is, not by a
decision of his party or his Cabinet, that the supply of public funds for
the Roman Catholic separate school system should be extended to cover the
costs of Roman Catholic high schools.
This betrayal of
supporters brought down the Progressive Conservative government, so it was
the Liberals that introduced enabling legislation, Bill 30. This Bill
raised such a howl of protest that the government was forced to refer a
question on the legality of the Bill to the courts. Upheld by the Ontario
Court of appeal, a further appeal was made to the Supreme Court of Canada.
The Court acknowledged
that Section 93 of the Constitution Act, 1867, gives absolute power over
education to the provinces.
The Canadian Charter of
Rights and Freedoms, introduced in 1982, forbids discrimination on the
grounds of religion. The Court also acknowledged, because the terms of
Bill 30 give special privileges to Roman Catholic citizens, that the Bill
violates the Charter.
The Supreme Court then
faced two sections of the constitution which appeared to contradict each
other; the tenuous Section 93, and the protection from discrimination in the
Canadian Charter of Rights and Freedoms.
In June, 1987 the Supreme
Court ultimately upheld Bill 30 through the following devious procedures.
The Court decision was
written by Justice Estey and Madam Justice Wilson, the other justices
concurring.
Justice Estey stated
that: “It is axiomatic (and many counsel before this Court conceded the
point) that if the Charter has any application to Bill 30, this Bill would
be found discriminatory and in violation of s. 2(a) and s. 15 of the Charter
of Rights.”
So Justice Estey said that
the Charter did not apply to the question under consideration. In other
words he threw out the Canadian Charter of Rights and Freedoms which
comprises all of Part 1 of the Constitution Act, 1982.
Estey’s statement
contradicts what the Charter itself says in Section 32(1):
“This Charter applies (b)
to the legislature and government of each province in respect of all matters
within the authority of the legislature of each province.” The Court threw
this out too.
The present Chief Justice
of the Supreme Court, the Rt. Hon. Beverley McLachlin, publicly stated that:
“...the constitution binds everybody, and cannot be avoided.” The obvious
conclusion is that the constitution “binds everybody” when it suits the
Court, and when it doesn’t suit, the Court throws it out.
This is justice?
This is the rule of law?
The Court’s decision
also flies in the face of orthodox principles of legislative interpretation
in that newer laws, the Charter, automatically repeal inconsistent earlier
ones, Section 93.
Another principle which
the Supreme Court conveniently ignored is the influence of international
law. From 1925 to 1990, 184 court cases have made reference, and given
credence to, international human rights law. The Supreme Court can be
excused for ignoring international law which does not affect Canada, but to
ignore, in this case, the International Covenant on Civil and Political
Rights, which Canada acceded to in May of 1976, is inexcusable. It probably
wasn’t mentioned because Canada is in violation of Article 26 of this
Covenant precisely because of Ontario’s discriminatory separate school
system.
Why did the Supreme Court
-
— defy the Constitution
and throw out our Charter of Rights?
— put older laws ahead of
newer ones?
— ignore binding
international human rights law?
Did the
Supreme Court have religious supremacist views which determined the
outcome?
Was
their decision helpful or harmful to our
increasingly multicultural
society?
Many have questioned
the Bill 30 decision by the Supreme Court
Not only have many questioned
the decision, there have been at least three books written about Supreme
Court decisions. “The Charter Revolution and the Court party” by F. L.
Morton & Rainer Knopff, 2000, 227 pages. “The Most Dangerous Branch – How
the Supreme Court of Canada has Undermined Our Law and Our Democracy” by
Robert Ivan Martin, 2003, 285 pages. “Against Judicial Activism – The
Decline of Freedom and Democracy in Canada” by Rory Leishman, 2006, 310
pages.
Further reading about the
application of the Charter reveals a disturbing statement by Justice Estey.
He said that the province, under section 93 of the Constitution on
education, is given absolute power to legislate. The Charter didn't apply
because: “It is one thing to supervise and on a proper occasion curtail the
exercise of a power to legislate; it is quite another thing to say that an
entire power to legislate has been removed from the Constitution by the
introduction of this judicial power of supervision.” Read this again. It
appears that Justice Estey is saying that most of the legislative bills
introduced by a government under this section 93 will violate the Charter.
Honouring rights “guaranteed” in the Charter of Rights would be so
restrictive, he is saying, that the province would have its “entire power to
legislate . . removed.” It makes one want to ask: what other draconian
legislation, that would also violate the Charter, did Justice Estey wish to
clear the way for the province to implement? It appears Justice Estey does
not favour freedom for the masses and finds the Charter an impediment to the
type of government he presumably favours.
The sum and substance of what
the Court has said is that, in any area in which the provinces are given
absolute power to legislate, the Charter does not apply. The corollary is
that the Charter also has no application to sections 92 and 92A where the
provinces also have exclusive jurisdiction. These sections cover everything
from hospitals to steamships to taverns. An inference that the Charter does
not apply to these sections is ridiculous, and belittles the intelligence of
the general public.
Justice Wilson,
in her assessment of Charter applicability, said that the rights and
privileges of Roman Catholics “. . . are insulated from Charter attack as
legislation enacted pursuant to the plenary power in relation to education
granted to the provincial legislatures as part of the Confederation
compromise. Their protection from Charter review lies not in the guaranteed
nature of the rights and privileges conferred by the legislation but in the
guaranteed nature of the province’s pIenary power to enact that
legislation.” Dale Gibson, a law professor, in an article in The Canadian
Bar Review, questioned whether Justice Wilson and her colleagues really
intended “to suggest that some provisions of the Canadian Constitution are
more deeply entrenched or have a higher priority than others. . . In the
first place, there is the logical difficulty. Section 52 of the Constitution
Act, 1982 assigns the status of 'supreme law' to the entire Constitution of
Canada. To designate
certain provisions of the Constitution as ‘more supreme than supreme' would
be as impossible logically as designing a ball that is 'rounder than
round’. The only way to give some parts of the Constitution priority over
others would be by ruling that section 52 does not mean what it says, and
that in reality only part of the Constitution of Canada constitutes ‘supreme
law.’”
As the situation now stands,
section 32 of the Charter on “Application of Charter” is still part of the
supreme law of Canada and outlines the Charter's application to “...all
matters within the authority of the legislature of each province.” Because
the Supreme Court did not agree, it threw this section out too, not having
the courage or the sense of duty to say why, but presumably because if
debated, their position could not be defended.
The progenitor of the Charter
of Rights was the late Pierre Elliott Trudeau. About the 1980 Repatriation
Reference he spoke sternly about the Supreme Court’s conclusion, he said:
“…they blatantly manipulated
the evidence before them so as to arrive at the desired result. They then
wrote a judgment which tried to lend a fig leaf of legality to their
preconceived conclusion.”
It happened again on June 25,
1987.
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