|
Civil Rights in Public Education www.CRIPEweb.org |
|
Research Note #5
Full
Funding versus No Funding
It was previously
noted that Section 93 of the Constitution Act, 1867 gives the provinces
absolute power over education. In 1987 the Supreme Court of Canada ruled
that, because of this absolute power, the Charter of Rights and Freedoms
does not apply to provinces in matters of education. Ontario was therefore
allowed to extend public funding to Roman Catholic high schools despite the
fact that such a policy violates the Canadian Charter of Rights and
Freedoms.
In the same time
period there were two court cases: Zylberberg v. Sudbury Board of
Education (1986) and Canadian Civil Liberties Association (CCLA) v. Ontario
Minister of Education & Elgin County (1988).
The lawyers for
each case claimed that Regulation 262, s. 28(1) of the Ontario Education
Act, which prescribed religious exercises in the opening and closing of each
school day in the public schools of the province, infringes the guarantee of
freedom of conscience and religion in s. 2(a) of the Canadian Charter of
Rights and Freedoms.
Both cases went
to the Ontario Court of Appeal which ruled that the Regulation and the
Curriculum contravene sections 2(a) and 15(1) of the Charter of Rights and
are therefore unconstitutional.
As a result of
these decisions, the Ministry of Education revised the regulations which
became effective on January 1, 1991. Some of these new regulations were
interpreted as disallowing the Lord’s Prayer and Christmas concerts in
public schools.
Sections 2(a) and
15 of the Charter, the sections used to eliminate the Protestant imprint in
the public schools, are the same sections the Supreme Court said were
violated by the extension of public funds to Roman Catholic separate
schools. The Supreme Court then said that the Charter did not apply to the
Province in matters of education. Because of this the Provincial
Legislature agreed, having absolute power, to retain the Charter violation
by keeping the discriminatory separate school system in place.
The Province was
also free to exercise the same absolute power and declare that the offending
regulations which provided the Protestant imprint stay in place — whether
they violated the Charter or not.
But the Province
did not do this. Why?
There was no
recourse through the courts, from here on it was politics. The province, in
this case, could have abided by the court decision or not. It chose to
agree with removing the Protestant imprint. But the Protestant imprint in
the Public schools was the reason the Roman Catholic community argued for
funding for their system in the first place. How ironic that at the same
time the full funding of the separate system was taking place, the so-called
“Protestant system” was abruptly terminated.
The motivation of
the actors will be left to your own speculation, but whatever, choices were
open to the government then, and are open now. The province has absolute
power over education and can establish, or remove, any school system it
wishes. The choice today is to discriminate in favour of one denomination
of the Christian religion.
|