Education

• Author: M.H. Ogilvie
• Pages: 339-381

339

CH AP TER 10

EDUCATION

A. INTRODUCTION

Throughout the world, education is one of the most contested areas

for religious institutions and believers; all religions are only ever one

generation away from oblivion and the education of the next generation

in the beliefs and habits of faith is necessar y to ensure the surv ival of

all faiths. Whi le the family and religious in stitutions are the prima ry

places for education, schools are also import ant as places for the re-

inforcement of religious values. Thus, religious parents and commun-

ities expect schools to provide a positive environment for faith even

where those schools are state schools and do not teach any particular

religion at all.

Almost all aspect s of education are contested in law: the right to

educate in a religious school; public funding for religious education; re-

ligious instruction; religious exercises; standa rds of conduct for teach-

ers and students; and the right of religious college graduates to public

employment. A large number of Charter ca ses have been concerned in

various ways with educat ion and these cases have dealt with sig nif‌icant

freedom of religion, freedom of expression, and equa lity rights issues.

Since education is almost entirely a provinci al matter in Canada, t he

focus for much of this chapter will be on ind ividual provinces in rela-

tion to establishment, funding, and curriculum issues; however, since

Charter jurisprudence applies throughout the country the text w ill

adopt a national rather tha n provincial approach where appropriate.

RELIGIOUS INSTITUTIONS AND T HE LAW IN CA NADA340

The Constitution Act, 1867,1 confers exclusive power on the prov-

inces in relation to education, subject to four qualif‌ications: (i) no prov-

incial law may prejudicial ly affect any right or privilege with re spect

to denominational schools th at any class of persons had by l aw at the

time of Confederation; (ii) denominational schools for Protestants and

Roman Catholics in Quebec are placed on the same legal footing as de-

nominational schools for Roman Catholics i n Ontario; (iii) a Protestant

or Roman Catholic “minority” ha s a right of appeal to the Governor

General in Council from any decision affecting any right or privilege

in relation to education; and (iv) Parliament may enact remedial legis-

lation to give effect to any such decision of the Governor General in

Council.

Section 93 was applicable to the four original provi nces of Confeder-

ation, was extended to British Columbia a nd Prince Edward Island when

they joine d Confederat ion,2 and in slightly different versions, was made

part of the terms on which Manitoba, Alberta, Saskatchewan, and New-

foundland entered Confederation.3 Section 93 was amended in 1997 by

the addition of section 93A to provide that section 93 no longer applies

in Quebec4 and in 1998 to remove denominational school privileges in

Newfoundland by the amendment of Term 17 of the Newfoundland Act.5

The constit utionally privileged position of denominational schools

in the provinces ha s proven, since Confederation, to be the source of

much litigation, although the actual practices of the provinces in exer-

cising their plenar y educational powers have differed f rom province

to province. Some do not fund section 93 denominational schools at

all, either because they did not exist by law or by custom when the

province entered Confederation (Nova Scotia, New Brunsw ick, British

Columbia, Prince Edward Island, and Manitoba) or because section 93

rights have since been abrogated (Quebec). Some continue to fund sec-

tion 93 denominational schools (Ontario, Alberta, and Saskatchewan).

One province (Newfoundland) funds signif‌icantly reduced denomin-

1 R.S.C. 1985, App. II, No. 5, s. 93. For a more detailed discu ssion of the s. 93

jurispr udence, see, generally, the literature li sted in chapter 4, note 157. For a

thoughtful d iscussion of religion and educ ation generally, see Benjamin L. Be r-

ger, “Religious Diversit y, Education, and the ‘Cr isis’ in State Neutralit y” (2014)

29 C.J.L.S. 103.

2 British Columbi a Terms of Union (Order in Counci l, 16 May 1871) and Prince

Edward Islan d Terms of Union (Order in Council , 26 June 1873).

3 Manitoba Act (1870), R.S.C. 1985, App. II, No. 8, s. 22; Alberta Act (1905), R.S.C.

1985, App. II, No. 20, s. 17; Saskatche wan Act (1905), R.S.C. 1985, App. II, No. 21, s.

17; and Newfoundland Act (1949), R.S.C. 1985, App. II, No. 32, Sched. Term. 17.

4 Constitution Ame ndment, 1997 (Quebec), SI/97–141.

5 Constitution Amend ment, 1998 (Newfoundland Act), SI/98–25.

Education 341

ational school rights, but most provinces al so partially f und religious

schools generally pursuant to ordin ary provincial legislation rather

than any constitutiona lly entrenched right.6

In chapter 4, the judicial interpretation of section 93 qua constitu-

tional provision was di scussed; in this chapter, emphasis w ill be placed

on educational matters, on a province-by-province basis, ref‌lecting the

different approaches of the provinces to denominational and other re-

ligious school funding. Subsequently, the chapter will add ress other

religion and education issues, most of which f‌low from the constitu-

tional entrenchment of denominational s chool rights. The general prin-

ciples of constitutional interpretation discussed previously are equa lly

applicable here. Thus, the provisions have been interpreted str ictly by

the courts, as applicable only to such denominationa l schools and de-

nominational subjects as ex isted by law or custom at the time of the

province’s entry into Confederation. Legislation prejudicially affecting

such rights has be en found to be void, while legislation enhancing such

rights has been sustained.7

B. ROM AN C ATHOLIC AND OTHER

DENOMINATIONAL SCHOOLS

1) Constitutional Protection

a) Quebec8

The constitutional protection of Roman Catholic schools in Onta rio and

of Protestant and Roman Catholic schools i n Quebec has been said, by

the Supreme Court of Canada, to constitute the or iginal compact on the

basis of which Confederation was achieved in 1867.9 It was once thought

that the legal rights g uaranteed by law by section 93 to Protestant and

Roman Catholic schools were the minimum rights protected by law

and that it was not possible to derogate from or otherwi se prejudicially

affect those right s.10 However, the constitutional amendment process

6 Provincia l educational regulat ions must be consulted on a province-b y-province

basis to be dete rmined precisely.

7 See chapter 4, section D(3)(a).

8 The order of provinces i n this section will follow t he chronological order in

which they bec ame part of Canada.

9 Reference Re Bill 30, or An Act to Am end the Education Act (Ontario), [1987] 1

S.C.R. 1148 [Re Bill 30].

10 In 1867, Quebec had com mon schools open to all and separ ate or dissentient

schools in both Mont real and Quebec City for Protes tants and Roman Catholic s,