Education

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

339

CHAPTER 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 necessary to ensure the survival of

all faiths. While the family and religious institutions are the primary

places for education, schools are also important 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 aspects of education are contested in law: the right to

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

ligious instruction; religious exercises; standards of conduct for teach-

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

employment. A large number of Charter cases have been concerned in

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

freedom of religion, freedom of expression, and equality rights issues.

Since education is almost entirely a provincial matter in Canada, the

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

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

Charter jurisprudence applies throughout the country the text will

adopt a national rather than provincial approach where appropriate.

RELIGIOUS INSTITUTIONS AND T HE LAW IN CANADA340

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 prejudicially affect any right or privilege with respect

to denominational schools that any class of persons had by law 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” has 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 provinces of Confeder-

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

they joined Confederation,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 constitutionally privileged position of denominational schools

in the provinces has proven, since Confederation, to be the source of

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

cising their plenary educational powers have differed from 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 Brunswick, 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 also partially fund religious

schools generally pursuant to ordinary provincial legislation rather

than any constitutionally 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 address 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 equally

applicable here. Thus, the provisions have been interpreted strictly by

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

nominational subjects as existed 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. ROMAN CATHOLIC 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 in 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 guaranteed 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 otherwise prejudicially

affect those rights.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.

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

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

10In 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,