Education
| Author | M.H. Ogilvie |
| Pages | 323-363 |
Chapter Ten
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
gener-
ation
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
reinforcement
of
religious values. Thus, religious parents
and
communities 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
edu-
cate
in a
religious school; public
funding
for
religious education; religious
instruction; religious exercises; standards
of
conduct
for
teachers
and
stu-
dents;
and the
right
of
religious college graduates
to
public employment.
A
large number
of
Charter
cases have been concerned
in
various ways
with education
and
these cases have dealt with significant
freedom
of
reli-
gion,
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
relation
to
establishment,
fund-
ing,
and
curriculum issues; however, since
Charter
jurisprudence applies
throughout
the
country
the
text will adopt
a
national rather than provin-
cial
approach where appropriate.
323
324
RELIGIOUS INSTITUTIONS
AND THE LAW
The
Constitution
Act,
1867,l
confers exclusive power
on the
provinces
in
relation
to
education, subject
to
four
qualifications:
(i) no
provincial
law
may
prejudicially
affect
any
right
or
privilege with respect
to
denom-
inational schools that
any
class
of
persons
had by law at the
time
of
Con-
federation;
(ii) denominational schools
for
Protestants
and
Roman
Catholics
in
Quebec
are
placed
on the
same legal footing
as
denomina-
tional schools
for
Roman Catholics
in
Ontario; (iii)
a
Protestant
or
Roman
Catholic "minority"
has a
right
of
appeal
to the
Governor Gener-
al
in
Council
from
any
decision
affecting
any
right
or
privilege
in
relation
to
education;
and
(iv) Parliament
may
enact remedial legislation
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
and
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
exercis-
ing
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
section
93
1
R.S.C.
1985, App.
II, No. 5, s. 93. For a
more detailed discussion
of the s. 93
jurisprudence,
see
generally
the
literature listed
in
chapter
4,
note 149.
2
British Columbia
Terms
of
Union (Order
in
Council,
16 May
1871)
and
Prince
Edward
Island
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;
Saskatchewan
Art
(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
Amendment,
1997 (Quebec),
SI/97-141.
5
Constitution
Amendment,
1998
(Newfoundland
Act),
SI/98-25.
Education
325
denominational schools (Ontario, Alberta,
and
Saskatchewan).
One
province (Newfoundland)
funds
significantly reduced denominational
school rights,
but
most provinces also partially
fund
religious schools
generally
pursuant
to
ordinary provincial legislation rather than
any
con-
stitutionally entrenched
right.6
In
chapter
four,
the
judicial interpretation
of
section
93 qua
constitu-
tional
provision
was
discussed;
in
this chapter,
emphasis
will
be
placed
on
educational matters,
on a
province
by
province basis, reflecting
the
differ-
ent
approaches
of the
provinces
to
denominational
and
other religious
school
funding.
Subsequently,
the
chapter will address other religion
and
education issues, most
of
which
flow
from
the
constitutional entrench-
ment
of
denominational school rights.
The
general principles
of
constitu-
tional interpretation discussed previously
are
equally applicable here.
Thus,
the
provisions have been interpreted strictly
by the
courts,
as
appli-
cable
only
to
such denominational schools
and
denominational subjects
as
existed
by law or
custom
at the
time
of the
province's entry into Con-
federation.
Legislation prejudicially
affecting
such rights
has
been
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
Ontario
and
of
Protestant
and
Roman Catholic schools
in
Quebec
has
been said,
by
the
Supreme Court
of
Canada,
to
constitute
the
original 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
6
Provincial educational regulations must
be
consulted
on a
province
by
province
basis
to be
determined precisely.
7
Above
chapter
4,
section
D(3)(a).
8 The
order
of
provinces
in
this section will
follow
the
chronological order
in
which they became part
of
Canada.
9
Reference
Re
Bill
30, or An Act to
Amend
the
(Ontario),
1148.
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