Education

• Author: M.H. Ogilvie
• Pages: 324-364

324

CHAP TER 10

EDUCATION

A. I NTRODUC TION

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

for religious institutions and believers; all rel igions are only ever one

generation away from oblivion and the education of the next generation

in the beliefs and habits of fait h is necessar y to ensure the surv ival 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 aspect s of education are contested in law: the right to

educate in a religious school; public funding for religious educ ation; re-

ligious instr uction; 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 education and the se cases have dealt with signi f‌icant

freedom of religion, freedom of expression, and equality rights i ssues.

Since education is almost entirely a provi ncial matter in Can ada, the

focus for much of th is chapter will b e on individual provinces in rel a-

tion to establishment, funding, and curriculum issue s; however, since

Charter juris prudence applies throughout the country the text will

adopt a nationa l rather th an provincial approach where appropr iate.

Education 325

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 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 in Ont ario; (iii) a Protestant

or Roman Catholic “minority” has a r ight of appeal to the Governor

General in Council from any decision affecting any r ight 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 province s of Confeder-

ation, was extended to British Columbia and Pr ince Edward Island when

they joined Confederation,2 and in slightly different versions, was made

part of the terms on which Ma nitoba, Alberta, Sask atchewan, 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 A ct.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 t heir plenary educ ational p owers have d iffered 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 Brunswick, Br itish

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) fund s signif‌ic antly reduced denomina-

tional school rights, but most provinces also parti ally fund religious

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

jurisprude nce, see, generally, the literature listed i n chapter 4, note 157.

2 British Columb ia Terms of Union (Order in Cou ncil, 16 May 1871) and Prince

Edward Isla nd Terms of Union (Order in Counci l, 26 June 1873).

3Manitoba 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 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 A mendment, 1997 (Quebec), SI/97–141.

5 Constitution A mendment, 1998 (Newfoundland Act), SI /98– 25.

RELIGIOUS INSTITUTIONS AND THE LAW I N CA NADA326

schools generally pursuant to ordi nary provinci al legislation rather

than any constitutionally entrenched right.6

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

tional prov ision was discu ssed; in thi s chapter, emphasis wi ll be placed

on educationa l matters, on a province by prov ince basis, ref‌lecting the

different approaches of the provinces to denominational a nd other re-

ligious school funding. Subsequently, the chapter will address other

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

tional ent renchment of denominat ional school right s. The general prin-

ciples of constitutional interpretation discussed previously are equally

applicable here. Thus, the provisions have been interpreted st rictly by

the courts, as applicable only to such denominat ional 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 been found to be void, while legislat ion enhancing such

rights has been su stained.7

B. ROMA N CATHOLIC AND OTHER

DENOMI NAT IONA L SCHOOL S

1) Constitutional Protection

a) Que bec 8

The constitutional protection of Roman Catholic schools in Ontario and

of Protestant and Roman Catholic schools in Quebec h as been said, by

the Supreme Court of Canada, to constitute the orig inal 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 r ights protected by law and

that it was not possible to derogate from or otherwis e prejudicially affect

those rights.10 However, the constitutional amendment process intro-

6 Provincia l educational regulat ions must be consulted on a provinc e by province

basis to be deter mined precisely.

7 Above chapter 4, sect ion 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 Ame nd the Education Act (Ontario), [1987] 1

S.C.R. 1148.

10 In 1867, Quebec had common schools open to al l and separate or dissent ient

schools in both Mont real and Quebec City for Prote stants and Roman Cat h-

olics, whether or not they we re a minority or majority of t he population: Refer-

ence re Education Act (Quebec) (1993), 105 D.L.R. (4th) 266 (S.C.C.).