Religious Schools

• Author: Richard Moon
• Profession: Faculty of Law, University of Windsor
• Pages: 161-176

161

CHA PTER 5

R ELIGIOUS SCHOOLS

A. INTRODUC TION

The courts have held that section 2(a) of the Charter1 prohibits state

support for the practices or institutions of a particular religion but does

not prevent the state from providing general support for religious practi-

ces or institutions. A province, then, may fund religious schools as long

as it does so in an even-handed way. Whether or not a province funds

religious schools, parents are understood to have the right to send their

children to such schools. The province retains the power to regulate

religious (and other) schools, establishing curriculum requirements and

instruction standards.2

B. SECTION 93 AND SEPARATE SCHOOLS

There is, however, a constitutional exception to the requirement of equal

treatment. Section 93 of the Constitution Act, 1867, as well as the Acts

establishing provinces that later entered the union, protect the rights of

“Separate” or “Dissentient” schools (principally Roman Catholic schools)

1 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, be-

ing Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

2 See, for example, the judgment of Iacobucci J in Adler v Ontario, [1996] 3 SCR

609 at para 15, and of Sopinka J in ibid at para 171 [Adler].

FREEDOM OF CONSCIENCE AND R ELIGION162

that existed in a province at the time of its entry into Confederation.3

The courts have described section 93 as “part of a solemn pact resulting

from the bargaining which made Confederation possible.”4 The opening

words of section 93 state that the provinces have exclusive legislative

jurisdiction in relation to education. The section, though, goes on to say

that the provinces may not “prejudicially affect any Right or Privilege

3 See the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App

II, No 5, s 93. See also the Saskatchewan Act, SC 1905, c 42, s 17, and the Alberta

Act, SC 1905, c 3, s 17. The constitutional terms under which each of the provinces

entered the union included a recognition of the rights of denominational schools;

however, the courts found that in many provinces the provision had no applica-

tion since at the time of their entry into the union, they had no legally established

denominational schools. While the provinces of Quebec and Newfoundland were

originally bound under the Constitution to provide support for denominational

schools, these obligations were ended (in the case of Quebec) or substantially

removed (in the case of Newfoundland) by constitutional amendment.

The full text of s 93 of the Constitution Act, 1867, ibid, is as follows:

93. In and for each Province the Legislature may exclusively make Laws in

relation to Education, subject and according to the following Provisions:

(1) Nothing in any such Law shall prejudicially affect any Right or Privilege

with respect to Denominational Schools which any Class of Persons have

by Law in the Province at the Union;

(2) All the Powers, Privileges, and Duties at the Union by Law conferred and

imposed in Upper Canada on the Separate Schools and School Trustees

of the Queen’s Roman Catholic Subjects shall be and the same are hereby

extended to the Dissentient Schools of the Queen’s Protestant and Roman

Catholic Subjects in Quebec;

(3) Where in any Province a System of Separate or Dissentient Schools exists

by Law at the Union or is thereafter established by the Legislature of the

Province, an Appeal shall lie to the Governor General in Council from any

Act or Decision of any Provincial Authority affecting any Right or Privil-

ege of the Protestant or Roman Catholic Minority of the Queen’s Subjects

in relation to Education;

(4) In case any such Provincial Law as from Time to Time seems to the

Governor General in Council requisite for the due Execution of the Provi-

sions of this Section is not made, or in case any Decision of the Governor

General in Council on any Appeal under this Section is not duly executed

by the proper Provincial Authority in that Behalf, then and in every such

Case, and as far only as the Circumstances of each Case require, the Par-

liament of Canada may make remedial Laws for the due Execution of the

Provisions of this Section and of any Decision of the Governor General in

Council under this Section.

4 Reference re Bill 30, An Act to Amend the Education Act (Ontario), [1987] 1 SCR

1148 at para 27, Wilson J [Reference re Bill 30]. See also Reference re Education Act

(Quebec), [1993] 2 SCR 511 at para 24, Gonthier J: “Section 93 is unanimously

recognized as the expression of a desire for political compromise. It served to

moderate religious conf‌licts which threatened the birth of the Union.”