Religious Schools

AuthorRichard Moon
ProfessionFaculty of Law, University of Windsor
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
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].
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.”

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