The Legal and Administrative Framework of Education in Canada

AuthorFrank Peters
The Legal and Administrative
Framework of Education in Canada
Frank Peters
In attempting to describe or outl ine the basis for the legal and adminis-
trative str uctures t hat govern education in Canada today, one might be
tempted to go back to sec tion 93 of the Constitution Act, 18671 and poss ibly
even stop there. Ther e is a sense in which every thing that we have today
is based on the element s contained in that sect ion, the wording of which
is produced below:
93. In and for eac h Province the Leg islature may exclu sively make Laws
in relation to E ducation, subje ct and accordi ng to the follow ing Prov isions:
(1) Nothing i n any such Law shal l prejudicial ly aect any Rig ht or Priv-
ilege with re spect to Denom inationa l Schools which a ny Class of
Persons have by L aw in the Provinc e at the Union:
(2) All the Powers, P rivileges, a nd Duties at the Un ion by Law conferred
and imposed i n Upper Canada on the Sepa rate Schools and School
Trustees of the Q ueen’s Roman Catholic Subje cts shal l be and the
same are hereb y extended to the Di ssentient Schools of t he Queen’s
Protesta nt and Roman Cathol ic Subjects in Québec.
The Preamble to t his section sets the overa ll context for education in
this count ry: the provinces a re god and can exclusive ly make the laws th at
will govern education within their borders. W hile there may be limita-
tions on the speci cs of the laws they pass in relat ion to denominational
1 (UK), 30 & 31 Vict, c 3, re printed in RSC 1985, Ap p II, No 5. Section s 93(3) and (4)
outline t he procedures for appe als relati ng to conicts re garding und erstand-
ings of s 93(1) or (2).
20 / Frank Peters
education, no other jurisdiction can legislate in this domai n — only the
provinces can. A nd this jurisdic tion is in relation to education in t he full
sense of the word, not li mited to primary, secondary, or post-secondary;
not conned only to educat ional institut ions that receive public fund ing;
not limited only to secular i nstitutions, but applied to education in the
broadest sense i n which we can conceive of it, even to what we refer to as
“home-schooling ” or “home education.”
However, to start f rom the legislative posit ion accepted in 1867 would
be to ignore the historical str uggles, in itiatives, and compromises, both
social and p olitical, that have emer ged over the centuries as Eur opean set-
tlers fought over a nd settled this pa rt of North America. Cow an warns:
We have been too prone to th ink that whe n emigrants arrived . . . by
some subtle proces s they became Canadia n at the moment of arrival
and that here Canadia n history must begin . . . . To study the essenti al
charact eristics of Canad ian life, one must fol low the spreading colon ial
branches back t o their root stock .2
While the se comments are related spec ically to emigra tion from Britain
and other English-speaking countries, t hey are equally applicable to all
Our educationa l structure s are shaped by the laws th at regulate them.
The Preamble to the Constitution Act, 19823 states, “Whereas Canada is
founded upon principles t hat recognize the suprem acy of God and the rule
of law . . . .” Thi s forms the under pinning of how t he Constitution as a w hole
must be understo od and interpreted. We may not be clear jus t where God
ts into our del iberations, but we are stil l committed to the idea th at pub-
lic life should b e conducted in accordance wit h laws that have been pa ssed
in this cou ntry and the inter pretations that t he courts have provided.
The dierent ac tors in the educ ational enter prise beh ave in accordance
with the powers and responsibil ities given to them by the legislat ures of
their provi nces. These laws may be normative as we ll as regulatory. They
will, at t imes, attempt to ensu re the values that the mem bers of the public
subscribe to a re transmit ted to the youth of today, whether thes e values be
of a moral or a social n ature or relate to specic k nowledge and skills t hat
2 Helen I Cowan, “Briti sh Emigration t o British Nort h America” in Wil liam B
Hamilt on, The Briti sh Heritage (Toronto: Univer sity of Toronto Press, 1970) at 10;
Donald J Wil son, Robert M Sta mp, & Louis-Philip pe Audet, Canadian Education:
A History (Scarborou gh, ON: Prentice-Ha ll, 1970).
3 Being Schedule B to t he Canada Act 1982 (UK), 1982, c 11.
The Legal and Administrative Framework of Education in Canada / 21
the government de ems are essential for the deve lopment of the common
good. The question of wh ich values and which knowle dge should be given
a more privileged posit ion in the curricu la of the schools and post-second-
ary in stitutions is alw ays a matter of contestation , but from a constitution-
al perspec tive, the provincia l governments have the la st word. It would be
inappropriate to go muc h further wit hout mentioning another li mitation
on provincia l action in relation to educat ion, namely, the Canadian Char ter
of Rights and Freedoms, adopted in 1982.4 Arising out of widespread con-
cern that bot h the internationa l community and i ndividual states nee ded
to adopt safeguards to protect the rights of individual huma n beings in
the face of specic legislation that might be approved in a ny particular
jurisdiction, the United Nations adopted its Universal Declaration of Hu-
man Rights in 1948. The Government of Can ada approved its Bill of Rights
in 1960, but this gra nted individuals protec tion only in relation to federa l
legislation an d action. The Charter of Rights was fa r-reaching in s cope and
broader in its reach t han any previous legi slation. Specically,
32. (1) This Char ter applies
(a) to the Parli ament and government of Can ada in respect of all m at-
ters with in the authority of Parl iament including a ll matters relat-
ing to the Yukon Terri tory and Northwes t Territories; and
(b) to the leg islature and gov ernment of each provi nce in respect of al l
matters w ithin the auth ority of the legisl ature of each prov ince.
As it is part of the Constitution of Canada, the C harter clearly con-
strain s the provincia l governments in d rawing up legislat ion. In a number
of rulin gs, the courts have also st ated that the Charter ca n apply to many,
if not all, ac tions of school boards and of teachers , as education is clearly
an area within the authority and control of each province. Althoug h the
Constitution Act , 1867 is the most obvious foundat ion for the legal and ad-
ministrative frameworks of education in Canada, it is still necessary to
identify, ins ofar as we can, the bas is on which the precise element s of that
legislation were fou nded. While Canadi an communities and those i n the
other colonies in what is today Canada were working out a satisfactory
modus vivendi between dierent traditions, cultures, and religions, they
were also grappling with the emerging understandings that societ y, in
general, was placing on schooling a nd education, and the more liberal,
democratic under standings of how societ y should function.
4 Part I of the Constitution Act, 1982, being Schedu le B to the Canada Act 1982 ( UK),
1982, c 11 [Charter].

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