Yellowknife Public Denominational District Education Authority et al. v. Euchner, (2008) 446 A.R. 221 (NWTCA)

• Judge: Fraser, C.J.A., Conrad and O'Brien, JJ.A.
• Court: Court of Appeal (Northwest Territories)
• Case Date: April 22, 2008
• Jurisdiction: Northwest Territories
• Citations: (2008), 446 A.R. 221 (NWTCA)

Yellowknife Education v. Euchner (2008), 446 A.R. 221 (NWTCA);

      442 W.A.C. 221

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JA.083

Yellowknife Public Denominational District Education Authority and Kern von Hagen (appellants) v. Debbie Euchner, in Her Capacity under the Local Authorities Elections Act, R.S.N.W.T. 1988, c. L-10 as Returning Officer of Yellowknife Public Denominational District Education Authority (respondent) and Alberta Catholic School Trustees' Association and Saskatchewan Catholic School Boards Association Inc. (intervenors)

(A-1-AP2007000017; A-1-AP2007000014; 2008 NWTCA 13)

Indexed As: Yellowknife Public Denominational District Education Authority et al. v. Euchner

Northwest Territories Court of Appeal

Fraser, C.J.A., Conrad and O'Brien, JJ.A.

December 18, 2008.

Summary:

The applicants applied for judicial review of a decision of a returning officer who supervised the election of trustees to a Yellowknife school board, and, in particular, the returning officer's decision on the eligibility of two candidates to stand for election. In addition to the proper interpretation of certain provisions of the Education Act and the Local Authorities Elections Act, the application raised larger issues, e.g., whether the rights of minority Catholic and Protestant ratepayers to establish separate schools were constitutionally entrenched in the Northwest Territories, and whether s. 16(n) of the Northwest Territories Act was invalid federal legislation contrary to the Canadian Bill of Rights and the Charter of Rights and Freedoms.

The Northwest Territories Supreme Court, in a decision reported at [2007] Northwest Terr. Cases 15, dismissed the application. The court held that constitutional protection applied unevenly in Canada and that statutory rights to denominational education in the Northwest Territories had not been made permanent, or constitutionally enshrined, by any constitutional document because the Northwest Territories Act did not form a part of the Constitution of Canada. Although there was no constitutional right to denominational education, the court held that there was a statutory right pursuant to the Education Act, for minority Catholic or Protestant taxpayers to petition the government to establish a separate school system in their municipality. The court refused to read into the legislation a requirement that trustees in a Catholic school board be of Roman Catholic faith. Rather, it held that the legislation only required that the trustee be a "supporter" of the separate school system. The court further held that the absence of any such requirement in the legislation was by design and not mere omission. The applicants appealed. The Alberta Catholic School Trustees' Association (Alberta applicant), Saskatchewan Catholic School Boards Association Inc. (Saskatchewan applicant), Canadian Catholic School Trustees' Association (Canadian applicant) and Ontario Catholic School Trustees' Association (Ontario applicant), each sought leave to intervene on the appeal.

The Northwest Territories Court of Appeal, in a decision reported at 425 A.R. 254; 418 W.A.C. 254, dismissed the Canadian and Ontario applicants' application. Leave was granted to the Alberta and Saskatchewan applicants to intervene on the following terms: "1. Each Intervener may make a written submission, not exceeding 20 pages, dealing only with the constitutional and Charter issues raised by the appellants in the appeal, as set out in para. 11 above, which written submissions will be filed and served upon the respondent not later than the end of Friday, February 29, 2008. 2. If the respondent desires, the Attorney General may file and serve on her behalf a written reply to the submissions of the Interveners, such reply not to exceed 20 pages and to be filed and served not later than the end of Friday, March 28, 2008. 3. The panel hearing the appeal will determine whether or not it will grant oral argument by the Interveners, and if so, any time limits for the oral arguments so allowed. 4. The Interveners will bear their own costs of their applications and interventions."

The Northwest Territories Court of Appeal dismissed the appeal.

Constitutional Law - Topic 2507.1

Determination of validity of statutes or acts - General principles - Reading in - [See third and fourth Education - Topic 931 ].

Constitutional Law - Topic 9550.1

Education - Separate or denominational schools - Northwest Territories - At issue in this appeal was whether, inter alia, denominational school rights were constitutionally entrenched in the Northwest Territories (NWT) - The appellants asserted that school boards were political institutions - The appellants relied on the Address to Her Majesty the Queen from the Senate and House of Commons of the Dominion of Canada (the 1867 Address) and the Rupert's Land and North-Western Territory Order (the 1870 Order), uniting both territories with Canada - The Northwest Territories Court of Appeal held that denominational school rights were not entrenched in the NWT - The reference to analogous political institutions in the 1870 Order was not a covenant - While a school board was a form of municipal institution, municipal institutions could take many forms - In the NWT, it was the federal government which had the plenary power over education - It delegated that power to a specified legislative body and that body in turn chose, through various ordinances, to delegate certain powers to school boards in the NWT - But it did not follow that either the federal or the territorial government was required from the time that the NWT joined Canada to organize the delivery of education through school boards - To find that Canada's Parliament intended to constrain its plenary jurisdiction and supremacy, or that the imperial Parliament intended to fetter the Canadian Parliament's legislative power would require a very clear legislative pronouncement to this effect in the 1867 Address or the 1870 Order - It was not there - The extremely loose and general language of these documents could not be stretched to include details of municipal government such as entrenched denominational school rights - Put simply, the text of the 1870 Order did not make the representations or statements set out in the first part of the 1867 Address part of the terms and conditions of the transfer of the NWT to Canada - This ought not to be done through expansive judicial interpretation some 138 years later - See paragraphs 65 to 78.

Constitutional Law - Topic 9550.1

Education - Separate or denominational schools - Northwest Territories - At issue in this appeal was whether, inter alia, denominational school rights were constitutionally entrenched in the Northwest Territories (NWT) - The Northwest Territories Court of Appeal held that they were not - The textual wording of the Rupert's Land and North-Western Territory Order (the 1870 Order), uniting both territories with Canada, did not support entrenchment - There was no doubt that had Parliament intended to entrench denominational school rights, it knew how to do so - Denominational school rights were an acutely sensitive subject in those days and had a guarantee of them been intended in the NWT, it would have been done in clear and explicit language - In view of the fact that the 1870 Order and the Manitoba Act (which guaranteed denominational school rights in Manitoba) were contemporaneous, the absence of explicit language of entrenchment of denominational school rights in the 1870 Order militated strongly against construing it as entrenching such rights - Denominational school rights were not even mentioned in the 1870 Order - Therefore, the text of the 1870 Order fell short of meeting the constitutional mark - Neither the Imperial Parliament nor Canada's Parliament could have intended to entrench as a right in the 1870 Order something neither they, nor her Majesty, chose to include as a subject matter therein - See paragraphs 79 to 81.

Constitutional Law - Topic 9550.1

Education - Separate or denominational schools - Northwest Territories - At issue in this appeal was whether, inter alia, denominational school rights were constitutionally entrenched in the Northwest Territories (NWT) - The Northwest Territories Court of Appeal held that they were not - The North-West Territories Act (1875) (1875 NWT Act) did not entrench denominational school rights nor make them quasi-constitutional - Neither the 1875 NWT Act nor any later version of this Act was expressly referred to in the Schedule to the Constitution Act, 1982 - Parliament could have included the 1875 NWT Act as part of the Canadian Constitution in the same way it made the Alberta Act and the Saskatchewan Act part of the Constitution - It did not - Further, neither the 1875 NWT Act nor any successor legislation included anything resembling a primacy clause - Therefore, the denominational school provisions contained in the NWT Act could not be considered quasi-constitutional in nature - In any event, even where legislation was quasi-constitutional in nature, Parliament or the relevant provincial legislature still retained the authority to amend or even abolish that legislation from time to time as it saw fit without the need for a constitutional amendment - See paragraphs 82 to 88.

Constitutional Law - Topic 9550.1

Education - Separate or denominational schools - Northwest Territories - At issue in this appeal was whether, inter alia, denominational school rights were constitutionally entrenched in the Northwest Territories (NWT) - The Northwest Territories Court of Appeal held that they were not - The historical evolution of the Northwest Territories Education Ordinances contradicted the intention to entrench rights - A review of the evolution of denominational school education in the NWT disclosed a pattern of legislative changes that also undermined any suggestion that denominational school rights were intended to be constitutionally entrenched - The fact that it was acknowledged that Parliament's delegate had the right to pass the various education ordinances, and thereby restrict the scope of denominational education in the NWT, was inconsistent with the proposition that denominational school rights were entrenched in the NWT - Finally, the history of the evolution of the denominational school rights in Alberta and Saskatchewan contradicted the assertion that these rights were entrenched in the NWT prior to the creation of Alberta and Saskatchewan - See paragraphs 89 to 96.

Constitutional Law - Topic 9550.1

Education - Separate or denominational schools - Northwest Territories - At issue in this appeal was whether, inter alia, denominational school rights were constitutionally entrenched in the Northwest Territories (NWT) - The Northwest Territories Court of Appeal held that they were not - The unascertainable nature of claimed rights and Charter values militated against entrenchment - For rights to be entrenched, they had to first be ascertainable - One of the critical flaws in the appellants' argument was that at the time of Confederation, the founding provinces treated denominational school education differently - The Constitution Act, 1867 protected denominational school rights or privileges to the extent that they were protected "by Law in the Province at the Union" (s. 93(1)) - However, while publicly funded minority education rights were guaranteed by law in Canada West (Ontario) prior to Confederation and similar guarantees were put in place in Quebec at the time of Confederation, denominational school rights were not protected by law in the other founding provinces, namely New Brunswick and Nova Scotia - The fact that nowhere was there any indication of an intention to install in the NWT a school regime analogous to a particular province weighed heavily against entrenchment - See paragraphs 97 to 103.

Education - Topic 931

Education authorities - Internal affairs of commissions or boards - Election of officers - Candidates - Qualifications - The applicants applied for judicial review of a decision of a returning officer who supervised the election of trustees to a Yellowknife school board, and, in particular, the returning officer's decision on the eligibility of two candidates to stand for election - At issue was whether, inter alia, a non-Roman Catholic was eligible for election to a separate school board established by Roman Catholics in the Northwest Territories (NWT) - The applicants asserted that the residency requirement set out in s. 18(1)(d) of the Local Authorities Elections Act had to be interpreted as having both a geographic and religious dimension - The Northwest Territories Court of Appeal rejected the assertion and held that the NWT legislation (the Education Act and the Local Authorities Elections Act) did not require that trustees be Catholic - Firstly, s. 21 of the Local Authorities Elections Act determined residency for the purposes of that Act in terms of the geographical location in which a person resided - There was no religious aspect to residency - Secondly, s. 18(1)(d) was aimed at ensuring that there was residency, within the meaning of s. 21, on the actual date that nominations close as distinct from the general 12 month period prior thereto - See paragraphs 107 to 110.

Education - Topic 931

Education authorities - Internal affairs of commissions or boards - Election of officers - Candidates - Qualifications - The applicants applied for judicial review of a decision of a returning officer who supervised the election of trustees to a Yellowknife school board, and, in particular, the returning officer's decision on the eligibility of two candidates to stand for election - At issue was whether, inter alia, a non-Roman Catholic was eligible for election to a separate school board established by Roman Catholics in the Northwest Territories (NWT) - The applicants asserted that the residency requirement set out in s. 18(1)(d) of the Local Authorities Elections Act had to be interpreted as having both a geographic and religious dimension - The Northwest Territories Court of Appeal rejected the assertion and held that the NWT legislation (the Education Act and the Local Authorities Elections Act) did not require that trustees be Catholic - The evolution of the legislation indicated that the Legislature's decision not to include a specific religious qualification was deliberate - Since the Legislature had clearly prescribed a religious eligibility requirement for one purpose, that is who was eligible to petition for the setting up of a public denominational education district, it could not be taken to have intended a religious requirement for different purposes when none was stated - Nothing in the current legislation expressly limited those running for trustee of a Catholic public denominational school board to Catholics only - Further, the fact that the legislation did not restrict candidates for trustees of public denominational school boards to persons of the Catholic faith was consistent with the NWT Legislature's decisions, as reflected in the Education Act, to allow parents of students, no matter their religion, to: (a) send their children to public denominational schools; (b) "support" a public denominational education district; (c) direct their funding to a public denominational education district; and (d) vote for trustees of a public denominational school board - See paragraphs 107 and 111 to 116.

Education - Topic 931

Education authorities - Internal affairs of commissions or boards - Election of officers - Candidates - Qualifications - The applicants applied for judicial review of a decision of a returning officer who supervised the election of trustees to a Yellowknife school board, and, in particular, the returning officer's decision on the eligibility of two candidates to stand for election - At issue was whether, inter alia, a non-Roman Catholic was eligible for election to a separate school board established by Roman Catholics in the Northwest Territories (NWT) - The applicants asserted that although the Local Authorities Elections Act (LAEA) did not include religious criteria for eligibility to run for office of the school board trustee, such a requirement should be read into the LAEA - The Northwest Territories Court of Appeal rejected the assertion - Reading in was tantamount to a constitutional challenge - At no time had the applicants suggested that the NWT Legislature was acting beyond its delegated authority in enacting the Education Act or the LAEA, or that either statute was otherwise unconstitutional - Nevertheless, they submitted that s. 16(n) of the North-West Territories Act (1875) entitled Catholics to exclusive management and control of Catholic separate schools - Thus, the territorial legislation should be revised by reading in a religious requirement for those running for trustee of Catholic public denominational school boards so that the territorial legislation conforms with the federal NWT Act - This amounted to a challenge to the constitutionality of the territorial legislation which the applicants had chosen not to make - See paragraph 121.

Education - Topic 931

Education authorities - Internal affairs of commissions or boards - Election of officers - Candidates - Qualifications - The applicants applied for judicial review of a decision of a returning officer who supervised the election of trustees to a Yellowknife school board, and, in particular, the returning officer's decision on the eligibility of two candidates to stand for election - At issue was whether, inter alia, a non-Roman Catholic was eligible for election to a separate school board established by Roman Catholics in the Northwest Territories (NWT) - The applicants asserted that although the Local Authorities Elections Act (LAEA) did not include religious criteria for eligibility to run for office of the school board trustee, such a requirement should be read into the LAEA - The Northwest Territories Court of Appeal rejected the assertion - The legislation should be interpreted in accordance with Charter values and legislative choices - The NWT Legislature had elected to make certain policy decisions and legislative choices relating to denominational school rights against the backdrop of the Charter and the present demographic make-up of the NWT - Courts should be circumspect in interpreting the scope of denominational school rights since they date from a time in Canadian history when the only two religions of concern politically were the Catholic and Protestant ones - Times changed and publicly funded social and educational policies and programs set by duly elected legislators should be capable of responding to those changes within, of course, constitutional limitations - As a matter of interpretation, the Court had no warrant to override the plain meaning of the words of the territorial legislation and read in a qualification that was not contained therein - See paragraphs 122 to 131.

Education - Topic 931

Education authorities - Internal affairs of commissions or boards - Election of officers - Candidates - Qualifications - The applicants applied for judicial review of a decision of a returning officer who supervised the election of trustees to a Yellowknife school board, and, in particular, the returning officer's decision on the eligibility of two candidates to stand for election - At issue was whether, inter alia, a non-Roman Catholic was eligible for election to a separate school board established by Roman Catholics in the Northwest Territories (NWT) - The applicants asserted that although the Local Authorities Elections Act (LAEA) did not include religious criteria for eligibility to run for office of the school board trustee, such a requirement should be read into the LAEA - The Northwest Territories Court of Appeal rejected the assertion - Inclusive interpretation was consistent with democratic principles and good governance - Preventing non-Catholics who had chosen to support a Catholic public denominational education district from having any say in who would administer the schools in that district would be inconsistent with democratic good governance principles - Institutional transparency and accountability were aspects of democratic government - The democratic choice of who to elect as trustees belonged to the voters who supported the public denominational education district and no one else and they were entitled to a full choice - In addition, excluding trustees who were not Catholic but who were committed to supporting a Catholic public denominational education district, would mean that non-Catholic parents and ratepayers who were supporters of that education district would have no right to representation on its school board even though they were contributing to its funding - Nor would those "supporters" of a Catholic public denominational education district have any real opportunity to be heard by the school board - This would be inconsistent with democratic principles and accountability - See paragraphs 132 and 133.

Education - Topic 931

Education authorities - Internal affairs of commissions or boards - Election of officers - Candidates - Qualifications - The applicants applied for judicial review of a decision of a returning officer who supervised the election of trustees to a Yellowknife school board, and, in particular, the returning officer's decision on the eligibility of two candidates to stand for election - At issue was whether, inter alia, a non-Roman Catholic was eligible for election to a separate school board established by Roman Catholics in the Northwest Territories (NWT) - The applicants asserted that although the Local Authorities Elections Act (LAEA) did not include religious criteria for eligibility to run for office of the school board trustee, such a requirement should be read into the LAEA - The Northwest Territories Court of Appeal rejected the assertion - Public funding was linked to acceptance of conditions prescribed by the NWT Legislature - It was inconsistent to contend for religious exclusiveness of public denominational school board trustees given the public funding of public denominational education districts and the religious diversity of the population and supporters of those districts - The NWT Legislature had not placed any religious requirement on candidates for public denominational schools boards - That legislative choice should not be contradicted by the courts in circumstances in which non-Catholic children were statutorily permitted to attend publicly funded Catholic public denominational schools in the NWT - See paragraphs 134 to 137.

Education - Topic 931

Education authorities - Internal affairs of commissions or boards - Election of officers - Candidates - Qualifications - The applicants applied for judicial review of a decision of a returning officer who supervised the election of trustees to a Yellowknife school board, and, in particular, the returning officer's decision on the eligibility of two candidates to stand for election - At issue was whether, inter alia, a non-Roman Catholic was eligible for election to a separate school board established by Roman Catholics in the Northwest Territories (NWT) - The applicants asserted that although the Local Authorities Elections Act (LAEA) did not include religious criteria for eligibility to run for office of the school board trustee, such a requirement should be read into the LAEA - The Northwest Territories Court of Appeal rejected the assertion - The court reviewed the historical record and held that "the right to establish denominational schools in the NWT has never included management and control over those schools and the education provided therein to the degree advocated by the appellants. Rather, the right to establish denominational schools, as granted by s. 16(n) of the [North-West Territories Act (1985)], including predecessor provisions, has been subject to limitation both as to the time and manner of religious instruction. This does not make the right to establish such schools 'hollow'. At this time, the right continues to exist, but the purpose for the existence of the right, namely its religious instruction component, is limited in scope in the NWT - and always has been. Since denominational school rights are not entrenched in the NWT, it falls within the jurisdiction of the NWT Legislature, as Parliament's delegate, to determine the scope of religious instruction in public denominational schools in the NWT. In this regard, the NWT Legislature has determined that whatever religious instruction is provided shall be provided in a manner that is 'respectful of the spiritual or religious values of all the students.'" - See paragraphs 138 to 152.

Education - Topic 2607

Schools - Denominational schools - Rights and privileges of - [See all Constitutional Law - Topic 9550.1 and all Education - Topic 931 ].

Education - Topic 8003

Separate schools - General - Protected rights - [See all Constitutional Law - Topic 9550.1 and all Education - Topic 931 ].

Cases Noticed:

Ontario English Catholic Teachers' Association et al. v. Ontario (Attorney General) et al., [2001] 1 S.C.R. 470; 267 N.R. 10; 144 O.A.C. 1, refd to. [para. 2].

Adler et al. v. Ontario et al., [1996] 3 S.C.R. 609; 204 N.R. 81; 95 O.A.C. 1, refd to. [para. 2].

Protestant School Board of Greater Montreal v. Quebec (Procureur général) et al., [1989] 1 S.C.R. 377; 92 N.R. 327; 20 Q.A.C. 241, refd to. [para. 2].

Reference Re Education Act (Que.) - see Renvoi relatif à la Loi sur l'instruction publique, L.Q. 1988, c. 84.

Renvoi relatif à la Loi sur l'instruction publique, L.Q. 1988, c. 84, [1993] 2 S.C.R. 511; 154 N.R. 1; 56 Q.A.C. 1, refd to. [para. 2].

Reference Re Bill 30, An Act to Amend the Education Act (Ont.) - see Reference Re Roman Catholic Separate High Schools Funding.

Reference Re Roman Catholic Separate High Schools Funding, [1987] 1 S.C.R. 1148; 77 N.R. 241; 22 O.A.C. 321, refd to. [para. 26, footnote 11].

Hodge v. R. (1883), 9 App. Cas. 117 (P.C.), refd to. [para. 38, footnote 11].

Gray, Re (1918), 57 S.C.R. 150, refd to. [para. 26, footnote 11].

Resolution to Amend the Constitution, Re - see Constitutional Amendment References 1981 (Man., Nfld., Que.).

Constitutional Amendment References 1981 (Man., Nfld., Que.), [1981] 1 S.C.R. 753; 39 N.R. 1; 11 Man.R.(2d) 1; 34 Nfld. & P.E.I.R. 1; 95 A.P.R. 1, refd to. [para. 50, footnote 17].

Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1; 206 A.R. 1; 156 W.A.C. 1; 121 Man.R.(2d) 1; 158 W.A.C. 1; 156 Nfld. & P.E.I.R. 1; 483 A.P.R. 1, refd to. [para. 60].

Edwards v. Canada (Attorney General), [1930] A.C. 124 (P.C.), refd to. [para. 62].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 62].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 62].

Reference Re Same-Sex Marriage, [2004] 3 S.C.R. 698; 328 N.R. 1, refd to. [para. 62].

Reference Re Public Service Employee Relations Act (Alta.) - see Reference Re Compulsory Arbitration.

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1, refd to. [para. 63].

Public School Boards Association (Alta.) et al. v. Alberta (Attorney General) et al., [2000] 2 S.C.R. 409; 260 N.R. 127; 266 A.R. 201; 228 W.A.C. 201, refd to. [para. 66].

R. v. Mercure - see Mercure v. Saskatchewan.

Mercure v. Saskatchewan, [1988] 1 S.C.R. 234; 83 N.R. 81; 65 Sask.R. 1, refd to. [para. 79].

Resolution to Amend the Constitution, Re - see Constitutional Amendment References 1981 (Man., Nfld., Que.).

Constitutional Amendment References 1981 (Man., Nfld., Que.), [1981] 1 S.C.R. 753; 39 N.R. 1; 11 Man.R.(2d) 1; 34 Nfld. & P.E.I.R. 1; 95 A.P.R. 1, refd to. [para. 83].

Skapinker v. Law Society of Upper Canada, [1984] 1 S.C.R. 357; 53 N.R. 169; 3 O.A.C. 321, refd to. [para. 85, footnote 29].

R. v. Beaulac (J.V.), [1999] 1 S.C.R. 768; 238 N.R. 131; 121 B.C.A.C. 227; 198 W.A.C. 227, refd to. [para. 85].

Commission des droits de la personne et des droits de la jeunesse (Qué.) v. Montréal (Communauté urbaine), [2004] 1 S.C.R. 789; 319 N.R. 379, refd to. [para. 85].

Tranchemontagne v. Disability Support Program (Ont.) et al., [2006] 1 S.C.R. 513; 347 N.R. 144; 210 O.A.C. 267, refd to. [para. 85].

Winnipeg (City) v. Barrett, [1892] A.C. 445 (P.C.), refd to. [para. 93].

Brophy v. Manitoba (Attorney General), [1895] A.C. 202 (P.C.), refd to. [para. 94].

Tiny Separate School Trustees v. R., [1927] S.C.R. 637, refd to. [para. 118].

Caldwell v. Stuart - see Caldwell v. Catholic Schools of Vancouver Archdiocese.

Caldwell v. Catholic Schools of Vancouver Archdiocese, [1984] 2 S.C.R. 603; 56 N.R. 83, refd to. [para. 119].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25, refd to. [para. 123].

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 123].

Statutes Noticed:

Local Authorities Elections Act, R.S.N.W.T. 1988, c. L-10, s. 18(1)(d) [para. 108].

Authors and Works Noticed:

Aitchison, J.H., The Political Process in Canada (1963), p. 140 [para. 35, footnote 8].

Bauman, Richard W., and Schneiderman, David, The Constitutional Context of Religious Practices in Saskatchewan Public Schools: God Was in the Details (1996), 60 Sask. L. Rev. 265, generally [para. 3, footnote 2]; p. 271 [para. 49, footnote 16].

Brent, Audrey S., The Right to Religious Education and the Constitutional Status of Denominational Schools (1975-76), 40 Sask. L. Rev. 239, generally [para. 3, footnote 2].

Canada, Hansard, Legislative Assembly Debates, Official Report of the Debates of the House of Commons of the Dominion of Canada (March 22, 1905), vol. 70, p. 3301 [para. 149, footnote 39].

Canada, Hansard, Legislative Assembly Debates, Official Report of the Debates of the House of Commons of the Dominion of Canada (March 24, 1905), vol. 70, pp. 3103 [para. 146, footnote 36]; 3107 [para. 147, footnote 37].

Canada, Hansard, Legislative Assembly Debates, Official Report of the Debates of the House of Commons of the Dominion of Canada (June 29, 1905), vol. 73, p. 8497 [para. 148, footnote 38].

Canada, Hansard, Legislative Assembly Debates, Official Report of the Debates of the House of Commons of the Dominion of Canada (July 5, 1905), vol. 73, p. 8810 [para. 59, footnote 22].

Canada, Parliament, Address to Her Majesty the Queen from the Senate and House of Commons of the Dominion of Canada (December 16 and 17, 1867), generally [para. 30, footnote 5].

Creighton, Donald, John A. MacDonald: The Old Chieftain (1955), pp. 34, 35 [para. 30, footnote 5].

Driedger - see Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes.

Hall, D.J., A Divergence of Principle: Clifford Sifton, Sir Wilfrid Laurier and the North-West Autonomy Bills, 1905 (1974), 7 Laurentian U. Rev. 3, generally [para. 3, footnote 2].

Hansard (Can.) - see Canada, Hansard, Legislative Assembly Debates.

Hogg, Peter W., Constitutional Law of Canada (5th Ed. 2007) (Looseleaf), pp. 1-11 [para. 79, footnote 24]; 2-8 to 2-12 [para. 22, footnote 3]; 2-17 to 2-18 [para. 79, footnote 24]; 4-1 to 4-4 [para. 83, footnotes 25, 26]; 5-19 [para. 50, footnote 17]; 5-21, 5-22 [para. 26, footnote 4]; 14-4 [para. 38, footnote 11].

Lingard, C. Cecil, Territorial Government in Canada: The Autonomy Question in the Old North-West Territories (1946), pp. 152 to 198 [para. 3, footnote 2].

Lupul, Manoly R., The Roman Catholic Church and the North-West School Question: a study in church-state relations in western Canada, 1875-1905 (1974), generally [paras. 3, 42, footnotes 2, 12]; pp. 17 to 20 [para. 47, footnote 14]; 22 [para. 47]; 61 [para. 49, footnote 15]; 66 [para. 99]; 187 [para. 145, footnote 35].

Monahan, Patrick J., Constitutional Law (3rd Ed. 2006), pp. 153 to 175 [para. 83, footnote 26]; 162, 163, 164 [para. 83, footnote 25].

Robertson, R.G., The Evolution of Territorial Government in Canada, in Aitchison, J.H., The Political Process in Canada (1963), p. 140 [para. 35, footnote 8].

Sissons, C.B., Church & State in Canadian Education: An Historical Study (1959), generally [para. 3, footnote 2].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 367 [para. 60]; 368 [para. 124, footnote 32].

Thomas, L.G., The Liberal Party in Alberta: A History of Politics in Alberta 1905-1921 (1959), pp. 8, 9 [para. 3, footnote 2].

Tremblay, Luc B., The Rule of Law, Justice and Interpretation (1997), p. 88 [para. 85].

Counsel:

K.P. Feehan, Q.C., and T.W. Wakeling, Q.C., for the appellants and Alberta Catholic School Trustees' Association (intervenor);

M. Goldney, for the respondent;

J. Beckman, for the Saskatchewan Catholic School Boards Association Inc. (intervenor).

This appeal was heard on April 22, 2008, by Fraser, C.J.A., Conrad and O'Brien, JJ.A., of the Northwest Territories Court of Appeal. The following reasons for judgment of the Court of Appeal were delivered on December 18, 2008.