Canada: Lobby group fights for religious neutrality in school system

[Digitonomy]

I am not deeply knowledgeable about Quebec matters. But my impression is that, at the time of Confederation, the situation in Quebec was a mirror image of that in Ontario.

And a dissentient school in Quebec would have been a Protestant school, because the majority population there was Catholic.

Hmmm… the wording of the Constitution seems to suggest that Dissentients in Quebec included both Catholics and Protestants

are hereby extended to the Dissentient Schools of the Queen’s Protestant and Roman Catholic Subjects in Quebec

Ani Ibi:

I’m not sure I understand the question. Can you clarify please?..No. Those rights accorded at the time of Constitution cannot be taken away. They can, it seems if we are to take Quebec and Newfoundland as examples, be given away by the holders of those rights.

I was surprised to find that provinces can unilaterally amend the Constitution - this is certainly not the case here in the US.
Wikipedia:

If a constitutional amendment only affects one province, however, only the assent of that province’s legislature is required. Eight of the ten amendments passed so far have been of this nature, with four passed by and for Newfoundland and Labrador, one passed for New Brunswick, one for Nunavut, one for Prince Edward Island, and one for Quebec. Some of the above did also require approval by the federal Parliament under section 43(b) due to the English and French nature of the amendment.

However, unless I’m missing something, I still can’t agree with your description of the process. You portray it as a very benign process, suggesting that the holders of rights under the Constitution can renounce them. But it’s appears from Section 93 that those who hold the rights are the Dissentient Schools, and that they are granted the rights described in subsections of 93 at the expense of provincial legislatures. The provinces in question are being restricted by 93, not granted additional rights.

What I am suggesting is that although in this case there was probably not vigorous opposition from the Dissentient Schools to the amendment which stripped away their rigths, there is nothing legally that requires the consent of those losing their rights. Imagine a situation where Ian Paisley-style Protestants become a majority in the Legislative Assembly of Ontario. They could enact exactly the same amendment as Quebec, stripping away the rights of Catholic schools in Ontario, in spite of vehement and nearly unanimous opposition by those previously protected by Section 93.

 

[Ani_Ibi]

Digitonomy:

Hmmm… the wording of the Constitution seems to suggest that Dissentients in Quebec included both Catholics and Protestants in Quebec.

As I said, I am not deeply knowledgeable about Quebec matters.

Here is a link to the Supreme Court decision on Bill 107:

, S.Q. 1988, c. 84In the matter of the reference re the Education Act

Digitonomy:

I was surprised to find that provinces can unilaterally amend the Constitution - this is certainly not the case here in the US.

… Wikipedia If a constitutional amendment only affects one province, however, only the assent of that province’s legislature is required. Eight of the ten amendments passed so far have been of this nature, with four passed by and for Newfoundland and Labrador, one passed for New Brunswick, one for Nunavut, one for Prince Edward Island, and one for Quebec. Some of the above did also require approval by the federal Parliament under section 43(b) due to the English and French nature of the amendment.

Wikipedia is not the best source to reference. Do you have a link to your quote so that I can get the context? Thank you.

Digitonomy:

However, unless I’m missing something, I still can’t agree with your description of the process.

You’ve missed something. The Constitution cannot be amended as concerns rights recognized before or at Constitution.

Digitonomy:

You portray it as a very benign process, suggesting that the holders of rights under the Constitution can renounce them. But it’s appears from Section 93 that those who hold the rights are the Dissentient Schools, and that they are granted the rights described in subsections of 93 at the expense of provincial legislatures. The provinces in question are being restricted by 93, not granted additional rights.

The holders of the rights did renounce them. I made no comment about whether or not that was benign.

Yes the provinces in question are restricted by 93 inasmuch as they cannot take away rights granted to citizens before or at Confederation.

I did not say that the provinces were granted additional rights. I said that the provinces can add rights for citizens, but that they cannot take away rights already accorded to citizens before or at Confederation.

This means, in theory, that the provinces have the authority to publicly fund Mormon schools, Hindu schools, Whirling Dirvish schools – whatever. Moreover, once having decided to publicly fund these kinds of schools, the provinces have the authority to rescind that decision. Why? Because those rights were not accorded before or at Confederation.

What the provinces do not have the authority and jurisdiction to do is to take away funding from Catholic schools in Ontario. Why? Because those rights were accorded before or at Confederation.

What I am suggesting is that although in this case there was probably not vigorous opposition from the Dissentient Schools to the amendment which stripped away their rigths, there is nothing legally that requires the consent of those losing their rights.

I agree. It is illogical and weird. And highly questionable and frankly open to challenge, imho.

Imagine a situation where Ian Paisley-style Protestants become a majority in the Legislative Assembly of Ontario. They could enact exactly the same amendment as Quebec, stripping away the rights of Catholic schools in Ontario, in spite of vehement and nearly unanimous opposition by those previously protected by Section 93.

Let’s read the SCC decision on Bill 107 and see what clarification comes up.

 

[Ani_Ibi]

I was surprised to find that provinces can unilaterally amend the Constitution - this is certainly not the case here in the US.

Here is the source document re the province’s powers to amend the Canadian Constitution:

The Constitution Act 1982

scroll down to:

PART V PROCEDURE FOR AMENDING CONSTITUTION OF CANADA

---

Of note:

(1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by… resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces…

 

[Digitonomy]

As I said, I am not deeply knowledgeable about Quebec matters.

Here is a link to the Supreme Court decision on Bill 107:

The SCC decision was quite helpful. However, it was issued in 1992, and held that Bill 107 was constitutional and did not violate the provisions of Section 93. Quite a different thing from saying that repealing 93 with respect to one province still protects the rights guaranteed in it, or that those protected gave up their rights.
Ani Ibi:

Do you have a link to your quote so that I can get the context?

Should have posted that before:
en.wikipedia.org/wiki/Amendments_to_the_Constitution_of_Canada#Amendment_formulas
Ani Ibi:

You’ve missed something. The Constitution cannot be amended as concerns rights recognized before or at Constitution.

Can you cite a source for this? I could not find any mention of it in a brief scan of the Constitution.
Ani Ibi:

The holders of the rights did renounce them.

In the references provided so far, I have not found proof of this, nor a description of the process by which the rights holders would go about such a renunciation. I did find this document, which seems to discuss these matters a bit. Unfortunately, my French is somewhat poor, and the Google translation into English is nothing to brag about either. As an Ottawan you can probably do much better.
Ani Ibi:

This means, in theory, that the provinces have the authority to publicly fund Mormon schools, Hindu schools, Whirling Dirvish schools – whatever. Moreover, once having decided to publicly fund these kinds of schools, the provinces have the authority to rescind that decision.

Related to my earlier inquiries about Dissentient Schools and other denominations, I discovered a couple things:

1. Newfoundland for a decade had established Pentecostal schools, or at least classes - see the bottom of that Wikipedia article.
2. You’ve probably picked this up already, but for other readers, a summary: In Quebec, there were four denominational or confessional school systems, both a Catholic and Protestant system in the cities of Montreal and Quebec. Outside these cities there were 5 Dissentient School systems. Two were defunct at the time of the legislation we are discussing. It’s quite clear from that last link I provided that these systems include both Catholic and Protestant. Assuming you are correct that there have been no non-Catholic, non-Episcopalian state schools, my best guess is that the 5 Dissentient School systems were divided along geographic lines, perhaps dividing all of Quebec into three Catholic districts, likewise dividing the province into two Protestant districts. That two of these are defunct suggests that they may have been rather minor districts, perhaps small suburbs since absorbed by the cities or the larger Dissentient Schools. But that is idle speculation.

 

[Digitonomy]

Here is the source document re the province’s powers to amend the Canadian Constitution:

It appears that Section 93 of the Constitution was amended according to Section 43 of the Constitution Act of 1982:

An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces, including

(a) 	any alteration to boundaries between provinces, and
(b) 	any amendment to any provision that relates to the use of the English or the French language within a province,

may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies.

Interestingly, according to Section 47, it can even become a part of the Constitution without the consent of the Senate.

 

[Caesar]

Perhaps religious neutrality in the Catholic schools is needed- such a thing might keep teachers from bashing the Church in their classes.

 

[Ani_Ibi]

Digitonomy:

The SCC decision was quite helpful. However, it was issued in 1992, and held that Bill 107 was constitutional and did not violate the provisions of Section 93.

However, this reform will not entail the dissolution of the five existing dissentient school boards in the province or of the four existing “confessional” or denominational school boards of Montréal and Québec… The province can go ahead with such a reorganization so long as it does not prejudicially affect the rights and guarantees set out in s. 93 of the Constitution Act, 1867.

Bill 107 claims that it does not violate the provisions of Article 93 of the Constitution but then alters the instruments established to deliver the provisions of Article 93. I commented previously that it is illogical to claim to respect the provisions of Article 93 while altering the instruments to deliver those provisions.

Why? Because “education” which is the domain of the provinces cannot logically be separated from the “denominational aspects of that same education.” The delivery system is intimately tied to both education and the denoniminational aspects of that education.

Quebec tried to make an end run around that concept and got away with it. The Liberals are trying to sidestep their budgetary shortfalls but it was the Liberals who took the taxpayers money and spent it on their own Liberal friends in the first place (the Sponsorship Scandal).

Quite a different thing from saying that repealing 93 with respect to one province still protects the rights guaranteed in it

Bill 107 does not claim to repeal 93. It does claim to protect the rights guaranteed therein. However it alters the instruments whereby those rights may be delivered.

or that those protected gave up their rights.

I’m not following you. Bill 107 was drafted in Quebec. Why would Quebec say anything adverse to getting what they wanted – specifically to undermine the influence of the Church and promote the dominance of the French language?

Digitonomy:

Should have posted that before:
en.wikipedia.org/wiki/Amendments_to_the_Constitution_of_Canada#Amendment_formulas

Thank you.

The Constitution cannot be amended as concerns rights recognized before or at Constitution.

Can you cite a source for this?

I already have on page 1. I have to stay off the internet for the better part of today and during the weekdays, so don’t have time to look up links provided in previous posts – but the link you need is there.

In the references provided so far, I have not found proof of this, nor a description of the process by which the rights holders would go about such a renunciation.

Granted, the insight I offered was from an ex-Quebeker with no link to historical analysis. I won’t have to time to google any history on this, but it is easily found. Google “Church influence in Quebec” or something similar. You will find a hornet’s nest of resentment among contemporary Quebekers against the Church.

continued…

 

[Ani_Ibi]

Digitonomy:

I did find this document, which seems to discuss these matters a bit.

Thanks for this. I’ll read it this evening. I note that the commentary quotes Stephane Dion, former minister of intergovernmental affairs before the Liberals were escorted by the electorate out of power. (Stephane Dion is now leader of the Liberal Party within a Conservative minority government.)

The commentary quotes Mr Dion with this prelude:

… *Le 22 avril, le ministre des affaires intergouvernementales, M. Stéphane Dion, au nom du gouvernement du canada, déposait une résolution de modification constitutionnelle à la chambre des communes, à Ottawa… *

*= *

On April 22, the Minister of Intergovernmental Affairs, Mr Stephane Dion, in the name of the government of Canada, made a resolution to modify the Constitution in the Commons in Ottawa…

Dans son discours, M. Dion a été clair : il y a nécessité et urgence d’agir. Il déclarait alors, et je le cite, que «le gouvernement du canada croit que l’amendement constitutionnel proposé est une bonne chose…

=

In his speech, Mr Dion was clear: there is a necessity and urgency to act. He declared therefore, and I quote, that “the Government of Canada believes that the proposed constitutional amendment is a good thing…”

Now that Mr Dion is Liberal leader a few months before the next federal election, let’s see if he still thinks the amendment is a good thing. Martin (before Dion) tried being both Catholic and Liberal and went down; I believe communion was eventually withheld from him. For that matter, Chretien before him tried being both Catholic and Liberal and he also went down. Let’s see what happens to Dion.

Digitonomy:

Related to my earlier inquiries about Dissentient Schools and other denominations, I discovered a couple things:

Are these in the Wikipedia article? If so, I’ll read the context this evening. Thank you. …end of post

 

[Ani_Ibi]

It appears that Section 93 of the Constitution was amended according to Section 43 of the Constitution Act of 1982:Interestingly, according to Section 47, it can even become a part of the Constitution without the consent of the Senate.

Yes, interesting indeed. I have found a few contradictions in constitutional documents.

 

[Ani_Ibi]

Perhaps religious neutrality in the Catholic schools is needed- such a thing might keep teachers from bashing the Church in their classes.

The proponents of religious neutrality envision a school system which excludes Catholic education. How is that neutral?

 

[Digitonomy]

Are these in the Wikipedia article? If so, I’ll read the context this evening.

The Newfoundland amendment is listed at bottom of the Wiki article, although the link to its text is broken - apparently a government site set up for students, but now deactivated. My summary of confessional and dissentient schools in Quebec was synthesized from that French page and the Supreme Court decision.

 

[Ani_Ibi]

OK. Finally, somebody emailed this comprehensive history of Catholic education in the various provinces:

One of These Things is Not Like the Others

Basically, what I have said so far applies to Ontario – but apparently not to the other provinces. Dufferin Peel is in Ontario. Of note:

… Catholic School constitutional rights, as guaranteed in Alberta and Saskatchewan by virtue of the Alberta Act, 1905, and the Saskatchewan Act, 1905, have significant differences from those rights as guaranteed in Quebec and Ontario at the time of Confederation…

Catholic education in the Maritime provinces of Nova Scotia, New Brunswick and Prince Edward Island, were based almost exclusively on verbal understandings…

Term 17 of the Terms of Union between Newfoundland and Canada, 1949, provided for denominational schools with… rights extended to the Roman Catholic, Salvation Army, Seventh Day Adventist, United, Anglican, Congregational and Presbyterian denominations. The Pentecostal Assemblies obtained the same rights in 1987… Term 17 was amended by public referendum in 1995… The Newfoundland Supreme Court issued an injunction against the closure of Catholic schools, except upon consent of Catholic schools representatives, which led to a second referendum in 1997, allowing Term 17 to… eradicate publicly-funded Catholic schools in the province…

In Quebec and Ontario, Catholic school protection is traced to the Common Schools Act, 1841 in Upper Canada, and the Education Act, 1846, in Lower Canada… In what was to become Ontario, Catholic education constitutional rights set forth and protected those specific rights set out in the *Scott Act, 1863… *

Arising out of the 1846 legislation in Quebec, unique systems of education were established for the cities of Montreal and Quebec City, where there were two elected boards of denominational school commissioners… The school system in Quebec outside of the cities of Montreal and Quebec City was based on a system of Protestant dissentient schools… Arguably, therefore, in Quebec, there was no constitutional protection for minority school boards for the cities of Montreal and Quebec City, but only in rural Quebec…

One of the principle issues debated by the Fathers of Confederation at the Charlottetown conference of 1864 and the London conference of 1866/67 was the “denominational school issue”, and it is generally agreed that Confederation would not have been achieved in Canada without the protections accorded to denominational schools in both Quebec and Ontario. The result of this “Confederation compromise” was section 93 of the Constitution Act, 1867, which protected those rights already legislatively protected in those two provinces…

I hope this helps.

 

[Ani_Ibi]

No representation without taxation

… The Scott Act [Ontario] does not have as strict a division between the right to an assessment base and the right to equity and fairness… All that the… OECTA case… did was to suspend the rights of boards to determine, levy and collect their own taxes… so long as Catholic separate boards received a fair and equitable distribution of taxes…

You may ask why Catholic separate schools would want to continue to access the tax assessment base, when it does not make a financial difference to the overall funding of school boards. The following are nine important reasons for continuing to access the tax assessment base:

1. 
   *]It is a vital connection between school boards and their electors, especially those electors without children in the school system;
   *]It provides a mechanism for direct accountability of school board trustees to their electors for the quality of education provided;
   *]It provides a clear link between taxation and representation, the most fundamental principal of any democratically elected organization;
   *]It creates a structural interest in the local school board, because of the investment required by the electors in that board;
   *]It supports board population projections which affect funding for new student places;
   *]It supports the tradition of local decision-making with respect to public education, consistent with the fundamental democratic principal of subsidiary;
   *]It supports the conclusion of the Alberta Commission on Learning that there is need for an adequate source of stable funding for the education system, affirming the role that the education property tax assessment base has in enhancing public accountability for education;
   *]The opted-out Catholic separate school declaration is a public record by electors of the extent of support for their schools, providing the government with an indication of overall support and the strength of a publicly-funded Catholic school system; and
   *]It recognizes and affirms the constitutional right of opted-out Catholic separate school boards to collectively access this assessment base through requisition by their elected boards, as specifically provided in section 93(1) of the Constitution Act, 1867, section 17(1) of the Alberta Act, 1905, and section 29 of the Charter of Rights and Freedoms, as interpreted and affirmed recently by the Supreme Court of Canada in the PSBAA and OECTA cases.

1. 
   Note that the situations in Alberta and Ontario are different.

 

[Ani_Ibi]

Teachers of faith - an expectation and a right

Where there has been a direct conflict between the provisions of human rights legislation, or sections 2(a) and 15 of the Charter of Rights and Freedoms, with denominational education rights preserved by section 93(1) of the Constitution Act… the Courts have resolved that conflict in favour of upholding denominational education rights, relying on section 29 of the Charter and the “special treatment guaranteed by the Constitution to denominational, separate or dissentient schools” even where those rights currently fit uncomfortably with other Charter guarantees. See Re Casagrande, supra, Mahe v. Alberta [1990] and An Act to Amend the Education Act (Bill 30) [1987].

 

[Digitonomy]

For that matter, Chretien before him tried being both Catholic and Liberal and he also went down

Did this Catholic/Liberal dichotomy have much to do with his “going down”?

Digitonomy:

The SCC decision was quite helpful…it…held that Bill 107 was constitutional and did not violate the provisions of Section 93. Quite a different thing from saying…that those protected gave up their rights.

Ani Ibi:

I’m not following you. Bill 107 was drafted in Quebec. Why would Quebec say anything adverse to getting what they wanted – specifically to undermine the influence of the Church and promote the dominance of the French language?

It was the Supreme Court that was making the statement, not the government of Quebec. I’m trying to fit your claim that those protected gave up their rights, with the example we’re discussing. I don’t know whether you offered 107 as support for your position, or just informative background for more recent developments.
Ani Ibi:

The Constitution cannot be amended as concerns rights recognized before or at Constitution.

Digitonomy:

Can you cite a source for this?

I already have on page 1…the link you need is there.

I’m still on page 1 in this post, so I’m not sure how far back to go, but most of what I’ve seen has been along the lines of this link from your post #2

Public funding of Roman Catholic secondary schools in Ontario was a right or privilege existing in 1867 at the time the Canadian constitution came into effect protecting that funding. So that protection survived today. One part of the constitution, the Canadian Charter of Rights and Freedoms, could not be used to invalidate another part of the constitution, the guarantee of denominational rights existing in 1867.

which addresses two opposing Constitutional sections which are simultaneously in force, instead of what we are discussing, an amendment (93A) which explicitly repeals or invalidates another section (93).

 

[Ani_Ibi]

Digitonomy:

Did this Catholic/Liberal dichotomy have much to do with his “going down”?

It was the Sponsorship Scandal (misappropriation of funds) that made him go down – although he did a lot of other things about which the Church was not thrilled.

It was the Supreme Court that was making the statement, not the government of Quebec.

It was the separatistes who inititiated the movement. The government of Quebec has to constantly appease the separatiste movement and so made the application to federal Parliament and then to the Supreme Court. See also my comments further along in this post about the resentment against the Church.

I’m trying to fit your claim that those protected gave up their rights, with the example we’re discussing.

Absolutely, Newfoundlland Catholics gave up their educational rights. They actually had two referenda to decide this.

In Quebec, Quebekers could have fought harder for a solution which included language educational rights rather than simply excluded Catholic educational rights.

But what I am trying to tell you is that Quebekers generally want more autonomy and self-determination than what they have had. Some Quebekers (the majority so far) want autonomy within Canada. Some Quebekers (the separatistes) want autonomy outside Canada – a new country altogether.

The Church in Quebec has had gigantic control over the everyday lives of Quebekers. There was a time when you couldn’t even build a house without giving a contribution to the local parish. Quebekers grew weary of that and not only left the Church in droves but actually turned against the Church.

I don’t know whether you offered 107 as support for your position, or just informative background for more recent developments.

To tell you the truth, I was pretty exhausted yesterday and the Constitutional vagaries were exhausting me even further, so I am not sure why I posted some of the things I posted.

Thing is that Dufferin Peel is in Ontario and what I set out as general principles apply to Ontario. I can see now that they do not apply to other provinces and that the situation in Quebec is beyond bizarre.

There are constitutional operatives which, on the surface, appear to be self-contradictory or at least lack parity.

continued…

 

[Ani_Ibi]

I’m still on page 1 in this post, so I’m not sure how far back to go, but most of what I’ve seen has been along the lines of this link from your post #2which addresses two opposing Constitutional sections which are simultaneously in force, instead of what we are discussing, an amendment (93A) which explicitly repeals or invalidates another section (93).

The quote about article 93 from Post #2

The Canadian Charter of Rights and Freedoms prohibits religious discrimination. The Charter is part of the constitution of Canada. However, the Canadian constitution, because of another provision, article 93, discriminates in favour of Roman Catholics and against other religious denominations.
Article 93 gives provincial legislatures exclusive power over education. The article states that any law enacted under this power shall not “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.”

In Ontario, at the time that the province joined Confederation, Roman Catholic schools had rights and privileges which other denominational schools did not. In particular, Roman Catholic denominational schools received state funding and other denominational schools did not. The effect of article 93 was to prevent the legislature of Ontario from prejudicially affecting those rights and privileges, from prejudicially affecting that funding. State funding of Roman Catholic schools in Ontario is, by virtue of article 93, constitutionally entrenched.

And the [%201%20S.C.R.%201148"]quote from The Scott Act]("http://forums.catholic-questions.or...0, An Act to Amend the Education Act (Ont.), [1987) from Post #31

The Scott Act gave separate school trustees the same powers and duties as common school trustees. The exercise of these rights was not a mere practice tolerated by the educational authorities. An adequate level of funding was required for this right to be meaningful and the Scott Act provided for proportionate funding…

I also gave various links and quotes demonstrating that the federally applied Constitution has paramountcy and jurisdiction over the provincially applied human rights codes. … end of post

 

[Digitonomy]

Ani Ibi:

State funding of Roman Catholic schools in Ontario is, by virtue of article 93, constitutionally entrenched.

Just as it was in Quebec. I see no reason why there can’t be an amendment 93B, stating that 93 (1-4) do not apply to Ontario. It appears all that is needed is passage by the Legislative Assembly and approval by Parliament.

 

[Ani_Ibi]

Just as it was in Quebec. I see no reason why there can’t be an amendment 93B, stating that 93 (1-4) do not apply to Ontario. It appears all that is needed is passage by the Legislative Assembly and approval by Parliament.

The provisions for Que and Ont were different.

 

[Digitonomy]

The provisions for Que and Ont were different.

I can see where making 93B identical to 93A might still leave in place some of these laws that existed prior to the Constitution - unlike in Quebec, where the protections and funding systems were extended to Lower Canada when the Constitution was enacted. But they could make 93B slightly more verbose to correct for that.

I realize I’m coming at this from an American perspective, but my understanding is that what is in the Constitution is what goes. If you amend it, said amendment can alter or rescind previously granted rights. Your argument that the Constitution, including new amendments, does not have paramountcy over rights in place at the time of union does not seem to square with 93A, or with the rest of the Constitution that I’ve read. I’m certainly open to correction on this, but I would think as sweeping a principle as this would have some documentation somewhere to support it and explain it in further detail.

And I don’t buy the idea that those who are protected by the rights have to give them away, though I can’t definitively refute it at the moment. When I get more time, I’ll try to find more detail on the Newfoundland issue. I can easily imagine that the Pentecostals were stripped of their educational funding over the wishes of the vast majority of them.

Sorry to be contentious without providing more documentation, but I wanted to state my two or three main objections to your explanation, though I’ll have to dig around for supportive links tomorrow or the next day.