(All quotes are from the book “Church and State in Canadian Education” by C. B. Sissons — 1959, Ryerson Press).
The province of Manitoba was born following the Riel insurrection during 1869-1870. The cause of the insurrection was an awkward handling by the federal government’s economic, racial, and religious matters.
Riel and his spiritual advisers had sought to protect the interests of the Metis in particular, and French Canadians in general, demanding, among other things, publicly-funded separate schools for Roman Catholics.
Thus when the Manitoba Act of 1870 was drawn up in Ottawa for a community which survived a winter in duress to the insurgent Metis “it seemed expedient to confer the Quebec school system on the nascent province. ‘The school is the church of the child’, said a later Archbishop of St. Boniface, and that was the doctrine on which the first school law of Manitoba was based.”
When Sir John A. Macdonald gave the Manitoba Act its first reading on May 2, 1870, it was revealed that the clause on education from the British North America Act of 1867, (section 93 for Ontario and Quebec) had been included as section 22 in order to protect separate schools. The Manitoba Act, when added to the Canadian Constitution in 1871, made Manitoba a province of Canada.
SEPARATE SCHOOLS APPEAR SECURE
Today, defenders of the separate school system in Ontario cite section 93(1) as the basis of their defence. The same wording, however, in Manitoba’s 22(1) did not prevent that province from abolishing its publicly-funded separate schools.
“The Manitoba Act was, in essence, an attempt to set upon the western plains a tiny province in the image of Quebec. In the spring of 1871, the principles of the Manitoba Act were applied by the new legislature to the first School Act . . . in a province fairly evenly divided between the Protestant and Roman Catholic faith, and the French and English language.”
RELIGION “SECURE IN LAW”
“It had been the fond dream of Bishop Tache that a French and Catholic Province could be built centred in St. Boniface. There may have been some doubt in his mind that his Church would be able to maintain a dominant position in all matters, but ‘. . . a government-financed Roman Catholic education for the children was at least . . .’ secure. Whether his flock was to be the majority or the minority, that much was safe.
“Was it not written indelibly in the Manitoba Act at Ottawa, and in the School Act at Winnipeg and the whole sanctioned at Westminster?
“But as the Bishop was wont to observe, all things mundane are transient, even human laws embedded in constitutions.
“And two sets of circumstances during the next twenty years served to upset the plans so carefully laid.”
CONSTITUTIONAL PROVISIONS FOR DENOMINATIONAL EDUCATION
SECTION 93 FOR ONTARIO
The opening paragraph of section 93 of the Constitution Act, 1867, which applies to Ontario (and Quebec), reads 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:-
Section 22 of the Manitoba Act, 1870 (confirmed by the Constitution Act, 1871) the opening paragraph reads as follows:-
22. In and for the Province, the said Legislature may exclusively make Laws in relation to Education, subject and according to the following provisions:-
The first “provision”, subsection (1), for Ontario, reads as follows:-
93(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.
The first “provision”, subsection (1), for Manitoba, reads as follows:-
22(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 or practice in the Province at the Union.
The “practice” “at the Union” was for the Hudson’s Bay Company, the governing body before 1870, to make grants to Roman Catholic schools.
By 1891, settlement trends had sharply reduced the Roman Catholic portion of the population to less than twenty percent. In a new country of free and cheap land, complete reliance could not be placed on the cradle.
Then there followed a combination of incidents of a religious and political nature which turned a majority of Manitobans against both the French and the Roman Catholic Church.
Debate and discussion raged across the country. While the east was in foment on the subject, Dalton McCarthy, a leading member of the Ontario bar, travelled west and gave an address at Portage la Prairie.
During a vote of thanks the Provincial Attorney General, Joseph Martin, surprised everyone by announcing that at the next session of the Legislature, the matter of separate schools and the status of the French language would be dealt with.
And so it proved. The Manitoba School Act of 1890 was passed by the legislature and separate schools were immediately abolished.
Our historian, C. B. Sissons reflected: “After twenty years of trial the people of Manitoba had reached a firm conclusion—which they might have put in these words:
“In 1870 a certain way of life was thrust upon us, when we were still in embryo, not at our behest but to suit the political convenience of Ottawa. Under the Canadian Constitution, education is the business of the provinces. So let it be.
“Dual schools and dual language we find a nuisance, and we will have none of them. If the Roman Catholics of this province wish to have their own schools, that is their privilege—or right, as you will. But they themselves must pay for them. Public money will not be used for the support of any church, Catholic or Protestant.
“That was their stand. They saw no reason why they should be bound forever to the chariot wheels of Quebec, or even Ontario, when four other provinces had freedom.” (New Brunswick, Nova Scotia, British Columbia, and Prince Edward Island.)
SEPARATE SCHOOLS WERE ELIMINATED BY A BILL PASSED IN THE LEGISLATURE
“The School Act of 1890 spread on the statute books a long and thorough revision of the whole machinery of elementary education. Like the scorpion, its sting was in the tail; the public had to wait to the 179th, and almost last, section to read:
“In cases where . . . Catholic school districts have been established . . . such Catholic school districts . . . shall cease to exist.”
Thus, in Manitoba, full public funding for separate schools was abolished in 1890, never to return..
THE SALVAGE ATTEMPT
The political maneuvering following the passage of this act included a petition for the federal government to disallow the provincial legislation under section 90 of the constitution. Since the Federal Parliament refused to disallow Manitoba’s School Act, opponents, spearheaded by Archbishop Langevin, sought reversal through the courts.
The first case, known as Barrett, was based on section 22(1) as printed on page 1 where the Roman Catholics argued they were a “class of persons” who had their right or privilege with respect to denominational schools prejudicially affected.
PROVINCE WITHIN ITS RIGHTS
The School Act of 1890 was upheld by the first trial judge, upheld by the Court of Queen’s Bench for Manitoba, reversed by the Supreme Court of Canada, and reversed again by the judicial committee of the British Privy Council, which, up until 1949, was our highest court.
The main reason for this court decision in Manitoba’s favor on subsection (1) seems to be the fact that the School Act had deprived no “class of persons” of rights or privileges that were theirs at the time of the union in 1871. Many of the privileges removed by the School Act were passed into law since 1871.
Had the appellants argued that Roman Catholic schools received grants from the governing body of Manitoba—the Hudson’s Bay Company—before joining Canada, the court decision at this point may have been different, but the overall result (as explained later) would have been the same.
This case “merely established the fact, OBVIOUS ENOUGH, that the Province was within its constitutional rights in passing that legislation.”
Archbishop Langevin, however, stood firm on the school issue and demanded the re-establishment of separate schools. While acknowledging that although Roman Catholics had not proven the loss of any privilege held “at the Union”, he argued that they could, under subsection (2), claim, as a minority, the right to appeal “to the Governor General in Council from any act or decision of any Provincial authority affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen’s subjects in relation to education.”
As seen by the Archbishop, the whole population of Manitoba was divided into two camps, Roman Catholic and Protestant, the former being the minority, “and as such, any rights they had as subjects of the Queen and any privileges they might have received under provincial legislation were securely protected by over-riding Dominion powers confirmed by Imperial Act.
“Immutable law was his bulwark. Against this the will of the people, however often expressed, could not prevail.”
THE REMAINING PROVISIONS
The remaining sections are 93(3) & (4) for Ontario, and 22(2) & (3) for Manitoba. In essence, they promised the Roman Catholics of Ontario and Manitoba, at Confederation, that, as long as there is still deemed by Parliament to be a need for the protection of religious minorities through special educational rights, any privileges they have been enjoying with regard to their denominational schools, they may continue to enjoy. That is their right.
Should they ever find it necessary to turn to government for help, it will listen and initiate action if deemed appropriate [93(3) or 22(2)]. If action thus taken fails to produce a result, Parliament’s power may be used to pass remedial legislation [93(4) or 22(3)].
Section 93(3) for Ontario reads as follows:-
93(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 Privilege of the Protestant or Roman Catholic Minority of the Queen’s subjects in relation to Education:
Section 22(2) which applies to Manitoba, reads as follows:-
22(2) An Appeal shall lie to the Governor General in Council from any Act or Decision of the Legislature of the Province, or of any Provincial Authority, affecting any right or privilege, of the Protestant or Roman Catholic minority of the Queen’s subjects in relation to Education:
These sections, 93(3) and 22(2), say essentially the same thing, but note that for Ontario it is specifically spelled out to apply to separate schools existing “at the union” as well as being “thereafter established”.
Viscount Haldane of the British Privy Council in Tiny, said of section 93(3): “Sub-s 3 contemplates that within the powers of the Provincial legislature Acts might be passed which did affect rights and privileges of religious minorities in relation to education, and gives a different kind of remedy.
These sections provide an opening around a constitutional restriction whose only purpose is to provide a safeguard against premature or frivolous abrogation of denominational school rights deemed necessary at an earlier time for social peace.
If it was in the minds of the framers of the Constitution that denominational schools were to be entrenched in the Constitution, these sections under discussion would not have appeared in it.