CONSTITUTIONAL VALUES IN CONFLICT: FULL FUNDING FOR ONTARIO'S CATHOLIC HIGH SCHOOLS

Gordon Bale*

I. INTRODUCrION

On June 12, 1984, Premier William Davis announced that the Ontario government proposed to extend full funding to all grades in the Roman Catholic separate high school system. In this historic statement in the Ontario legislature, Davis said:

The architects of Confederation, John A. Macdonald and George Brown, were Protestants who preferred the development of a nonsectarian educational system. However, in order to secure their national vision, they accepted and advocated the protection of denominational "common" schools in the British North America Act.

If we are to serve the spirit and the realities of 1867, we should acknowl- edge that basic education was what was recognized then and that today basic education requires a secondary, as well as an elementary, education. As the nondenominational system has evolved to meet society's needs, so too has the Roman Catholic school system.

The extension of financing to separate school grades 9 and 10 demon- strates that financial and operational arrangements can evolve over time and honour the intentions of the original constitution. If we work co-operatively and prudently, we can complete this task without compromising the quality of our public schools, while demonstrating the essential justice and good faith of our society.' This announcement launched a renewal of church-state tension. The sensitivity of the issue is attested to by the reaction of an Anglican Archbishop, the Most Reverend Lewis Garnsworthy, who, in describing

* Faculty of Law, Queen's University. The author wishes to express his appreciation for helpful discussions with a number of his colleagues, particularly Professors W.R. Lederman, Donald Galloway, H.R.S. Ryan and John Whyte. He would also like to acknowledge the substantial contribution made by Lawrence Purdy, a research assistant. I Ontario Legislative Assembly, Official ReportslDebates, No. 68 at 2414-6 (12 June 1984). Ottawa Law Review [Vol. 18:3 the decision-making process, said "This is how Hitler changed education in Germany." 2 Church-state friction, often exacerbated by French-English differences about the conception of Canada, is certainly not new. There was the bitter controversy over the clergy reserves in Upper and Lower Canada, the Guibord affair, the hanging of Louis Riel, the Jesuits' Estates Bill, the Manitoba school question and Ontario's Regulation 17. In 1894, Wilfrid Laurier, when referring to the abolition of the separate school system by Manitoba and the problem it created for the federal government, said: "The School question is an unknown quantity; it may break the Government; it may break the Opposition; it may break both the Govern- ment and the Opposition." 3 The continuing controversy of the separate school issue is evidenced by the fact that former Premier Frank Miller considered that issue to be one of the factors contributing to his govern- ment's defeat, 4 even though all three parties agreed to the extension of funding to separate schools. Had the full funding legislation for Catholic separate high schools been enacted prior to the CanadianCharter of Rights and Freedoms5 or even prior to the coming into force of section 15 of the Charteron April 17, 1985, there could have been no initial judicial challenge to such legislation as it would clearly have been within the competence of the Ontario legislature under section 93 of the ConstitutionAct, 1867.6 The Charter, combined with the fact that all three political parties advocate full funding, has caused the courts to be the major forum for the debate of this issue, and as a result the scope and focus of the issue have been narrowed. The Ontario Court of Appeal in Reference Re an Act to Amend the Education Act 7 was asked to determine whether Bill 30,8 the Bill to extend full funding to the Roman Catholic separate high schools, is inconsistent with the Charter. Interesting and important issues arise, for the reference requires the court to reconcile the group or collective rights for denomina- tional education guaranteed by section 93 of the ConstitutionAct, 18679 with the individual equality rights protected by section 15 of the Charter. It

2 S. Oziewicz, "Primate Dislikes Hitler-Davis Equation", The [Toronto] Globe and Mail (27 April 1985) A12. 3 Public Archives Canada, Sifton Papers, Laurier to Sifton, 28 January 1896, quoted in P. Crunican, PRIESTS AND POLITICIANS: MANITOBA SCHOOLS AND THE ELEC- TION OF 1986 (Toronto: University of Toronto Press, 1974) at 179. 4 See R. Matas, "Professors Assign Minor Role to Bigotry R.C. Grants Issue", The [Toronto]Globe andMail (4 February 1986) Al, A13. It is interesting to note that this view was expressed despite the fact that all three parties had agreed to the extension of funding to separate schools. 5 Part I of the Constitution Act, 1982 being Schedule B of the Canada Act, 1982 (U.K.), 1982, c. 11 [hereinafter the Charter]. 6 (U.K.), 30 & 31 Vict., c. 3 (formerly British North America Act, 1867). 7 (1986), 53 O.R. (2d) 513, 25 D.L.R. (4th) 1 (C.A.) [hereinafter Education Reference]. 8 Bill 30, An Act to Amend the Education Act, 2d Sess., 33d Leg. Ont., 1986. 9 (U.K.), 30 & 31 Vict., c. 3. 19861 ConstitutionalValues in Conflict

is thus a case in which old and new constitutional values appear to come into conflict. Canada has but one Constitution. Paragraphs 2(a) and 2(b) of section 52 of the ConstitutionAct, 198210 make respectively the Charter and all the pre-existing British North America Acts 1867 to 1965 (renamed Con- stitution Acts, 1867 to 1965 by the Schedule) part of the Constitution of Canada. Subsection 52(1) makes the Constitution the supreme law of Canada, but it also ensures that no part of the Constitution is paramount over any other. Thus, in general, each provision of the Constitution must be read in light of the other provisions.

II. REFERENCE RE AN ACT To AMEND THE EDUCATION ACT

A. The Majority Decision: The FundamentalReason for Holding Bill 30 Valid

In the EducationReference, the Ontario Court of Appeal split three to two. The majority, consisting of Zuber, Cory and Tarnopolsky JJ.A., held that the enactment of Bill 3012 to fully fund the separate Roman Catholic high schools would not contravene the Constitution, including the Charter. It is submitted that the majority had a fundamental reason for deciding that Bill 30 did not contravene section 15 of the Charter.The judges for the majority clearly expressed their view that section 93 of the Constitution Act, 186713 was of fundamental importance to Confederation. The inevita- ble inference is that the guarantees of subsection 93(1) should have received a fair, large and liberal construction by the courts. The majority state that "it is necessary to recognize that that provision for the rights of Protestants and Roman Catholics to separate schools became part of 'a small bill of rights' as a basic compact of Confederation". 14 The majority judgment emphasized and reiterated the pivotal role which section 93 played in making Confederation possible and the fact that Quebec has fully honoured its commitment under the section while Ontario has not. Signifi- cantly, the majority did this both before and after it construed section 29 of the Charter in such a broad manner that full funding for Roman Catholic separate high schools would be immune from Charterchallenge. Imme- diately after using legislative history to give an extended meaning to section 29, the majority returned to section 93 of the Constitution Act, 1867 and stated:

10 Being Schedule B of the Canada Act, 1982 (U.K.), 1982, c. 11. II Supra, note 7. 12 Bill 30, An Act to Amend the EducationAct. 2d Sess., 33d Leg. Ont., 1986. 13 (U.K.), 30 & 31 Vict., c. 3. 14 EducationReference, supra, note 7 at 567, 25 D.L.R. (4th) at 55. Ottawa Law Review [Vol. 18:3

This was one of the cornerstones of Confederation. The recognition and protection of the educational rights of the Protestant minority in Quebec and of the Roman Catholic minority in Ontario constituted a condition precedent to those provinces becoming part of Canada. Section 93 of the original Constitu- tion Act, 1867 gave effect to the bargain, which has been fulfilled in Quebec. It should not be broken in Ontario. 15 The majority found themselves in a difficult situation. They were convinced that the educational guarantee demanded a reasonably broad liberal interpretation not only because of its central role in Confederation but also in order "to remove a continuing irritant in relations with Quebec"1 6 arising from the differential treatment beneficiaries of section 93 receive in Ontario and Quebec. Yet the Privy Council decision in Roman Catholic Separate School Trustees for Tiny v. R. 17 stood as an imposing road block to a broad interpretation of the educational guarantees of subsection 93(1). Subsection 93(1) 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:

(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. In the Tiny case, 18 the trustees of a Roman Catholic separate school, by a petition of right, claimed certain statutes of Ontario to be ultra vires because they prejudicially affected rights and privileges guaranteed by subsection 93(1). The three rights alleged to be so affected were: (1) the right to conduct courses in separate schools comparable to courses in high schools; (2) the right to be exempt from taxation to support high schools not conducted by Roman Catholic boards of trustees; and (3) the right of separate schools to share proportionately in monies granted in accordance with their rights at Confederation. The Privy Council found that in 1867 the separate and common schools offered not only primary education but that they did "educate pupils up to the age of twenty-one, and some of them were in the habit of giving to the older pupils advanced teaching such as would fit them to enter the University".19 The Privy Council held, however, that the power of regulation reserved to the Council of Public Instruction contained in pre-Confederation statutes enabled the province to "determine the courses to be pursued and the extent of the education to be imparted".20 The proportionate funding provision in section 20 of An Act

15 Ibid. at 575, 25 D.L.R. (4th) at 64. 16 Ibid. at 569, 25 D.L.R. (4th) at 57. 17 (1928), [1928] A.C. 363, [1928] 3 D.L.R. 753 (P.C.), affg (1927), [1927] S.C.R. 637, [1927] 4 D.L.R. 857, affg (1927), 60 O.L.R. 15, [1927] 1 D.L.R. (C.A.), aff g (1926), 59 O.L.R. 96 (H.C.) [hereinafter Tiny]. 18 Ibid. 19 Ibid. at 376, [1928] 3 D.L.R. at 761. 20 Ibid. at 387, [192813 D.L.R. at 771. 1986] ConstitutionalValues in Conflict to Restore to Roman Catholicsin Upper CanadaCertain Rights in Respect to Separate Schools2' was construed so that it did not prevent prior appropriations and that therefore the rights of the separate schools were confined to the balance. Lord Haldane stated: "[I]t is impossible to contend successfully that it was ultra vires after Confederation to make new appropriations out of the grants which would diminish what would otherwise have come to the appellants" .22 If one is prepared to give such a wide import to the power of regulation and to permit prior appropriation from the common school fund, there appears to be little to prevent separate schools from being virtually regulated out of existence or deprived of adequate funding. The frail and anaemic protection for denominational education which the Privy Council found in the Tiny case posed a real problem for the majority of the Ontario Court of Appeal. The majority was convinced of the centrality and importance of the section 93 guarantee for Con- federation. In my opinion, the majority reluctantly concluded that the only way in which to uphold Bill 30 from Charterchallenge based on section 15 was simply to finesse the Tiny case. This was accomplished by what I would regard as an over-reliance on legislative history to give an extended meaning to section 29 of the Charter. From the very structure of the decision, however, one can reasonably infer that the majority would have preferred to have concluded that Bill 3023 was exempt from Charter challenge because section 15 of the Charter,even in the absence of section 29, cannot abrogate or derogate from the collective rights conferred by subsection 93(1). The majority, by finessing precedent, have arrived, in my opinion, at the preferable result - one which recognizes the bicultural nature of Confederation. But the Tiny case has compelled the judges of the majority to resort to less than satisfactory means to achieve that end. B. The Explicit Reason for Holding Bill 30 Valid

The majority reached the conclusion that Bill 3024 does not conflict with either the individual equality rights of subsection 15(1) or the freedom of conscience and religion of subsection 2(a) of the Charterbecause of the meaning they assigned to the words "or under" in section 29 of the Charter. Section 29 of the Charterreads: 29. Nothing in this Charter abrogates or derogates from any rights or priv- ileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools. 29. Les dispositions de la prdsente charte ne portent pas atteinte aux droits ou privileges garantis en vertu de ]a Constitution du Canada concemant les 6coles srpardes et autre dcoles confessionnelles.

21 26 Vict., c. 5 (1863) [hereinafter the Scott Act]. 22 Tiny, supra, note 17 at 338, [19281 3 D.L.R. at 771. 23 Bill 30, An Act to Amend the Education Act, 2d Sess., 33d Leg. Ont., 1986. 24 Bill 30, An Act to Amend the EducationAct, 2d Sess., 33d Leg. Ont., 1986. Ottawa Law Review [Vol. 18:3

"The words 'under the Constitution of Canada"', according to the majority, "must include rights and privileges granted by laws enacted under the authority of the Constitution. '25 The majority also refer to the French version and note that the term "en vertu de" can be translated as "by the power of" .26 The majority conclude that section 29 was "intended to include not only constitutional guarantees of rights or privileges in respect of denominational, separate or dissentient schools, but also those provided by a law enactedpursuant to constitutionalauthority". 2 7 If section 29 had used the word "granted" with reference to the words "or under the Constitution" instead of "guaranteed" or "garantis", the issue would have been beyond question. However, the word used was "guaranteed" and the majority have simply read "granted" in its place. This interpretation appears questionable, for it causes section 29 to be read as though it stated: "Nothing in the Charter abrogates or derogates from any rights or privileges 'guaranteed by' the Constitution of Canada or 'granted under' the Constitution of Canada in respect of denominational, separate or dissentient schools", instead of simply stating "guaranteed by or under the Constitution". Certain passages of legislative history, on which the majority laid much emphasis, do appear to support the view that this is what section 29 was intended to achieve. Mr Tobin, speaking for the government, said:

Mr. Chairman, I point out in the amendment we move, the words "abrogates or derogates from any constitution of Canada" - "under" meaning under the authority of the constitution of Canada; and therefore any provincial statute or legislation which gives religious schools rights in the provinces would be protected from any challenge by the charter by the very nature of the fact that provincial legislation ultimately flows from the authority granted to the provinces in the constitution. 28

It is a canon of construction that every word of a statute should, if possible, be accorded some meaning. Unless one accepts the view of the majority, "or under" appears redundant. Section 93 applies to the four original provinces and to British Columbia and Prince Edward Island pursuant to section 146, thus "guaranteed by the Constitution" refers to section 93 and the phrase "or under" is not necessary with regard to these six provinces. It was argued that "or under" referred to section 22 of the Manitoba Act, 1870,29 section 17 of the Alberta Act, 30 section 17 of the

25 EducationReference, supra, note 7 at 572, 25 D.L.R. (4th) at 60. 26 Ibid. 27 Ibid. (emphasis in original). 28 Canada, Minutes of Proceedingand Evidence of the SpecialJoint Committee of the Senate and of the House of Commons on the Constitutionof Canada,Issue 48 (Ottawa: Queen's Printer, 29 January 1981) at 128 (Co-chairs: H. Hays & S. Joyal). 29 S.C. 1870, c.3 reprintedin R.S.C. 1970, App. II, No. 8. 30 S.C. 1905, c. 3 reprintedin R.S.C. 1970, App. II, No. 19. 1986] ConstitutionalValues in Conflict

Saskatchewan Act3' and term 17 of the Newfoundland Act, 32 all of which provide minority education guarantees similar to those contained in sec- tion 93. However, by virtue of paragraph 52(2)(b), these four Acts which are listed in the Schedule to the ConstitutionAct, 1982, are made part of the Constitution of Canada. The majority therefore rightly conclude that "the words, 'or under' were evidently not necessary to cover these situa- tions". 33 The majority then move to the further conclusion that "[t]he words 'under the Constitution of Canada' must include rights and priv- ileges granted by laws enacted under the authority of the Constitution" .34 This gives meaning to the words "or under" but at the same time it changes the meaning of another word - "guaranteed" - for which one must read "granted" under the Constitution of Canada. The majority thus save the words "or under" from being otiose but only by conferring an entirely different meaning on the word "guaranteed". This is an exceedingly liberal use of legislative history. Much wider use is now being made of legislative history than was customary, especially in constitutional adjudication. This is, I believe, a good trend, but there must be some limitation. If legislative history were used simply to resolve the ambiguities which exist between two equally permissible interpreta- tions of section 29, I would have no qualms about such a use. In this case, however, the majority are using legislative history to give meaning to the words "or under" but in doing so have attached an unacceptable meaning to "guaranteed". The scope the majority thus accord to legislative history certainly seems to exceed that suggested by Mr. Justice Lamer in Reference Re British Columbia Motor Vehicle Act. 35 Mr. Justice Lamer, specifically referring to the Minutes of Proceedingsand Evidence of the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada,36 said such material "though admissible, and granted somewhat more weight than speeches should not be given too much weight" .37 He said this despite the fact that the material relates to the Charterrather than a statute. My conclusion is that the majority have accorded an unacceptable weight to legislative history in respect to section 29. It is also my submis- sion that the majority were not entirely satisfied when they did so and that they had a much more fundamental reason for upholding Bill 30.

31 S.C. 1905, c. 42 reprinted in R.S.C. 1970, App. II, No. 20. 32 (U.K.), 12-13 Geo. 6, c. 22 (formerly British North America Act, 1949), reprinted in R.S.C. 1970, App. II, No. 30. 33 EducationReference, supra, note 7 at 571, 25 D.L.R. (4th) at 60. 34 Ibid. at 572, 25 D.L.R. (4th) at 60. 35 (1985), [198512 S.C.R. 486, (sub nom. Reference Re Section 94(2) of the Motor Vehicle Act) 24 D.L.R. (4th) 536 [hereinafter Re Motor Vehicle Act]. 36 Canada, Minutes ofProceedings and Evidence of the SpecialJointCommittee of the Senate and of the House of Commons on the Constitutionof Canada(Ottawa: Queen's Printer, 1980-81) (Co-chairs: H. Hays & S. Joyal). 37 Re Motor Vehicle Act, supra, note 35 at 508, 24 D.L.R. (4th) at 554. Ottawa Law Review [Vol. 18:3

C. Majority's Partially Concealed Criticism of the Privy Council's Decision in Tiny The majority state that they do not find it necessary to express an opinion about the continuing validity of the Tiny case and that it is not for them, but for the Supreme Court of Canada, to overrule or affirm Tiny.3s The factum of the Attorney-General for Ontario submitted that the Court "should express its views on the correctness of the Tiny decision for the benefit of the Supreme Court of Canada which is not bound by the decision of the Privy Council" .39 The majority do not explicitly indicate that they have accepted the invitation to assist the Supreme Court of Canada in this way. They do reveal, however, their grave doubts about the wide regulatory power upon which the Privy Council based its decision. The majority commence their somewhat concealed critique of Tiny by stating: "Now if we were to ignore for a moment the Tiny decision and examine the applicable legislation in effect in 1867".40 The majority find that "it was the 'duty' of the trustees of common (and therefore of separate) schools to permit all residents aged 5 to 21 to attend school (s. 27(16) Common Schools Act; s. 9 of the Separate Schools Act)". 41 This is in marked contrast to the Privy Council in Tiny, which found that, before Confederation, the common and separate schools were by statute left free to educate pupils to the age of twenty-one. 42 The majority also find that "the separate schools were to receive a share of the legislative grant proportionate to the average number of pupils attending such schools" and that "there was nothing in the Grammar School Act to the effect that those schools were given exclusive rights or funding to provide secondary school education" .43 The majority go on to say:

If, in addition, one were to consider that textbooks used in separate and common schools indicate study at the highest pre-university level, that gradu- ates of such schools went directly into university or the learned professions, and that the Common and GrammarSchools Act of 1871, 34 Vict., c. 33... which replaced those schools with elementary (public) schools and secondary (high) schools, did not apply to separate schools, one would have to conclude that secondary school education up to the pre-university level was being given in separate schools, that the textbooks used were not disapproved, and that full and equal funding for such pupils and such grades was being provided by the province. Other than Duff J. in the Supreme Court of Canada, no judge who 44 participated in the Tiny decision, came to a contrary conclusion. After having said all this, the majority do not conclude that the Privy Council decision cannot be supported. Instead, they state:

38 EducationReference, supra, note 7 at 565, 25 D.L.R. (4th) at 53. 39 Factum of the Attorney-General at 67, Education Reference, supra, note 7. 40 Ibid. at 570, 25 D.L.R. (4th) at 58. 41 Ibid. 42 Tiny, supra, note 17 at 376, [1928 3 D.L.R. at 761. 43 EducationReference, supra, note 7 at 570, 25 D.L.R. (4th) at 58. 44 Ibid. at 570-1, 25 D.L.R. (4th) at 58-9 (footnotes have been omitted). 19861 ConstitutionalValues in Conflict

Therefore, even accepting the decision of the Judicial Committee in Tiny that all these examples of the provision of secondary school education in the separate schools did not preclude provincial regulation of the grades to which public funding would be accorded, it seems clear that by s. 93 the province can now decide to return to separate schools the rights they exercised in 1867 to provide secondary school education and to receive equal proportionate funding for such education, unless there is something in the Charter to preclude it.45 This conclusion was, however, totally unnecessary, for the majority had previously recognized that prior to the coming into force of the Charter and of section 15 thereof the provincial legislature had the power to provide full funding for Roman Catholic separate high schools unless such law would "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" .46 The majority had previously stated that "[n]o such prejudice has been or could be shown, even in the light of Tiny". 47 Thus, it must be concluded that the analysis of the pre-Confederation statutes really did constitute a critique of the Tiny case. If this was the course chosen by the Court, it would have been preferable for the majority to have stated forthrightly that they were criticizing the Privy Council decision in Tiny in order to assist the Supreme Court of Canada in overruling Tiny. D. The Dissenting Opinion The minority decision rendered by Chief Justice Howland and Mr. Justice Robins finds Bill 3048 inconsistent with subsection 15(1) of the Charter and not justified under section 1 and therefore, if enacted, of no force or effect. The minority do concede that subsection 93(1) represents a fundamental Confederation bargain and that such rights and privileges must be strictly honoured. They hold, however, that the Tiny case estab- lished that the funding guarantee is limited to elementary education, that Tiny is binding, and that even if it were open to the Court to depart from Tiny, it would be "inappropriate to do so" .49 The dissenting judges also hold that section 29 cannot protect Bill 30 from Charterscrutiny because "public funding of separate secondary schools is not, as Tiny has estab- lished, a right guaranteed by s. 93(l)".50 E. The Attractive Featuresof the Dissenting Opinion The dissenting judgment is in many ways an admirably crafted judgment. It will be greeted with approval by many, and particularly by

45 Ibid. at 571, 25 D.L.R. (4th) 59. 46 ConstitutionAct, 1867, (U.K.) 30 & 31 Vict., c. 3, s. 93(1). 47 EducationReference, supra, note 7 at 569, 25 D.L.R. (4th) at 57. 48 Bill 30, An Act to Amend the EducationAct, 2d Sess., 33d Leg. Ont., 1986. 49 Education Reference, supra, note 7 at 545, 25 D.L.R. (4th) at 34. 50 Ibid. at 547, 25 D.L.R. (4th) at 35. Ottawa Law Review [Vol. 18:3 those who put great faith in the Charteras a vehicle for reforming both the legal system and society itself. After very properly concluding that Bill 30 would have been a valid exercise of provincial legislative power prior to the Charter,the minority state:

[Tihe Charter is part of Canada's Constitution, our supreme law; it establishes a new relationship between the individual and the State. Its text marks the metes and bounds of government authority and individual autonomy. If Bill 30 is inconsistent with the Charter, it is the duty of the courts as guardians of our Constitution, to declare the Bill of no force or effect. 51

In determining whether Bill 30 is inconsistent with subsection 15(1) of the Charter, the dissenting judges state:

In our opinion, Bill 30 is inconsistent with s. 15(1) of the Charter which gives to every individual the right to equal benefit of the law without discrimi- nation based on religion. If this right is to mean anything, it must mean at least that the followers of one religion are not to be the beneficiaries of greater benefits provided by law than the followers of other religions. Bill 30 provides benefits on the basis of religion to one religious group only and is therefore a direct conflict with this right.52

The dissenting judges, in my opinion, present a convincing case for holding that section 29 of the Charterdoes not shield Bill 30 from Charter scrutiny.

The words "en vertu de" in the French version of s. 29 do not support the position that s. 29 was intended to shield legislation such as Bill 30 from scrutiny under the Charter. The words "garantis" precedes the words "en vertu de" and cannot be ignored. It is only rights or privileges which are constitutionallyguaranteed that are protected by s. 29. The words "or under" are not sufficient by themselves to give rights or privileges created by legislation enacted under s. 93(l) since the Charter the status of being constitutionally guaranteed. With deference to the majority, in our opinion, neither the French or English wording of s. 29 supports their interpretation or justifies stretching the section to the extreme that it exempts, as they say, "not only constitutionalguarantees of rights or privileges in respect of denomina- tional, separate or dissentient schools but also those provided by a law enacted pursuant to constitutionalauthority". 53

The minority do not read the proceedings of the Special Joint Com- mittee54 as "manifesting an intention to free post-Charter provincial legislation from compliance with the Charter" 55 through section 29 of the Charter. The minority also insist that, even if this were the intent, the words used fail to achieve this objective and in any case "the Court is not to

51 Ibid. at 521, 25 D.L.R. (4th) at 9. 52 Ibid. 53 Ibid. at 550-1, 25 D.L.R. (4th) at 39 (emphasis in original). 54 See note 28, supra. 55 EducationReference, supra, note 7 at 551, 25 D.L.R. (4th) at 39. 19861 ConstitutionalValues in Conflict be governed by speeches before the Special Joint Committee" 56 which should at most be given minimal weight. The dissenting judges conclude their discussion of section 29 of the Charterby saying that" [t]o accept that in this post-Charter era of our constitutional development Bill 30 can escape scrutiny under the Charter on that narrow technical basis, in our view, is to give the clock's hands a backward turn." 57 The minority considered whether Bill 30 could be saved by section 1 of the Charter even though it breached subsection 15(1) of the Charter. They concluded that the Attorney General had not discharged the burden of demonstrating this justification. The minority's essentially contemporary and future orientation is again clearly revealed. The dissenting judges reject as unimportant the argument that Bill 30 represents the culmination of a gradual movement back to pre-Confederation equality between the public and separate schools and that it is intended to redress historical grievances. They state:

The issue must be decided in the context of the constitutional compact of 1982 and in light of contemporary conditions in this province which bear little, if any, resemblance to those existing at the time of Confederation... . It is essential also to recognize, and particularly so in considering legislation in breach of an equality guarantee on the ground of religious discrimination, that Ontario today is a multicultural and pluralistic society composed of people of many diverse social, ethnic, racial and religious backgrounds. Religion is a dominant feature of their multicultural heritage and, by the very terms of the Charter, the multicultural heritage of Canadians is to be preserved and enhanced.58 The fatal flaw of the minority decision is that it is premised entirely upon the Tiny decision in the Privy Council which, in my opinion, ought not to survive a challenge in the Supreme Court of Canada. On the basis of precedent, the minority may have rendered the appropriate decision for an intermediate appellate court bound by Tiny, but, because it fails to give enough significance to the bicultural nature of Confederation, Tiny is unlikely to meet with favour in the Supreme Court of Canada. It is also submitted that the minority have attempted to give a somewhat more acceptable interpretation to Tiny by finding in it solid and firm protection at least for elementary education.

E The Centralityand Misinterpretationof Tiny

The minority continually return to the Tiny case as the key decision. For example, they state:

In Ontario the rights of separate school supporters which are constitutionally guaranteed under s. 93(1) are those which existed by law at the time of the

56 Ibid. 57 Ibid. at 552, 25 D.L.R. (4th) at 40. 58 Ibid. at 560, 25 D.L.R. (4th) at48. Ottawa Law Review [Vol. 18:3

Union on July 1, 1867. It would seem to be clearly established that both common school supporters and Roman Catholic separate school supporters were entitled to the public funding of elementary school education in Ontario at the Union. It did not include the right or privilege of separate schools to teach secondary school courses with public funding, or to be exempt from school rates for public secondary school education. This was decided by the Tiny case. 59 Although a section of the judgment is entitled the Tiny case, 60 there is really no satisfactory discussion of the ratiodecidendi of this Privy Council decision. There are several lengthy excerpts from the decision of Viscount Haldane, but not one of them supports the minority's proposition that the Tiny case establishes a definite guarantee limited to funding for elementary education.I In Tiny, the Privy Council itself emphasized that it was the power of regulation contained in the Scott Act6' and An Act Respecting Common Schools in Upper Canada62 which enabled it to determine that, once the power of regulation contained in these Acts was exercised, separate schools might be denied funding for secondary education beyond grade ten. The Privy Council in the Tiny case does not decide that the guarantee in subsection 93(1) is limited to funding for elementary education; it says rather that all or virtually all rights are defeasible rights because they are subject to the power of regulation. Exactly which rights are not defeasible and might therefore be said to be "core" rights is not specified. Viscount Haldane does not even attempt to define what it is that subsection 93(1) protects. He states:

It is indeed true that power to regulate merely does not imply a power to abolish. But the controversy with which this Board has to deal on the present occasion is a long way from abolition. It may be that the new laws will hamper the freedom of the Roman Catholics in their denominational schools. They may conceivably be or have been subjected to injustice of a kind that they can submit to the Governor-General in Council, and through him to the Parlia- ment of Canada. But they are still left with separate schools, which are none the less actual because the liberty of giving secondary and higher education in them may be abridged by regulation. Such an abridgment may be in the usual course when a national system of education has attained a certain stage in its development, and it would be difficult to forgo this power if the grading which may be essential is also to be possible. Their Lordships do not think grading is in itself inconsistent with such rights to separation of schools as were reserved 63 at Confederation.

59 Ibid. at 541, 25 D.L.R. (4th) at 29-30. 60 Ibid. at 529-33, 25 D.L.R. (4th) at 18-21. 61 26 Vict., c. 5, s. 26 (1863). 62 Consolidated Statutes of Upper Canada 1859, c. 64, s. 119(4) [hereinafter the Common Schools Act], originally enacted by An Act for the Better Establishment and Maintenanceof Common Schools in Upper Canada, 13 & 14 Vict., c. 48, s. 38(4) (1850). 63 Tiny, supra, note 17 at 389, [1928] 3 D.L.R. at 772. Viscount Haldane rendered his last Privy Council decision in the Tiny case on June 12, 1928 and died on August 19, 1928. As a relatively young barrister, acting for Manitoba in Brophy v. A.G. Manitoba 1986] ConstitutionalValues in Conflict

The Ontario Court of Appeal in Reference Re Education Act of Ontario and Minority Language Education Rights64 had previously accepted that the ratio of the Tiny case was founded upon this wide power of regulation. The Court stated:

The Tiny Township Case, to which we adverted earlier, decided that the province enjoys "a full power of regulation" with respect to the operation of denominational schools and may regulate them without violating the terms of s. 93. So long as the legislation regulates education and does not threaten the existence of the separate schools or interfere with their denominational character it is valid. 65 Professor Schmeiser has commented on the Tiny case and does not find any defined core protection for elementary education as is found by the dissenting judges. "The judgment," according to Schmeiser, "presents many difficulties", and he asks:

How far can the legislature go to change the old common school system and "otherwise appropriate" the common school fund? And how far can the legislature regulate grading without producing total abolition?66 Professor Hogg also interprets the Tiny case as emphasizing the power of regulation rather than providing for any clearly defined core protection as found by the dissenting judges in the current reference. Professor Hogg states:

In Tiny Roman Catholic Separate School Trustees v. The King (1928), the Privy Council said that Ontario had the power to "regulate" instruction in the separate schools. In other words, the protected rights and privileges were subject to a degree of provincial regulation. On this basis their lordships

(1894), [1894] A.C. 202 (P.C.), he had argued unsuccessfully that the Roman Catholic minority of Manitoba has no right of appeal to the Governor-General in Council against the Public Schools Act, S.M. 1890, c. 38, which abolished denominational education in Manitoba. Professor Stephen Wexler in an article entitled The Urge to Idealize: Viscount Haldane and the Constitution of Canada (1984) 29 McGILL L.J. 608 has convincingly shown that Haldane had an exaggerated inclination to romanticize or idealize events of his life and that this had a profound impact on his judicial work. It would be interesting to know whether, as a result of the Brophy case, Haldane came to see himself as a staunch defender of non-denominational public education and whether this may have influenced his decision in the Tiny case. 64 (1984), 47 O.R. (2d) 1, 10 D.L.R. (4th) 491 (C.A.) [hereinafter Minority Language EducationReference]. 65 Ibid. at 48, 10 D.L.R. (4th) at 537-8. The Tiny case was also considered by Trainor and Gray JJ. of the Ontario Divisional Court in Re Metropolitan Toronto School Bd. and Minister of Education (1986), 54 O.R. (2d) 458 at 475, 27 D.L.R. (4th) at 65. Therein, they stated: "The crux of the decision in the Privy Council is that regulatory powers abridging the giving of secondary or higher education in separate schools and the legislative grants available did not prejudicially affect any right or privileges within s. 93(1) of the Constitution Act, 1867, as these schools were subject to regulation in 1867." 66 D.A. Schmeiser, CIVIL LIBERTIEs IN CANADA (Glasgow: Oxford University Press, 1964) at 142. Ottawa Law Review [Vol. 18:3

upheld a provincial law which prohibited the separate schools in Ontario from offering secondary (or high school) education beyond grade 10, although there was no such restriction on the separate schools at the time of con- federation. Their lordships in the same case also upheld a reduction in the separate schools' share of the appropriations for education, although this involved departing from a formula contained in pre-confederation legislation. These provisions had a severely detrimental effect on the separate school system; yet they were upheld as legitimate "regulation". 67 In 1950 the Tiny case was evaluated by a Royal Commission on Education, chaired by Mr. Justice John A. Hope. 68 The majority of the Commission recommended the organization of the system into six elemen- tary, four intermediate and three senior grades, with separate schools funded for only the six elementary years. The majority of the Hope Commission found no specified core rights in the Tiny decision:

[T]hejudgment of the Privy Council stated that separate schools were "only a special form of common school" and that the Council of Public Instruction in 1863 (now the Department of Education) could, in the case of both public and separate schools, determine the courses of study to be pursued and the extent of the education to be imparted. Thus was established the unquestionable right of the Legislature of Ontario by statute or by authorized regulations to regulate the right of trustees of Roman Catholic separate schools to establish and conduct courses of study and "grades of education" such as are con- ducted in fifth classes, continuation classes and schools, and high schools and collegiate institutes. The Tiny decision also established that in law the Department of Education is clothed with full power, as was its predecessor, the Council of Public Instruction, to determine the course of study for each grade of the elementary and secondary schools and the point or grade to which elementary schools shall extend. 69 I believe it is clear that the dissenting judges in the Ontario Court of Appeal have not accurately assessed the rationale of the Tiny case. They state that: "The Tiny Case has stood for 60 years as an authoritative pronouncement that under s. 93 separate school rights extend only to the elementary level." ' 70 What Tiny does stand for is that the rights and privileges with respect to separate school legislation accorded by the Scott Act7' are defeasible because of the wide power of regulation contained within that Act and in the Common Schools Act.72 The Privy Council does

67 P.W. Hogg, CONSTITUTIONAL LAW OF CANADA, 2nd ed. (Toronto: Carswell, 1985) at 827. 68 Ontario, Report of the Royal Commission on Education in Ontario 1950 (Toronto: King's Printer, 1950). 69 Ibid. at 506. 70 EducationReference, supra, note 7 at 560, 35 D.L.R. (4th) at 48. See also N. Finkelstein, Legal and ConstitutionalAspects of Public Fundingfor Private Schools in Ontario, THE REPORT OF THE COMMISSION ON PRIVATE SCHOOLS IN ONTARIO (Toronto: Queen's Printer, October 1985) App. D., 81 at 87, 97 (Commissioner: B.J. Shapiro) [hereinafter PRIVATE SCHOOLS]. 71 36 Vict., c. 5 (1863). 72 Consolidated Statutes of Upper Canada 1859, c. 64, s. 119(4). 1986] ConstitutionalValues in Conflict

say that a power to regulate does not imply a power to abolish and that there is therefore some undefined but irreducible minimum or core guarantee, which is generally considered to apply to some level of primary or elementary education. But it is to a considerable extent fortuitous that we now regard the core protection as relating to elementary education, since the wide regulatory power could, at least in theory, have been applied to curtail funding for elementary education. The core protection would then have been in respect of secondary education. The minority's contention that the Tiny case recognized a funding entitlement only for elementary schooling, and that this limited entitlement was clearly guaranteed, appears exceedingly questionable. G. HistoricalArgument The historical argument for such a division of educational rights also seems very suspect. 73 The distinction between elementary and secondary education or between public and high schools was not even known in 1867. The education in the common and separate schools was divided into classes or forms, each covering two years, so that the fifth and sixth classes were equivalent to grades nine to twelve. In 1871 the name "Common Schools" was changed to "Public Schools", and the students' age ranged between seven to twelve years rather than five to twenty-one years. 74 "Grammar Schools" were renamed "High Schools" or "Collegiate Institutes". 75 It would, however, be a mistake to infer that high schools and collegiates were simply the successors of the grammar schools. Prior to 1867 the grammar schools (although they received some public funding) charged fees, generally limited their enrollment to boys, existed only in a few urban areas and regarded their mission as educating an elite. The educational needs of the majority of the public were not served by the grammar schools in 1867, even among the few children who received more than a very basic education. In a physical sense grammar schools became high schools and collegiates but in a more fundamental sense these new entities gradually assumed the broad educational func- tions which the common schools had performed before Confederation. The Common and Grammar Schools Act 7 6 of 1871 did not apply to separate schools, thus the authority to continue to offer secondary educa- tion in the separate schools was preserved. In regard to the 1871 legislation, the Superintendent of Education stated: In reply to a question frequently asked, we desire to say that the new School Act and Regulations do not in any way affect the Separate Schools. It was not

73 See, e.g., FA. Walker, CATHOLIC EDUCATION AND POLITICS IN UPPER CANADA (Canada: J.M. Dent and Sons, 1955); EA. Walker, CATHOLIC EDUCATION AND POLITICS IN ONTARIO (Canada: Thomas Nelson & Sons, 1964) [hereinafter EDUCATION IN ONTARIO]. 74 See An Act to hnprove the Common and GrammarSchools of the Province of Ontario, S.O. 1870-71, c. 33, s. 3 [hereinafter the Common and Grammar Schools Act]. 75 Common and GrammarSchools Act, S.O. 1870-71, c. 33, ss. 34 and 41. 76 S.O. 1870-71, c. 33. Ottawa Law Review [Vol. 18:3

intended to affect them when the Act was passed; and it would be unjust to the supporters of these Schools thus to legislate for them indirectly, and without their knowledge. The Inspectors will, therefore, be particular not to apply the Act, or any of the new Regulations to Separate Schools.77 Between 1871 and 1926, during which the Tiny case commenced, legislation had gradually eroded the rights of separate schools with regard to the financing of secondary instruction. By 1915 this erosion was so far advanced that the Department of Education informed the principal of St. Peter's School in Peterborough that work beyond the fifth form (grade ten) could not legally be offered in her school. 78 Bishop O'Brien wrote to G. Howard Ferguson, the acting Minister of Education, stating that he was "astonished" with this decision and claiming that "the right to carry on this work had never been questioned since 1841" .79 Ferguson replied that the Bishop had "an entire misconception of the position that Separate Schools occupy in the education system of the Province" and that the Department of Education "never has, and I venture to think, never will change the well defined, clear-cut and well understood line of demarcation between the work of our Public and Separate School and that of our Secondary or High School". 80 Thus a distinction which did not even exist in 1867 had, in Ferguson's opinion, become a firm line of demarcation. Professor Peter Oliver comments that "the Catholic community encoun- tered the province's fear that a fully developed Catholic system would threaten its structure of common schools" .81 Tiny was a decision rooted in the courts' understanding of Ontario's educational and political history. Recognizing this, and perhaps seeking to defend their unwillingness to criticize Tiny, Chief Justice Howland and Mr. Justice Robins argue that the various judges on that case were in a better position to make the necessary historical determinations than judges today because they were "some 60 years nearer to Confederation". 8 2 "Our distance of well over a century", the dissenting judges write, "cannot help but work as a prism refracting all one wishes to perceive." 8 3 This may well be true, but the minority's confidence that the Tiny judges were signifi- cantly less subject to distortions in their historical perspective seems to me quite unfounded. A greater temporal distance may make historical research more difficult, but it may also contribute objectivity. I will argue that the Ontario courts' decisions in Tiny reveal an unconscious bias in favour of a narrow form of English Canadian nationalism which may have impeded an objective assessment of history.

77 Journal of Education for May, 1873 at page 80. (Thisjournal was referred to in the Factum of the Attorney-General in the Education Reference case, supra, note 7). 78 See EDUCATION IN ONTARIO, supra, note 73 at 334. 79 Ibid. 80 Ibid. at 334-5. 81 P.N. Oliver, G. HOWARD FERGUSON: ONTARIO TORY (Toronto: University of Toronto Press, 1977) at 249. 82 EducationReference, supra, note 7 at 545, 25 D.L.R. (4th) at 33-4. 83 Ibid. 1986] ConstitutionalValues in Conflict

H. The Tiny Case in the Ontario Courts

It is impossible to read the Tiny case in the Ontario courts without being struck by the strong impression that the Ontario judges were being influenced by the "one flag, one language, one school" syndrome which passed for English Canadian nationalism for far too long a period. This was a destructive kind of nationalism; its assimilative tendency denied the bilingual and bicultural nature of the Canadian nation and helped to promote the rise of French Canadian separatism. 84 One argument which may reflect this syndrome centres on section 20 of the Scott Act of 1863 which provides that "[e]very Separate School shall be entitled to a share in the fund annually granted by the Legislature of this Province for the support of Common Schools" 85 on a per capita basis. Mr. Justice Rose concludes that the above section provides no constitutional guarantee at all because the reference is to the legislature of "this Province", which ceased to exist in 1867. In the High Court decision, Mr. Justice Rose states:

After the 30th June, 1867, there was no Province of Canada. Therefore, if at any time after Confederation but before 1877, when the Act of 1863 was repealed... a separate school had claimed a share of a sum granted by the Ontario Legislature for the support of common schools, the claim, if resisted, would have failed. It is true that by virtue of sec. 129 of the British North America Act all laws in force in Canada at the Union continued in Ontario as if the Union had not been made, but subject to repeal or alteration by Parliament or by the Legislature of Ontario, according to the respective legislative authorities of Parliament and the Legislature; but to enact that a law shall continue in force after the Union is not to declare that the meaning of that law shall be changed by the Union, and there is nothing in the British North America Act to indicate that a law relating to the distribution of moneys voted by the Legislature of the Province of Canada should, after the Union, govern the distribution of moneys voted by the Legislature of Ontario. Therefore a claim made between 1867 and 1877 to a share in any moneys granted by the Ontario Legislature for common-school purposes would have failed, not because the Act of 1863 had ceased to have force, but because of the non- existence of any fund to which sec. 20 could apply.86

84 See L.C. Clark, The Conservative Party in the 1890s, in J.P. Heisler & P.E. Dumas, eds., THE CANADIAN HISTORICAL ASSOCIATION REPORT (Montreal: 1961) 58 at 74, where Professor Clark writes: The militant Protestantism and Anglo-Saxon racialism, to which the Con- servative Party succumbed in the eighteen-nineties, remained to plague it long afterwards. In the meantime, the events in Manitoba and the North-West Territories had broken the compact of 1867, and profoundly altered the nature of the Canadian Confederation. The hope of the "Founding Fathers" that French-speaking and English-speaking Canadians would share the new west- ern domain on equal terms was shattered. Henceforth French Canada could feel sure of its cultural rights only within the confines of the Province of Quebec. In Ontario, Regulation 17 and the events leading up to Tiny must have had a similar impact. 85 26 Vict., c. 5 (1863) (emphasis added). 86 Supra, note 17, 59 O.L.R. at 150-1. Ottawa Law Review [Vol. 18:3

The adoption of this patently absurd black letter argument causes one to conclude that Mr. Justice Rose agreed with the Ontario legislature's policy of whittling away the rights of the separate school supporters, and that he was prepared to seek any justification to reduce the constitutional guarantee in subsection 93(1). It is even more appalling that this bizarre and unmeritous argument was accepted by the Ontario Court of Appeal. Chief Justice Mulock said:

In his reasons for judgment the trial Judge pointed out that the fund in which s. 20 of the 1863 Act declared separate schools entitled to share was a fund annually granted "by the Legislature of this Province" (the old Province of Canada), and that the Province of Canada, together with its Legislature, having at the Union ceased to exist, there is now no such fund. I agree with 7 this view.8

Mr Justice Hodgins, in considering section 20 of the Scott Act, also fully adopts the position of Mr. Justice Rose, and states: "This section deals only with grants by the 'Legislature of this Province'. . . which Province passed out of existence on the enactment of the B.N.A. Act".ss All the other judges of the Ontario Court of Appeal also agree with Mr. Justice Rose that the separate schools were totally deprived of the financial guarantees contained in section 20 of the Scott Act. In the Supreme Court of Canada, Chief Justice Anglin refers to the argument of Mr. Justice Rose that section 20 of the Scott Act imposed no obligation on the Ontario legislature after 1867 and states:

This view is utterly at variance with the spirit and intent of s. 93(1) of the B.N.A. Act. Unless the legislatures of Ontario and Quebec are debarred from prejudicially affecting the rights and privileges of the respective religious minorities in regard to maintenance and support which their denominational schools enjoyed at Confederation under legislation of the former Province of Canada, the protection of such rights and privileges afforded by sub-s. 1 of s. 93 becomes illusory and the purpose of the Imperial legislation is sub- verted. 89 To the credit of the Supreme Court of Canada, no judge adopted the extremely specious argument of the Ontario courts that because Canada West had ceased to exist, section 20 providing for equal proportionate funding for common and separate schools was spent and inoperative. The Privy Council also rejected the Ontario courts' interpretation of section 20 and on this point fully concurred with Chief Justice Anglin of the Supreme Court of Canada. The fact remains that one cannot read the Ontario courts' decision in Tiny without concluding that their decisions were unduly influenced by a narrow English Canadian nationalism which was perhaps compounded by a strong Protestant antagonism to Roman Catholic

87 Ibid., 60O.L.R. at 24, [1927] 1 D.L.R. at 920-1. 88 Ibid. at 27, [1927] 1 D.L.R. at 923. 89 Ibid., [1927] S.C.R. at 657, [1927] 4 D.L.R. at 861-2. 1986] ConstitutionalValues in Conflict schools. The Tiny case was argued in four different courts and before a total of seventeen judges. Fourteen were Protestants and three were Roman Catholics. 90 All fourteen judges of the Protestant faith decided against the Roman Catholic separate school trustees, while the three Roman Catholics decided in favour of the separate school trustees. This split might have been simply coincidental, but it more likely displays that Tiny was influenced by religious beliefs, knowledge of history, educational philosophy, political convictions and perceptions of both the Constitution and the nation itself.91

I. Tiny Case Should be Overruled

In my estimation neither the majority nor minority opinion in the current reference case represents a proper reconciliation of section 93 and the Charter. The only satisfactory solution to this problem is to overrule the Tiny case. The Tiny case was bad law, bad history and has been detrimental to Canadian unity. Constitutional guarantees for minorities did not receive reasonable interpretation at the hands of the Privy Council. In the Tiny case Viscount Haldane states "[t] heir Lordships have now to determine the point in issue as one of pure legal interpretation, disregarding every other consideration".92 The proper scope to be accorded to a constitutional guarantee cannot be achieved by a narrow legalistic approach which leaves no room for the spirit of the Constitution at all. The technique adopted to guarantee minority educational rights in section 93 was perhaps bound to cause problems. Constitutionalizing the law in force at a particular time is not a particularly satisfactory procedure. When the Scott Act 93 was passed, it was not intended to be a constitutional

90 Of the six judges who heard the Tiny case in the Ontario courts, Rose J., Mulock C.J.O., Hodgins and Ferguson JJ.A. were Anglicans, Grant J.A. was a Presbyterian and Magee J.A. was a member of the United Church. The Supreme Court of Canada split three to three in the Tiny case and the split occurred along religious lines. The three Roman Catholics, Anglin C.J.C., Mignault and Rinfrett JJ. held in favour of the claims of the separate school trustees, while the Protestants, Duff J., whose father was a Congregational minister, and Newcombe and Lamont JJ., who were Presbyterians, rejected the appeal. 91 The Catholic Register and Canadian Extension quoted the opinions of two London newspapers which commented on the Privy Council decision in Tiny. The Anglican Church Time wrote, "We have read with disappointment the judgment of the Judicial Committee in the Ontario School Case. The judgment appears to us narrow in tone and a blow to civil and religious liberty." (June 15, 1928). The Universe commented that "the Catholic Schools of Ontario have a claim in political equity though the case has gone against them in law ... Lord Buckminster, in the course of hearing ... sardonically remarked that if the claims of the Ontario Government were upheld, the guarantees [of] the 'B.N.A. Act' were 'not worth very much'." (June 22, 1928). Both quotations are cited by Robert Thomas Dixon in The Ontario Separate School System and Section 93 of the "B.N.A. Act" (Thesis for the degree of Doctor of Education, The Ontario Institute for Studies in Education, 1976) at 129-30. 92 Supra, note 9 at 36, [1928] 3 D.L.R. at 754. 93 26 Vict., c. 5 (1863). Ottawa Law Review [Vol. 18:3

enactment even though many hoped that it would represent a final solution to the educational conflict. The most important provisions in the Scott Act were as follows:

Section 7 provided that the trustees of the separate schools had the power to levy school rates on their supporters and have "all the powers in respect of Separate Schools, that the Trustees of Common Schools have and possess under the provisions of the Act relating to Common Schools". Section 9 provided that trustees of the separate schools "shall perform the same duties and be subject to the same penalties as Trustees of Common Schools". Section 14 provided that a supporter of a separate school shall be exempt from all rates imposed "for the support of Common Schools, and of Common School Libraries, or for the purchase of land or erection of buildings for Common School purposes". Section 20 provided that "[e]very Separate School shall be entitled to a share in the fund annually granted by the Legislature of this Province for the support of Common Schools, and shall be entitled also to a share in all other public grants, investments and allotments for Common School purposes now made or hereafter to be made by the Province or Munici- pal authorities" based on the proportion of the average number of pupils attending the separate school to the total average attendance in the same community.

Section 26 provided that separate schools were subject to inspection and "to such regulations, as may be imposed, from time to time, by the Council of Public Instruction for Upper Canada". By section 9 of the Scott Act, the trustees of the separate schools had the same duties as those of the common schools. Furthermore, subsection 27(16) of the Common Schools Act 94 provided that" [i]t shall be the duty of the Trustees of each school section, and they are hereby empowered... [t]o permit all residents in such section between the ages of five and twenty-one years, to attend the school". Because of this, the separate school trustees had a like duty in regard to their supporters. In 1867 the common schools and separate schools were educating students to the university level. The Privy Council said that "[blefore Confederation the common schools and with them the separate schools were left free, by statute (see Upper Canada Common Schools Act, 1859, s. 16), to educate pupils up to the age of twenty-one, and some of them were in the habit of giving to the older pupils advanced teaching such as would

94 Consolidated Statutes of Upper Canada 1859, c. 64. 19861 ConstitutionalValues in Conflict

fit them to enter the University" .95 When the opening words, "[i]t shall be the duty of the Trustees of each school district, and they are hereby empowered" are read in conjunction with the words in subsection 16 "[t]o permit all residents in such section between the age of five and twenty-one years to attend the school", it is difficult to say that schools were "left free" to educate pupils up to the age of twenty-one for the schools had a duty to permit those persons to attend. It is probably true that the trustees of the schools had no absolute "obligation to provide tuition suitable for all persons within that range" 96 but a duty to permit them to attend surely would imply at least an obligation to provide as suitable a tuition as financial and human resources would allow. The fact remains, however, that in 1867 students between five and twenty-one years were in common and separate schools as of right and that the schools were as of right receiving proportionate grants for all students, including students doing advanced work. The common school and separate school trustees had a duty -not a liberty or freedom - to permit students between five and twenty-one to attend their schools. The students were there as of right and the trustees of both separate and common schools had a right to receive their proportionate share of the grants for common schools. If one gave a wide scope to the power of regulation possessed by the Council of Public Instruction, then these rights might be regarded as defeasible rights. There are, however, two compelling reasons why the power of regulation should not be considered to render defeasible either the right to provide secondary education or the right to receive a proportionate grant based on the number of students. Subsection 119(4) of the Common Schools Act 97 empowers the Council of Public Instruction "to make such regulations from time to time, as it deems expedient, for the organization, government and discipline of Common Schools, for the classification of Schools and Teachers, and for School Libraries throughout Upper Can- ada". This subsection should not have been interpreted as conferring on the Council of Public Instruction a power to determine the level of educa- tion to be provided and the amount of funding to be received but should have been restricted to such matters as the curriculum and teacher qualifications. To categorize the withdrawal of funds from several grades as regulation borders on the absurd. As Chief Justice Anglin said in the Tiny case: The Council was not empowered to curtail the courses of studies to be pursued or to determine the extent of the education to be imparted in the schools. "Organization, government and discipline" are not apt terms to confer such jurisdiction; and "classification" does not imply anything of the kind. It had reference rather to the distribution of the pupils in classes according to degree of advancement each had attained in his education. 98

95 Supra, note 17 at 376, [1928] 3 D.L.R. at 761. The Privy Council was mistaken in citing section 16; the relevant provision was subsection 27(16). 96 EducationReference, supra, note 7 at 531, 25 D.L.R. (4th) at 19. 97 Consolidated Statutes of Upper Canada 1859, c. 64, s. 119(4). 98 Supra, note 17, [1927] S.C.R. at 670, [1927] 4 D.L.R. at 873. OttawaLaw Review [Vol. 18:3

The second reason why the rights should not be regarded as defeasible is that when subsection 93(1) gave constitutional value to the ScottAct and the Common Schools Act, it became indefensible to ascribe such a wide ambit to the regulatory power. Subsection 93(1) should have been con- strued in such a way as to effectuate its manifest purpose, which was to provide a reasonable guarantee for minority Roman Catholic education in Ontario and Protestant education in Quebec. To give a wide interpretation to regulatory power conferred by subsection 119(4) of the Common Schools Act subverts the purpose of subsection 93(1) and causes the protection afforded by it to become illusory. In view of the fact that section 93 has been called "one of the cardinal terms of the Confederation arrange- ment" 99 and because of its pivotal role in making Confederation possible, the Fathers of Confederation must have intended section 93 to provide substantial protection. The uncertain and insubstantial protection to which section 93 was reduced through the enormous ambit accorded to the power of regulation by the Privy Council would have been inconceivable to them. It must also be remembered that the Privy Council rendered its decision in the Tiny case more than a year before enunciating "the living tree doctrine" for constitutional interpretation. In Edwards v. A.G. Can- ada, Lord Sankey stated that "[t]he British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits".' 00 The Privy Council did reaffirm the view that ordinary methods of construction applicable to other statutes must be applied but it recog- nized that "there are statutes and statutes". Strict construction, while proper for some statutes, would often be "subversive to Parliament's real intent if applied to an Act passed to ensure the peace, order and good government of a British Colony". 10 It is submitted that had the above approach to constitutional interpretation been adopted in the Tiny case, that case would have been decided differently for a search for the purpose of section 93 would have been carried out. This search would have disallowed attaching such wide purport to the regulatory power found in subsection 119(4) of the Common Schools Act. In addition to producing the opposite result in Tiny, "the living tree doctrine" is relevant today in another way. Even if one concluded (wrongly, in my opinion) that in 1867, common and separate schools were not as of right educating some students to the university entrance level, it is still clear that the guarantee was for basic education which must today be construed as comprising education to the senior matriculation level. The term "common school" was derived from its function: to provide educa- tion for the common or average person. Today the expectation for the average person is that he or she will complete high school. The "living tree doctrine", which has repeatedly been cited and applied by the Supreme

99 Reference Re Adoption Act (1938), [1938] S.C.R. 398 at 402, [1938] 3 D.L.R. 497 at 498, Duff C.J.C. 100 (1929), [19301 A.C. 124 at 136 (P.C.). 101 Ibid. at 136-7. 1986] ConstitutionalValues in Conflict

Court, strongly suggests that the guarantee should now be interpreted as encompassing both primary and secondary education. '0 2 The only time that the minority discussed "the living tree doctrine" was in connection with the Charterfor the purpose of challenging the wide interpretation that the majority had adopted with regard to the words "or under" in section 29.103 However, this doctrine applies to the whole Constitution and not just to the Charter. It is true that should a new Canadian constitution be written today, the minority religious educational guarantee would not occupy the strategic role that section 93 did in 1867 and that the guarantee, if one would even exist, would certainly not be restricted to Roman Catholic and Protestant minorities. The courts have a duty to interpret the Constitution in a progressive spirit so that it evolves in a way which will best accord with the conditions of our modem age. But the courts must not, under the guise of interpretation, amend the Constitution. It is the Constitution the judges are interpreting and they should interpret it so that it is the best Constitution it can be. This kind of interpretation implies fidelity to the original Constitu- tion and to the cases that have previously interpreted it. However, if a case interpreting the Constitution has not borne reasonable fidelity to the original Constitution, that case should be overruled unless doing so would cause serious problems. The reliance on the Tiny case has not been so great that overruling would cause problems. Instead, if Tiny were wrongly decided, it simply provided the Ontario legislature with an invalid legal excuse for not funding grades eleven, twelve and thirteen even though, at least prior to the Charter, it clearly had the power to do so. The Ontario legislature no longer wishes to hide behind this invalid legal excuse. Overruling the Tiny case does not cause problems but permits the Ontario legislature to fulfil a constitutional duty. The dissenting judges, however, state "[t]he single purpose sought to be achieved here by changing the law and thereby transforming the government policy of Bill 30 into a constitutional right is to avoid requiring Bill 30 to be tested against the provisions of the Charter". 104 Chief Justice Howland and Mr. Justice Robins are assuming that Tiny was properly decided. They rely partly on the fact that Mr. Justice Chouinard in A.G. Quebec v. GreaterHull School Bd., 10 5 quoted the Privy Council decision in the Tiny case "without in any way suggesting expressly or impliedly that

102 For recent examples, see A.G. British Columbia v. CanadaTrust Co. (1980), [1980] 2 S.C.R. 466 at 478-9, 112 D.L.R. (3d) 592 at 601; Reference Re Residential Tenancies Act, 1979 (1981), [1981] 1 S.C.R. 714 at 723, 123 D.L.R. (3d) 554 at 562-3; Reference Re NaturalGas Tax (1982), [1982] 1 S.C.R. 1004 at 1042-3; Law Soc'y of Upper Canada v. Skapinker (1984), [1984] 1 S.C.R. 357 at 365-6, 9 D.L.R. (4th) 161 at 167-8; Hunter v. Southam Inc. (1984), [1984] 2 S.C.R. 145 at 155-6, 11 D.L.R. (4th) 641 at 649-50; Perka v. R. (1984), [1984] 2 S.C.R. 232 at 265, 13 D.L.R. (4th) 1 at 26-7. 103 EducationReference, supra, note 7 at 552, 25 D.L.R. (4th) at 40. 104 Ibid. at 546, 25 D.L.R. (4th) at 34, Howland C.J.O. and Robins J.A. 105 (1984), [1984] 2 S.C.R. 575, 15 D.L.R. (4th) 651. Ottawa Law Review [Vol. 18:3

it was wrong". 106 But while there is no express disapproval of Tiny, the whole tenor of the judgment is against it and clearly reveals that the Supreme Court of Canada believes that subsection 93(1) is an important guarantee which should be reasonably and broadly construed. Mr. Justice Chouinard, with whom five judges concurred, found certain provisions of a Quebec statute to be ultra vires on the basis of subsection 93(1): "[b]ecause the disputed provisions omit to state that the grants must be distributed on a proportionate basis, and because in a referendum the will of a school board may be subject to the will of electors not within their districts".107 Mr. Justice Le Dain, with the concurrence of Mr. Justice Lamer, went further In his view, the referendum would prejudicially affect the management of the denominational schools even if it had been confined to the proper electors. Mr. Justice Le Dain insisted on stringent protection for dissentient schools, saying: Indeed, I agree with the conclusion that the requirement of approval by referendum renders the power to tax beyond the limit prescribed quite illusory. What is in issue here is not the theoretical scope of the democratic rights of a class of persons, viewed in the abstract, but the effective power of school commissioners and trustees to provide for and manage denominational schools in the interests of the class. 108 The A.G. Quebec v. GreaterHull School Bd. case clearly indicates that the Supreme Court of Canada will not be content with the illusory protection accorded to separate school supporters in Ontario by the Tiny case. Subsection 93(1) presumably cannot be interpreted to give robust protection for Protestant dissentient schools in Quebec but only illusory protection for Roman Catholic separate schools in Ontario. When the Supreme Court of Canada for the first time had to interpret the scope of the minority educational rights in subsection 93(1) and in subsection 22(1) of the Manitoba Act, it unanimously gave a wide, liberal construction to the guarantee, and struck down the Manitoba Public Schools Act'0 9 of 1890. The Supreme Court of Canada in City of Winnipeg v. Barrett"o asked whether there was in fact any prejudicial effect on denominational schools and found that there was. In contrast, the Privy Council never established itself as a strong protector of minority educa- tional rights. 1' It was, in general, content to construe the rights and privileges guaranteed by subsection 93(1) so narrowly that no prejudicial effect was to be found short of total abolition. The wide power of regulation

106 Education Reference, supra, note 7 at 545, 25 D.L.R. (4th) at 33. 107 A.G. Quebec v. GreaterHull School Bd., supra, note 105 at 598, 15 D.L.R. (4th) at 668-9. 108 Ibid. at 600, 15 D.L.R. (4th) at 670. 109 S.M. 1890, c. 38. 110 (1891), 19 S.C.R. 374, rev'd[1892] A.C. 445 (P.C.). III See ER. Scott, The Privy Council and Minority Rights (1930) 37 QUEENS Q. 688; G. Bale, Law, Politics and the ManitobaSchool Question: Supreme Courtand Privy Council (1985) 63 CAN. B. REv. 461. 19861 ConstitutionalValues in Conflict and the wide power of prior appropriation found in the Tiny case rendered the legal protection guaranteed to denominational schools by section 93 frail and anaemic. Now that the Ontario legislature has finally decided to accord separate schools the right to provide full secondary education with equal proportio- nate funding, rights which I believe they enjoyed in 1867, it would be exceedingly unfortunate if the narrow definition given to rights and priv- ileges by the Privy Council were to prevent this from occurring. The Ontario legislature has decided to make amends for historical grievances. The courts, which had a duty to prevent the grievances from happening in the first place, should not now stand in the legislature's way.

Il. CONCLUSION

The majority and the minority decisions in the reference case repre- sent two distinctly different constitutional thrusts. The majority emphasized the older part of the constitution and the fact that the protection of the educational rights of the religious minorities in Canada East and Canada West was "one of the cornerstones of Confederation". 112 History and the "compact" of Confederation are much more important to the majority. The judgment notes that the Confederation bargain "has been fulfilled in Quebec. It should not be broken in Ontario.""l3 The dissenting judges could be described as interested primarily in a contemporary and future orientation and in giving the newer part of our Constitution, the Charter, a large and liberal construction. The minority are determined that the past should not bind the dramatically different society of today. Both are valuable constitutional perspectives, but in this instance the historical thrust must, in my opinion, prevail.-I do not think a decision enhancing the importance of the Chartercan successfully be based on a case which has unreasonably deprecated a cardinal provision of the original Confederation bargain. One does not build a house on a foundation of sand. Equally, one does not build a good constitution upon past injustice. The Tiny case is an exceedingly unfortunate blot upon our constitutional jurisprudence. We must first face the fact that Ontario reneged on a basic constitutional guarantee and that the courts dismally failed to protect guaranteed rights. Only then can we move forward on a firm foundation to give a broad and liberal construction to our Charter of Rights and Freedoms. The reference case challenges the Supreme Court of Canada to enunciate its conception of the Canadian nation and to embrace and celebrate Canada's founding dualism. The Court also has the opportunity to teach us some Canadian history and thereby contribute to a better understanding of our nation. As Canadians we-pride ourselves on our

112 EducationReference, supra, note 7 at 575, 25 D.L.R. (4th) at 64. 113 Ibid. Ottawa Law Review [Vol. 18:3

tolerance and generosity, but this is belied by the mean and scanty scope accorded to national obligations. Professor Donald A. Bailey writes that "[tlhe Constitution was interpreted narrowly, and undermined or abro- gated when possible, so that the desired Anglo-Protestant complexion of Canada could move from hegemony to monopoly". 114 In the early decades of this century a function of public schools was to mould an English Canadian identity, predicated upon the belief that linguistic and cultural dualism was unfortunate and should be confined to Quebec. In 1916, Charles Langelier asked whether the Constitution of 1867 had fulfilled all of its promises. His reply was that "Les garantis solennelles donndes aux minorit~s sont dans bien des cas ignorfes, repudi6es et foul6es aux pieds comme un vulgaire chiffon de papier" 115 We cannot undo the past but we can surely be generous enough to admit to error. A wider construction for subsection 93(1) rights and privileges does inevitably mean a narrower scope to the equality rights of section 15. This is unfortunate and I would generally deprecate a failure to construe the Charterliberally. It is important, however, to be realistic. Full funding has the support of all three political parties and Bill 30 was passed with only one negative vote recorded. Section 15 is subject to the notwithstanding clause or the legislative override of subsection 33(1). As a practical matter it would be difficult to undo the full funding decision and as a political matter it would be disastrous not to fulfil the anticipation created by this decision. Thus if the Supreme Court of Canada were to reverse the Ontario Court of Appeal, it is probable that Bill 30 would be passed once again by the Ontario legislature with a declaration that the Act is to operate notwith- standing section 15. I do not believe that judges should be looking over their shoulders in attempting to determine whether the legislature will resort to subsection 33(1). However, should the Supreme Court of Canada hold Bill 30 to be inconsistent with the Constitution, it would simply be relying on the Privy Council decision in Tiny, which even the foes of full funding concede to be a weak reed. Thus deference to the legislature appears the wisest policy. The strength and vitality of the Chartercould be sapped were the legislature to exercise its override power too frequently, particularly in the early years of the Charter.A cautious approach by the judiciary seems to be in order, especially since the legislature believes it is redressing valid historical grievances and is cognizant of the moral claims of non-Roman Catholic parents.116

114 D.A. Bailey, The Bison and the Fleur-De-Lys:Manitoba's Reflection of Cana- dian Dualism (Department of History, University of Winnipeg, 1985) at 80. 115 C. Langelier, La confderation,sa genise, son itablissement;6tude historique (Montreal: 1916) at 47 quoted in the Royal Commission on Bilingualism and Biculturalism, PROVINCIAL AUTONOMY, MINORITY RIGHTS AND THE COMPACT THEORY 1867-1921 (Study No. 4) by R. Cook (Ottawa: Queen's Printer, 1969) at 68 and 80. 116 Although full funding of a complete separate school system is, in my opinion, required by subsection 93(1) and therefore is not in conflict with the individual equality rights of subsection 15(1) of the Charter,in today's multicultural society other religious 1986] ConstitutionalValues in Conflict

The Supreme Court of Canada will also be mindful that Quebec has not yet accepted the new Constitution of April 1982 and until recently had been demonstrating its rejection by using the legislative override. Gil Remillard, Quebec's intergovernmental affairs minister, at a recent con- ference listed five conditions under which Quebec would accept the new Constitution. 117 The first was an explicit recognition of Quebec as a distinct society to be inserted in a constitutional preamble. This appears to be a variant on the compact theory of Confederation, a theory which has generated a good deal of controversy over the years. In the interest of national unity the compact theory as a compact of cultures, rather than a compact of provinces, warrants greater support today. The group or collec- tive rights of section 93 and 133 of the ConstitutionAct, 1867 could also be described as the compact rights of the Constitution. Today, admittedly, the linguistic rights would be regarded as more important than minority religious education rights, but they are both in a sense compact rights. It is submitted that a generous interpretation of compact rights by the Supreme Court of Canada will assist in a constitutional reconciliation with Quebec. The Court has thus far been giving a wide liberal interpretation to linguistic guarantees, and to be consistent should adopt the same approach to section 93.118

groups have a moral claim to receive funding for their schools. Premier Davis, when he announced the new policy, recognized that it raised questions about the role of private schools and the issue of public funding for them. Dr. Bernard F Shapiro was appointed as sole commissioner. In a thoughful and imaginative report, he has proposed a new kind of school called an "associated school". (See PRIVATE SCHOOLS, supra, note 70). An "associated school" is a private school which has entered into an agreement with the local public or separate school board to operate in association with that board. The "associated school" must meet a number of criteria, two of which are that it employs only certified teachers and does not charge a tuition fee. It is an innovative but modest proposal which should not threaten the viability of the public and separate schools of Ontario while recognizing the moral claim of parents to select the kind of schooling that they wish their children to receive. Whether this proposal is implemented or not, the inquiry does indicate that the Ontario government is concerned about according equality of treatment, provided that the public educational system is not fractured in the process. When the Ontario government has indicated that it recognizes the moral claims of non-Roman Catholic parents, the courts should defer to the legislature, unless unequivocally convinced that rights have been violated. 117 J.Whyte, "Quebec: Making Peace with the Constitution", Toronto Star (7 June 1986) B5. See also G. Remillard, The ConstitutionAct, 1982: An UnfinishedCompromise (1984) 32 AM J. COMP. L. 269. IIs Reference Re Language Rights Under the Manitoba Act, 1870 (1985) [1985] 1 S.C.R. 721, 19 D.L.R. (4th) 1;A.G. Manitobav. Forest(1979), [1979] 2 S.C.R. 1032, 101 D.L.R. (3d) 385; A.G. Quebec v. Blaikie (1979), [1979] 2 S.C.R. 1016, 101 D.L.R. (3d) 394. In MacDonaldv. City ofMontreal (1986), [1986] 1 S.C.R. 460, 27 D.L.R. (4th) 321, the Supreme Court of Canada held, Wilson J. dissenting, that a summons expressed in the French language only, and not in the language of the English-speaking accused, was valid and complied with section 133 of the ConstitutionAct, 1867. This is not really an exception to the trend toward a generous interpretation of language guarantees for it was the specificity of section 133 which precluded the purposive and dynamic interpretation advocated by the appellant. Mr. Justice Beetz stated that "it is not open to the courts, under Ottawa Law Review [Vol. 18:3

In summary, Tiny is an unworthy precedent and should be over- turned. It is the essence of the Canadian nation that is at stake in the protection of meaningful minority educational rights for Ontario's Roman Catholics. To opt for that protection is not to reject the Charter but to reaffirm the continued relevance of the original constitutional compact. The majority decision of the Court of Appeal, for all its flaws, does this. The Supreme Court of Canada will further the purposes of the framers of the Constitution if it upholds the Court of Appeal decision. If it also overrules Tiny, it will rid Canadian law of an unpleasant relic of obsolete English Canadian chauvinism.

the guise of interpretation, to improve upon, supplement or amend this historical constitu- tional compromise". Ibid. at 496, 27 D.L.R. (4th) at 348-9. InBilodeau v. A.G. Manitoba (1986), [1986] 1 S.C.R. 449, 27 D.L.R. (4th) 39, the Supreme Court of Canada held, Wilson J. dissenting, that section 23 of the ManitobaAct, 1870, which is similar to section 133 of the ConstitutionAct, 1867, does not require that a summons issudd by a Manitoba court be bilingual or printed in the language of choice of its recipient.