Reference re Bill 30, An Act to Amend the Education Act (Ont.)

Reference re Bill 30, An Act to Amend the Education Act (Ont.)
Collection
Supreme Court Judgments
Date
1987-06-25
Report
[1987] 1 SCR 1148
Case number
19798
Judges
Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.
On appeal from
Ontario
Subjects
Constitutional law
Notes
SCC Case Information: 19798
Decision Content
Reference re Bill 30, An Act to Amend the Education Act (Ont.), [1987] 1 S.C.R. 1148
IN THE MATTER OF A REFERENCE to the Court of Appeal pursuant to Section 19 of the Courts of Justice Act, 1984, Statutes of Ontario, 1984, Chapter 11, by Order‑in‑Council O.C. 1774/85 Respecting Bill 30, An Act to amend the Education Act to provide full funding for Roman Catholic Separate High Schools
between
The Metropolitan Toronto Board of Education, Ontario Alliance of Christian Schools, The Waterloo County Board of Education, Coalition for Public Education Ontario Inc., Ontario Secondary School Teachers' Federation, Ontario Association of Alternative and Independent Schools, The Board of Education for the City of London, Canadian Civil Liberties Association, Canadian Jewish Congress, Loyal Orange Association in Ontario, Peel Board of Education, Federation of Women Teachers' Associations of Ontario, Reverend William D. F. Morris, Mary Elizabeth Morris, Greg Vezina and Nina Gertrude Stannard Appellants (Interveners)
and
Attorney General for Ontario Respondent
and
Ontario Separate School Trustees' Association, The Renfrew County Roman Catholic Separate School Board, The Lanark‑Leeds & Grenville Roman Catholic Separate School Board, The Huron‑Perth County Roman Catholic Separate School Board, The Kirkland Lake & District Roman Catholic Separate School Board, The London and Middlesex County Roman Catholic Separate School Board, The Hamilton‑Wentworth Roman Catholic Separate School Board, Metropolitan Separate School Board, Dufferin‑Peel Roman Catholic Separate School Board, Hastings‑Prince Edward County Roman Catholic Separate School Board, Frontenac‑Lennox and Addington Roman Catholic Separate School Board, Carleton Roman Catholic Separate School Board, Ontario English Catholic Teachers' Association and l'Association française des conseils scolaires de l'Ontario Respondents (Interveners)
and
The Quebec Association of Protestant School Boards, Attorney General for Alberta, Attorney General of Quebec Interveners in this Court
indexed as: reference re bill 30, an act to amend the education act (ont.)
File No.: 19798.
1987: January 29, 30 and February 2, 3, 4, 5; 1987: June 25.
Present: Dickson C.J. and Beetz, Estey, McIntyre, Lamer, Wilson and La Forest JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Distribution of powers ‑‑ Education ‑‑ Bill 30 providing for full funding of Roman Catholic secondary schools ‑‑ Whether or not Bill 30 valid exercise of power under opening words of s. 93 and s. 93(3) ‑‑ Whether or not Bill 30 a valid exercise of provincial power in that it returns rights constitutionally guaranteed by s. 93(1) ‑‑ Constitution Act, 1867, s. 93 , 93(3) .
Constitutional law ‑‑ Charter of Rights ‑‑ Equality rights ‑‑ Freedom from religious discrimination ‑‑ Bill 30 providing for full funding of Roman Catholic secondary schools ‑‑ Whether or not Bill subject to review under the Charter ‑‑ Canadian Charter of Rights and Freedoms, ss. 2 (a), 15 , 29 ‑‑ Constitution Act, 1982, s. 52 .
This was an appeal from the decision of the Court of Appeal for Ontario on a question referred for its consideration by the Government of Ontario. The question reads as follows:
Is Bill 30, An Act to amend the Education Act inconsistent with the provisions of the Constitution of Canada including the Canadian Charter of Rights and Freedoms and, if so, in what particular or particulars and in what respect?
Ontario's Attorney General was given carriage of the Reference and a number of parties were given leave by the Court of Appeal to intervene. A majority of the Court of Appeal answered the Reference question in the negative.
The Bill's purpose was to implement a policy of full funding for Roman Catholic separate high schools in Ontario. The Bill permitted a separate school board to become a "Roman Catholic school board" on making an election by by‑law to perform the duties of a secondary school board and on receiving ministerial approval. It then became entitled to share in the legislative grants for secondary school purposes. Separate school supporters within the jurisdiction of a Roman Catholic school board were exempted from the payment of rates or taxes for secondary school purposes. Every public board of education was required to prepare a list of teaching and non‑teaching staff made redundant because of the effects of the proposed legislation and a Roman Catholic school board, during the ten years following its election, was required to fill positions on its teaching staff by offering employment to properly qualified persons on that list. Other provisions concerning the functions of the Planning and Implementation Commission established in the Bill and the transfer of real and personal property between public school boards and Roman Catholic school boards were not central to the constitutional issues in the appeal.
Bill 30 was passed into law after the Court of Appeal's decision. This Court, in response to an application for directions, ruled that since complex and important sections had been added to Bill 30 after the reference to the Court of Appeal, this Court would confine itself to the constitutionality of Bill 30 in the form referred to the Ontario Court of Appeal and would not address the constitutionality of the Act currently in force in Ontario.
The sole issue was whether Bill 30 is consistent with the Constitution of Canada. Three distinct questions were addressed on this appeal. First, is Bill 30 a valid exercise of the provincial power in relation to education under the opening words of s. 93 and s. 93(3) of the Constitution Act, 1867 ? Second, is Bill 30 a valid exercise of provincial power because it returns to Roman Catholic separate school supporters rights which were constitutionally guaranteed to them by s. 93(1) of the Constitution Act, 1867 ? The Court was urged to decide this question regardless of its answer to the first question in order to obviate any further controversy concerning the rights and privileges of Roman Catholic separate school supporters in Ontario. The final question was, if an affirmative answer were given to either or both the above questions, whether the Constitution Act, 1982 , and in particular the Charter , is applicable to Bill 30 and, if so, to what extent and with what effect.
Held: The appeal should be dismissed and the reference question should be answered in the negative.
Per Dickson C.J. and McIntyre, Wilson and La Forest JJ.: Bill 30 was a valid exercise of the provincial power to add to the rights and privileges of Roman Catholic separate school supporters under the combined effect of the opening words of s. 93 and s. 93(3) of the Constitution Act, 1867 . Prior authority supports this interpretation of s. 93(3) . The purpose and history of s. 93 also supports it. Protection of minority religious rights was a major preoccupation during the negotiations leading to Confederation. The basic compact of Confederation with respect to education was that rights and privileges already acquired by law at the time of Confederation would be preserved and provincial legislatures could bestow additional rights and privileges in response to changing conditions.
Bill 30 was also a valid exercise of the provincial power to return rights constitutionally guaranteed to separate schools by s. 93(1) of the Constitution Act, 1867 . Roman Catholic separate school supporters had at Confederation a right or privilege, by law, to have their children receive an appropriate education which could include instruction at the secondary school level. The Scott Act gave separate school trustees the same powers and duties as common school trustees. The exercise of these rights was not a mere practice tolerated by the educational authorities. An adequate level of funding was required for this right to be meaningful and the Scott Act provided for proportionate funding.
Even if Bill 30 were supportable only under the province's plenary power and s. 93(3) , it is protected from Charter review. Rights or privileges conferred by post‑Confederation legislation under s. 93(3) are not "guaranteed" within the meaning of s. 29 in the same way as rights or privileges under s. 93(1) . It is clear from the wording of s. 93(3) that post‑Confederation legislation referred to in that subsection may be subsequently amended or repealed by the legislature which passed it in a way which affects rights or privileges initially granted by it. The rights or privileges protected by s. 93(1) , on the other hand, cannot be prejudicially affected. However, both are immune from Charter review even without s. 29 because the whole of s. 93 represents a fundamental compromise of Confederation in relation to denominational schools. The section 93(3) rights and privileges are not guaranteed in the sense that the legislature which gave them cannot later pass laws which prejudicially affect them but they are insulated from Charter attack as legislation enacted pursuant to the plenary power in relation to education. The protection from Charter review in the case of s. 93(3) lies not in the guaranteed nature of the rights and privileges conferred on denominational schools by the legislation passed under it but in the guaranteed nature of the province's plenary power to enact such legislation. The Confederation compromise in relation to education is not displaced by the Constitution Act, 1982 .
Per Beetz and Estey JJ.: Bill 30 is a valid exercise of the provincial power in relation to education under the opening words of s. 93 and s. 93(3) of the Constitution Act, 1867 . The exercise of this valid provincial power cannot be limited or truncated by the operation of the Charter . It is therefore unnecessary to consider the operation of s. 93(1) of the Constitution Act, 1867 .
The province can make any laws with respect to education subject to two limitations. First, any such laws may not violate the minimum constitutional guarantees found in s. 93(1) , and second, the exercise of this provincial power may also face federal intervention under s. 93(4).
The appeal process established by s. 93(3) is primarily a political appeal quite apart from the legal right to challenge constitutionality found in s. 93(1) . No right of appeal lies under s. 93(3) unless there has been an "Act or Decision of any Provincial Authority" which affects rights or privileges. Rights or privileges granted after Confederation can be protected by the political appeal process in s. 93(3) whereas rights or privileges in place at the time of Confederation can be protected by either the political appeal process in s. 93(3) or a legal challenge in the courts pursuant to s. 93(1) . A basic premise underlying s. 93(3) is that for a right of appeal to arise, the province must have established or enlarged by statute a separate school system after Confederation and later abolished or affected the rights granted to the minority under that legislation.
The real contest in this appeal is clearly between the operation of the Charter in its entirety and the integrity of s. 93 . Section 93 is a fundamental constitutional provision because it is a part of the pattern of the sharing of sovereign power between the two plenary authorities created at Confederation. Section 93 is a grant of power providing the province with the jurisdiction to legislate in a prima facie selective and distinguishing manner with respect to education whether or not some segments of the community might consider the result to be discriminatory.
The Charter cannot provide for the automatic repeal of any provisions of the Constitution of Canada. Although the Charter is intended to constrain the exercise of legislative power conferred under the Constitution Act, 1867 where the delineated rights of individual members of the community are adversely affected, it cannot be interpreted as rendering unconstitutional distinctions that are expressly permitted by the Constitution Act, 1867 . The Charter , therefore, is not available to disallow the implementation of s. 93(1) , or legislation for the protection of the rights embedded by s. 93(1) , or legislation contemplated in s. 93(3) .
Section 29 cannot operate to protect the rights granted by Bill 30. To be protected by s. 29 , the rights referred to therein must be constitutionally guaranteed. A constitutional guarantee does not attach to rights or privileges conferred by an ordinary provincial statute in that rights and privileges so granted are susceptible to legislative repeal. Since the dominant word in s. 29 was "guaranteed", it was unnecessary to resolve the meaning of "by" or "under" in that section.
Per Lamer J.: The appeal should be dismissed only on the basis of the opening words of s. 93 and s. 93(3) of the Constitution Act, 1867 . The reasons of Wilson J. both in this regard and with respect to the effect of the Charter were adopted.
Cases Cited
By Wilson J.
Considered: Brophy v. Attorney‑General of Mani‑ toba, [1895] A.C. 202; City of Winnipeg v. Barrett, [1892] A.C. 445; not followed: Tiny Separate School Trustees v. The King, [1928] A.C. 363, affirming [1927s <) S.C.R. 637, affirming (1926), 60 O.L.R. 15, affirming (1926), 59 O.L.R. 96; distinguished: Société des Acadiens v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549; referred to: Reference Re Adoption Act, [1938] S.C.R. 398; Ottawa Separate School Trustees v. City of Ottawa (1915), 34 O.L.R. 624; Padfield v. Minister of Agriculture, Fisheries and Food, [1968] A.C. 997; Oakwood Development Ltd. v. Rural Municipality of St. François Xavier, [1985] 2 S.C.R. 164; Galloway v. City of London (1866), L.R. 1 H.L. 34; Attorney General of Quebec v. Greater Hull School Board, [1984] 2 S.C.R. 575.
By Estey J.
Referred to: Tiny Separate School Trustees v. The King, [1928] A.C. 363; Brophy v. Attorney‑General of Manitoba, [1895] A.C. 202.
By Lamer J.
Referred to: Tiny Separate School Trustees v. The King, [1928] A.C. 363.
Statutes and Regulations Cited
Act for the Establishment and maintenance of Common Schools in Upper Canada (Common Schools Act), 7 Vict., c. 29.
Act for the further improvement of Grammar Schools in Upper Canada (Grammar Schools Act), 29 Vict., c. 23.
Act granting to His Majesty a sum of money, to be applied to the use of common schools throughout this province, and to provide for the regulations of said common schools (Common Schools Act), 56 Geo. 3, c. 36, ss. 1, 2, 3, 5, 6, 8, 13.
Act respecting Common Schools in Upper Canada (Common Schools Act), C.S.U.C. 1859, c. 64, ss. 27(7), (8), (16), (18), (23)(4), 79(9), (15), (17), (18), 82(1), 119(5), 120, 121, 122, 123, 124, 125.
Act respecting Separate Schools (Separate Schools Act), C.S.U.C. 1859, c. 65, ss. 2, 3, 4, 5, 6, 7, 9, 14, 20, 24, 26, 33.
Act to amend the Education Act, S.O. 1986, c. 21.
Act to amend the Law relating to Grammar Schools in Upper Canada (Grammar Schools Amendment Act (U.C.)), 16 Vict., c. 186, ss. 5, 11(4).
Act to establish Public Schools in each and every District of this Province (Public Schools Act), 47 Geo. 3, c. 6, ss. 2, 4, 5.
Act to provide for the advancement of Education in this Province, 2 Vict., c. 10.
Act to repeal certain Acts therein mentioned, and to make further provisions for the establishment and maintenance of Common Schools throughout the Province (Common Schools Act), 4 & 5 Vict., c. 18, ss. 7(4), 11.
Act to Restore to Roman Catholics in Upper Canada certain rights in respect to Separate Schools (Separate Schools Act (Scott Act)), 26 Vict., c. 5, ss. 7, 20.
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (a), 15 , 15(1) , 29 .
Constitution Act, 1867, ss. 91 , 91(24) , 92 , 92(10) , 93(1) , (2) , (3) , (4) .
Constitution Act, 1982, s. 52 .
Courts of Justice Act, 1984, S.O. 1984, c. 11, ss. 19, 19(7).
Education Act, R.S.O. 1980, c. 129.
Manitoba Act, 1870, R.S.C. 1970, App., ss. 22, 22(2).
Public Schools Act, S.M. 1890, c. 38.
Supreme Court Act, R.S.C. 1970, c. S‑19, ss. 37, 50.
Authors Cited
Canada. Debates of the House of Commons, 6th Sess., 7th Parliament, 59 Vict. 1896, col. 2719, at 2724, March 3, 1896.
Canada. Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 1980‑1981.
United Kingdom. House of Lords. Parliamentary Debates, 3rd. ser., vol. 185, col. 557, at p. 565, February 19, 1867.
APPEAL from a judgment of the Ontario Court of Appeal (1986), 53 O.R. (2d) 513, 25 D.L.R. (4th) 1, 13 O.A.C. 241, on a reference made by the Government of Ontario, finding Bill 30, An Act to amend the Education Act, consistent with the provisions of the Constitution of Canada including the Canadian Charter of Rights and Freedoms . Appeal dismissed; the reference question is answered in the negative.
John J. Robinette, Q.C., and Brian A. Kelsey, Q.C., for The Metropolitan Toronto Board of Education.
D. J. M. Brown, Q.C., and Guy Pratte, for Ontario Alliance of Christian Schools.
J. J. Kelly, for The Waterloo County Board of Education.
Bryan Findlay, Q.C., and J. G. Richards, for Coalition for Public Education Ontario Inc.
Aubrey E. Golden, Q.C., and Maurice A. Green, for Ontario Secondary School Teachers' Federation.
John B. Laskin and Robert J. Sharpe, for Ontario Association of Alternative and Independent Schools.
Claude Pensa, Q.C., and Edward M. Perlmutter, for The Board of Education for the City of London.
Larry T. Taman and David W. Kent, for Canadian Civil Liberties Association.
John I. Laskin, for Canadian Jewish Congress.
Michael J. Penman and Christopher D. Woodbury, for Loyal Orange Association in Ontario.
R. G. Keel and J. L. Razulis, for Peel Board of Education.
P. S. A. Lamek, Q.C., and Susan E. Paul, for Federation of Women Teachers' Associations of Ontario.
Rev. William D. F. Morris and Mary Elizabeth Morris, appearing on their own behalf.
Nina Gertrude Stannard, appearing on her own behalf.
Ian Scott, Q.C., Blenus Wright, Q.C., John Cavarzan, Q.C., and Peter W. Hogg, Q.C., for the Attorney General for Ontario.
Claude R. Thomson, Q.C., and Gavin MacKenzie, for Ontario Separate School Trustees' Association, et al.
Robert L. Falby, Q.C., and Peter D. Lauwers, for Metropolitan Separate School Board and Dufferin‑Peel Roman Catholic Separate School Board.
John Sopinka, Q.C., and David M. Brown, for Hastings‑Prince Edward County Roman Catholic Separate School Board.
John Murray, Pierre Genest, Q.C., and Nora Gillespie, for Frontenac‑Lennox and Addington Roman Catholic Separate School Board.
William T. Green, Q.C., for Carleton Roman Catholic Separate School Board.
Paul J. J. Cavaluzzo, for Ontario English Catholic Teachers' Association.
Paul Rouleau, for l'Association française des conseils scolaires de l'Ontario.
Colin K. Irving and Allan R. Hilton, for The Quebec Association of Protestant School Boards.
Howard Kushner, for the Attorney General for Alberta.
Jean‑K. Samson, Luc Le Blanc and Jean Bouchard, for the Attorney General of Quebec.
The judgment of Dickson C.J. and McIntyre, Wilson and La Forest JJ. was delivered by
1. Wilson J.‑‑This is an appeal from the decision of the Court of Appeal for Ontario on a question referred for its consideration by the Lieutenant‑Governor in Council (by Order in Council 1774/85, dated July 3, 1985) pursuant to the Courts of Justice Act, 1984, S.O. 1984, c. 11, s. 19. The question reads as follows:
Is Bill 30, An Act to amend the Education Act inconsistent with the provisions of the Constitution of Canada including the Canadian Charter of Rights and Freedoms and, if so, in what particular or particulars and in what respect?
By order of the Chief Justice of Ontario dated July 4, 1985, the Attorney General for the Province of Ontario was given carriage of the Reference and notice of the Reference was duly published. A number of parties were given leave by the Court of Appeal to intervene in the hearings before that Court. On February 18, 1986, a majority of the Court of Appeal (Zuber, Cory and Tarnopolsky JJ.A.) answered the Reference question in the negative: see Reference re an Act to amend the Education Act (l986), 53 O.R. (2d) 513. The Chief Justice of Ontario and Robins J.A. dissented.
2. The appellants have appealed to this Court pursuant to s. 37 of the Supreme Court Act, R.S.C. 1970, c. S‑19, as amended, and s. 19(7) of the Courts of Justice Act, 1984, S.O. 1984, c. 11. Leave to intervene was granted by this Court to the Quebec Association of Protestant School Boards. Notices of intention to intervene in this Court were duly filed by the Attorney General for the Province of Alberta and the Attorney General for the Province of Quebec.
1. Bill 30
3. The preamble to Bill 30 indicates that its purpose is to implement a policy of full funding for Roman Catholic separate high schools in Ontario. The preamble reads as follows:
Whereas section 93 of the Constitution Act, 1867 embodies one of the essential conditions which facilitated the creation of a united Canada in 1867 by guaranteeing to Roman Catholics in Ontario certain rights and privileges with respect to denominational schools; and whereas the Roman Catholic separate schools have become a significant part of the schools system in Ontario; and whereas it has been public policy in Ontario since 1899 to provide for public funds to support education in the Roman Catholic separate schools to the end of Grade 10; and whereas it is recognized that today a basic education requires a secondary as well as an elementary education; and whereas it is just and proper and in accordance with the spirit of the guarantees given in 1867 to bring the provisions of the law respecting Roman Catholic separate schools into harmony with the provisions of the law respecting public elementary and secondary schools, by providing legislative recogni‑ tion of and funding for secondary education by Roman Catholic separate schools....
The Bill permits a separate school board to elect by by‑law to perform the duties of a secondary school board with the approval of the Minister (s. 136‑a). Once such an election has been made and approved by the Minister, the separate school board becomes a "Roman Catholic school board" (s. 46‑a) and, according to s. 136‑e(1), becomes "entitled to share in the legislative grants for secondary school purposes". Section 136‑j exempts separate school supporters within the jurisdiction of a Roman Catholic school board from the payment of rates or taxes for secondary school purposes. But, by s. 136‑k, "[t]he provisions [of the Education Act, R.S.O. 1980, c. 129] ... that apply to ... the levying and collection of rates or taxes for separate school purposes apply with necessary modifications for secondary school purposes in respect of a Roman Catholic school board". Every public board of education is required by s. 136‑l to prepare a list of teaching and non‑teaching staff whose services will not be required because of an election by a Roman Catholic school board to perform the duties of a secondary school board. During the ten years following its election, the Roman Catholic school board must fill positions on its teaching staff by offering employment to those on that list who possess proper qualifications. There are other provisions concerning the functions of the Planning and Implementation Commission established in the Bill and transfers of use or ownership of real and personal property between public school boards and Roman Catholic school boards which are not central to the constitutional issues in this appeal.
4. The Ontario Court of Appeal, quite properly, considered the constitutional validity of Bill 30 as it stood at the date of the Reference. At that time Bill 30 had already been given first reading in the Ontario Legislature. Subsequent to the decision of the Court of Appeal, Bill 30 was passed into law as An Act to amend the Education Act, S.O. 1986, c. 21. This Act contains a number of sections which were not present in Bill 30 at the time of the Reference. In particular, s. 136‑la dealing with the hiring and promotion of teachers was not in the Bill. These changes prompted an application for directions to this Court on October 8, 1986. The question posed was as follows:
Whether this Court, on the appeal, should consider the constitutionality of Bill 30 in the form in which it appeared in the reference to the Court of Appeal for Ontario and not any question arising from a subsequent enactment not before that Court?
Assuming without deciding that it had jurisdiction pursuant to ss. 37 and 50 of the Supreme Court Act to render an opinion upon issues that were not before the Court of Appeal, this Court ruled that since the sections which were added to Bill 30 after the reference to the Court of Appeal were complex and important, it was "not disposed to adjudicate upon the constitutional validity of a law of Ontario without benefit of the wisdom of the Court of Appeal of that Province". I want to emphasize, therefore, that in this case the Court is determining the constitutionality of Bill 30 in the form referred to the Ontario Court of Appeal and not the constitutionality of the Act currently in force in Ontario.
2. The Court of Appeal
5. The majority of the Court of Appeal (Zuber, Cory and Tarnopolsky JJ.A.) held that Bill 30 was intra vires the Ontario Legislature under s. 93 of the Constitution Act, 1867 . Section 93 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:
(2) All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen's Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen's Protestant and Roman Catholic Subjects in Quebec;
(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:
(4) In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section.
6. The majority, before addressing the issue whether the Legislature could validly enact Bill 30, emphasized the pivotal role which s. 93 had played in the negotiations leading up to Confederation and concluded, at pp. 567‑68, that "provision for the rights of Protestants and Roman Catholics to separate schools [i.e., s. 93 ] became part of `a small bill of rights' as a basic compact of Confederation".
7. It is unclear, however, from the reasoning of the majority, if I may say so with the greatest of respect, whether it upheld Bill 30 under the plenary power conferred on the province in relation to education by the opening words of s. 93 or because the legislation returned to separate school supporters rights and privileges constitutionally guaranteed to them by s. 93(1) . There are passages in the reasons of the majority which would support either basis of decision. For example, the following passage, at p. 569, would seem to me to support the first basis:
By the opening paragraph of s. 93 , the provincial legislatures were granted plenary power over education, subject only to the legal restrictions of head (1) and to the possibility, never realized, of being overridden by action of the Governor‑General in Council and the Parliament of Canada, under heads (3) and (4). Therefore, at least at any time prior to the coming into force of the Charter and of s. 15 thereof, there was nothing in s. 93 that would have prevented the provincial Legislature from providing for full funding of Roman Catholic separate high schools, unless it could be shown that 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".
It may be that it was the majority's reliance on this reasoning which caused it earlier in its reasons, at p. 565, to comment that it was not necessary to express an opinion as to the continuing validity of the Privy Council's decision in Tiny Separate School Trustees v. The King, [1928] A.C. 363. That case, which reviewed the rights and privileges referred to in s. 93(1) , i.e., those held by separate school supporters in Ontario by law at the time of Confederation, is primarily relevant to the alternate basis on which the majority may have reached its decision.
8. And there is some reason to believe that the alternate basis was the real basis of the decision. For the majority went on to say, at p. 570, that even if they were to ignore the Tiny decision and base their decision on an examination of the legislation in force‑‑the Common Schools Act [An Act respecting Common Schools in Upper Canada], C.S.U.C. 1859, c. 64, the Separate Schools Act (Scott Act) [An Act to Restore to Roman Catho‑ lics in Upper Canada certain rights in respect to Separate Schools], 26 Vict., c. 5, and the Grammar Schools Act of 1865 [An Act for the further improvement of Grammar Schools in Upper Canada], 29 Vict., c. 23‑‑they would have to conclude, at pp. 570‑71, 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.
...
Therefore, . . . 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.
9. Given that the Bill could be validly enacted pursuant to s. 93 of the Constitution Act, 1867 , it then fell to the majority to consider whether any other provisions of the Constitution rendered the Bill ultra vires. Section 15 (equality) and s. 2 (a) (freedom of conscience and religion) of the Canadian Charter of Rights and Freedoms had been advanced by those opposing the constitutionality of the Bill. The majority held that no part of the Constitution could be paramount over any other part. Thus, in its view, none of the provisions of the Charter could operate so as to render invalid any of the provisions of the Constitution Act, 1867 . This conclusion was supported in the case of separate schools, the majority found, by s. 29 of the Charter which provides:
29. Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.
According to the majority of the Court of Appeal, this section was intended to include not only constitutional guarantees of rights or privileges in respect of denominational, separate or dissentient schools but also "rights and privileges granted by laws enacted under the authority of the Constitution" (p. 572). In arriving at this interpretation of s. 29 of the Charter the majority relied heavily on the intention of the framers of the Charter as disclosed in the Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 1980‑1981. The majority concluded that nothing in the Charter could abrogate or derogate from the rights guaranteed by s. 93 or conferred by the province under legislation enacted by the province pursuant to its plenary power in relation to education. They said at pp. 575‑76:
...s. 29 was intended to protect not only "any rights or privileges guaranteed by ... the Constitution of Canada", such as those in s. 93 of the Constitution Act, 1867 , . . . but also "any rights or privileges guaranteed ... under the Constitution of Canada", such as those contained within provincial statutes enacted pursuant to the plenary power over education in the opening paragraph of s. 93 . Bill 30, if enacted, would be one such statute and so must, at least in its basic purpose and over‑all thrust, receive the protection of s. 29 from any abrogation or derogation because of any of the rights or freedoms set out in the Charter , including ss. 2 (a) and 15 .
...
These educational rights, granted specifically to the Protestants in Quebec and the Roman Catholics in Ontario, make it impossible to treat all Canadians equally. The country was founded upon the recognition of special or unequal educational rights for specific religious groups in Ontario and Quebec. The incorporation of the Charter into the Constitution Act, 1982 , does not change the original Confederation bargain. A specific constitutional amendment would be required to accomplish that. Section 29 of the Charter makes it clear that the minority education rights (an essential condition of Confederation) are not to be abrogated by ss. 2 (a) or 15 .
The majority added by way of caveat that its decision in this case did not mean that separate schools were completely immune from scrutiny under the Charter . Not at all. They were shielded from review only in their essential Catholicism. The majority stated at p. 576:
Laws and the Constitution, particularly the Charter , are excluded from application to separate schools only to the extent they derogate from such schools as Catholic (or in Quebec, Protestant) institutions. It is this essential Catholic nature which is preserved and protected by s. 93 of the Constitution Act, 1867 and s. 29 of the Charter . The courts must strike a balance, on a case‑by‑case basis, between conduct essential to the proper functioning of a Catholic school and conduct which contravenes such Charter rights as those of equality in s. 15 or of conscience and religion in s. 2 (a). Thus, the right of a Catholic school board to dismiss Catholic members of its teaching staff for marrying in a civil ceremony, or for marrying divorced persons, has been upheld as permissible conduct for a separate school board, but would the same protection be afforded a board which refused to hire women or discriminated on the basis of race, national or ethnic origin, age or disability?
10. Howland C.J.O. and Robins J.A. dissented. While conceding that s. 93(1) represents a basic compact of Confederation, they held that the rights and privileges of Roman Catholics guaranteed under s. 93(1) at the time of Confederation were limited to the provision and funding of an elementary education and did not extend to the provision and funding of an education at the secondary or high school level. For that conclusion the minority relied on Tiny which it considered to be binding upon it. The minority added at p. 542 that "section 93(3) does not expand the rights and privileges protected by s. 93(1) ".
11. The minority did not accept the proposition that any benefit given to separate schools in Ontario by post‑Confederation legislation enacted after the Charter came into effect was shielded from scrutiny under the Charter . Section 29 of the Charter , they found, only applies to rights and privileges in respect of separate schools that are constitutionally guaranteed. Bill 30 does not confer any guaranteed rights or privileges. The minority added at p. 550:
In our opinion, s. 29 does not authorize the creation of new rights nor does it elevate provincial statutes creating such rights to constitutional status. If that had been the intent of the Charter , a clear and explicit form of words could readily have been devised to make that result manifest. As it is, the section ensures that those rights guaranteed by s. 93(1) and those rights guaranteed under the various Acts subsequent to 1867, which now by s. 52(2) have come to form part of the "Constitution of Canada", are not abrogated or derogated from by the Charter . The words used, given their plain and ordinary meaning, cannot be read so as to embrace rights created by post‑Charter provincial enactments. Furthermore, to accept that s. 29 renders a statute immune from the Charter solely because it was enacted within the authority of the Legislature is to interpret the section in a manner directly contrary to s. 32(1) (b) of the Charter which makes it abundantly clear that the Charter applies to "all matters within the authority of the legislature of each province".
The minority found Bill 30 to be inconsistent with s. 15 of the Charter . In its view "[i]f the Charter 's right to equality without discrimination on religious grounds is to mean anything, it must mean at least that the followers of one religion are not to be the subjects of greater burdens or the beneficiaries of greater benefits imposed or provided by law than the followers of other religions" (p. 555). Bill 30, by providing benefits on the basis of religion to one religious group only, was held to be in conflict with the equality guarantee in s. 15 . The minority of the Court of Appeal added that the violation of s. 15 of the Charter by Bill 30 could not be justified under s. 1 of the Charter given the multicultural and pluralistic society existing in Ontario today.
3. The Submissions of the Parties
12. In the hearing of this appeal the Court was greatly assisted by detailed and clear submissions from all counsel appearing before it. The large number of appellants, respondents and interveners makes it difficult to summarize in detail all the submissions that were made. Nevertheless the distinct positions of appellant and respondent may be briefly summarized.
13. The position advanced by many of the appellants was that the minority of the Court of Appeal was correct in law and that Bill 30 was therefore ultra vires. By providing Roman Catholics and Roman Catholic schools with financial benefits not made equally available to other taxpayers and other religious schools, Bill 30 violated the equality guarantee in s. 15(1) of the Charter . The public funding of denominational schools, they submitted, also violated freedom of religion as guaranteed by s. 2 (a). The Bill could not be justified as a reasonable limit under s. 1 .
14. The appellants also agreed with the view of the minority of the Ontario Court of Appeal that Bill 30 is not shielded from scrutiny by s. 29 of the Charter because s. 29 applies only to rights or privileges guaranteed by or under the Constitution itself. The rights and privileges contained in Bill 30 are, they submitted, not "guaranteed by or under the Constitution itself". The Privy Council had held in Tiny that Roman Catholic schools had no right in 1867 to public funding for grades 11, 12 and 13. They therefore have no constitutionally guaranteed right to such funding under