Greater Montreal Protestant School Board v. Quebec (Attorney General)

Greater Montreal Protestant School Board v. Quebec (Attorney General)
Collection
Supreme Court Judgments
Date
1989-03-16
Report
[1989] 1 SCR 377
Case number
20415
Judges
Dickson, Robert George Brian; Beetz, Jean; McIntyre, William Rogers; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.
On appeal from
Quebec
Subjects
Constitutional law
Notes
SCC Case Information: 20415
Decision Content
Greater Montreal Protestant School Board v. Quebec (Attorney General), [1989] 1 S.C.R. 377
The Protestant School Board of Greater Montreal,
the Greater Quebec School Board, the Lakeshore
School Board and the Quebec Association of
Protestant School Boards Appellants
v.
The Attorney General of Quebec Respondent
and
The Attorney General for Ontario and
the Attorney General of Newfoundland Interveners
indexed as: greater montreal protestant school board v. quebec (attorney general)
File No.: 20415.
1988: June 7; 1989: March 16.
Present: Dickson C.J. and Beetz, McIntyre, Lamer, Wilson, Le Dain* and La Forest JJ.
on appeal from the court of appeal from quebec
Constitutional law -- Distribution of legislative powers -- Education ‑‑ Rights and privileges respecting denominational schools -- Regulations establishing a uniform curriculum for all schools in Quebec -- Special allowance made for moral and religious instruction in schools recognized as Catholic and Protestant -- Whether provincial legislation and the regulations adopted thereunder ultra vires the Quebec legislature -- Constitution Act, 1867, s. 93(1) , (2) -- Education Act, R.S.Q., c. I-14, s. 16(7) -- Regulation respecting the basis of elementary school and preschool organization, (1981) 115 O.G. II 1213 ‑‑ Regulation respecting the basis for secondary school organization, (1981) 115 O.G. II 1223.
Constitutional law -- Distribution of legislative powers -- Education -- Powers, privileges or duties conferred by law on the separate schools and school trustees of Upper Canada at the time of Union extended by s. 93(2) of the Constitution Act, 1867 to the dissentient schools of Quebec -- Whether all those powers, privileges or duties enjoy the constitutional protection of s. 93(1) -- Constitution Act, 1867, s. 93(1) , (2) .
The Government of Quebec adopted, under s. 16(7) of the Education Act, two regulations which purported to establish a uniform curriculum for all non‑denominational subjects for all schools in Quebec. The government made special allowance in its uniform curriculum for moral and religious instruction in schools recognized as Catholic or Protestant. The content of this component of a pupil's curriculum was not determined by the Minister of Education under the impugned regulations but by the Catholic or Protestant committee of the Conseil supérieur de l'Éducation in regulations made by those bodies. Furthermore, the school board was not without input for the curricula other than religious and moral instruction. It was charged with adapting the province‑wide regime to local needs and adding to the prescribed curricula when necessary, with approval. The school board also participated in the evaluation of the curricula.
Before the Superior Court, the appellants sought a declaration that s. 16(7) of the Education Act and the regulations adopted thereunder were ultra vires as being inconsistent with s. 93(1) of the Constitution Act, 1867 . The Court dismissed appellants' motion and the judgment was upheld by the Court of Appeal. In this Court, the appellants argued that s. 16(7) of the Education Act and the regulations were ultra vires the province because they violated a right protected under s. 93(1) enabling the Protestant minority in Quebec to manage and control its own schools and to regulate, subject to provincial rules of general application, the course of study to be followed in those schools. As an alternative, they argued that s. 93(2) of the Constitution Act, 1867 extended the power or privilege to determine the exact content of curriculum enjoyed by trustees in Upper Canada to the Quebec Protestants.
Held: The appeal should be dismissed.
Per Beetz, McIntyre, Lamer and La Forest JJ.: Under section 93(1) of the Constitution Act, 1867 , the province has exclusive jurisdiction to legislate with respect to education, but it cannot prejudicially affect a right or privilege affecting denominational schools enjoyed by a particular class of persons by law in effect at the time of the Union. Section 93(1) protects not only the denominational aspects of denominational schools but also the non‑denominational aspects which are necessary to give effect to denominational guarantees. The fact that the guarantee is constitutionally entrenched is relevant to its interpretation. As a constitutional text, s. 93(1) may deserve a "purposive" interpretation but, in so doing, courts must not improperly amplify the provision's purpose. While it may be rooted in notions of tolerance and diversity, the exception in s. 93(1) is not a blanket affirmation of freedom of religion or freedom of conscience. The entrenched right of specified classes of persons in a province to enjoy publicly‑sponsored denominational schools based on a fixed statutory bench-mark should not be construed as a Charter human right or freedom.
In this case, the impugned legislation and regulations are intra vires the Quebec legislature. The Minister of Education successfully crafted regulations falling within the parameters of the provincial authority in relation to education and respecting the constitutional guarantees in s. 93(1). Under the scheme established by the regulations, the Minister has a broad power to establish a pedagogical regime for the preschools, elementary and secondary schools in the province. However, in schools recognized as Catholic or Protestant, it is the regulations of the Catholic or Protestant Committee of the Conseil supérieur de l'Éducation which govern religious and moral instruction. The regulations under attack here do not purport to set the content of moral and religious instruction in Protestant schools. They go no further than to include such instruction among the courses deemed compulsory in all schools. By carving out the denominational content of curriculum and leaving it in the hands of the Protestant Committee of the Conseil, the province has conformed to the law in effect at the time of the Union which gave the "Curé, Priest or officiating Minister" the exclusive right of selecting the books having reference to religion and morals in denominational schools, and thus the authority to set the content of curricula pertaining to "religion and morals". This exception to the province's plenary power in relation to education ‑‑ constitutionally entrenched by s. 93(1) ‑‑ has not been violated.
The constitutional protection over non‑denominational aspects of denominational schools necessary to give effect to denominational guarantees has not been violated by the regulations. The power which the school commissioners and trustees had in 1867 to "regulate the course of study" to be followed in denominational schools has been entrenched only in so far as this limited regulatory power is necessary to give effect to denominational guarantees. The impugned legislation and regulations meet the constitutional requirement by granting to the school boards the power to adapt prescribed curricula to local needs and to create additional curricula, subject to approval, where they deem it necessary and to participate in the evaluation of the curricula generally. The regulations therefore allow the school boards to exercise their 1867 power over the non‑denominational aspects of denominational schools necessary to give effect to denominational guarantees.
Appellants' position that Protestant educational philosophy extends constitutional protection beyond what is necessary to give effect to denominational guarantees is unacceptable. The appellants are attacking non‑denominational aspects of the curriculum which are not necessary to give effect to denominational guarantees. By associating the content of the constitutional guarantee with a Protestant educational philosophy founded upon pluralism, the appellants would give to the Protestant community a right or privilege to determine the curriculum used in denominational schools which is completely incompatible with the exercise of the general regulatory power of the province over matters of curriculum falling outside religious and moral education.
Finally, appellants' alternative contention based on s. 93(2) of the Constitution Act, 1867 must be rejected. Section 93(2) extends all powers, privileges and duties (but not constitutional powers and privileges) conferred and imposed on the separate schools in Upper Canada at the time of Union to the dissentient schools in Quebec. But section 93(2) does not itself entrench rights or privileges which existed in either province by law in 1867. It is section 93(1) , and not s. 93(2) on its own, which raises "Rights or Privileges with respect to Denominational Schools" to the status of constitutional norms. Therefore, where, by the operation of s. 93(2) , a power or privilege which existed at the time of Union in Upper Canada is "extended" to dissentient Quebec Protestants or Catholics, the inquiry as to what greater constitutional powers and privileges dissentient Quebec Protestants and Catholics may enjoy in their own province does not end there. The Court is still required, not by s. 93(2) but by s. 93(1) , to apply s. 93(1) to determine whether the power or privilege extended from Upper Canada to Quebec is "with respect to Denominational Schools" and whether that power or privilege is prejudicially affected by the legislation attacked in any given case. Accepting in this case that in 1867 in Upper Canada the exact content of a particular school's curriculum was, in the absence of specific regulation by the Council for Public Instruction of that Province, to be by law left to the discretion of the separate school trustees, this extended power or privilege did not result in a wider constitutional protection for the appellants. The power to set curriculum extended to Quebec Protestants has, by the application of s. 93(1) , only been entrenched in so far as it is necessary to give effect to the denominational guarantee in Quebec.
Per Dickson C.J. and Wilson J.: The Court is required under s. 93(2) of the Constitution Act, 1867 to measure the protection afforded by law to separate schools in Ontario in 1867 against the protection afforded by law to dissentient schools in Quebec in 1867 and if, as a result of that comparison, it is found that the powers, privileges and duties of separate schools in Ontario in 1867 were greater, those additional powers, privileges or duties are extended by s. 93(2) to the dissentient schools in Quebec. Such additional powers, privileges or duties enjoy in general the constitutional protection of s. 93(1) . Section 93(1) protection is not limited to powers, privileges or duties which relate specifically to the denominational aspects of such schools.
In the present case, however, the powers of the trustees of the separate schools in Ontario over the curriculum in their schools, which were extended by s. 93(2) to the dissentient schools in Quebec, were not constitutionally protected by s. 93(1) because they were subject in Ontario to the overriding regulatory authority of the Council of Public Instruction representing the province. It follows that, as far as curriculum is concerned, those powers, privileges and duties must be subject to that same regulatory authority on the part of the province of Quebec. The overriding regulatory authority of the province of Ontario, while it existed in law, could not be used to defeat the very purpose for which the separate schools in Ontario were established, namely the protection of Roman Catholic minority educational rights. Similarly, the province of Quebec cannot regulate the curriculum in the denominational schools in Quebec so as to undermine their distinctively denominational character. Therefore, even if the purpose of s. 93(2) was to enhance the constitutional protection afforded to dissentient schools in Quebec in order to equate their position with that of separate schools in Ontario, it would still be open to the legislature of Quebec to regulate the powers of dissentient school boards over curriculum, provided such regulation did not prejudicially affect the denominational character of such schools. Here, the impugned legislation and regulations did not prejudicially affect the denominational character of the denominational schools in Quebec. It was accordingly intra vires the Quebec legislature.
Cases Cited
By Beetz J.
Referred to: Reference Re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; Hirsch v. Protestant Board of School Commissioners of Montreal, [1928] A.C. 200; Attorney General of Quebec v. Greater Hull School Board, [1984] 2 S.C.R. 575; Quebec Association of Protestant School Boards v. Attorney General of Quebec, [1985] C.S. 872; City of Winnipeg v. Barrett, [1892] A.C. 445.
By Wilson J.
Referred to: Reference Re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148.
Statutes and Regulations Cited
Act for the further improvement of Grammar Schools in Upper Canada, S. Prov. C. 1865, 29 Vict., c. 23.
Act respecting Common Schools in Upper Canada, C.S.U.C. 1859, c. 64.
Act respecting Provincial Aid for Superior Education, -- and Normal and Common Schools, C.S.L.C. 1861, c. 15, ss. 21(3), (4), 65(2).
Act respecting Separate Schools, C.S.U.C. 1859, c. 65.
Act respecting the Conseil supérieur de l'Éducation, R.S.Q., c. C‑60, ss. 2, 9(a), 17, 22, 30 [am. 1979, c. 23, s. 27].
Act to again amend the Education Act, S.Q. 1979, c. 80, s. 3.
Act to restore to Roman Catholics in Upper Canada certain rights in respect to Separate Schools, S. Prov. C. 1863, 26 Vict., c. 5.
Canadian Charter of Rights and Freedoms, s. 23 .
Code of Civil Procedure, R.S.Q., c. C‑25, s. 453.
Constitution Act, 1867, s. 93 .
Education Act, R.S.Q., c. I‑14, s. 16(7) [ad. 1979, c. 80, s. 3].
Regulation respecting the basis for secondary school organization, (1981) 115 O.G. II 1223.
Regulation respecting the basis of elementary school and preschool organization, (1981) 115 O.G. II 1213.
Authors Cited
Carignan, Pierre. "La raison d'être de l'article 93 de la Loi constitutionnelle de 1867 à la lumière de la législation préexistante en matière d'éducation" (1986), 20 R.J.T. 375.
Chevrette, François and Herbert Marx and André Tremblay. Les problèmes constitutionnels posés par la restructuration scolaire de l'île de Montréal. Québec: Ministère de l'Éducation, 1972.
Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswells, 1985.
APPEAL from a judgment of the Quebec Court of Appeal, [1987] R.J.Q. 1028, 6 Q.A.C. 237, 41 D.L.R. (4th) 229, affirming a judgment of the Superior Court, [1986] R.J.Q. 48. Appeal dismissed.
Colin K. Irving and Allan R. Hilton, for the appellants.
Jean‑Yves Bernard and Luc Leblanc, for the respondent.
John Cavarzan, Q.C., for the intervener the Attorney General for Ontario.
Alphonsus E. Faour, for the intervener the Attorney General of Newfoundland.
///Wilson J.//
The reasons of Dickson C.J. and Wilson J. were delivered by
WILSON J. -- I have had the benefit of reading the judgment of my colleague, Justice Beetz, in this appeal and I am in complete agreement with him that the denominational content of education in denominational schools in Quebec is constitutionally protected by s. 93(1) of the Constitution Act, 1867 . I agree with him also that the non-denominational content of education in denominational schools in Quebec is constitutionally protected by s. 93(1) to the extent the protection of such content is necessary to maintain the denominational character of those schools.
However, I respectfully differ from my colleague as to the way in which s. 93(1) and (2) of the Constitution Act, 1867 relate to one another for purposes of determining the full measure of the constitutional protection afforded to denominational schools in the province of Quebec. I reproduce these provisions here for convenience:
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:
Section 93(1) precludes the enactment by the Quebec legislature of any law which prejudicially affects any "Right or Privilege" which "any Class of Persons" had by law in Quebec in 1867 "with respect to Denominational Schools". This calls as a first step for a historical analysis to determine what those rights and privileges were. My colleague has undertaken that analysis.
Section 93(2) provides that all the powers, privileges and duties which were conferred or imposed by law in 1867 on separate schools in Ontario "shall be and the same are hereby extended" to dissentient schools in Quebec. This, in turn, requires a review of the powers, privileges and duties of separate schools in Ontario in 1867 to see whether they are greater than the powers, privileges and duties dissentient Protestants and Roman Catholics had with respect to their schools in Quebec in 1867. This Court undertook the historical analysis required in order to ascertain the extent of the powers, privileges and duties of separate schools in Ontario in the Reference Re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148 (hereinafter the "Separate Schools Reference").
Section 93(2) then requires us to measure the protection afforded by law to separate schools in Ontario in 1867 against the protection afforded by law to dissentient schools in Quebec in 1867 and if, as a result of that comparison, it is found that the powers, privileges and duties of separate schools in Ontario were greater, those additional powers, privileges and duties (as the case may be) are extended by s. 93(2) to the dissentient schools in Quebec. The question then becomes whether such additional powers, privileges and duties (if any) enjoy the constitutional protection of s. 93(1) and this in turn may depend in part on the meaning to be attached to the words "with respect to Denominational Schools" in that subsection.
My colleague interprets the words "with respect to Denominational Schools" in s. 93(1) as if they read "with respect to the denominational aspects of Denominational Schools". In other words, he reads "with respect to Denominational Schools" as limiting s. 93(1) protection to the powers, privileges and duties extended to dissentient schools in Quebec by s. 93(2) which relate specifically to the denominational aspects of such schools. While other powers, privileges and duties may be extended by s. 93(2) to dissentient schools in Quebec, they are not, according to my colleague's interpretation, immune from the Quebec legislature under s. 93(1) .
The difficulty raised by this interpretation of s. 93(1) is that it requires us to decide which powers, privileges and duties of separate schools in Ontario at the Union were related to the denominational aspects of such schools and which were not. Yet we know from the Ontario pre-Confederation legislation and the Separate Schools Reference, supra, that the protection provided to the separate schools in Ontario at the Union was not through identifiable aspects of the curriculum but through the separate school trustees' substantial measure of control over the curriculum by virtue of their authority to hire teachers and prescribe the subjects they were to teach. Roman Catholics were protected in Ontario with respect to the type of instruction given in their schools by the authority over curriculum conferred on the trustees. The trustees of the separate schools, in effect, were given the same authority over the curriculum in their schools as the common school trustees enjoyed with respect to the curriculum in the common schools.
However, and I believe that this is at the heart of the difficulty in reading s. 93(1) and (2) together, the power of the trustees in the separate schools in Ontario over the courses taught was, like the power of the trustees of the common schools, subject to the overriding regulatory authority of the Council of Public Instruction representing the province. The trustees' power was not absolute and, even although no regulations had in fact been passed in Ontario in relation to the curriculum by the time of Union, the overriding regulatory authority of the province was there by law. It seems to me therefore that, as far as curriculum is concerned, the powers, privileges and duties of the separate school trustees which are extended by s. 93(2) to the dissentient schools in Quebec must be subject to that same regulatory authority on the part of the province of Quebec.
What is the effect then of the opening words of s. 93(1) ? Do they remove the regulatory authority of the province so that the powers of dissentient school trustees over curriculum becomes absolute in Quebec? I would think not since this would give a greater degree of constitutional protection to dissentient schools in Quebec than was enjoyed by separate schools in Ontario. This is clearly contrary to the intent of s. 93(2) . I think there are two possible approaches to the question. The first is to say that, because of the overriding regulatory authority of the province of Ontario, there are no additional powers, privileges and duties with respect to curriculum falling under the constitutional protection of s. 93(1) by virtue of the extension in s. 93(2) . The power of the separate school trustees over curriculum was illusory because it was defeasible. There was nothing to extend. The second is to say that the regulatory authority of the province of Ontario was limited and did not extend to those aspects of the curriculum which were necessary for the maintenance and preservation of the denominational character of the separate schools. In other words, while the overriding regulatory authority of the province of Ontario was there in law, it could not be used to defeat the very purpose for which the separate schools were established, namely the protection of Roman Catholic minority educational rights. Similarly, the province of Quebec cannot regulate the curriculum in the denominational schools in Quebec so as to undermine their distinctively denominational character.
I favour the second approach and it leads me to conclude that, even if the purpose of s. 93(2) was to enhance the constitutional protection afforded to dissentient schools in Quebec in order to equate their position with that of separate schools in Ontario (and I think it was), it would still be open to the legislature of Quebec to regulate the powers of dissentient school boards over curriculum, provided such regulation did not prejudicially affect the denominational character of such schools. In other words, I reach the same result in this case as my colleague reaches through reading a qualification into the words "with respect to Denominational Schools" in s. 93(1) . I believe, however, that the difference in approach may be significant in the case of powers, privileges and duties unrelated to the content of the curriculum. It would be my view that all powers, privileges and duties conferred or imposed on separate schools in Ontario at the time of Union other than those specifically made subject by law to the overriding control of the province (as was the curriculum) are extended by s. 93(2) to dissentient schools in Quebec and have the constitutional protection of s. 93(1) . This is so because, in my view, the words "with respect to Denominational Schools" in s. 93(1) do not contain the internal limitation imported into those words by my colleague. The only reason, in my view, why the dissentient schools in Quebec do not have, by virtue of the extension in s. 93(2) , constitutional protection under s. 93(1) for the substantial measure of control over curriculum which the separate schools enjoyed as a factual matter in Ontario at the time of Union is that the province of Ontario had by law the overriding authority to restrict that control if it so desired, provided that in so doing it did not undermine the denominational character of the separate schools. No greater power can be extended to the dissentient schools in Quebec under s. 93(2) .
I do not believe that the appellants succeeded in establishing that the impugned legislation and regulations prejudicially affect the denominational character of the denominational schools in Quebec. I would accordingly dismiss the appeal with costs and answer the constitutional question in the negative.
//Beetz J.//
The judgment of Beetz, McIntyre, Lamer and La Forest JJ. was delivered by
BEETZ J. --
I - Proceedings
The problem of defining the ambit of the guarantee provided for denominational schools in s. 93 of the Constitution Act, 1867 again comes before the Court in the present appeal.
This is an appeal, by leave of this Court, from a judgment of the Quebec Court of Appeal of May 4, 1987, [1987] R.J.Q. 1028, dismissing an appeal from a judgment of Brossard J. of the Superior Court of October 31, 1985, [1986] R.J.Q. 48, which in turn dismissed the appellants' motion for declaratory judgment brought under art. 453 of the Code of Civil Procedure, R.S.Q., c. C-25. Before the Superior Court, the appellants sought a declaration that s. 16(7) of the Education Act, R.S.Q., c. I-14, and two orders-in-council issued thereunder which purport to establish a uniform curriculum for all schools in Quebec were ultra vires as being inconsistent with s. 93 of the Constitution Act, 1867 and s. 23 of the Canadian Charter of Rights and Freedoms .
The submissions of the parties before this Court were limited to the validity of the impugned legislation and regulations under s. 93 of the Constitution Act, 1867 . In so far as it remains relevant to the proceedings before this Court, the appellants' Amended Motion for Declaratory Judgment of February 4, 1985 seeks the following conclusions:
(i) Protestants, as one of the classes of persons referred to in Section 93 of the Constitution Act, 1867 , have the right to the maintenance of a system of Protestant schools under the management and control of boards of school commissioners or trustees representing the said class of persons with the right to provide both elementary and secondary education and the right to regulate the course of study to be followed in such schools.
(ii) Such rights extend to the territories of the Applicant school boards and all other Protestant school boards.
AND THAT IN CONSEQUENCE:
Section 16(7) of the Education Act (R.S.Q. 1977, c. I-14), as amended by Section 3 of S.Q. 197[9], c. 80 . . . prejudicially affect[s] a right with respect to denominational schools which existed in Quebec at the time of the Union and [is], in consequence, ultra vires the National Assembly;
The Orders in Council 551-81 and 552-81 both dated 25 February 1981 purporting to establish a uniform régime pédagogique for pre-elementary, elementary and secondary schools under the control of commissioners and trustees are similarly ultra vires and of no force and effect;
Before both the Superior Court and the Court of Appeal the respondent opposed the motion for declaratory judgment on the ground that the appellant should have proceeded by way of action rather than motion. This issue did not form part of the appeal before this Court and I expressly refrain from commenting on the appropriateness of the appellants' decision to proceed by way of motion under art. 453 C.C.P.
II - Section 93 and the Stated Constitutional Question
Section 93 of the Constitution Act, 1867 gives the provincial legislatures exclusive jurisdiction in relation to education. It also guarantees certain rights to classes of persons with respect to denominational schools and to both Protestant and Catholic dissentient schools. Section 93 provides 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.
On December 17, 1987, the Chief Justice stated the following constitutional question in connection with this appeal:
Are section 16(7) of the Education Act, R.S.Q. 1977, c. I-14, and the Orders-in-Council issued thereunder bearing number 551-81, which establishes the curriculum to be followed in elementary schools, and bearing number 552-81, which establishes the curriculum to be followed in secondary schools, ultra vires the National Assembly of Quebec or inapplicable to the Appellant school boards and the other members of the Appellant Association by virtue of section 93 of the Constitution Act, 1867 ?
III - The Impugned Legislation and Regulations
Section 16 of the Education Act, R.S.Q., c. I-14, was amended by An Act to again amend [sic] the Education Act, S.Q. 1979, c. 80, s. 3, to read in part as follows:
16. The Government may make regulations:
. . .
(7) for the establishment of the pedagogical system in the schools placed under the control of the school commissioners or trustees.
In this appeal, the appellants allege that two regulations made in 1981 pursuant to s. 16 are ultra vires the province: the Regulation respecting the basis of elementary school and preschool organization, O.C. 551-81, February 25, 1981, (1981) 115 O.G. II 1213 (the "Elementary School Regulations"), and the Regulation respecting the basis for secondary school organization, O.C. 552-81, February 25, 1981, (1981) 115 O.G. 1223 (the "Secondary School Regulations").
In explanatory notes reproduced with both sets of regulations, the provincial government described what it termed the "triple objective" of the new preschool, elementary and secondary school organization:
. . . these regulations seek the consolidation and improvement of public education services. More specifically, they have been promulgated to facilitate the access of all Quebec children to quality educational services, to advance equality of educational opportunity, and to promote increased personalization of educational services.
The preambles of the Elementary School and Secondary School Regulations attest to the fact that the Minister submitted the draft regulations to the Conseil supérieur de l'Éducation, an administrative body established by statute which was formed to oversee the religious and moral aspects of public education in Quebec. The Conseil gave its opinion on September 30, 1980, in accordance with ss. 9(a) and 30 of An Act respecting the Conseil supérieur de l'Éducation, R.S.Q., c. C-60. The Conseil is made up of twenty-four members, including sixteen or more Catholics, four or more Protestants, and one or more non-Catholics or non-Protestants, appointed by the provincial government after consultation with religious authorities and parents, teachers, school boards and socio-economic groups (s. 2). This Act further provides for the establishment of Catholic and Protestant committees of the Conseil which, as I shall explain below, play a role in determining the moral and religious content of school curriculum put into place by the regulations attacked in this case. Section 17 directs, for example, that the Protestant committee shall include "representatives of the Protestant denominations, parents and teachers" appointed by the provincial government on the recommendation of the Conseil which shall first consult the associations or organizations most representative of the Protestant denominations, parents and teachers. Section 22 gives wide powers to these committees, including the authority to recognize confessional educational institutions as either Catholic or Protestant, as the case may be; to make regulations respecting Christian education, religious and moral instruction and religious service in such recognized institutions; and to approve, from the point of view of religion and morals, the curricula, textbooks and teaching material in such recognized institutions.
Both the Elementary School Regulations and the Secondary School Regulations under attack here are complex and I do not propose to review them exhaustively in these reasons. It is nevertheless necessary, in order to determine whether the Regulations are the product of a proper exercise of the province's jurisdiction in relation to education, to examine certain of their provisions, with particular attention to those singled out by the appellants in argument.
The Secondary School Regulations are comprised of five divisions. In Division II, entitled "Education Services", s. 2 allows the school board to take the necessary steps to insure the quality of the language of instruction. Section 3 gives the Minister of Education broad powers to set the curricula in secondary schools. The school boards' authority is limited to adapting the province-wide curricula to local needs and to designing additional curricula, subject to the approval of the Minister or (presumably in the case of additional religious or moral curricula) the approval of the Catholic or Protestant committee of the Conseil supérieur de l'Éducation. Section 3 directs as follows:
3. Curricula
Curricula are prescribed or approved by the Minister.
Curricula include compulsory objectives and conceptual content, as well as any other objectives and conceptual content the school board adapts to the needs of its school population according to the priorities of the area.
In addition to the prescribed curricula, the school board may design curricula to meet its own particular needs provided they are approved by the Minister or, where applicable, the Catholic or Protestant committee of the Conseil supérieur de l'éducation. Unless otherwise indicated, such approval is valid only for the school board involved.
Section 4 directs that textbooks must be available to the pupil:
4. Textbooks
Where the list of approved teaching material indicates one or more textbooks for a particular programme, the pupil must have the required textbook(s) at his personal disposal to cover the programme.
It is important, as we shall see below, that the Minister and not the school board approves teaching materials and indicates which textbooks are required. Section 1 includes the following definitions:
"textbook": any printed material for pupils, possibly including audio-visual materials or other teaching aids, covering all or certain important elements of a curriculum for one or more years of study;
"teaching material": any object, material, volume or work (written, audio-visual or other) useful to the application of all or certain elements of a curriculum;
Under section 5, the role of the school board is limited to providing the appropriate teaching materials which have previously been approved by the Minister. Section 10 gives the school board an advisory role in the evaluation of the curricula:
10. Evaluation of curricula
The school board takes part in evaluating the curricula to enable the Minister to make informed decisions concerning their continuation or modification.
Division III of the Secondary School Regulations outlines the "Organizational Framework for Education Services". It sets, for example, the age admission requirements, the school calendar and the number of teaching hours per day. Sections 27, 29, 31, 33, and 35 provide the breakdown of compulsory courses in different subjects during the five years of secondary schooling. Section 1 includes definitions of the terms "course" and "subject" which, not surprisingly, link these concepts to "curriculum":
"course": an organized set of learning activities defined by a curriculum and covered in a number of hours divided over the school year or part of the year and officially approved for the purposes of promotion or certification;
. . .
"subject": a branch of learning outlined in a curriculum and constituting an area for theoretical or practical study;
Here again, the Secondary School Regulations provide for substantial control by the Minister over curricula for public schools across the province. The number of credits devoted to each discipline varies from year to year. Each year, however, at least 2 credits must be devoted to "Moral and Religious Instruction". Section 26 directs that normally, one credit corresponds to 25 hours of activities but that the school board in question may allocate the time otherwise, provided that it ensures that the compulsory aspects of the curricula have been satisfied. Sections 28, 30, 32, 34 and 36 set the rules for the optional curricula approved by the Minister. Section 39 specifies the following rule for moral and religious instruction in schools recognized as Catholic or Protestant:
39. Moral and religious instruction in schools recognized as Catholic or Protestant
In schools recognized as Catholic or Protestant, the regulations of the Catholic or Protestant committee of the Conseil supérieur de l'Éducation respecting such educational institutions apply to any moral and religious instruction given in them.
However, any child may be exempted from such instruction if his parents so request, or if the child so requests, with his parents' consent. In that event, the pupil must take courses or do personal research pertaining to moral training or religious knowledge.
Thus in schools recognized by the Catholic or Protestant Committee of the Conseil as confessional educational institutions, the appropriate committee, and not the Minister, sets the content of the religious and moral curricula. This aspect of curriculum is not part of the province-wide regime and is not controlled by the Minister except in so far as it is the Minister that names the members of these committees.
For elementary school and preschool organization, the Elementary School Regulations provide for a regime similar to that prescribed for secondary schools. Division II, Subdivi