Reference re Education Act (Que.)

Reference re Education Act (Que.)
Collection
Supreme Court Judgments
Date
1993-06-17
Report
[1993] 2 SCR 511
Case number
22112, 22119, 22123, 22124, 22129
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley
On appeal from
Quebec
Subjects
Constitutional law
Notes
SCC Case Information: 22112, 22119, 22123, 22124, 22129
Decision Content
reference re education act (Que.), [1993] 2 S.C.R. 511
In the matter of the reference re the Education Act,
S.Q. 1988, c. 84
Quebec Association of Protestant School Boards,
Fédération des commissions scolaires du Québec,
Commission scolaire Chomedey de Laval,
Conseil scolaire de l'île de Montréal and
Montreal Catholic School Commission Appellants
v.
The Attorney General of Quebec Respondent
and
Jeanne‑D'Arc Audet‑Grenier, Renelle Grenier‑Gagné,
Aurèle Grenier and Achille Larouche Interveners
Indexed as: Reference re Education Act (Que.)
File Nos.: 22112, 22119, 22123, 22124 and 22129.
1992: December 7, 8, 9, 10 and 11; 1993: June 17.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.
on appeal from the court of appeal for quebec
Constitutional law ‑‑ Education ‑‑ Reform of organization of Quebec school boards ‑‑ Creation of linguistic school boards ‑‑ Denominational status ‑‑ Right to dissent ‑‑ Constitution Act, 1867, s. 93 ‑‑ Education Act, S.Q. 1988, c. 84, ss. 49, 111, 122, 123, 124, 126 to 139, 206, 223, 227, 230, 261, 354, 423, 424, 425, 428, 439, 519, 521, 522, 527, 568.
In 1988 the Quebec National Assembly passed a new Education Act ("Bill 107"). That Act comprises a fundamental reform of the organization of school boards in the province. The Quebec public school system would move from a system organized according to religion to one organized according to language. The organization of the new linguistic school boards will result in the dissolution of the existing "boards for Catholics" and "boards for Protestants". All the property, rights and assets and the staff of these boards will then be transferred to the linguistic boards. However, this reform will not entail the dissolution of the five existing dissentient school boards in the province or of the four existing "confessional" or denominational school boards of Montréal and Québec. The government assumes the power to dissolve a dissentient school board if it becomes inactive and to alter the territory of denominational school boards. When the new educational structures are put in place, Bill 107 provides for a dissent procedure available to religious minorities, Catholic or Protestant. The Minister is responsible for ruling on any disagreements among the various school boards as to transfers of staff and material resources. He must ensure that the dissentient school board has the assets it needs to operate at its disposal. He is under the same obligation in cases where the territory of a denominational school board has been altered. Bill 107 also lays down a principle of proportional access to public funds for denominational or dissentient school boards. On the island of Montréal, management of the borrowing and property taxes of school boards is transferred to the Conseil scolaire de l'île de Montréal. Finally, Bill 107 preserves the Conseil supérieur de l'éducation and its Catholic and Protestant subcommittees. Additionally, although the educational structure created by the Act for linguistic school boards is administratively neutral, schools may be recognized as Catholic or Protestant in accordance with an educational plan adopted pursuant to the Act. Linguistic school boards are also required to organize and offer religious and moral instruction, Catholic or Protestant, and provide it to whoever requests it. Finally, Bill 107 gives the government and the Minister wide regulatory powers. Ordinarily, determining the curriculum is a matter for government regulation. In general, Bill 107 provides for the management of schools and school boards, the election of commissioners and the supervision and control of their management, both material and pedagogical.
To ensure that certain provisions of Bill 107 were constitutional, the Quebec government submitted the following constitutional questions to the province's Court of Appeal:
1.Does the Education Act (S.Q. 1988, c. 84), in particular ss. 111, 354, 519, 521, 522 and 527, prejudicially affect the rights and privileges protected by s. 93(1) and (2) of the Constitution Act, 1867 by providing for the establishment of French language and English language school boards which will succeed to the rights and obligations of school boards for Catholics and Protestants?
2.Does the Education Act, in particular ss. 126 to 139 and 206, prejudicially affect the rights and privileges protected by s. 93(1) and (2) of the Constitution Act, 1867 in its provisions:
(a)which stipulate the manner in which the right to dissent is to be exercised and the manner in which dissentient school boards are to be established;
(b)which give the government the power to change the legal structures of the dissentient school boards and to terminate the existence of those which do not perform any of the functions contemplated in the Act;
(c)which restrict access to these school boards to persons who belong to the same religious denomination as that of these school boards?
3.Does the Education Act, in particular ss. 122, 123, 124, 206, 519, 521 and 522, prejudicially affect the rights and privileges protected by s. 93(1) and (2) of the Constitution Act, 1867 :
(a)by continuing the existence of the confessional school boards in their territories;
(b)by allowing the government to change these territories;
(c)by providing for a means of transferring part of their rights and obligations to French language and English language school boards;
(d)by restricting access to these school boards to persons who belong to the same religious denomination as that of these school boards?
4.Does the Education Act, in particular ss. 423, 424, 425, 428 and 439, prejudicially affect the rights and privileges protected by s. 93(1) and (2) of the Constitution Act, 1867 in that
(a)it gives the Conseil scolaire de l'Île de Montréal the power to borrow money on behalf of all school boards on the island of Montréal;
(b)it authorizes the Conseil scolaire to establish rules for apportioning the proceeds of the tax it collects on behalf of these school boards?
5.Does the Education Act, in particular ss. 49, 223, 227, 230, 261 and 568, prejudicially affect the rights and privileges protected by s. 93(1) and (2) of the Constitution Act, 1867 , in that it gives the Catholic committee and the Protestant committee of the Conseil supérieur de l'éducation the authority:
(a)to establish rules respecting the confessional nature of the schools of the confessional and dissentient school boards;
(b)to approve the programs of studies for religious instruction offered in such schools and to determine the qualification of persons providing that instruction and those assigned to pastoral or religious care and guidance in such schools?
On two occasions following the hearing in the Court of Appeal the National Assembly passed new statutes (S.Q. 1990, cc. 8 and 28) amending certain provisions of Bill 107 at issue in the reference. The Court of Appeal agreed to rule on the Act as amended and answered the questions in the negative, except questions 2(a), 3(b) and 4(a), which were answered in the affirmative. The Court of Appeal's answers were unanimous, except with respect to questions 3(b) and 4(b).
After the Court of Appeal's decision the National Assembly again passed a statute (S.Q. 1990, c. 78) which amended certain provisions of Bill 107 that were the subject of the reference. This Court is ruling on the provisions of Bill 107 as amended.
Held: The provisions of Bill 107 at issue in this appeal do not prejudicially affect the rights and privileges protected by s. 93(1) and (2) of the Constitution Act, 1867 . The five constitutional questions are answered in the negative, provided in the case of question 3(b) there is no territorial reduction within the boundaries of the municipal corporations of the cities of Montréal and Québec, unless the territory so detached is served by a confessional board offering the same rights and privileges.
Question 1
The province has the power to create linguistic school boards which shall be denominationally neutral, to define their territories and to reassign the property of the old boards to the new ones. The province can go ahead with such a reorganization so long as it does not prejudicially affect the rights and guarantees set out in s. 93 of the Constitution Act, 1867 . This means chiefly that the right to dissent must be maintained outside Québec and Montréal and that in those two cities, Catholics and Protestants must continue to have access to denominational schools. The boards for Catholics and the boards for Protestants are not the result of the exercise of a right of dissent and are therefore not protected by s. 93 . The abolition of the existing boards is therefore not in itself an infringement of the rights guaranteed by the Constitution. Further, if the province has the power to create linguistic school boards, it is proper that it should also have the power to determine their territories.
Question 2
(a) Sections 126 to 139 of Bill 107, which provide for the exercise of the right to denominational dissent outside Québec and Montréal, are constitutional. The basis of the right to dissent does not preclude or alter its exercise and does not conflict with the protection given to religious minorities by s. 93 . The right to dissent is still linked to the notion of a denominational minority. Recognition of membership in a denominational minority or verification of the latter by the linguistic school board does not limit the right to dissent. The linguistic board has no discretionary authority: its only function is to recognize a situation of fact. Further, Bill 107 now provides in ss. 510 et seq. that exercise of the right to dissent will be possible more or less concurrently with the establishment of the new linguistic school boards. Since the electoral list must be drawn up before the notice of dissent can be served, it is normal that there should be a slight time lag at the start of the process. This is consistent with the very idea of dissent, which is a relative condition. Finally, the method of allocating property and assets in s. 133 does not prejudicially affect the right to dissent either. The system of the Minister allocating "property necessary" for the operation of the school boards rests on a principle which appears to be capable of guaranteeing the rights of dissentients. The necessity test is objective. It means that the means for exercising the right to dissent must be made available without discrimination, with no prejudicial effects, and the dissentient boards must be on the same footing in this respect as the linguistic boards from which they separate. This includes equality of access to public funds, to means of taxation and, in the event of a reorganization, to the distribution of immovable property, physical facilities and existing personnel. The Minister cannot leave the dissentient school board without resources. If a dissentient board considers it has been wronged, it may resort to the courts to challenge the allocation.
(b) The government's power to alter the legal structures of dissentient school boards respects the guarantees provided by s. 93. The rights and privileges protected by that section are not patrimonial rights. What s. 93 guarantees is the right to dissent per se, not the right to certain legal institutions through which it may be exercised. The legislature can therefore alter them without infringing the constitutional protections and redistribute the property of the abolished or transformed boards to others. There is thus no objection to the principle of redistributing the patrimony of the existing school boards for Protestants and Catholics amongst the linguistic boards, provided the new institutions and their establishment maintain the right to dissent or to denominational schools, as the case may be, and their accessories, and provide for fully equal enjoyment of them. The provisions of Bill 107 in this regard meet these requirements and include transitional provisions which in themselves are adequate. The government's power to wind up an inactive dissentient board does not conflict with a right or privilege of a class of persons in respect of denominational schools since, as it is inactive, the board no longer represents an exercise of the right to dissent. The abolition of an inactive board at a given time does not prevent subsequent exercise of the right to dissent.
(c) Section 206 of Bill 107 is valid. The legislature can limit access to dissentient schools without infringing constitutionally protected rights. Accepting children from another denomination is not a right or privilege of a denominational nature. Even if attendance is considered in relation to financing, the admission of children of other denominations was not a necessary factor to the effectiveness of the constitutional guarantees and was not related thereto, in particular since in 1867 the trustees could only impose taxes on parents of the dissentient faith.
Question 3
(a) The declaration that the legal existence of the denominational school boards of Québec and Montréal continues in s. 122 of Bill 107 does not breach constitutionally guaranteed rights. Since Confederation Quebeckers have been entitled to denominational schools if they live outside Québec and Montréal and are a religious minority or if they are Catholics and Protestants living in Québec or Montréal. All provincial legislation on education has therefore to so provide, failing which it is constitutionally invalid. Bill 107 meets this requirement.
(b) The provisions of Bill 107 authorizing the government to alter the territories of the confessional school boards of Québec and Montréal do not infringe the s. 93 guarantees to the extent there is no territorial reduction within the boundaries of the municipal corporations of the two cities. A reduction of territory beyond the municipal boundaries would only be valid if the territory so detached was served by a confessional board offering the same rights and privileges.
(c) As regards the transfer of the rights and obligations of the confessional school boards to the linguistic school boards, the provisions of Bill 107 do not infringe s. 93. The comments about dissentient schools in this connection in question 2(a) also apply here. Rights of ownership, powers to hire staff and powers to use material resources are incidental rights that are only protected to the extent that they are necessary to preserve the denominational character of education. As Bill 107, and in particular s. 533, provides that confessional boards will have everything required for their operation, there is no unfair treatment.
(d) The right to denominational education conferred on the inhabitants of Québec and Montréal and protected by s. 93 is not infringed or even altered by the limitation on attendance at denominational school boards contained in s. 206 of Bill 107. As indicated in the answer to question 2(c), accepting children from another faith is not a right or privilege of a denominational nature. There was no constitutional guarantee of financing based on a given attendance, since in 1867 the taxing power belonged to the municipal corporations and the amount assigned to the respective boards of school commissioners was paid in proportion to "the population of the religious persuasion represented by such Boards" and since the legislature was free to establish separate schools for non‑Christians without infringing the right to denominational schools.
Question 4
(a) The assignment to the Conseil scolaire de l'île de Montréal of the power to borrow on behalf of all school boards on the island of Montréal does not infringe any right or privilege conferred by s. 93 of the Constitution Act, 1867 . Since before Confederation the Montréal school boards had no borrowing power, there can be no question of protection under s. 93 . The legislature can therefore grant such a power to the Conseil without infringing the Constitution.
(b) The assignment of the power to allocate the proceeds of school taxes to the Conseil scolaire de l'île de Montréal does not infringe s. 93 . In 1867 the power to levy school taxes in the territory of Montréal was the function of the municipal corporation, not the school boards. The legislature can therefore transfer the taxing power to the Conseil without infringing the Constitution. Under s. 439 of Bill 107, each board is guaranteed fair and proportional access to school taxes.
Question 5
(a) The establishing of rules respecting the confessional nature of dissentient and confessional school boards by the Catholic and Protestant committees of the Conseil supérieur de l'éducation is not contrary to any right guaranteed by s. 93 of the Constitution Act, 1867 . After the amendments made in 1990, the committees no longer have to recognize the schools of confessional and dissentient boards. Their status is guaranteed by law. The Conseil is only authorized to take steps to guarantee the already established confessional status.
(b) Granting the Catholic and Protestant committees of the Conseil supérieur de l'éducation the power to approve programs of study and standards applicable to the qualifications of staff assigned to religious instruction does not prejudicially affect the rights and privileges protected by s. 93 . The effect of Bill 107 is to leave within the class of persons concerned the decisions both as to the setting up of religious programs and the qualifications of staff providing religious instruction or care and guidance. Control of such subjects is the responsibility of agencies established for this class of persons and consisting of their representatives.
Cases Cited
Considered: Hirsch v. Protestant Board of School Commissioners of Montreal, [1928] A.C. 200 and [1926] S.C.R. 246; Attorney General of Quebec v. Greater Hull School Board, [1984] 2 S.C.R. 575; Greater Montreal Protestant School Board v. Quebec (Attorney General), [1989] 1 S.C.R. 377; Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; referred to: Quebec Association of Protestant School Boards v. Attorney General of Quebec, [1985] C.S. 872, 21 D.L.R. (4th) 36; City of Winnipeg v. Barrett, [1892] A.C. 445; Ottawa Separate Schools Trustees v. Mackell, [1917] A.C. 62; Laurentide Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705; Maher v. Town of Portland (1874), Wheeler's Confederation Law of Canada, 1896, at p. 338.
Statutes and Regulations Cited
Act for the establishment and maintenance of Common Schools in Upper Canada, S. Prov. C. 1843, 7 Vict., c. 29.
Act respecting Provincial Aid for Superior Education, ‑‑ and Normal and Common Schools, C.S.L.C. 1861, c. 15, ss. 18, 24(1), 27, 30, 54, 55, 56(2), (3), 57(1), (3), (5), 58, 64, 66, 73, 74, 128, 130, 131.
Act respecting public elementary and secondary education, S.Q. 1984, c. 39.
Act respecting school elections, R.S.Q., c. E‑2.3.
Act respecting the Conseil supérieur de l'éducation, R.S.Q., c. C‑60.
Act respecting the regrouping and management of school boards, S.Q. 1971, c. 67.
Act to amend the Education Act and the Act respecting private education, S.Q. 1990, c. 28.
Act to amend the Education Act and the Act respecting private education, S.Q. 1990, c. 78.
Act to amend the Education Act and the Act respecting the Conseil supérieur de l'éducation, S.Q. 1990, c. 8.
Act to amend the Law respecting Education in this Province, S.Q. 1869, c. 16, s. 2.
Act to amend the School Law of Lower‑Canada, S. Prov. C. 1849, 12 Vict., c. 50.
Act to promote school development on the island of Montreal, S.Q. 1972, c. 60.
Act to promote the French language in Québec, S.Q. 1969, c. 9, s. 2.
Act to repeal certain Acts therein mentioned, and to make further provision for the establishment and maintenance of Common Schools throughout the Province, S. Prov. C. 1841, 4‑5 Vict., c. 18, s. XI.
Act to repeal certain Enactments therein mentioned, and to make better provision for Elementary Instruction in Lower Canada, S. Prov. C. 1846, 9 Vict., c. 27.
Act to restore to Roman Catholics in Upper Canada certain rights in respect to Separate Schools, S. Prov. C. 1863, 26 Vict., c. 5, ss. 2, 12.
Canadian Charter of Rights and Freedoms, s. 23 .
Civil Code of Lower Canada, arts. 357 to 361.
Constitution Act, 1867, s. 93 .
Court of Appeal Reference Act, R.S.Q., c. R‑23.
Education Act, R.S.Q. 1964, c. 235, s. 203(4) [repl. 1969, c. 9, s. 2].
Education Act, S.Q. 1899, c. 28, s. 123.
Education Act, S.Q. 1988, c. 84 [now R.S.Q., c. I‑13.3], ss. 49, 111 [not in force; am. 1990, c. 78, s. 1], 122, 123 [not in force; am. idem, s. 2], 123.1 [not in force; ad. idem, s. 3], 124 [not in force], 126, 127 [am. 1989, c. 36, s. 260; am. 1990, c. 78, s. 54], 128, 129 [am. 1990, c. 8, s. 12; am. 1990, c. 78, s. 4], 130, 131 [not in force], 132 [repl. 1990, c. 78, s. 5], 133 [idem, s. 6], 134 [idem, s. 7], 135, 136, 137 [not in force], 138, 139 [not in force], 206 [not in force], 223 [am. idem, s. 54], 227, 230 [am. idem], 261, 354 [not in force], 423 [am. 1990, c. 8, s. 46], 424, 425, 425.1 [ad. 1990, c. 78, s. 11], 428, 439 [repl. 1990, c. 28, s. 14; am. 1990, c. 78, ss. 12, 54], 510 [not in force; am. 1990, c. 78, s. 16], 515 [not in force], 515.1 to 515.4 [not in force; ad. idem, s. 17], 519 [not in force], 520 [not in force], 521 [not in force], 522 [not in force], 523 [not in force], 527 [not in force], 530 [not in force; am. idem, ss. 21, 54], 531 [not in force], 533 [not in force], 568 [now R.S.Q., c. C‑60, s. 22 (am. 1990, c. 8, s. 69)].
Education Department Act, R.S.Q. 1964, c. 233.
Superior Council of Education Act, R.S.Q. 1964, c. 234, ss. 15, 22.
Authors Cited
Carignan, Pierre. "La place faite à la religion dans les écoles publiques par la loi scolaire de 1841" (1982‑1983), 17 R.J.T. 9.
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.
Carignan, Pierre. Les garanties confessionnelles à la lumière du renvoi relatif aux écoles séparées de l'Ontario: un cas de primauté d'un droit collectif sur le droit individuel à l'égalité. Montréal: Thémis, 1992.
Chevrette, François, Herbert Marx et André Tremblay. Les problèmes constitutionnels posés par la restructuration scolaire de l'île de Montréal. Québec: Ministère de l'Éducation, 1972.
Garant, Patrice, Jacques Gosselin et Bernard Tremblay. "Les soubresauts de la réforme scolaire: la constitutionnalité de la Loi 3" (1985), 16 R.D.U.S. 205.
Garant, Patrice. Droit et législation scolaires. Montréal: McGraw‑Hill, 1971.
Hurtubise, René. "La confessionnalité de notre système scolaire et les garanties constitutionnelles" (1962), 65 R. du N. 167.
Pépin, Gilles. "L'article 93 de la Constitution et les droits relatifs à la confessionnalité des écoles du Québec" (1988), 48 R. du B. 427.
Pratte, Sonia. "La nouvelle Loi sur l'instruction publique et les droits constitutionnels relatifs aux écoles confessionnelles: quelques considérations" (1990), 31 C. de D. 261.
Wheeler, Gerald John. Confederation Law of Canada. London: Eyre & Spottiswoode, 1896.
APPEAL from a judgment of the Quebec Court of Appeal, [1990] R.J.Q. 2498, 32 Q.A.C. 1, on a reference re the constitutionality of certain provisions of the Quebec Education Act. The five constitutional questions were answered in the negative.
Colin K. Irving and Allan R. Hilton, for the appellant the Quebec Association of Protestant School Boards.
François Houde and Bernard Jacob, for the appellant the Fédération des commissions scolaires du Québec.
Jean Pomminville and Marie‑Josée Vachon, for the appellant the Commission scolaire Chomedey de Laval.
François Aquin and Yves Carrières, for the appellant the Conseil scolaire de l'île de Montréal.
Marcel Cinq‑Mars, Q.C., André Durocher and Jude Parent, for the appellant the Montreal Catholic School Commission.
Jean‑Yves Bernard and Luc Leblanc, for the respondent.
Jacques Larochelle and Line Magnan, for the interveners.
//Gonthier J.//
English version of the judgment of the Court delivered by
Gonthier J. ‑‑ At issue in this appeal are certain questions concerning the constitutionality of provisions of the Education Act, S.Q. 1988, c. 84 ("Bill 107") in light of s. 93 of the Constitution Act, 1867 , submitted by reference to the Quebec Court of Appeal and on which that Court gave its opinion on September 21, 1990, [1990] R.J.Q. 2498.
I ‑ Background
Following the tabling of the report of the Royal Commission on Education in the Province of Quebec in 1966, the provincial legislature undertook a series of initiatives to make the education system better suited to modern Quebec. By that new legislation, Bill 107, the Quebec government sought to carry out a very sweeping reform of the educational institutions in the province.
In 1984 Quebec had passed the Act respecting public elementary and secondary education, S.Q. 1984, c. 39 ("Bill 3"), which led to court challenges as a result of which the Act was declared to be wholly inoperative by the Superior Court (Quebec Association of Protestant School Boards v. Attorney General of Quebec, [1985] C.S. 872, 21 D.L.R. (4th) 36). Rather than appealing this judgment rendered by Brossard J., the Quebec legislature chose to table a new bill in the National Assembly. Bill 107 was assented to on December 23, 1988 but the Quebec legislature felt it was advisable to submit certain questions to the Court of Appeal to ensure that certain provisions of the Act complied with s. 93 of the Constitution.
On April 26, 1989 the Government of Quebec adopted order in council 610‑89 and submitted to the Quebec Court of Appeal, pursuant to the Court of Appeal Reference Act, R.S.Q., c. R‑23, five sets of questions concerning the province's jurisdiction over legislative reform of education. On two occasions following the hearing in the Court of Appeal the Quebec legislature passed statutes amending certain provisions of Bill 107 at issue in the reference. These were the Act to amend the Education Act and the Act respecting the Conseil supérieur de l'éducation, S.Q. 1990, c. 8, assented to on May 4, 1990, and the Act to amend the Education Act and the Act respecting private education, S.Q. 1990, s. 28, assented to on June 22, 1990. After consulting the parties, the Court of Appeal agreed to rule on Bill 107 as amended.
On September 21, 1990 the Court of Appeal, per LeBel and Beauregard JJ.A., handed down its decision in the reference and between October 5 and 17, 1990 the bodies intervening in the Court of Appeal filed notices of appeal in this Court. Two months later, the Quebec legislature passed the Act to amend the Education Act and the Act respecting private education, S.Q. 1990, c. 78, which also amended certain provisions that were the subject of the reference, in accordance with the opinions of the Court of Appeal. On March 18, 1991 the application by the Attorney General of Quebec asking this Court to rule on the provisions of Bill 107 as amended was allowed.
A. Constitutional Questions
The constitutional questions are as follows:
1.Does the Education Act (S.Q. 1988, c. 84), in particular ss. 111, 354, 519, 521, 522 and 527, prejudicially affect the rights and privileges protected by s. 93(1) and (2) of the Constitution Act, 1867 by providing for the establishment of French language and English language school boards which will succeed to the rights and obligations of school boards for Catholics and Protestants?
2.Does the Education Act, in particular ss. 126 to 139 and 206, prejudicially affect the rights and privileges protected by s. 93(1) and (2) of the Constitution Act, 1867 in its provisions:
(a)which stipulate the manner in which the right to dissent is to be exercised and the manner in which dissentient school boards are to be established;
(b)which give the government the power to change the legal structures of the dissentient school boards and to terminate the existence of those which do not perform any of the functions contemplated in the Act;
(c)which restrict access to these school boards to persons who belong to the same religious denomination as that of these school boards?
3.Does the Education Act, in particular ss. 122, 123, 124, 206, 519, 521 and 522, prejudicially affect the rights and privileges protected by s. 93(1) and (2) of the Constitution Act, 1867 :
(a)by continuing the existence of the confessional school boards in their territories;
(b)by allowing the government to change these territories;
(c)by providing for a means of transferring part of their rights and obligations to French language and English language school boards;
(d)by restricting access to these school boards to persons who belong to the same religious denomination as that of these school boards?
4.Does the Education Act, in particular ss. 423, 424, 425, 428 and 439, prejudicially affect the rights and privileges protected by s. 93(1) and (2) of the Constitution Act, 1867 in that
(a)it gives the Conseil scolaire de l'Île de Montréal the power to borrow money on behalf of all school boards on the island of Montréal;
(b)it authorizes the Conseil scolaire to establish rules for apportioning the proceeds of the tax it collects on behalf of these school boards?
5.Does the Education Act, in particular ss. 49, 223, 227, 230, 261 and 568, prejudicially affect the rights and privileges protected by s. 93(1) and (2) of the Constitution Act, 1867 , in that it gives the Catholic committee and the Protestant committee of the Conseil supérieur de l'éducation the authority:
(a)to establish rules respecting the confessional nature of the schools of the confessional and dissentient school boards;
(b)to approve the programs of studies for religious instruction offered in such schools and to determine the qualification of persons providing that instruction and those assigned to pastoral or religious care and guidance in such schools?
The question underlying this entire dispute is, as the appellant the Quebec Association of Protestant School Boards states at p. 11 of its factum:
. . . whether it is open to the National Assembly in exercising its authority to create a new non‑denominational language board school system to appropriate or in the case of Montreal and Quebec City, to authorize the appropriation of the existing minority Protestant system under the conditions laid down by Bill 107.
B. Description of Proposed Reform
The primary purpose of Bill 107 is to re‑focus educational institutions on the school and create a network of institutions to bring parents closer to the school and have them participate more actively in its management and orientation.
Bill 107 also comprises a fundamental reform of the organization of school boards. The Quebec public school system would move from a system organized according to religion to one organized according to language. Thus, the new legislation divides the province into two groups of territories, one of territories for French‑language school boards and the other of territories for English‑language school boards.
The organization of these new linguistic school boards will result in the dissolution of the existing "boards for Catholics" and "boards for Protestants". All the property, rights and assets and the staff of these boards will then be transferred to the linguistic boards.
However, this reform will not entail the dissolution of the five existing dissentient school boards, namely the Protestant dissentient school board of Baie‑Comeau, the Catholic dissentient school board of Greenfield‑Park, the Laurentian Protestant dissentient school board, the Catholic dissentient school board of Portage‑du‑Fort and the Protestant dissentient school board of Rouyn. Similarly, the four existing "confessional" or denominational school boards of Montréal and Québec will continue to exist.
The government assumes the power to dissolve a dissentient school board when it becomes inactive and to alter the territory of denominational school boards.
I adopt the description of LeBel J.A. (at p. 2513), which sets out clearly the background to the reference:
[translation] After the new educational structures are in place, the legislation provides for a dissent procedure available to denominational religious minorities, Catholic or Protestant . . . . In the event of disagreement between the dissentients and the linguistic school boards, the Minister is responsible for ruling on problems caused by transfers of staff and material resources. The Minister must ensure that the dissentient school board has the assets it needs to operate at its disposal . . . . He is under the same obligation in cases where the territory of a denominational school board has been altered . . . . The Act also lays down a principle of proportional access to public funds, in financing and operating the school system, for denominational or dissentient school boards . . . .
On the island of Montréal, management of the borrowing and property taxes of school boards is transferred to the Conseil scolaire de l'Île de Montréal, a public corporation, composed of a majority of members appointed by representatives of school boards and a few representatives of parents appointed by the Government . . . .
Finally, the Act preserves the organization known as the Conseil supérieur de l'éducation and its Catholic and Protestant subcommittees . . . .
Additionally, although the educational structure created by the Act for linguistic school boards is administratively neutral, schools may be recognized as Catholic or Protestant in accordance with an educational plan adopted pursuant to the Act. Linguistic school boards are also required to organize and offer religious and moral instruction, Catholic or Protestant, and provide it to whoever requests it.
Finally, the Act gives the government and the Minister wide regulatory powers. Ordinarily, determining the curriculum is a matter for government regulation . . . . In general, the Act provides for the management of schools and school boards, the election of commissioners and the supervision and control of their management, both material and pedagogical.
C. Parties and Interveners
The appellants and the interveners in the case all intervened in the reference to the Court of Appeal.
The Conseil scolaire de l'île de Montréal is a body created in 1972 pursuant to the Act to promote school development on the island of Montreal, S.Q. 1972, c. 60. Its argument relates only to the fourth constitutional question. It is of the view that it might usefully inform the courts of the role it plays vis‑à‑vis the school boards on the island of Montréal as regards borrowing and apportioning tax proceeds, and that it could thus assist in determining whether or not, in these matters, Bill 107 has a prejudicial effect within the meaning of s. 93 of the Constitution Act, 1867 .
The Fédération des commissions scolaires du Québec was created to promote the interests of education and to bring together the various Catholic school boards in Quebec. It feels it should take all necessary steps to defend and protect the interests of its members ‑‑ at present 173 Catholic school boards ‑‑ and of Catholic school boards in Quebec in general. In this Court, the Fédération is appealing the answers given by the Court of Appeal to questions 1, 2(a) and (b) and 3(b) and (c).
The Montreal Catholic School Commission is responsible for Catholic public schools serving the territory of the Montréal school municipality. It is one of the school boards which in 1985 asked the Superior Court to strike down Bill 3. In the instant reference, it is challenging the legality of Bill 107 as a whole; alternatively, it is asking this Court to declare the provisions submitted to it to be unconstitutional.
The Quebec Association of Protestant School Boards, which comprises twenty‑six Protestant school boards, is asking this Court to answer constitutional questions 1, 2 and 3 in the affirmative.
The Commission scolaire Chomedey de Laval, which represents Catholics residing in the territory served by it, is especially concerned with constitutional questions 1, 2 and 5. However, it is asking this Court to declare Bill 107 completely ultra vires the National Assembly. Further, it is questioning the Privy Council decision in Hirsch v. Protestant Board of School Commissioners of Montreal, [1928] A.C. 200, when it refused to recognize constitutional guarantees for the religious majority outside Québec and Montréal.
The bodies I have just mentioned all appealed from the Court of Appeal judgment.
Jeanne-D'Arc Audet‑Grenier, Renelle Grenier‑Gagné, Aurèle Grenier and Achille Larouche were interveners in the Court of Appeal and obtained leave from this Court to intervene. These persons, who reside in various places in Quebec outside the City of Québec and Montréal, and who profess the Catholic faith, would like the Court to declare that Bill 107 is totally inoperative and ultra vires.
D. Legal Framework of Reference
The reference raises no issue as to the application of the Canadian Charter of Rights and Freedoms , including s. 23 . It is concerned only with whether certain legislative provisions are consistent with s. 93(1) and (2) of the Constitution Act, 1867 :
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:
93. Dans chaque province et pour chaque province, la législature pourra exclusivement légiférer sur l'éducation, sous réserve et en conformité des dispositions suivantes:
(1) Rien dans cette législation ne devra préjudicier à un droit ou privilège conféré par la loi, lors de l'Union, à quelque classe particulière de personnes dans la province relativement aux écoles confessionnelles;
(2) tous les pouvoirs, privilèges et devoirs conférés ou imposés par la loi dans le Haut‑Canada, lors de l'Union, aux écoles séparées et aux syndics d'école des sujets catholiques romains de la Reine, seront et sont par les présentes étendus aux écoles dissidentes des sujets protestants et catholiques romains de la Reine dans la province de Québec;
In view of the importance of this section in the appeal at bar, serving as it does as a reference point, it is worth looking more closely at the section and recalling its origins and the nature and scope of the guarantees it provides.
Section 93 is unanimously recognized as the expression of a desire for political compromise. It served to moderate religious conflicts which threatened the birth of the Union. At the time, disagreements between communities hinged on religion rather than language.
This Court noted the essential nature of s. 93 in Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148 ("Ontario Separate Schools Reference").
The introductory part of the section assigns exclusive jurisdiction over education legislation to the provinces. The Privy Council and this Court have on numerous occasion