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in Quebec History
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revised: 23 August 2000 | Les
Québécois, le clergé catholique et l'affaire des écoles du Manitoba / Quebecers,
the Catholic Clergy and the Manitoba School Question, 1890-1916
Brophy
v. the Attorney-General of Manitoba [1895] [Note
from the editor : Following the unfavorable decision, for the catholic minority,
in the Barrett case, in 1892, the minority appealed to the federal government
for redress under the particular sub-sections of both the British North America
Act and the Manitoba Act. The issue had by then become a considerable one, and
the controversy had not only spilled over into the North-West territory, where
the territorial authorities had moved to curtail the rights of Roman Catholics
in education, but to Ontario where the Mowat government was under increased pressure
to do the same, and into national politics where it divided the parties on the
course of action to follow. The conservative government of Sir John Thompson was
at a loss as to what to do with the appeal, as whatever course of action was followed
would cause great embarrassment to the government. This was especially the case
as Thompson was the first Roman Catholic to occupy the post of Prime Minister
of Canada and he was held under great suspicion by many Protestants in the country.
The fact that he was a convert to Roman Catholicism from Protestantism did not
endear him to the majority and, in fact, limited his freedom of action. In true
Macdonald fashion, he applied the old principle that if you cannot solve a difficult
problem today, you seek to delay, you put it off to "tomorrow"; perhaps,
by then, it will have gone away or will have resolved itself without injury to
you
Consequently, the government submitted the question of the acceptability
of the appeal to the Courts. Could the federal government and Parliament intervene
in the issue of the schools of Manitoba to redress the rights or privileges of
the catholic minority if the Court had decided, as it had in the Barrett case,
that the legislation of 1890 was constitutional (intra vires)? This became the
Brophy case which is outlined below. Only
slight and inconsequential editing changes were made to the text established by
Olmsted.] [PRIVY
COUNCIL.] BROPHY AND OTHERS
APPELLANTS; AND THE
ATTORNEY-GENERAL OF MANITOBA
.................... RESPONDENT. ON
APPEAL FROM THE SUPREME COURT OF CANADA. *
Present: - THE LORD CHANCELLOR, LORD WATSON, LORD MACNAGHTEN, and LORD SHAND. Law
of Canada - Province of Manitoba - Dominion Statute, 33 Vict. e. 3, s.
l2, sub-ss. 2, 3 - Manitoba Public Schools Act, 1890 - Appeal to the Governor-General
in Council - Remedies against Provincial Legislation. Where
the Roman Catholic minority of Manitoba appealed to the Governor-General in Council
against the Manitoba Education Acts of 1890, on the ground that their rights and
privileges in relation to education had been affected thereby: - Held,
reversing the judgment of the Supreme Court on a case submitted to it: (a)
That such appeal lay under sect. 22, sub-sect. 2, of the Manitoba Act, 1870,
which applies to rights and privileges acquired by legislation in the province
after the date thereof. (b) That the
Roman Catholics having acquired by such legislation the right to control and manage
their denominational schools, to have them maintained out of the general taxation
of the province, to select books for their use, and to determine the character
of the religious teaching therein, were affected as regards that right by the
Acts of 1890, under which State aid was withdrawn from their schools, while they
themselves remained liable to local assessment in support of non-sectarian schools
to which they conscientiously objected. (c)
That the Governor-General in Council has power to make remedial orders in the
premises within the scope of sub-sect. 3 of sect. 22 - e.g., by supplemental
rather than repealing legislation. APPEAL,
by special leave, from a decree of the Supreme Court (Feb. 20, 1894), upon a case
referred thereto by the Governor-General in Council, for hearing and consideration
pursuant to the Supreme and Exchequer Court; (Revised Stat. Can. c. 135) as amended
by Dominion Act 54 & 55 Vict. c. 25, s. 4. The
substantial questions submitted by that case were (l.) whether any appeal lay
to the Governor-General in Council from two statutes passed by the Legislature
of Manitoba in the year 1890, being 53 Viet. c. 37, and the Public Schools Act
1890, whereby a general system of non-sectarian public education was established
in the place of the denominational system that had previously existed; (2.) whether
the Governor-General in Council had power to make the declarations or remedial
orders which were asked for in certain memorials that had been presented to him. The
memorialists complained that their rights and privileges in relation to education
had been affected by the two statutes before mentioned, and asked for a declaration
that such rights and privileges had been prejudicially affected thereby; and that
the Governor-General in Council should give such directions and make such remedial
orders for the relief of the Roman Catholics of the Province of Manitoba as to
His Excellency in Council might seem fit. The
Supreme Court of Canada (Strong, C.J., Fournier, Taschereau, Gwynne, and King,
JJ.) after argument decided by a majority that no such appeal lay from the said
statutes: strong, C.J., and Taschereau and Gwynne, JJ., held that no appeal lay,
and that the Governor-General in Council had not the power to make the orders
asked for: Fournier and King JJ., were of the contrary opinion. Manitoba
joined the Union in 1870, upon the terms of the Manitoba Act, 33 Viet. c. 3 (Dominion
Statute), which Act was declared valid and effectual by the British North America
Act, 1871, 34 & 35 Viet. c. 28, s. 5. The questions submitted turned upon
the construction of sects. 2 and 22 of the Manitoba Act, and sect. 93, sub-sect.
3, of the British North America Act, 1867. Sect.
2 of the Manitoba Act, 1870, is as follows: "2.
On and after the said day on which the order of the Queen in Council shall take
effect as aforesaid, the provisions of the British North America Act, 1867, shall,
except those parts which are in terms made or by reasonable intendment may be
held to be specially applicable to or only to affect one or more but not the whole
of the provinces now composing the Dominion, and except so far as the same may
be varied by this Act, be applicable to the Province of Manitoba in the same way
and to the same extent as they apply to the several Provinces of Canada, and as
if the Province of Manitoba had been one of the provinces originally united by
the said Act." Sect. 22 of the Act
is as follows: "In and for the Province,
the said 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 or practice
in the Province at the Union. "(2.)
An appeal shall lie to the Governor-General in Council from any Act or decision
of the Legislature of the Province, or of any provincial authority, affecting
any right or privilege of the Protestant or Roman Catholic minority of the Queen's
subjects in relation to education. "(3.)
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." Sect.
93 of the British North America Act, 1867, is - "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 . . . . "(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." In
submitting the case referred to the Supreme Court the Governor-General in Council
set forth the evidence in two cases called Barrett's Case and Logan's
Case, the effect of which is stated in the judgment of their Lordships therein.
The following is a short summary thereof: - At
the time when Manitoba was admitted to the Union there was no law or regulation
or ordinance with respect to education in force. There were no public schools
in the sense of State schools, but there existed throughout the Province a number
of denominational schools maintained by school fees or voluntary contributions,
and conducted according to the tenets of the religious body to which they might
belong. These schools were neither supported by grants from the public funds nor
were any of them in any way regulated or controlled by any public officials. In
1871, however, the year after the admission of Manitoba to the Union, a law was
passed which established throughout the Province a system of denominational education
in the common schools, as they were then called. A Board of Education was formed,
which was to be divided into two sections - Protestant and Roman Catholic. Each
section was to have under its control and management the discipline of the schools
of the section. Each of the twenty-four electoral divisions into which the Province
had by the Manitoba Act been divided was constituted a school district in the
first instance, and there was to be a school in each district. Twelve electoral
divisions "comprising mainly a Protestant population" were to be considered
Protestant school districts; twelve "comprising mainly a Roman Catholic population"
were to be considered Roman Catholic school districts. These schools were to be
maintained by grants from the public funds, to be divided equally between the
Protestant and Roman Catholic schools, and contributions from the people of each
school district. Such contributions might be raised by an assessment on the property
of the school district. The laws relating
to education were modified from time to time. From the year 1876 to 1890 enactments
were in force declaring that in no case should a Protestant ratepayer be obliged
to pay for a Roman Catholic school, or a Roman Catholic ratepayer for a Protestant
school, and by an Act passed in 1881 it was provided that the legislative grant
should no longer be divided equally between Protestant and Roman Catholic schools,
but should be divided between the Protestant and Roman Catholic section of the
Board in proportion to the number of children between the ages of five and fifteen
residing in the various Protestant and Roman Catholic school districts. The
system of denominational education was maintained in full vigour until 1890, when
the statutes complained of by the appellants were passed. One of them established
in the place of the Board of Education a Department of Education, and a board
consisting of seven members, known as the "Advisory Board". The
Public Schools Act, 1890, repealed all previous legislation relating to public
education, and enacted that all Protestant and Roman Catholic school districts
should be subject to the provisions of the Act, and that all public schools should
be free schools. At the option of the school trustees for each district, religious
exercises conducted according to the regulations of the Advisory Board and at
the times prescribed by the Act were to be held in the public schools. The religious
services were to be entirely non-sectarian, and any pupil whose parent or guardian
should so wish was to be dismissed from school before the religious exercises
should take place. The Act then provided
for the formation, alteration, and union of school districts, for the election
of school trustees, and for levying a rate on the taxable property in each school
district for school purposes. A portion of the legislative grant for educational
purposes was allotted to public schools, but no school was to participate in the
grant unless it were conducted according to all the provisions of the Act and
the regulations of the Department of Education and of the Advisory Board. E.
Blake, Q.C., and J. S. Ewart, Q.C., of the Canadian Bar, for
the appellants, who represented the Roman Catholic minority of the Queen's subjects
in the Province of Manitoba, contended (l.) that the appeal was admissible; (2.)
that the Governor-General in Council could and ought to have given appropriate
relief. In Barrett's and Logan's Cases (1) the validity of the Public
Schools Act, 1890, was assailed as ultra wires having regard to sect. 22, sub-sect.
1 of the Manitoba Act, 1870. Here its validity is assumed, but it is contended
that an appeal lies to the Governor-General in Council to rectify its provisions
as transgressing the restrictions contained in sub-sect. 2, which sub-section
is in harmony with sub-sect. 3 of sect. 93 of the Imperial Act of 1867. There
are several marked distinctions of the same character between sub-sects. 1 and
2 of the Manitoba Act, and also between sub-sects. 1 and 3 of sect. 93 of the
Act. of 1867. They shew that sub-sect. 1 of each section relates to a different
class of cases and to a different condition of things from that dealt with by
the later sub-section. For example, sub-sect. 1 of the Manitoba Act refers to
a right or privilege with respect to denominational schools of any class of persons,
whether constituting a majority of the population or not, existing by law or practice
at the date of the Union, and to cases in which such right has been prejudicially
affected. Sub-sect. 2, on the other hand, refers to a right or privilege in relation
to education of a particular class, namely, a Protestant or Roman Catholic minority,
whether existing at the date of the Union or created thereafter, and to cases
in which such right has been affected in any way, including cases in which the
relative status was altered, even though the actual position of the minority was
not changed for the worse. The cases, therefore, are broadly distinguished in
which, on the one hand, legislation is void as ultra vires, and in which, on the
other, legislation though intra vires yet affects the rights and privileges of
a class. In the former case no appeal is required. Any one aggrieved can successfully
resist its application. In the latter an appeal of the kind refused by the Supreme
Court is requisite, appropriate, and useful as leading to redress by supplemental
corrections of the Acts impugned. In this case the Manitoba Education Acts passed
prior to 1890 confirmed and continued to the minority a right or privilege in
relation to education within the meaning of sub-sect. 2 of the Manitoba Act. They
also established a system of separate or dissentient schools within the meaning
of sub-sect. 2 of the Act of 1867, sect. 93. The provisions of the Manitoba
Acts of 1890 did, on the contrary, affect a right and privilege of the minority
in such sort that an appeal for redress lay to the Governor-General in Council.
As regards sub-sect. 3 of sect. 93 of the Act of 1867, it applies on its true
construction to Manitoba, for the general object of that Act was to put all the
provinces at whatever date they entered the confederation as nearly as possible
on the same footing. The Manitoba Act does not restrict the Act of 1867 while
making it applicable in a general way; it was contended that its terms are even
wider than those of the earlier Act. It was not sought in this appeal for any
declaration as to the extent of the relief to be granted by the Governor-General;
a ruling was desired that he had jurisdiction to hear the prayer of the petition
and to grant appropriate relief. Cozens-Hardy,
Q.C., Haldane, Q.C., and Bray, for the respondent, contended
that the Supreme Court decided rightly. Laws in relation to education are within
the powers of the provincial legislature. As regards the Manitoba legislature,
those powers are completely defined by sect. 22 of the Manitoba Act. Those
powers are not limited, extended, or in any way affected by sect. 93 of the British
North America Act, 1867. As regards sub-sect. 3 of sect. 93, assuming it applies
just as it stands to Manitoba, it was contended that this appeal did not lie thereunder.
The appeal allowed by that sub-section was an appeal from an "Act or decision
of any provincial authority." The statutes complained of, namely, the Acts
of 1890, are not Acts or decisions of a provincial authority within the meaning
of that section, which points rather to executive and judicial than to legislative
authority; and, in the second place, there is not and there never has been a system
of separate or dissentient schools established by law in Manitoba. But
that sub-section 3 has been varied by sub-sect. 2 of sect. 22 of the Manitoba
Act. It therefore does not apply, by virtue of sect. 2 of that Act. The position
is this: sub-sect. 1 exhaustively defines the limits set to provincial legislative
authority. Sub-sect. 2 contains more general provisions, which should be
read as consistent with and not as cutting down the language of sub-sect. 1. There
is no inconsistency between those sub-sections, and the latter should be so construed
as to leave the former as fully operative as if it had stood alone. Accordingly,
under sect. 22, an appeal to the Governor-General only lies when rights or privileges
existing by law or practice at the Union have been affected. The decisions in
Barrett's and Logan's Cases (1) are conclusive that such privileges have not.
been infringed. On the contrary view contended for by the appellants, assuming
that rights and privileges created since the Union are within the meaning of sect.
22, still the Acts of 1890 have not affected any right or privilege of the Roman
Catholic minority in relation to education established by law or practice since
that time. The main effect of that legislation was that all public schools should
be free schools; that all districts, whether Roman Catholic or Protestant, should
be subject to its provisions. Certain non-sectarian religious exercises were to
be held in the public schools at the option of the school trustees. Pupils might
withdraw before this took place. No school which infringed those regulations would
participate in the grant. All denominations were therefore placed on an equal
footing; their special teaching was impartially excluded from within the schools,
and impartially permitted without the schools. The Acts between 1871 and 1890
did not give any vested right or privilege at all to the minority in relation
to education; only contingent and conditional rights and privileges of exemption
from the system thereby established. No doubt the Acts of 1890 repealed all previous
legislation with regard to education. If any appeal lay on that ground, it would
be tantamount to denying the right inherent in all legislatures of repealing or
altering its own legislation. It would reduce the provincial power of legislation
to a nullity if the Governor-General in Council should be held to possess an arbitrary
jurisdiction to review and rescind at his discretion, and without any reference
to the constitutional right of the province of Manitoba, any Acts of its legislature,
notwithstanding that they are intra vires and constitutional. Blake,
Q.C., replied. 1895. Jan. 29. The judgment
of their Lordships was delivered by THE
LORD CHANCELLOR: In the year 1890 two
Acts were passed by the legislature of Manitoba relating to education. One of
these created a Department of Education and an "Advisory Board." The
board was to consist of seven members, four of whom were to be appointed by the
Department of Education, two to be elected by the public and high school teachers
of the Province, and one to be appointed by the University Council. The Advisory
Board were empowered (amongst other things) to authorize text books for the use
of pupils and to prescribe the form of religious exercises to be used in schools. The
other Act, which was termed "The Public Schools Act," established a
system of public education "entirely non-sectarian," no religious exercises
being allowed except those conducted according to the regulations of the Advisory
Board. It will be necessary hereafter to refer somewhat more in detail to the
provisions of this Act. The Act came
into force on the 1st of May, 1890. By virtue of its provisions, bye-laws
were made by the municipal corporation of Winnipeg, under which a rate was to
be levied upon Protestant and Roman Catholic ratepayers alike for school purposes.
An application was thereupon made to the Court of Queen's Bench of Manitoba to
quash these bye-laws on the ground that the Public Schools Act, 1890, was ultra
vires of the Provincial Legislature, inasmuch as it prejudicially affected a right
or privilege with respect to denominational schools which the Roman Catholics
had by law or practice in the Province at the Union. The Court of Queen's Bench
refused the application, being of opinion that the Act was intra vires. The Supreme
Court of Canada took a different view; but upon appeal this Board reversed their
decision and restored the judgment of the Court of Queen's Bench. Memorials
and petitions were afterwards presented to the Governor-General in Council on
behalf of the Roman Catholic minority of Manitoba by way of appeal against the
Education Acts of 1890. These memorials and petitions having been taken into consideration,
a case in relation thereto was in pursuance of the provisions of the Supreme and
Exchequer Courts Act referred by the Governor-General in Council to the Supreme
Court of Canada. The questions referred for hearing and consideration were the
following: "(1.) Is the appeal referred
to in the said memorials and petitions, and asserted thereby, such an appeal as
is admissible by sub-sect. 3 of sect. 93 of the British North America Act, 1867,
or by sub-sect. 2 of sect. 22 of the Manitoba Act, 33 Viet. c. 3, Canada? "(2.)
Are the grounds set forth in the petitions and memorials such as may be the subject
of appeal under the authority of the sub-sections above referred to, or either
of them? "(3.) Does the decision
of the Judicial Committee of the Privy Council in the cases of Barrett v. The
City of Winnipeg (1) and Logan v. The City o f Winnipeg (1) dispose
of or conclude the application for redress based on the contention that the rights
of the Roman Catholic minority which accrued to them after the Union under the
statutes of the Province have been interfered with by the two statutes of 1890
complained of in the said petitions and memorials? "(4.)
Does sub-sect. 3 of sect. 93 of the British North America Act, 1867, apply to
Manitoba? "(5.) Has His Excellency
the Governor-General in Council power to make the declarations or remedial orders
which are asked for in the said memorials and petitions, assuming the material
facts to be as stated therein, or has His Excellency the Governor-General in Council
any other jurisdiction in the premises? "(6.)
Did the Acts of Manitoba relating to education, passed prior to the session of
1890, confer on or continue to the minority 'a right or privilege in relation
to education' within the meaning of sub-sect. 2 of sect. 22 of the Manitoba Act,
or establish a system of separate or dissentient schools 'within the meaning of
sub-sect. 3 of sect. 93 of the British North America Act, 1867,' if said sect.
93 be found applicable to Manitoba; and if so, did the two Acts of 1890 complained
of, or either of them, affect any right or privilege of the minority in such a
manner that an appeal will lie thereunder to the Governor-General in Council?" The
learned judges of the Supreme Court were divided in opinion upon each of the questions
submitted. They were all, however, by a majority of three judges out of five,
answered in the negative. The appeal
to the Governor-General in Council was founded upon the 22nd section
of the Manitoba Act, 1870, and the 93rd section of the British North
America Act, 1867. By the former of these statutes (which was confirmed and declared
to be valid and effectual by an Imperial statute) Manitoba was created a province
of the Dominion. The 2nd section
of the Manitoba Act enacts that after the prescribed day the British North America
Act shall "except those parts thereof which are in terms made or by reasonable
intendment may be held to be specially applicable to or only to affect one or
more but not the whole of the provinces now composing the Dominion, and except
so far as the same may be varied by this Act, be applicable to the Province of
Manitoba in the same way and to the like extent as they apply to the several provinces
of Canada, and as if the Province of Manitoba had been one of the provinces originally
united by the said Act." It cannot be questioned therefore that sect. 93
of the British North America Act (save such parts of it as are specially applicable
to some only of the provinces of which the Dominion was in 1870 composed) is made
applicable to the Province of Manitoba, except in so far as it is varied by the
Manitoba Act. The 22nd section of that statute deals with the same
subject-matter as sect. 93 of the British North America Act. The 2nd
sub-section of this latter section may be discarded from consideration, as it
is manifestly applicable only to the Provinces of Ontario and Quebec. The remaining
provisions closely correspond with those of sect. 22 of the Manitoba Act. The
only difference between the introductory part and the 1st sub-section
of the two sections, is that in the Manitoba Act the words "or practice"
are added after the word "law" in the 1st sub-section. The
3rd sub-section of sect. 22 of the Manitoba Act is identical with the
4th sub-section of sect. 93 of the British North America Act. The 2nd
and 3rd sub-sections respectively are the same, except that in the
2nd sub-section of the Manitoba Act the words "of the Legislature
of the province or" are inserted before the words "any provincial authority,"
and that the 3rd sub-section of the British North America Act commences
with the words: "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." In view of this comparison it appears to their Lordships
impossible to come to any other conclusion than that the 22nd section
of the Manitoba Act was intended to be a substitute for the 93rd section
of the British North America Act. Obviously all that was intended to be identical
had been repeated, and in so far as the provisions of the Manitoba Act differ
from those of the earlier statute they must be regarded as indicating the variations
from those provisions intended to be introduced in the Province of Manitoba. In
their Lordships' opinion, therefore, it is the 22nd section of the
Manitoba Act which has to be construed in the present case, though it is of course
legitimate to consider the terms of the earlier Act, and to take advantage of
any assistance they may afford in the construction of enactments with which they
so closely correspond and which have been substituted for them. Before
entering upon a critical examination of the important section of the Manitoba
Act, it will be convenient to state the circumstances under which that Act was
passed, and also the exact scope of the decision of this Board in the case of
Barrett v. The City of Winnipeg, which seems to have given rise
to some misapprehension. In 1867 the union of the Provinces of Canada, Nova Scotia,
and New Brunswick took place. Among the obstacles which had to be overcome in
order to bring about that union, none perhaps presented greater difficulty than
the differences of opinion which existed with regard to the question of education.
It had been the subject of much controversy in Upper and Lower Canada. In Upper
Canada a general system of undenominational education had been established, but
with provision for separate schools to supply the wants of the Catholic inhabitants
of that province. The 2nd sub-section of sect. 93 of the British North
American Act extended all the powers, privileges, and duties which were then by
law conferred and imposed in Upper Canada on the separate schools and school trustees
of the Roman Catholic inhabitants of that province to the dissentient schools
of the Protestant and Roman Catholic inhabitants of Quebec. There can be no doubt
that the views of the Roman Catholic inhabitants of Quebec and Ontario with regard
to education were shared by the members of the same communion in the territory
which afterwards became the Province of Manitoba. They regarded it as essential
that the education of their children should be in accordance with the teaching
of their Church and considered that such an education could not be obtained in
public schools designed for all the members of the community alike, whatever their
creed, but could only be secured in schools conducted under the influence and
guidance of the authorities of their Church. At the time when the Province of
Manitoba became part of the Dominion of Canada, the Roman Catholic and Protestant
populations in the province were about equal in number. Prior to that time there
did not exist in the territory then incorporated any public system of education.
The several religious denominations had established such schools as they thought
fit, and maintained them by means of funds voluntarily contributed by the members
of their own communion. None of them received any State aid. The
terms upon which Manitoba was to become a province of the Dominion were matter
of negotiation between representatives of the inhabitants of Manitoba and of the
Dominion Government. The terms agreed upon so far as education was concerned,
must be taken to be embodied in the 22nd section of the Act of 1870.
Their Lordships do not think that anything is to be gained by the inquiry how
far the provisions of this section placed the Province of Manitoba in a different
position from the other provinces, or whether it was one more or less advantageous.
There can be no presumption as to the extent to which variation was intended.
This can only be determined by construing the words of the section according to
their natural signification. Among the
very first measures passed by the Legislature of Manitoba was an Act to establish
a system of education in the Province. The provisions of that Act will require
examination. It is sufficient for the present to say that the system established
was distinctly denominational. This system, with some modifications of the original
scheme, the fruit of later legislation, remained in force until it was put an
end to by the Acts which have given rise to the present controversy. In
Barrett's Case, the sole question raised was whether the Public Schools
Act of 1890 prejudicially affected any right or privilege which the Roman Catholics
by law or practice had in the province at the Union. Their Lordships arrived
at the conclusion that this question must be answered in the negative. The only
right or privilege which the Roman Catholics then possessed, either by law or
in practice, was the right or privilege of establishing and maintaining for the
use of members of their own Church such schools as they pleased. It appeared to
their Lordships that this right or privilege remained untouched, and therefore
could not be said to be affected by the legislation of 1890. It was not doubted
that the object of the 1st sub-section of sect. 22 was to afford protection
to denominational schools, or that it was proper to have regard to the intent
of the Legislature and the surrounding circumstances in interpreting the enactment.
But the question which had to be determined was the true construction of the language
used. The function of a tribunal is limited to construing the words employed;
it is not justified in forcing into them a meaning which they cannot reasonably
bear. Its duty is to interpret, not to enact. It is true that the construction
put by this Board upon the 1st sub-section reduced within very narrow
limits the protection afforded by that sub-section in respect of denominational
schools. It may be that those who were acting on behalf of the Roman Catholic
community in Manitoba, and those who either framed or assented to the wording
of that enactment, were under the impression that its scope was wider, and that
it afforded protection greater than their Lordships held to be the case. But such
considerations cannot properly influence the judgment of those who have judicially
to interpret a statute. The question is, not what may be supposed to have been
intended, but what has been said. More complete effect might in some cases be
given to the intentions of the Legislature, if violence were done to the language
in which their legislation has taken shape; but such a course would on the whole
be quite as likely to defeat as to further the object which was in view. Whilst,
however, it is necessary to resist any temptation to deviate from sound rules
of construction in the hope of more completely satisfying the intention of the
Legislature, it is quite legitimate where more than one construction of a statute
is possible, to select that one which will best carry out what appears from the
general scope of the legislation and the surrounding circumstances to have been
its intention. With these preliminary
observations their Lordships proceed to consider the terms of the 2nd
and 3rd sub-sections of sect. 22 of the Act of 1870, upon the construction
of which the questions submitted chiefly depend. For the reasons which have been
given their Lordships concur with the majority of the Supreme Court in thinking
that the main issues are not in any way concluded either by the decision in Barrett's
Case or by any principles involved in that decision. At
the outset this question presents itself. Are the 2nd and 3rd
sub-sections, as contended by the respondent, and armed by some of the Judges
of the Supreme Court, designed only to enforce the prohibition contained in the
1st sub-section? The arguments against this contention appear to their
Lordships conclusive. In the first place that sub-section needs no further provision
to enforce it. It imposes a limitation on the legislative powers conferred. Any
enactment contravening its provisions is beyond the competency of the Provincial
Legislature, and therefore null and void. It was so decided by this Board in Barrett's
Case. A doubt was there suggested whether that appeal was competent, in consequence
of the provisions of the 2nd sub-section, but their Lordships were
satisfied that the provisions of sub-sects. 2 and 3 did not "operate to withdraw
such a question as that involved in the case from the jurisdiction of the ordinary
tribunals of the country." It is hardly necessary to point out how improbable
it is that it should have been intended to give a concurrent remedy by appeal
to the Governor-General in Council. The inconveniences and difficulties likely
to arise, if this double remedy were open, are obvious. If for example the Supreme
Court of Canada, and this Committee on Appeal, declared an enactment of the Legislature
of Manitoba relating to education to be intra vires, and the Governor-General
in Council on an appeal to him considered it ultra vires, what would happen? If
the Provincial Legislature declined to yield to his view, as would almost certainly
and most naturally be the case, recourse could only be had to the Parliament of
the Dominion. But the Parliament of Canada is only empowered to legislate as far
as the circumstances of the case require "for the due execution of the provisions"
of the 22nd section. If it were to legislate in such a case as has
been supposed, its legislation would necessarily be declared ultra vires by the
Courts which had decided that the provisions of the section had not been violated
by the Legislature of the province. If, on the other hand, the Governor-General
declared a provincial law to be intra vires, it would be an ineffectual declaration.
It could only be made effectual by the action of the Courts, which would have
for themselves to determine the question which he decided, and if they arrived
at a different conclusion and pronounced the enactment ultra vires it would be
none the less null and void because the Governor-General in Council had declared
it intra vires. These considerations are of themselves most cogent to shew that
the 2nd sub-section ought not to be construed as giving to parties
aggrieved an appeal to the Governor-General in Council concurrently with the right
to resort to the Courts in case the provisions of the 1st sub-section
are contravened, unless no other construction of the sub-sections be reasonably
possible. The nature of the remedy, too, which the 3rd sub-section
provides, for enforcing the decision of the Governor-General, strongly confirms
this view. That remedy is either a provincial law or a law passed by the Parliament
of Canada. What would be the utility of passing a law for the purpose merely of
annulling an enactment which the ordinary tribunals would without legislation
declare to be null, and to which they would refuse to give effect? Such legislation
would indeed be futile. So far the matter
has been dealt with apart from an examination of the terms of the 2nd
sub-section itself. The considerations adverted to would seem to justify any possible
construction of that sub-section which would avoid the consequences pointed out.
But when its language is examined, so far from presenting any difficulties, it
greatly strengthens the conclusion suggested by the other parts of the section.
The first sub-section is confined to a right or privilege of a "class of
persons" with respect to denominational education "at the Union,"
the 2nd sub-section applies to laws affecting a right or privilege
"of the Protestant or Roman Catholic minority" in relation to education.
If the object of the 2nd sub-section had been that contended for by
the Respondent, the natural and obvious mode of expressing such intention would
have been to authorize an appeal from any Act of the Provincial Legislature affecting
"any such right or privilege as aforesaid." The limiting words "at
the Union" are however omitted, for the expression "any class of persons"
there is substituted "the Protestant or Roman Catholic minority of the Queen's
subjects," and instead of the words "with respect to denominational
schools," the wider term "in relation to education" is used. The
1st sub-section invalidates a law affecting prejudicially the right
or privilege of "any class" of persons, the 2nd sub-section
gives an appeal only where the right or privilege affected is that of the "Protestant
or Roman Catholic minority." Any class of the majority is clearly within
the purview of the 1st sub-section, but it seems equally clear that
no class of the Protestant or Catholic majority would have a locus standi to appeal
under the 2nd sub-section, because its rights or privileges had been
affected. Moreover to bring a case within that sub-section it would be essential
to shew that a right or privilege had been "affected." Could this be
said to be the case because a void law had been passed which purported to do something
but was wholly ineffectual? To prohibit a particular enactment and render it ultra
vires surely prevents its affecting any rights. It
would do violence to sound canons of construction if the same meaning were to
be attributed to the very different language employed in the two sub-sections. In
their Lordships' opinion the 2nd sub-section is a substantive enactment,
and is not designed merely as a means of enforcing the provision which precedes
it. The question then arises, does the sub-section extend to rights and privileges
acquired by legislation subsequent to the Union? It extends in terms to "any"
right or privilege of the minority affected by an Act passed by the Legislature,
and would therefore seem to embrace all rights and privileges existing at the
time when such Act was passed. Their Lordships see no justification for putting
a limitation on language thus unlimited. There is nothing in the surrounding circumstances,
or in the apparent intention of the Legislature, to warrant any such limitation.
Quite the contrary. It was urged that it would be strange if an appeal lay to
the Governor-General in Council against an Act passed by the Provincial Legislature
because it abrogated rights conferred by previous legislation, whilst if there
had been no previous legislation, the Acts complained of would not only have been
intra vires, but could not have afforded ground for any- appeal. There is no doubt
force in this argument, but it admits, their Lordships think, of an answer. Those
who were stipulating for the provisions of sect. 22 as a condition of the Union,
and those who gave their legislative assent to the Act by which it was brought
about, had in view the perils then apprehended. The immediate adoption by the
Legislature of an educational system obnoxious either to Catholics or Protestants
would not be contemplated as possible. As has been already stated, the Roman Catholics
and Protestants in the province were about equal in number. It was impossible
at that time for either party to obtain legislative sanction to a scheme of education
obnoxious to the other. The establishment of a system of public education in which
both parties would concur was probably then in immediate prospect. The Legislature
of Manitoba first met on the 15th of March, 1871. On the 3rd of May
following the Education Act of 1871 received the Royal Assent. But the future
was uncertain. Either Roman Catholics or Protestants might become the preponderating
power in the Legislature, and it might under such conditions be impossible for
the minority to prevent the creation at the public cost of schools which, though
acceptable to the majority, could only be taken advantage of by the minority on
the terms of sacrificing their cherished convictions. The change to a Roman Catholic
system of public schools would have been regarded with as much distaste by the
Protestants of the province as the change to an unsectarian system was by the
Catholics. Whether this explanation be
the correct one or not, their Lordships do not think that the difficulty suggested
is a sufficient warrant for departing from the plain meaning of the words of the
enactment, or for refusing to adopt the construction which apart from this objection
would seem to be the right one. Their
Lordships being of opinion that the enactment which governs the present case is
the 22nd section of the Manitoba Act, it is unnecessary to refer at
any length to the arguments derived from the provisions of sect. 93 of the British
North America Act. But in so far as they throw light on the matter they do not
in their Lordships' opinion weaken, but rather strengthen the views derived from
a study of the later enactment. It is admitted that the 3rd and 4th
sub-sections of sect. 93 (the latter of which is, as has been observed, identical
with sub-sect. 3 of sect. 22 of the Manitoba Act) were not intended to have effect
merely when a provincial Legislature had exceeded the limit imposed on its powers
by sub-sect. 1, for sub-sect. 3 gives an appeal to the Governor-General, not only
where a system of separate or dissentient schools existed in a province at the
time of the Union, but also where in any province such a system was "thereafter
established by the Legislature of the province." It is manifest that this
relates to a state of things created by post-Union legislation. It was said it
refers only to acts or decisions of a "provincial authority," and not
to acts of a provincial Legislature. It is unnecessary to determine this point,
but their Lordships must express their dissent from the argument that the insertion
of the words "of the Legislature of the province" in the Manitoba Act
shews that in the British North America Act it could not have been intended to
comprehend the Legislature under the words "any provincial authority."
Whether they be so comprehended or not has no bearing on the point immediately
under discussion. It was argued that
the omission from the 2nd sub-section of sect. 22 of the Manitoba Act
of any reference to a system of separate or dissentient schools "thereafter
established by the Legislature of the province" was unfavourable to the contention
of the Appellants. This argument met with some favour in the Court below. If the
words with which the 3rd sub-section of sect. 93 commences had been
found in sub-sect. 2 of sect. 22 of the Manitoba Act, the omission of the following
words would no doubt have been important. But the reason for the difference between
the sub-sections is manifest. At the time the Dominion Act was passed a system
of denominational schools adapted to the demands of the minority existed in some
provinces, in others it might thereafter be established by legislation, whilst
in Manitoba in 1870 no such system was in operation, and it could only come into
existence by being "thereafter established." The words which preface
the right of appeal in the Act creating the Dominion would therefore have been
quite inappropriate in the Act by which Manitoba became a province of the Dominion.
But the terms of the critical sub-section of that Act are, as has been shewn,
quite general, and not made subject to any condition or limitation. Before
leaving this part of the case, it may be well to notice the argument urged by
the Respondent that the construction which their Lordships have put upon the 2nd
and 3rd sub-sections of sect. 22 of the Manitoba Act is inconsistent
with the power conferred upon the Legislature of the province to "exclusively
make laws in relation to education." The argument is fallacious. The power
conferred is not absolute, but limited. It is exerciseable only "subject
and according to the following provisions." The sub-sections which follow,
therefore, whatever be their true construction, define the conditions under which
alone the Provincial Legislature may legislate in relation to education, and indicate
the limitations imposed on, and the exceptions from, their power of exclusive
legislation. Their right to legislate is not indeed, properly speaking, exclusive,
for in the case specified in sub-sect. 3 the Parliament of Canada is authorized
to legislate on the same subject. There is therefore no such inconsistency as
was suggested. The learned Chief Justice
of the Supreme Court was much pressed by the consideration that there is an inherent
right in a Legislature to repeal its own legislative acts and that "every
presumption must be made in favour of the constitutional right of a legislative
body to repeal the laws which it has itself enacted." He returns to this
point more than once in the course of his judgment, and lays down as a maxim of
constitutional construction that an inherent right to do so cannot be deemed to
be withheld from a legislative body having its origin in a written constitution,
unless the constitution in express words takes away the right, and he states it
as his opinion that in construing the Manitoba Act the Court ought to proceed
on this principle, and to hold the Legislature of that province to have absolute
powers over its own legislation, untrammelled by any appeal to federal authority,
unless it could find some restriction of its rights in that respect in express
terms in the Constitutional Act. Their
Lordships are unable to concur in the view that there is any presumption which
ought to influence the mind one way or the other. It must be remembered that the
Provincial Legislature is not in all respects supreme within the province. Its
legislative power is strictly limited. It can deal only with matters declared
to be within its cognizance by the British North America Act as varied by the
Manitoba Act. In all other cases legislative authority rests with the Dominion
Parliament. In relation to the subjects specified in sect. 92 of the British North
America Act, and not falling within those set forth in sect. 91, the exclusive
power of the Provincial Legislature may be said to be absolute. But this is not
so as regards education, which is separately dealt with and has its own code both
in the British North America Act and in the Manitoba Act. It may be said to be
anomalous that such a restriction as that in question should be imposed on the
free action of a Legislature, but is it more anomalous than to grant to a minority
who are aggrieved by legislation an appeal from the Legislature to the Executive
Authority? And yet this right is expressly and beyond all controversy conferred.
If, upon the natural construction of the language used, it should appear that
an appeal was permitted under circumstances involving a fetter upon the power
of a Provincial Legislature to repeal its own enactments, their Lordships see
no justification for a leaning against that construction, nor do they think it
makes any difference whether the fetter is imposed by express words or by necessary
implication. In truth, however, to determine
that an appeal lies to the Governor-General in Council in such a case as the present
does not involve the proposition that the Provincial Legislature was unable to
repeal the laws which it had passed. The validity of the repealing Act is not
now in question, nor that it was effectual. If the decision be favourable to the
appellants the consequence, as will be pointed out presently, will by no means
necessarily be the repeal of the Acts of 1890 or the re-enactment of the prior
legislation. Bearing in mind the circumstances
which existed in 1870, it does not appear to their Lordships an extravagant notion
that in creating a Legislature for the province with limited powers it should
have been thought expedient, in case either Catholics or Protestants became preponderant,
and rights which had come into existence under different circumstances were interfered
with, to give the Dominion Parliament power to legislate upon matters of education
so far as was necessary to protect the Protestant or Catholic minority as the
case might be. Taking it then to be established
that the 2nd sub-section of sect. 22 of the Manitoba Act extends to
rights and privileges of the Roman Catholic minority acquired by legislation in
the province after the Union, the next question is whether any such right or privilege
has been affected by the Acts of 1890? In order to answer this question it will
be necessary to examine somewhat more closely than has hitherto been done the
system established by the earlier legislation as well as the change effected by
those Acts. The Manitoba School Act of
1871 provided for a Board of Education of not less than ten nor more than fourteen
members, of whom one half were to be Protestants and the other half Catholics.
The two sections of the board might meet at any time separately. Each section
was to choose a chairman, and to have under its control and management the discipline
of the schools of the section. One of the Protestant members was to be appointed
Superintendent of the Protestant schools, and one of the Catholic members Superintendent
of the Catholic schools, and these two were to be the joint secretaries of the
board, which was to select the books to be used in the schools, except those having
reference to religion or morals, which were to be prescribed by the sections respectively.
The legislative grant for common school education was to be appropriated, one
moiety to support the Protestant, the other moiety the Catholic schools. Certain
districts in which the population was mainly Catholic were to be considered Catholic
school districts, and certain other districts where the population was mainly
Protestant were to be considered Protestant school districts. Every year a meeting
of the male inhabitants of each district, summoned by the Superintendent of the
section to which the district belonged, was to appoint trustees, and to decide
whether their contributions to the support of the school were to be raised by
subscription, by a collection of a rate per scholar, or by assessment on the property
of the district. They might also decide to erect a school house, and that the
cost of it should be raised by assessment. In case the father or guardian of a
school child was a Protestant in a Catholic district or vice versa, he might send
the child to the school of the nearest district of the other section, and in case
he contributed to the school the child attended a sum equal to what he would have
been bound to pay if he had belonged to that district, he was exempt from payment
to the school of the district in which he lived. Acts
amending the education law in some respects were passed in subsequent years, but
it is not necessary to refer to them, as in 1881 the Act of 1871 and these amending
Acts were repealed. The Manitoba School Act, 1881, followed the same general lines
as that of 1871. The number of the Board of Education was fixed at not more than
twenty-one, of whom twelve were to be Protestants and nine Catholics. If a less
number were appointed the same relative proportion was to be observed. The board
as before was to resolve itself into two sections, Protestant and Catholic, each
of which was to have the control of the schools of its section, and all the books
to be used in the schools under its control were now to be selected by each section.
There were to be as before a Protestant and a Catholic Superintendent. It was
provided that the establishment of a school district of one denomination should
not prevent the establishment of a school district of the other denomination in
the same place, and that a Protestant and Catholic district might include the
same territory in whole or in part. The sum appropriated by the legislature for
common school purposes was to be divided between the Protestant and Roman Catholic
sections of the board in proportion to the number of children between the ages
of five and fifteen residing in the various Protestant and Roman Catholic school
districts in the province where schools were in operation. With regard to local
assessments for school purposes it was provided that the ratepayers of a school
district should pay their respective assessments to the schools of their respective
denominations, and in no case was a Protestant ratepayer to be obliged to pay
for a Catholic school, or a Catholic ratepayer for a Protestant school. The
scheme embodied in this Act was modified in some of its details by later Acts
of the Legislature, but they did not affect in substance the main features to
which attention has been called. While traces of the increase of the Protestant
relatively to the Catholic population may be seen in the course which legislation
took, the position of the Catholic and Protestant portions of the community in
relation to education was not substantially altered, though the State aid which
at the outset was divided equally between them had of course to be adjusted and
made proportionate to the school population which each supplied. Their
Lordships pass now to the Department of Education and Public Schools Acts of 1890,
which certainly wrought a great change. Under the former of these Roman Catholics
were not entitled as such to any representation on the Board of Education or on
the Advisory Board, which was to authorize text books for the use of pupils and
to prescribe the forms of religious exercises to be used in schools. All Protestant
and Catholic school districts were to be subject to the provisions of the Public
Schools Act. The public schools were all to be free, and to be entirely non-sectarian.
No religious exercises were to be allowed unless conducted according to the regulations
of the Advisory Board, and with the authority of the school trustees for the district.
It was made the duty of the trustees to take possession of all public school property
which had been acquired or given for public school purposes in the district. The
municipal council of every city, town, and village, was directed to levy and collect
upon the taxable property within the municipality such sums as might be required
by the public school trustees for school purposes. No municipal council was to
have the right to exempt any property whatever from school taxation. And it was
expressly enacted that any school not conducted according to all the provisions
of the Act, or the regulations of the Department of Education, or the Advisory
Board, should not be deemed a public school within the meaning of the law, and
that such school should not participate in the legislative grant. With
the policy of these Acts their Lordships are not concerned, nor with the reasons
which led to their enactment. It may be that as the population of the province
became in proportion more largely Protestant, it was found increasingly difficult,
especially in sparsely populated districts, to work the system inaugurated in
1871, even with the modifications introduced in later years. But whether this
be so or not is immaterial. The sole question to be determined is whether a right
or privilege which the Roman Catholic minority previously enjoyed has been affected
by the legislation of 1890. Their Lordships are unable to see how this question
can receive any but an affirmative answer. Contrast the position of the Roman
Catholics prior and subsequent to the Acts from which they appeal. Before these
passed into law there existed denominational schools of which the control and
management were in the hands of Roman Catholics, who could select the books to
be used and determine the character of the religious teaching. These schools received
their proportionate share of the money contributed for school purposes out of
the general taxation of the province, and the money raised for these purposes
by local assessment was, so far as it fell upon Catholics, applied only towards
the support of Catholic schools. What is the position of the Roman Catholic minority
under the Acts of 1890? Schools of their own denomination, conducted according
to their views, will receive no aid from the State. They must depend entirely
for their support upon the contributions of the Roman Catholic community, while
the taxes out of which State aid is granted to the schools provided for by the
statute fall alike on Catholics and Protestants. Moreover, while the Catholic
inhabitants remain liable to local assessment for school purposes, the proceeds
of that assessment are no longer destined to any extent for the support of Catholic
schools, but afford the means of maintaining schools which they regard as no more
suitable for the education of Catholic children than if they were distinctively
Protestant in their character. In view
of this comparison it does not seem possible to say that the rights and privileges
of the Roman Catholic minority in relation to education which existed prior to
1890 have not been affected. Taschereau
J. says that the legislation of 1890 having been irrevocably held to be intra
vires cannot have "illegally" affected any of the rights or privileges
of the Catholic minority. But the word "illegally" has no place in the
sub-section in question. The appeal is given if the rights are in fact affected. It
is true that the religious exercises prescribed for public schools are not to
be distinctly Protestant, for they are to be "non-sectarian," and any
parent may withdraw his child from them. There may be many too who share the view
expressed in one of the affidavits in Barrett's Case, that there should
not be any conscientious objections on the part of Roman Catholics to attend such
schools, if adequate means be provided elsewhere of giving such moral and religious
training as may be desired. But all this is not to the purpose. As a matter of
fact the objection of Roman Catholics to schools such as alone receive State aid
under the Act of 1890 is conscientious and deeply rooted. If this had not been
so, if there had been a system of public education acceptable to Catholics and
Protestants alike, the elaborate enactments which have been the subject of so
much controversy and consideration would have been unnecessary. It is notorious
that there were acute differences of opinion between Catholics and Protestants
on the education question prior to 1870. This is recognized and emphasized in
almost every line of those enactments. There is no doubt either what the points
of difference were, and it is in the light of these that the 22nd section
of the Manitoba Act of 1870, which was in truth a Parliamentary compact, must
be read. For the reasons which have been
given their Lordships are of opinion that the 2nd sub-section of sect.
22 of the Manitoba Act is the governing enactment, and that the appeal to the
Governor-General in Council was admissible by virtue of that enactment on the
grounds set forth in the memorials and petitions, inasmuch as the Acts of 1890
affected rights or privileges of the Roman Catholic minority in relation to education
within the meaning of that subsection. The further question is submitted whether
the Governor-General in Council has power to make the declarations or remedial
orders asked for in the memorials or petitions, or has any other jurisdiction
in the premises. Their Lordships have decided that the Governor-General in Council
has jurisdiction, and that the appeal is well founded; but the particular course
to be pursued must be determined by the authorities to whom it has been committed
by the statute. It is not for this tribunal to intimate the precise steps to be
taken. Their general character is sufficiently defined by the 3rd sub-section
of sect. 22 of the Manitoba Act. It is certainly not essential that the statutes
repealed by the Act of 1890 should be re-enacted, or that the precise provisions
of these statutes should again be made law. The system of education embodied in
the Acts of 1890 no doubt commends itself to, and adequately supplies the wants
of the great majority of the inhabitants of the province. All legitimate ground
of complaint would be removed if that system were supplemented by provisions which
would remove the grievance upon which the appeal is founded, and were modified
so far as might be necessary to give effect to these provisions. Their
Lordships will humbly advise Her Majesty that the questions submitted should be
answered in the manner indicated by the views which they have expressed. There
will be no costs of this appeal. Solicitors
for appellants: Bompas, Bischoff, Dodgson, Coxe & Bompas. Solicitors
for respondent: Freshfields & Williams. Source:
Richard A. Olmsted, Decisions of the Judicial Committee of the Privy Council
Relating to the British North America Act, 1867 and the Canadian Constitution
1867-1954, Vol. 1, Ottawa, Department of Justice, 1954, 739p., pp. 316-343. ©
2000 Claude Bélanger, Marianopolis College |