Barrett V. the City of Winnipeg* 
[*Note from the editor: John Barrett was a Roman Catholic ratepayer of Winnipeg who refused to pay the municipal tax for the support of the public schools of the city, alleging that, as a Roman Catholic, his constitutional rights, as outlined in s. 22 of the Manitoba Act, were being violated. Thus, the city of Winnipeg brought the case to Court. It was first heard by Justice Killam of the Manitoba Court where Barrett lost in November 1890. On appeal to the Court of Queen's Bench of Manitoba, Barrett again lost [February 1891] but on a split decision: the two protestant judges finding for the city of Winnipeg and Joseph Dubuc, a French-Catholic judge, dissenting. Barrett appealed to the Supreme Court of Canada where a unanimous judgment of the five judge panel found in his favour. The city of Winnipeg appealed to the Judicial Committee of the Privy council, the highest judicial authority in the Empire at the time. As the decision outlined below shows, the Privy Council reversed the Supreme Court decision and found in favour of the City of Winnipeg.
To say the least, the Barrett decision was surprising, even astonishing! Hardly any commentators disagree with this view today. Three sets of reasons have been advanced to explain the results. The first was the complication of the Logan case. Logan was an Anglican who claimed the same rights as the Roman Catholics to not pay taxes for the support of public schools and to set up separate Anglican schools. There had never been an Anglican school system before 1870, nor after that date for that matter, and the case was only brought up, at the instigation of the Manitoba government, to confuse the issue. Their Lordships were concerned that the multiplication of school systems in Manitoba would create chaos and make it impossible to operate an efficient school system. While the parallel between the Anglican and the Roman catholic case should have been rejected, the defense failed to convince the judges on this point. This raises the second reason for the failure: the weakness of the lawyers that assumed the defense of the minority. Although Mgr. Taché wished for the defense to be assumed by Edward Blake, former leader of the Liberal party of Canada and the most prominent lawyer and debater in the country at the time, assisted by J. S. Ewart, and with Sir Horace Davey as their solicitors, the Canadian government retained the services of Sir Richard Webster who showed such ineptness that he was unable to mount an adequate defense, owing to his lack of knowledge of the case. Davey was retained by the government of Manitoba with disastrous effects for the minority's side. Lastly, one cannot escape the view that the judges were simply favourable to public non-sectarian schools and, thus, prejudiced against catholic schools. After all, it was plain that Catholics had never been taxed for the support of any other school system but a catholic one before 1870, or after that date for that matter. By forcing them legally to pay taxes for public schools, while their religion compelled them to send their children to catholic schools, and thus to pay for the support of their schools as well, the legislation of 1890 did "prejudicially affect" their rights as it was practiced at the time Manitoba joined Canada. This is what article 22, ss. 1, was supposed to safeguard. Instead of blaming the legislation for the resulting prejudice, Lord McNaghten blamed the fact that they were Roman Catholic instead. This train of thought is simply astonishing. It amounts to say that the victim of discrimination is responsible for his own discrimination, that it is his choice to remain as he is. A parallel would be that the law forbids one to rent housing to Roman Catholics. A Roman Catholic claiming to be discriminated against would simply be told that you don't have to be Roman Catholic. It is not the law that is at fault, it is your religion Is it any wonder that so many did not find this argument compelling, even in 1892, and that the minority felt such a sense of loss.
By rejecting the valid constitutional claim of the minority, the decision of the Privy council in the Barrett case forced the issue back into politics, where the minority was to be subjected to majority rule, and led to the Brophy case where another panel of the Judicial committee of the privy council will have to make extensive mental gymnastic to explain away the Barrett decision and, essentially, reverse it in the end.]
HOUSE OF LORDS
CITY OF WINNIPEG ....... . . . . . . . . . . . . . .. APPELLANT;
BARRETT . .. ... . . . . . . . . . . . . .. RESPONDENT;
ON APPEAL FROM THE SUPREME COURT OF CANADA.
ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR
Law o/ Canada - Province of Manitoba - Dominion Statute, 33 Vict. c. 3 Manitoba Public Schools Act, 1890 - Denominational Schools - Powers of Provincial Legislature.
*Present:-LORD WATSON, LORD MACNAGHTEN, LORD MORRIS, LORD HANNEN, SIR RICHARD COUCH, and LORD SHAND.
According to the true construction of the Constitutional Act of Manitoba, 1870, 33 ViCt. c. 3 (Dominion Statute), having regard to the state of things which existed in Manitoba at the date thereof, the legislature of that province did not exceed its powers in passing the Public Schools Act, 1890.
Sect. 22 of the Act of 1870 authorizes the provincial legislature exclusively to make laws in relation to education so as not to "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": -
Held, that the Act of 1890 which abolished the denominational system of public education established by law since the Union, but which did not compel the attendance of any child at a public school, or confer any advantage in respect of attendance other than that of free education, and at the same time left each denomination free to establish, maintain, and conduct its own schools, did not contravene the above proviso; and that accordingly certain by-laws of a municipal corporation which authorized assessments under the Act were valid.
APPEAL in the first case from a judgment of the Supreme Court (Oct. 28, 1891), reversing one of the Court of Queen's Bench for Manitoba (Feb. 2, 1891); in the second case from a judgment of the Court of Queen's Bench (Dec. 19; 1891), which followed that of the Supreme Court.
The province of Manitoba joined the Union in 1870, upon the terms of the Constitutional Act of Manitoba, 1870, 33 Vict. c. 3 (Dominion Statute). Sect. 22 is the material section, and is set out in their Lordships' judgment. In 1890 the provincial legislature passed two statutes relating to education - chaps. 37 and 38 - the latter of which is intituled "The Public Schools Act, 1890." Its validity was the subject of this appeal.
The facts are stated in the judgment of their Lordships.
In the first case the application was for a summons to shew cause why the by-laws in question, which were passed under the Act for levying a rate for school and municipal purposes in the city of Winnipeg, should not be quashed for illegality on the ground that the amounts levied for Protestant and Roman Catholic schools were therein united, and that one rate was levied upon Protestants and Catholics alike for the whole sum, in a manner which but for the Act of 1890 would have been invalid, according to the Education Acts thereby repealed.
Killam, J., dismissed the summons, holding that the rights and privileges referred to in the Dominion Statute were those of maintaining denominational schools, of having children educated in them, and of having inculcated in them the peculiar doctrine of the respective denominations. He regarded the prejudice effected by the imposition of a tax upon Catholics for schools to which they were conscientiously opposed as something so indirect and remote that it was not within the Act.
The Court of Queen's Bench affirmed this order. Taylor, C.J., and Bain, J., held that "rights and privileges" included moral rights, and that whatever any class of persons was in the habit of doing in reference to denominational schools should continue, and not be prejudicially affected by provincial legislation, but that none of those rights and privileges had been in any way affected by the Act of 1890. Dubree, J., dissented, holding that the right or privilege existing at the Union was the right of each denomination to have its denominational school, with such teaching as it might think fit, and the privilege of not being compelled to contribute to other schools of which members of such denomination could not in conscience avail themselves; and that the Act of 1891 invaded such privilege, and was consequently ultra wires.
The Supreme Court reversed the order.
Ritchie, C.J., held that as Catholics could not conscientiously continue to avail themselves of the public schools as carried on under the system established by the Public Schools Act, 1890, the effect of that Act was to deprive them of any further beneficial use of the system of voluntary Catholic schools which had been established before the Union, and had thereafter been carried on under the State system introduced in 1871. Patterson, J., pointed out that the words "injuriously affect" in sect. 22, subsect. 1, of the Manitoba Constitutional Act, would include any degree of interference with the rights or privileges in question, although falling short of the extinction of such rights or privileges. He held that the impediment cast in the way of obtaining contributions to voluntary Catholic denominational schools by reason of the fact that all Catholics would under the Act be compulsorily assessed to another system of education amounted to an injurious affecting of their rights and privileges within the meaning of the sub-section. Fournier, J., pointed out that the mere right of maintaining voluntary schools if they chose to pay for them, and of causing their children to attend such schools, could not have been the right which it was intended to reserve to Catholics or other classes of persons by the use of the word "practice," since such right was undoubtedly one enjoyed by every person or class of persons by law, and took a similar view to that taken by Patterson, J. Taschereau, J., gave judgment in the same sense, holding that the contention of the appellants gave no effect to the word "practice" inserted in the section.
In the second case a similar application was made by the respondent Logan, and allowed in consequence of the Supreme Court's decision in Barrett's case.
Sir H. Davey, Q.C., McCarthy, Q.C., and Campbell (both of the Canadian bar), for the appellant, contended that the view taken by Killam J., Taylor, C.J., and Bain, J., was correct. The Act of 1890 did not affect any right or privilege with respect to denominational schools which the respondent or any class of persons had by law or practice in the province prior to the Union. It established one system of public schools throughout the province, and abolished all the laws regarding public schools which had theretofore been passed and were then existing. Sects. 21 and 22, sub-sects. 1, 2, and 3, of the Manitoba Act, 1870, were referred to, and the various affidavits which had been made in the case, and it was contended that the Act of 1890 was not ultra vires. It enacted that all public schools in the province are to be free schools (sect. 5); that all religious exercises therein shall be conducted according to the regulation of the advisory board which is provided by sect. 6; but in case the guardian or parent of any pupil notifies the teacher that he does not wish such pupil to attend such religious exercises, then the pupil need not attend. All public schools are non-sectarian, and no religious exercises are allowed, except as provided by the Act, which, moreover, is not compulsory.
With regard to the state of things, "law or practice" in Manitoba prior to the Union, the law then in force was the law of England, as it existed at the date of the Hudson's Bay Company's charter, viz. the 2nd of May, 1670, in so far as applicable. Accordingly, the respondent had not, nor had the Roman Catholics of the province, any right or privilege by law in relation to the Roman Catholic denominational schools. The only right and privilege on this subject which they possessed was, as shewn by the affidavits, the privilege to establish and maintain private schools which were supported by fees paid by the parents or guardians of the children who attended them, supplemented, it may be, by those who belonged to the Roman Catholic Church. The Act of 1890 does not interfere with or prejudicially affect this right; for the respondent and Roman Catholics are still entitled to establish and maintain denominational schools as before the Union. Consequently it has not been shewn that the Act interferes with any rights and privileges which were locally enjoyed within the city.
Reference was made to Ex parte Renaud (1); Fearon v. Mitchell (2). In the other appeal, the respondent Logan represented members of the Church of England, whose rights and privileges were similar to those of Barren and his co-religionists.
Sir Richard Webster, A.G., Blake, Q.C., and Ewart, Q.C. (both of the Canadian bar), and Gore, for the respondent Barrett:
The Act of 1890 prejudicially affects the rights and privileges of Roman Catholics in the province, as they existed by law or practice at the date of the Union, with respect to denominational schools. By its operation they are deprived of the system of Roman Catholic denominational schools as they existed before the Union. The public schools constituted by the Act are, or may be, Protestant denominational schools, and Catholic ratepayers are compelled to contribute thereto. They cannot conscientiously permit their children to attend the schools established by the Act, and, having regard to the compulsory rate levied upon them in support thereof, material impediments are cast in the way both of subscribing and of obtaining subscriptions in support of Catholic denominational schools, and of setting up and maintaining the same. The rights and privileges of Catholics are, accordingly, prejudicially affected. At the date of the Union there was not, and there never had been, any State system of education in Manitoba, nor was there any compulsory rate or State grant for purposes of education. There was, however, an established and recognized system of voluntary denominational education, including Roman Catholic schools supported in part by voluntary contributions from Catholics and contributed by the Roman Church. - In a similar way, the Church of England and various Protestant sects supported their own schools. The provincial legislature established by the Dominion Statute of 1870, passed 34 Vict. c. 12, establishing a State system of education in the province. Subsequent Acts were passed. and the whole were codified by 44 Vict. c. 4; and modification was made therein by 45 Vict. cc. 8 and 11; 46 & 47 Vict. c. 46; 47 Vict. cc. 37 and 54; 48 Vict. c. 27; 50 Vict. cc. 18 and 19; 51 Vict. c. 31; 52 Vict. cc. 5 and 21; all which Acts shew that useful education can be provided without disturbing rights and privileges as they existed in 1870. Then came the Act complained of. Besides the establishment of public schools, controlled as to religious teaching by an advisory board, sect. 179 abolished pre-existing Catholic school districts, and provided that all the assets of such Catholic schools should belong to, and all the liabilities thereof should be paid by, the public school districts established by the new Act. The right and privilege which had been prejudicially affected was the right to have a religious education conducted under the supervision of their Church, administered in the schools which they were compelled to support; to have the immunity existing in 1870, from being compelled to support schools to which they objected. Their interests were prejudiced in being compelled by the Act to support one set of schools while, as a matter of religion and conscience, they would, at the same time, have to establish another set of schools to which alone they could send their children. The new public schools, controlled ultimately by a majority of ratepayers, would be conducted for the benefit. of Protestant and Presbyterian denominations, and Catholics would thereby be prejudiced and injured. It was contended that Fearon v. Mitchell (1) had no bearing on the case. See Musgrave v. Inclosure Commissioners (2), and Barlow v. Ross (3), where the existence of rights and privileges is discussed. In Ex parte Renaud (4) the headnote is wrong. It was not decided that no legal privilege existed in that case, but merely that it had not been infringed.
A. J. Ram, for the respondent Logan.
McCarthy, Q.C., replied.
The judgment of their Lordships was delivered by -
LORD MACNAGHTEN :
These two appeals were heard together. In the one case the city of Winnipeg appeals from a judgment of the Supreme Court of Canada reversing a judgment of the Court of Queen's Bench for Manitoba; in the other from a subsequent judgment of the Court of Queen's Bench for Manitoba following the judgment of the Supreme Court. The judgments under appeal quashed certain by-laws of the city of Winnipeg which authorized assessments for school purposes in pursuance of the Public Schools Act, 1890, a statute of Manitoba to which Roman Catholics and members of the Church of England alike take exception. The views of the Roman Catholic Church were maintained by Mr. Barrett; the case of the Church of England was put forward by Mr. Logan. Mr. Logan was content to rely on the arguments advanced on behalf of Mr. Barrett; while Mr. Barrett's advisers were not prepared to make common cause with Mr. Logan and naturally would have been better pleased to stand alone.
The controversy which has given rise to the present litigation is, no doubt, beset with difficulties. The result of the controversy is of serious moment to the province of Manitoba, and a matter apparently of deep interest throughout the Dominion. But in its legal aspect the question lies in a very narrow compass. The duty of this Board is simply to determine as a matter of law whether, according to the true construction of the Manitoba Act, 1870, having regard to the state of things which existed in Manitoba at the time of the Union, the provincial legislature has or has not exceeded its powers in passing the Public Schools Act, 1890.
Manitoba became one of the provinces of the Dominion of Canada under the Manitoba Act, 1870, which was afterwards confirmed by an Imperial Statute known as the British North America Act, 1871. Before the Union it was not an independent province, with a constitution and a legislature of its own. It formed part of the vast territories which belonged to the Hudson's Bay Company, and were administered by their officers or agents.
The Manitoba Act, 1870, declared that the provisions of the British North America Act, 1867, with certain exceptions not material to the present question, should be applicable to the province of Manitoba, as if Manitoba had been one of the provinces originally united by the Act. It established a legislature for Manitoba, consisting of a legislative council and a legislative assembly, and proceeded, in sect. 22, to re-enact with some modifications the provisions with regard to education which are to be found in sect. 93 of the British North America Act, 1867. Sect. 22 of the Manitoba, Act, so far as it is material, is in the following terms:-
"In and for the province, the said legislature may exclusively make laws in relation to education, subject and according to the following provisions:
"(l.) 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."
Then follow two other sub-sections. Sub-sect. 2 gives an "appeal," as it is termed in the Act, 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." Sub-sect. 3 reserves certain limited powers to the Dominion Parliament, in the event of the provincial legislature failing to comply with the requirements of the section, or the decision of the Governor-General in Council.
At the commencement of the argument a doubt was suggested as to the competency of the present appeal, in consequence of the so-called appeal to the Governor-General in Council provided by the Act. But their Lordships are satisfied that the provisions of sub-sects. 2 and 3 do not operate to withdraw such a question as that involved in the present case from the jurisdiction of the ordinary tribunals of the country.
Sub-.sects. 1, 2, and 3 of sect. 22 of the Manitoba Act, 1870, differ but slightly from the corresponding subsections of sect. 93 of the British North America Act, 1867. The only important difference is that in the Manitoba Act, in sub-sect. 1, the words "by law" are followed by the words "or practice," which do not occur in the corresponding passage in the British North America Act., 1867. These words were no doubt introduced to meet the special case of a country which had not as yet enjoyed the security of laws properly so called. It is not perhaps very easy to define precisely the meaning of such an expression as "having a right or privilege by practice." But the object of the enactment is tolerably clear. Evidently the word "practice" is not to be construed as equivalent to "custom having the force of law." Their Lordships are convinced that it must have been the intention of the legislature to preserve every legal right or privilege, and every benefit or advantage in the nature of a right or privilege, with respect to denominational schools, which any class of persons practically enjoyed at the time of the Union.
What then was the state of things when Manitoba was admitted to the Union? On this point there is no dispute. It is agreed that there was no law or regulation or ordinance with respect to education in force at the time. There were, therefore, no rights or privileges with respect to denominational schools existing by law. The practice which prevailed in Manitoba before the Union is also a matter on which all parties are agreed. The statement on the subject by Archbishop Taché, the Roman Catholic Archbishop of St. Boniface, who has given evidence in Barrett's case, has been accepted as accurate and complete.
"There existed," he says, "in the territory now constituting the province of Manitoba a number of effective schools for children.
"These schools were denominational schools, some of them being regulated and controlled by the Roman Catholic Church and others by various Protestant denominations.
"The means necessary for the support. of the Roman Catholic schools were supplied to some extent by school fees paid by some of the parents of the children who attend the schools, and the rest was paid out of the funds of the Church, contributed by its members.
"During the period referred to, Roman Catholics had no interest in or control over the schools of the Protestant denominations, and the members of the Protestant denominations had no interest in or control over the schools of Roman Catholics. There were no public schools in the sense of State schools. The members of the Roman Catholic Church supported the schools of their own Church for the benefit of Roman Catholic children, and were not under obligation to, and did not contribute to, the support of any other schools."
Now, if the state of things which the archbishop describes as existing before the Union had been a system established by law, what would have been the rights and privileges of the Roman Catholics with respect to denominational schools? They would have had by law the right to establish schools at their own expense, to maintain their schools by school fees or voluntary contributions, and to conduct them in accordance with their own religious tenets. Every other religious body, which was engaged in a similar work at the time of the Union, would have had precisely the same right with respect to their denominational schools. Possibly this right, if it had been defined or recognised by positive enactment, might have had attached to it as a necessary or appropriate incident the right of exemption from any contribution under any circumstances to schools of a different denomination. But, in their Lordships' opinion, it would be going much too far to hold that the establishment of a national system of education upon an unsectarian basis is so inconsistent with the right to set up and maintain denominational schools that the two things cannot exist together, or that the existence of the one necessarily implies or involves immunity from taxation for the purpose of the other. It has been objected that if the rights of Roman Catholics, and of other religious bodies, in respect of their denominational schools, are to be so strictly measured and limited by the practice which actually prevailed at the time of the Union, they will be reduced to the condition of a "natural right" which "does not want any legislation to protect it." Such a right, it was said, cannot be called a privilege in any proper sense of the word. If that be so, the only result is that the protection which the Act purports to extend to rights and privileges existing "by practice" has no more operation than the protection which it purports to afford to rights and privileges existing "by law." It can hardly be contended that, in order to give a substantial operation and effect to a saving clause expressed in general terms, it is incumbent upon the Court to discover privileges which are not apparent of themselves, or to ascribe distinctive and peculiar features to rights which seem to be of such a common type as not to deserve special notice or require special protection.
Manitoba having been constituted a province of the Dominion in 1870, the provincial legislature lost no time in dealing with the question of education. In 1871 a law was passed which established 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. Under the Manitoba Act the province had been divided into twenty-four electoral divisions, for the purpose of electing members to serve in the legislative assembly. By the Act of 1871 each electoral division was constituted a school district in the first instance. Twelve electoral divisions, "comprising mainly a Protestant population," were to be considered Protestant school districts; twelve, "comprising mainly a Roman Catholic population," were too be considered Roman Catholic school districts. Without the special sanction of the section there was not to be more than one school in any school district. The male inhabitants of each school district, assembled at an annual meeting, were to decide in what manner they should raise their contributions towards the support of the school in addition to what was derived from public funds. It is perhaps not out of place to observe that one of the modes prescribed was "assessment on the property of theschool district," which must have involved, in some cases at any rate, an assessment on Roman Catholics for the support of a Protestant school, and an assessment on Protestants for the support of a Roman Catholic school. In the event of an assessment, there was no provision for exemption, except in the case of the father or guardian of a school child-a Protestant in a Roman Catholic school district or a Roman Catholic in a Protestant school district-who might escape by sending the child to the school of the nearest district of the other .section, and contributing to it an amount equal to what he would have paid if he had belonged to that district.
The laws relating to education were modified from time to time. But the system of denominational education was maintained in full vigour until 1890. An Act passed in 1881, following an Act of 1875, provided, among other things, 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 a Roman Catholic district might include the same territory in whole or in part. From the year 1876 until 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.
In 1890 the policy of the past nineteen years was reversed; the denominational system of public education was entirely swept away. Two Acts in relation to education were passed. The first (53 Vict. c. 37) established a department of education, and a board consisting of seven members, known as the "Advisory Board." Four members of the board were to be appointed by the Department of Education, two were to be elected by the public and high school teachers, and the seventh member was to be appointed by the University Council. One of the powers of the advisory board was to prescribe the forms of religious exercises to be used in the schools.
The Public Schools Act, 1890 (53 Vict. c. 38), 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. The provisions of the Act with regard to religious exercises are as follows: -
"6. Religious exercises in the public schools shall be conducted according to the regulations of the advisory board. The time for such religious exercises shall be just before the closing hour in the afternoon. In case the parent or guardian of any pupil notifies the teacher that he does not wish such pupil to attend such religious exercises, then such pupil shall be dismissed before such religious exercises take place.
"7. Religious exercises shall be held in a public school entirely at the option of the school trustees for the district, and upon receiving written authority from the trustees it shall be the duty of the teachers to hold such religious exercises.
"8. The public schools shall be entirely non-sectarian, and no religious exercises shall be allowed therein except as above provided."
The Act then provides 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. In cities the municipal council is required to levy and collect upon the taxable property within the municipality such sums as the school trustees may require for school purposes. A portion of the legislative grant for educational purposes is allotted to public schools; but it is provided that any school not conducted according to all the provisions of the Act, or any Act in force for the time being, or the regulations of the Department of Education, or the advisory board, shall not be deemed a public school within the meaning of the law, and shall not participate in the legislative grant. Sect. 141 provides that no teacher shall use or permit to be used as text-books any books except such as are authorized by the advisory board, and that no portion of the legislative grant shall be paid to any school in which unauthorized books are used. Then there are two sections (178 and 179 ) which call for a passing notice, because, owing apparently to some misapprehension, they are spoken of in one of the judgments under appeal as if their effect was to confiscate Roman Catholic property. They apply to eases where the same territory was covered by a Protestant school district and by a Roman Catholic district. In such a case Roman Catholics were really placed in a better position than Protestants. Certain exemptions were to be made in their favour if the assets of their district exceeded its liabilities, or if the liabilities of the Protestant school district exceeded its assets. But no corresponding exemptions were to be made in the case of Protestants.
Such being the main provisions of the Public Schools Act, 1890, their Lordships have to determine whether that Act prejudicially affects any right or privilege with respect to denominational schools which any class of persons had by law or practice in the province at the Union.
Notwithstanding the Public Schools Act, 1890, Roman Catholics and members of every other religious body in Manitoba are free to establish schools throughout the province; they are free to maintain their schools by school fees or voluntary subscriptions; they are free to conduct their schools according to their own religious tenets without molestation or interference. No child is compelled to attend a public school. No special advantage other than the advantage of a free education in schools conducted under public management is held out to those who do attend. But then it is said that it is impossible for Roman Catholics, or for members of the Church of England (if their views are correctly represented by the Bishop of Rupert's Land, who has given evidence in Logan's case), to send their children to public schools where the education is not superintended and directed by the authorities of their Church, and that therefore Roman Catholics and members of the Church of England who are taxed for public schools, and at the same time feel themselves compelled to support their own schools, are in a less favourable position than those who can take advantage of the free education provided by the Act of 1890. That may be so. But what right or privilege is violated or prejudicially affected by the law? It is not the law that is in fault. It is owing to religious convictions which everybody must respect, and to the teaching of their Church, that Roman Catholics and members of the Church of England find themselves unable to partake of advantages which the law offers to all alike.
Their Lordships are sensible of the weight which must attach to the unanimous decision of the Supreme Court. They have anxiously considered the able and elaborate judgments by which that decision has been supported. But they are unable to agree with the opinion which the learned judges of the Supreme Court have expressed as to the rights and privileges of Roman Catholics in Manitoba at the time of the Union. They doubt whether it is permissible to refer to the course of legislation between 1871 and 1890, as a means of throwing light on the previous practice or on the construction of the saving clause in the Manitoba Act. They cannot assent to the view, which seems to be indicated by one of the members of the Supreme Court, that public schools under the Act of 1890 are in reality Protestant schools. The legislature has declared in so many words that "the public schools shall be entirely unsectarian," and that principle is carried out throughout the Act.
With the policy of the Act of 1890 their Lordships are not concerned. But they cannot help observing that, if the views of the respondents were to prevail, it would be extremely difficult for the provincial legislature, which has been entrusted with the exclusive power of making laws relating to education to provide for the educational wants of the more sparsely inhabited districts of a country almost as large as Great Britain, and that the powers of the legislature, which on the face of the Act appear so large, would be limited to the useful but somewhat humble office of making regulations for the sanitary conditions of schoolhouses, imposing rates for the support, of denominational schools, enforcing the compulsory attendance of scholars, and matters of that sort.
In the result of their Lordships will humbly advise Her Majesty that these appeals ought to be allowed with costs. In the City of Winnipeg v. Barrett it will be proper to reverse the order of the Supreme Court with costs, and to restore the judgment of the Court of Queen's Bench for Manitoba. In the City of Winnipeg v. Logan the order will be to reverse the judgment of the Court of Queen's Bench, and to dismiss Mr. Logan's application, and discharge the rule nisi and the rule absolute with costs.
Solicitors for the city of Winnipeg: Freshfields Williams.
Solicitors for Barrett: Bompas, Bischoff & Co.
Solicitors for Logan: Harrison & Powell.
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. 272-286.
© 2000 Claude Bélanger, Marianopolis College