Documents
in Quebec History
Last
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
Barrett
V. the City of Winnipeg* [1892] [*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 PRIVY COUNCIL CITY
OF WINNIPEG ....... . . . . . . . . . . . . .
..
APPELLANT; AND BARRETT
. .. ... . . . . . . . . . . . .
..
RESPONDENT; ON APPEAL
FROM THE SUPREME COURT OF CANADA. AND LOGAN
RESPONDENT. ON APPEAL
FROM THE COURT OF QUEEN'S BENCH FOR MANITOBA. 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 |