Reference re Bill 30

1. An Act to Amend the Education Act (Ont), [1987]1 S.C.R. 1148 Reference re Bill 30

2. Historical Background • Constitutional Act of 1791: Upper Canada and Lower Canada • Act of Union 1840: Province of Canada (East-West) • Charlottetown and Quebec Conferences of 1864: education becomes provincial responsibility; religious rights • Canada East predominantly Roman Catholic and Canada West predominantly Protestant • B.N.A. Act, 1867 (referred to as The Constitution Act, 1867) • Canada does not have a federal department or ministry of education

3. Constitution Act 1867-Section 93 • In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions:— • (1) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union • (2) All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen's Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen's Protestant and Roman Catholic Subjects in Quebec • (3) Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen's Subjects in relation to Education • (4) In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section.  • Summary (our take): • No law can prejudicially affect rights of denominational schools • Laws and privileges regarding Protestant or RC Schools in Upper Canada extend to Quebec schools • Any rights infringement shall lie to the Governor General • Parliament of Canada may make remedial Laws (if due process is not met)

4. 2. Everyone has the following fundamental freedoms: a) freedom of conscience and religion; • 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Canadian Charter of Rights and Freedoms-1982

5. 29. Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.(93) • The Charter can not interfere with the rights already granted by the Constitution Act 1867 • 32. (1)This Charter applies • b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. continued

6. The Constitution Act of 1867 granted Roman Catholics of Ontario various rights and privileges with respect to denominational schools • Over the years RCS schools had become a significant part of the public school system in Ontario • RCS schools were funded until the end of grade 10 • Today’s basic education = elementary + secondary Bill 30-1985

7. 1985 the provincial government under Premier William Davis, extended full funding to all high school grades • Bill 30 caused such a protest that the government referred to the courts for a ruling • Court of Appeal of Ontario and Supreme Court of Canada declared Bill 30 constitutional…a valid exercise of the province’s power (s93) and the Charter (s2,15,32) cannot disallow the Bill Bill 30 continued

8. Is Bill 30 discriminatory? • Why did the courts uphold the Constitution (1867) and ignore the Charter of Rights? • Why place older laws ahead of newer ones? • Was the decision on Bill 30 progressive or regressive? • Was this decision helpful or harmful to our multicultural society? • Did the Supreme Court have religious supremacists views which influenced the outcome? • Should we allow for equal rights or denominational privileges? Discussion Questions