Click here to view the original document (PDF).

DEPARTMENT OF THE ATTORNEY GENERAL
OFFICE OF THE DEPUTY PRIME MINISTER

November 21st,

Elmer A. Driedger, Esq., Q.C.,
Deputy Minister of Justice,
Department of Justice,
Ottawa, Ontario.

Re – Your file 187574.

Dear Mr. Driedger:

Referring to your letter of
November 10th, I enclose herewith a memorandum
in relation to Section 93 of the British North
America Act and related Sections in other Statutes
on the question of education.

Yours faithfully,

C.R. Magone

Encls.

EHT.

C.R. MAGONE – MEMBER OF THE
COMMITTEE TO CONSIDER THE
ENTRENCHMENT OF EDUCATION,
REPRESENTING ONTARIO —
NOVEMBER 21st, 1960.

CONSTITUTIONAL CONFERENCE l960.

It might be helpful to set out the provisions of
the British North America Act, the Orders-in-Council ad-
mitting British Columbia and Prince Edward Island to the
Union and of the Actsadmitting the other Provinces, re Education.

BRITISH NORTH AMERICA ACT, S. 93.

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 gueen’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 isthereafter 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 Ainority
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.

-2-

Order-in-Council admitting British Columbia,
16th May 1871, Article 10 of the Schedule.

10. The provisionsof the British
North America Act, 1867, shall (except
those parts thereof which are in terms
made, or by reasonable intendment may
be held to be specially applicable to
and only affect one and not the whole of
the Provinces now comprising the Dominion,
and except so far as the same may be
varied by this Minute) be applicable to
British Columbia in the same way and to
the like extent as they apply to the
other Provinces of the Dominion, and
as if the Colony of British Columbia
had been one of the Provinces originally
united by the said Act.

Order-in-Council admitting Prince Edward Island,
26th June, 1873, third to last paragraph of the Schedule.

That the provisions in the

British North America Act, 18b7, shall,
except those parts thereof which are
in terms made, or by reasonable intend-
ment, may be held tqbe especially
applicable to, and only to affect one
and not the whole of the Provinces now
composing the Dominion, and except so
far as the same may be varied by these
resolutions, be applicable to Prince
Edward Island, in the same way and to
the same extent as they apply to the
other Provinces of the Dominion and as
if the Colony of Prince Edward Island
had been one of the Provinces origin-
ally united by the said Act.

The Manitoba Act, St. of Canada l873, Chapter 3,
Section 22.

22. In and for the Province, the said
Legislature may exclusively make Laws in
relation to Education, subject and accord-
ing 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 reouisite for the due execution of
the provisions of this section, is not made,
or in case any decision of the Governor General
in Council or any appeal under this section is
not duly executed by the proper Provincial
Authority in that behalf, then, and in everv
“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

-3-

decision of the Governor General in
Council under this section.
The Alberta Act, St. of Canada 1905, Chapter 3,
Section l7.

17. Section 93 of The British North America
Act, 1867, shall apply to the said province,
with the substitution for paragraph (1) of the
said section 93, of the following paragraph:-

“1. Nothing in any such law shall prejudically
affect any right or privilege with respect to
separate schools which any class of persons have
at the date of the passing of this Act, under
the terms of chapters 29 and 30 of the Ordinances
of the Northwest Territories, passed in the year
1901, or with respect to religious instruction
in any public or separate school as provided
for in the said ordinances.”

2. In the appropriation by the Legislature
or distribution by the Government of the province
of any moneys for the support of schools organ-
ized and carried on in accordance with the said
chapter 29 or any Act passed in amendment thereof,
or in substitution therefor, there shall be no
discrimination against schools of any class
described in the said chapter 29.

3. Where the expression “by law” is employed
in paragraph 3 of the said section 93, it shall
be held to mean the law as set out in the said
chapters 29 and 30, and where the expression
“at the Union” is employed, in the said paragraph
3, it shall be held to mean the date at which
this Act comes into force.

The Saskatchewan Act, St. of Canada l905, Chapter 42,
a Section 17.

(Same as Section 17 of Alberta Act).

The Newfoundland Act (B.N.A. Act l9h9) U.K. Chapter
22, Article 17 of the Schedule.

17. In lieu of section ninety-three of the
British North America Act, l867, the following
Term shall apply in respect of the Province of
Newfoundland:

In and for the Province of Newfoundland
the Legislature shall have exclusive authority
to make laws in relation to education but the
Legislature will not have authority to make laws
prejudicially affecting any right or privilege
with respect to denominational schools, common
(amalgamated) schools, or denominational colleges,
that any class or classes of persons have by law
in Newfoundland at the date of Union, and out of
public funds of the Province of Newfoundland
provided for education,

(a) all such schools shall receive their
share of such funds in accordance with
scales determined on a non—discrimina-
jtory basis from time to time by the
Legislature for all schools then being
conducted under authority of the
Legislature; and

-4-

(b) all such colleges shall receive
their share of any grant from time to
time voted for all colleges then
being conducted under authority of
the Legislature, such grant being
distributed on a non-discriminatory
basis.

It will be noted that there are no special provisions
in the Orders-in-Council admitting British Columbia or Prince
Edward Island in relation to education but the Sections of
the Orders-in-Council above set out exclude only so much of
the provisions of the British North America Act 1867,

“which are in terms made, or by reasonable intendment
may be held to be specially applicable to and only
affect one and not the whole of the Provinces now
comprising the Dominion, and except so far as the
same may be varied by this Minute”.

Therefore the opening words of Section 93 of the British North
America Act 1867 and clauses (3) and (L) of Section 93 apply
to British Columbia and Prince Edward Island and also clause
(1) if it is applicable to a situation that existed at the Union.

For all the other Provinces the special legislation
gives the Legislature the same power to legislate in relation
to education as is contained in Section 93.

Section 93 subsection (1) provides:

“Nothing in any such law (relating to
education) 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.”

This Section applies to Ontario, Quebec, Nova Scotia
and New Brunswick and to British Columbia and Prince Edward
Island if denominational schools existed in either of those
two Provinces at the Union.

In The Manitoba Act the language is the same except
that the words “or practice” are added immediately before the
words “in the Province at the Union”.

In the Alberta and Saskatchewan Acts “separate schools”
is substituted for the words “denominational schools” and instead
of the words “have by law in the Province at the Union” the
words “at the date of the passing of this Act under the terms

-5-

of Chapters 29 and 30 of the Ordinances of the Northwest
Territories, passed in the year 1901, or with respect to
religious instruction in any public or separate school
as provided for in the said Ordinances”.

The Newfoundland Act substitutes for the words
“denominational schools” the words “denominational schools,
common (amalgamated) schools, or denominational colleges”.

The three Acts (Alberta, Saskatchewan and Newfoundland)
also contain provisions that appropriations for schools shall be
distributed without discrimination.

Section 93 subsection (2) applies to Ontario and
Quebec only.

Section 93 subsection (3) provides for an appeal to
the Governor General in Council from an Act or decision of the
Legislature or of any Provincial Authority affecting any right
or privilege of the Protestant or Roman Catholic minority in).
relation to education. Such an appeal applies in every Province
except Newfoundland.

Section 17 of The Newfoundland Act states:

“In lieu of Section 93 of the British North
America Act the following term shall apply
in respect of the Province of Newfoundland”.

Section 93 subsection (3) is part of thelaw of
British Columbia and Prince Edward Island by reason of the terms
of the Orders-in-Council establishing them as Provinces. This
appears clear from the fact that the appeal lies “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 Legislature of the Province”.

Subsection (2) of Section 22 of The Manitoba Act
provides for such an appeal to the Governor General in Council
and this subsection has been held to be a substantive provision
applying to rights or privileges granted after the date of the
establishment of that Province and is not limited to the en-
forcement of subsection (1) of Section 22 with respect to
denominational schools. (Brophv vs. Attorney General for Manitoba
1595 A.C. 202).

-6-

The Alberta and Saskatchewan Acts provide for
such an appeal to the Governor General in Council by the
opening words of Section 17 in each Act.

“17. Section 93 of the British North
America Act shall apply to the said
Province? with the substitution for 5
paragraph 1 of the said Section 93
of the following paragraph”
(which has nothing to do with the
appeal to the Governor General in
Council).

Likewise subsection (4) of Section 93 of the British
North America Act providing for the making of remedial laws
by the Parliament of Canada for the execution of any decision
of the Governor General in Council applies to all Provinces
except Newfoundland. The provisions of subsection (3) of
Section 22 of The Manitoba Act is on all fours with subsection
(4) of Section 93.

A solution might be to entrench the exclusive powers
of the Provinces to make laws in relation to education subject
to a proviso that

(a) any limitation of such powers, or

(b) creating a right of appeal to the Governor
General in Council, or

(c) providing for the distribution of money
appropriated for education or schools

may be amended by the Parliament of Canada with the consent of
the Legislature of every Province to which such proviso relates.

The effect would be that subsection (1) of Section
93 or subsection (1) of Section 22 of The Manitoba Act (both
of which deal with the vires of the legislation) could be
amended only with the consent of the Legislatures of Ontario,
Quebec, New Brunswick, Nova Scotia or Manitoba. (The addition
of the words “or practice” in The Panitoba Act makes the
effect of that Section the same as Section 93(1) of The British
North America Act) and British Columbia and Prince Edward
Island provided that at the date of the Union of British
Columbia Prince Edward Island any class of persons had a
right or privilege by law with respect to denominational schools.

-7-

Newfoundland may be in a special position because
of the contractual nature of The Newfoundland Confederation
Act.

In the event of legislation being passed amending
subsection (1) it would be for the Courts to determine whether
the requisite number of Legislatures had consented thereto.

The Courts are open to determine whether any law
prejudicially affects any right or privilege in respect of
denominational schools, common (amalgamated) schools and
denominational colleges which any class of persons have by
law (or practice) at the Union. But the appeal to the Governor
General in Council in the case of all Provinces but Newfoundland
is in relation to “any right or privilege of the Protestant
or Roman_Catholic minority”.

Subsections (l) (2) and (3) of Section 17 of The
Alberta Act and of the Saskatchewan Act could be changed with
the consent of the Legislatures of those two Provinces.

Subsection (2) of Section 93 applies only to Ontario
and Quebec. The consent of the Legislatures of those Provinces
would be necessary to effect a change.

If it is felt that the whole of Section 91 can be
entrenched, I feel that there would be no objection from
Ontario.

The above memorandum should not be taken as represent-
ing the views of the Government of Ontario.

It is hoped that this memorandum for discussion with
the other members of the Committee on Education will be
helpful in finding a solution to this problem.

C.R. MAGONE

Ottawa, November 28, 1960.

The Honourable A. Kelso Roberts, Q.C.,
Attorney General of Ontario,
Parliament Buildings,
Toronto, Ontario.

Dear Mr. Roberts:

Thank you for your letter of
November 21, and the document enclosed
therewith dealing with the Constitutional
Conference.

I can assure you that the
matters raised by you in your letter and the
memorandum you enclosed will be seriously
considered.

Yours sincerely,

“E. D. Fulton”