Merging Alberta's Catholic Schools
Catholic Education, The Constitution and the Path Forward
Section 45 of the Constitution Act, 1982 allows each province to amend its own constitution. However, if the desired change would require an amendment to any documents that form part of the Constitution of Canada, it would require the consent of the federal government under section 43.
Such reform requires both the province and federal government to draft legislation omitting the province from the conditions guaranteed under section 93 of the Constitution.
Section 93(1) states: 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.
While section 93 “applies directly to Ontario, Nova Scotia, New Brunswick, Prince Edward Island and British Columbia, only Ontario had denominational education rights conferred ‘by law’ at the relevant time, and so the guarantees provided by s. 93(1) are of no importance in Nova Scotia, New Brunswick, Prince Edward Island, and British Columbia” (Mr. Justice Iacobucci in Ontario English Catholic Teachers’ Assn. v. Ontario (Attorney General) [OECTA], 2001 S.C.C. 15, para 4).
As a result of constitutional amendments, denominational school systems no longer exist in Quebec or Newfoundland & Labrador, as will be discussed in more detail on another page soon to come. A modified version of s.93 applies to the western provinces of Manitoba, Saskatchewan, and Alberta.
In Alberta, separate school education is a constitutional entitlement (privilege). It is called an entitlement to distinguish it from a “human right” since it is not something that all Albertans share on an equal basis. It is not a 'right' within the meaning of the Charter of Rights.
In fact, separate school education most likely violates the Charter of Rights, which is why Section 29 of the Charter protects separate school education from a legal challenge. But section 29 does not protect separate school education from a constitutional amendment.
The very being of separate school education is contrary to the Charter of Rights and Freedoms. Separate school education would not exist post-Charter except for the saving provision of section 29. It is contrary to the spirit of our human rights consciousness in two ways. First, it violates the idea of State neutrality about the institutional Churches. Second, because it is not neutral it should be talked about as a privilege more than as a right. -
-David King - Former Education Minister for the Alberta Progressive Conservatives
It’s important to remember that a constitutional entitlement does not tie the hands of the government, because eliminating or amending it is not legally difficult.
Constitutional entitlements are not chiseled in stone. Constitutions change over time either by amendment or by new enactments, or by judicial decisions.
The approved way of dealing with the issue is simple and straight forward, and it doesn’t take a lot of time. It’s been done twice in the past 20 years.
In 1997 both the province of Newfoundland and Labrador and the province of Quebec did away with denominational education. In Newfoundland and Labrador the government acted on the outcome of a provincial referendum that strongly supported the creation of a single public school system and the end of seven denominational school systems.
In Quebec the National Assembly (Legislative Assembly of that province) acted without a referendum. A referendum is optional for the government.
How would the unification process be accomplished?
A Brief Outline:
The government drafts a resolution with an attached amendment to part of the provincial constitution (in our case, the Alberta Act, 1905). The attachment contains the exact wording of the desired amendment. If the resolution is adopted by the legislative assembly it is sent, with the attached wording of the desired amendment, to the Government of Canada. The Government of Canada adopts the desired wording as it is put forward by the provincial government.
In 1997 Prime Minister Chretien imposed “strict instructions” on the government caucus in both the House of Commons and the Senate. His position was that education is the responsibility of the provincial government and a federal government is conscience bound to do what the provincial government wants done, unless what the province wants done is clearly contrary to the Charter of Rights or the basics of democracy.
Since the Government of Canada has enacted amendments for both Newfoundland and Labrador and Quebec dealing with the end of denominational education, it is probably safe to assume that the Government of Canada would enact a similar amendment if Alberta asked for it.
The Constitutional Referendum Act of Alberta
2(1) The Lieutenant Governor in Council shall order the holding of a referendum before a resolution authorizing an amendment to the Constitution of Canada is voted on by the Legislative Assembly.
Constitutional Referendum Act does not apply to the constitution of Alberta. Section 2(1) refers to an amendment to the Constitution of Canada (emphasis added). Alberta distinguishes between the Constitution of Canada and the constitution of the province. The Act does not refer to an amendment to the constitution of Alberta. The Constitutional Referendum Act is not apparently part of the constitution of the province.
The government can amend or repeal it as they think best.
Alberta has a constitution which needs to be understood and dealt with apart from the Constitution of Canada.
An amendment to deal with separate school education would be an amendment to the constitution of the province and not the Constitution of Canada.
The Constitutional Referendum Act (Alberta) would not be invoked preliminary to an amendment dealing with separate school education.
Unlike amendments to other parts of the Constitution that are subject to more onerous amending requirements, amending separate school funding as it affects Alberta requires only a resolution passed by the Alberta legislature and possibly federal Parliament. Essentially, the Alberta government could simply legislate its way out of the commitment.
Given the ease with which the provision can be amended, broad education reform is possible.
Alberta can legislate as it sees fit on the form of public education.
The Constitution guarantees no particular level of funding or model of governance for publicly funded and governed schools. The Ontario legislature has the jurisdiction to act as it wishes on the form of public education, subject only to the provisions of the Charter.
Citizens cannot challenge the special status of Catholic schools in the courts because it is shielded from Charter review. However, the constitutional entitlement in section 93 is simple to amend. Under section 43, all that is required is a resolution passed by the Alberta legislature and federal Parliament. Essentially, the Alberta government could simply legislate its way out of the commitment and request the acquiescence of the federal Parliament.
Given the relative ease with which the Constitution could be amended, section 93 is hardly a guarantee for the funding or continued existence of Alberta’s Catholic separate schools, but rather a shield against legal challenges in the courts. Any Alberta politician who claims that there is a constitutional guarantee to Catholic schools that binds the government is being disingenuous. The only thing that sits constitutional anachronism is the reluctance of Albertan political parties to do so.