Denominational Schools in Canada

Historical Background

In 1867, the English-speaking Protestant majority of Upper Canada (Ontario) and the French-speaking [Page 239]majority in Lower Canada (Quebec) entered into a constitutional compromise to confederate their jurisdictions and thus create the Dominion of Canada. The parliament of the United Kingdom duly passed the British North America Act, 1867 (now referred to as the Constitution Act, 1867), which ratified that confederation. Under that act, jurisdiction for education rested with the provinces, but, in accord with the compromise, denominational (religiously based schools) were constitutionally protected to ensure the legal protection of the English language (Protestant faith) schools in Quebec and the French language (Roman Catholic faith) schools in Ontario. These constitutionally protected and publicly funded minority schools are referred to as separate denominational schools.

As provinces joined the confederation, any denominational schools that were previously legally recognized within their territory also gained this constitutional protection. Today, the province of Ontario has constitutionally protected and publicly funded separate Catholic schools from grades 1 through 8 and, through a modus vivendi between the government of Ontario and the Ontario Catholic School Trustees' Association, public funding for separate Catholic schools for students in grades 9 through 12. The provinces of Alberta and Saskatchewan, which were legislatively carved out of the existing Northwest Territories in 1905 by the Canadian federal government, have constitutionally protected publicly funded Catholic elementary and Catholic high schools. The denominational rights of those schools are derived from the Ordinances of the North-West Territories, which existed prior to 1905.

It is a legal anomaly that when Catholics are the majority in an urban or rural municipality in Alberta or Saskatchewan, non-Catholic ratepayers are legally entitled to create a non-Catholic separate school, and such groups have done so in a few circumstances. This right exists in Ontario but has not been generally exercised.

When the British government in effect granted legal independence to Canada in 1982, the relevant legislation, including the Canadian Charter of Rights and Freedoms, protected existing denominational rights from any resulting impact. Utilizing the constitutional amending process described in the Constitution Act of 1982, the provinces of Newfoundland and Labrador (1987) and Quebec (1997) amended their provincial educational system to eliminate their denominationally based school systems in favor of public school systems. Catholic schools exist in all Canadian provinces, including the Yukon, the Northwest Territories, and Nunavut. However, except for Ontario, Alberta, and Saskatchewan, these schools are independent, and any public funding that they receive is at the pleasure of the provincial or territorial governments.

Significance

Constitutionally protected Catholic separate schools are of great significance to Canadian education. In particular, the tenets of that religion constitute the legal basis for the protected inclusion in schools of prayer, religious services, a religious-based curriculum, and religious symbols, and they also support the legally enforceable expectations of the Catholic school boards regarding teachers' private and public lifestyles and, to a degree, student behavior. Civil litigation surrounding the relationship of the Catholic school systems and their teachers' lifestyle choices predate the 1982 Charter of Rights and Freedoms; however, in most cases before and after the advent of the Charter, the religious raison d'etre of Catholic schools has resulted in the courts holding in favor of Catholic school boards.

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