2.4 Separate and Dissentient School System

From the earliest days of state involvement in Canadian education, schools have been recognized as powerful agencies of socialization and social control, introducing the youth of the country to a particular view of citizenship and the knowledge, skills, and values needed to fulfill this role properly. In a country characterized by diversity, defining whose views of citizenship were to be promoted and legitimated in the public schools has been a continuous source of controversy and debate.

Today, forces such as increased interprovincial and international mobility and the development of a global economy, coupled with efforts to equalize educational opportunities and to see schools play a role in promoting and sustaining a sense of Canadian identity, have produced pressures for increased standardization of schools and curricula across the country. Yet, at the same time, countervailing pressures require schools to acknowledge the linguistic, regional, and cultural diversity of the country, and to give individuals more choice and communities more control over the school experiences of their children (Bosetti & Gereluk, 2016; Bosetti et al., 2017; Bruno-Jofre & Henley, 2000).

These tensions are not new in Canadian schooling. It is important to recognize that for a large part of Canada’s history since Confederation, public schools have served to suppress diversity rather than sustain it ‒ to assimilate the poor, the immigrant population, and Canada’s First Nations. However, Canadian schools have, at different points in their history, been required to acknowledge and accommodate differences. This recognition is to be found most concretely in the entrenchment of educational rights across the country for the English and the French. These rights originally focused on religion, but today are increasingly concentrated on language.

In the aftermath of the American Revolution, the British government became convinced that among the causes that led to the breakup of the first British Empire, the absence of a state church in the American colonies was the most significant. Consequently, subsequent colonial policy gave emphasis to elevating the Church of England to the status of a state religion in the various colonies of British North America. The initiative was ultimately doomed by the imprecise wording of legislation (e.g., using the term “Protestant” rather than naming the particular denomination), and by the inability of the Church of England to gain a majority of adherents among the thousands of immigrants who entered the colonies around the turn of the nineteenth century. Anglicans were, however, able to dominate colonial state offices as a common church affiliation became a distinguishing feature among elites like the Family Compact in Upper Canada. Efforts to extend the Church of England’s influence into the realm of state schooling were led by Bishop John Strachan of Toronto; he continued to claim that his church had special status in the colony, even after the 1830s when funds from Britain designated for the support of Anglican educational work were finally halted. Indeed, it was Anglican and not Roman Catholic lobbying that first established the principle of religious immunity (the right to establish publicly funded separate or dissentient schools) in the 1841 Common School Act (Wilson, 1970, pp. 210–11).

Between 1841 and 1863, a series of acts created the “separate schools” of Canada West and the “dissentient schools” of Canada East, allowing Protestant and Catholic parents to establish their own schools and, subject to provincial controls over the curriculum and teachers, to receive public funding. Section 93 of the Constitution Act, 1867 entrenched these rights in the Canadian Constitution for the four original provinces, and the subsequent establishment provisions of new provinces generally implemented similar arrangements. Thus, separate schools and school boards in Canada are not usually outside the public school system or beyond the control of the minister of education. They are subject to the authority of the provincial government, but that authority is constrained by the provisions of Section 93 (listed below) and by the many interpretations of the Section’s intent that have been made by the courts.

Section 93: In and for each province, the Legislature may exclusively make laws in relation to education subject 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 Union;

(2) All of the powers, privileges, and duties at 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 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.

Section 93A: Paragraphs (1) to (4) of section 93 do not apply to Quebec.

Catholic and Protestant separate schools and school boards exist in a variety of different forms across the country, reflecting in part the existing status of denominational schools in the provinces prior to entry into Confederation, and in part the outcome of legal and political challenges since then. The most serious early constitutional confrontation between Catholics and Protestants concerning Section 93 occurred in Manitoba after provincial legislation in 1890 abolished the dual confessional (meaning organized on the basis of religious belief) school system that had been in place since Manitoba entered Confederation in 1870. Provincial Catholics believed that the right to operate their own system of schools had been guaranteed in the Manitoba Act, which became an amendment to the BNA Act on terms negotiated by Louis Riel’s provisional government. A series of court cases and one attempt by the federal government to introduce remedial legislation all failed to move the province to overturn its school legislation during the 1890s, and no appeal to the courts has since been launched.

In documenting the development of denominationalism in Canadian public schools, Pennings et al. (2012) classify Manitoba and British Columbia as provinces in which the public school system is non-denominational. Parents seeking a Catholic or Protestant education for their children in these provinces have to look to private schools, which today are eligible to receive some provincial funding. In Alberta, Saskatchewan, and Ontario, public and dissentient separate schools exist and are protected in law. The school systems in New Brunswick, Nova Scotia, and Prince Edward Island are ones that historically have seen some Roman Catholic schools operating within non-sectarian public school districts. A series of important court challenges in New Brunswick between 1873 and 1896 denied Roman Catholics the right to separate schools, but did support the informal accommodations that had been established in the province. Today, recognizably denominational schools, owned by the Roman Catholic Church and leased to the local school board, continue to exist without legal status in New Brunswick and Nova Scotia.

In Quebec and Newfoundland, previously existing denominational school systems became non-denominational during the 1990s, with both requiring constitutional amendments to bring about these changes. In Quebec, an attempt by the provincial government to reorganize school boards on the basis of language instead of religion in 1983 was ruled a violation of Section 93 of the Constitution. It was not until more than a decade later that the provincial government was able to achieve its goal by first securing, in 1997, an amendment to Section 93 of the Constitution with the addition of the new Section 93A (see above). Quebec now has a non-denominational dual school system structured along linguistic lines. Unlike any other province, Newfoundland prior to the 1990s had developed a multi-denominational series of school systems. These included a Roman Catholic system, a Pentecostal system, a Seventh Day Adventist system, and an Integrated system that combined four official systems: Anglican, Salvation Army, United Church, and Presbyterian. However, in the 1990s, against a backdrop of declining enrolments and economic difficulties, the province sought to replace this system with a unitary non-sectarian system. This required a constitutional amendment to Term 17 of the Terms of Union of Newfoundland with Canada. Because these changes were deemed to be a bilateral amendment applying only to the Province of Newfoundland, the necessary procedures laid out in Section 43 of the Constitution Act, 1982 required authorizing resolutions from the Newfoundland provincial legislature and from the Canadian Senate and the House of Commons. This was finally accomplished in 1997, and a new provincial Schools Act passed in that year changed what had previously been the most denominational school system in Canada to one of the least denominational (Fagan, 2004; Galway & Dibbon, 2012). (See Box 2.5.1)

All constitutional powers in the Yukon, Northwest Territories, and Nunavut reside with the federal government but territorial governments have delegated authority for education subject to certain denominational rights. Under these provisions a Roman Catholic or Protestant denominational minority has the right to establish separate schools for their children and to be exempt from school taxes levied to support majority schools.