Legislation respecting Educa

tion.

The Coutume de Paris is still the accepted basis of their Civil Code, and their national institutions have been alike respected by their fellow-subjects and cherished by themselves. And it is with these feelings and on these terms that Lower Canada now consents to enter this Confederation.

Education.

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.

Ex parte Renaud et al. (1 Pugs. 273; 3 R. C. 117.)

The litigation in this case arose upon petition to set aside an assessment, on the ground that the New Brunswick Legislature had no power to enact the Common Schools Act of 1871, under which the assessment was levied.

The Legislature of the Province of New Brunswick, in 1871, passed the Act entitled "The Common Schools Act, 1871," which repealed the School Act of 1858 (21 Vic. c. 9), entitled an "Act relating to Parish Schools," under which the Common School system of the Province of New Brunswick was carried on at the time of Confederation.

It was contended on the part of the petitioner that the Common Schools Act of 1871 by repealing the School Act of 1858, and enacting that all Schools conducted under the Act of 1871 shall be non-sectarian thereby deprived Roman Catholics not only of the right which the Act of 1858 had secured to them, of having the Douay Bible read by their children in the mixed schools, but also of the privilege which they had under that Act, of creating schools of a character exclusively Roman, Catholic in districts where the population was entirely Roman Catholic.

Also, that the Board of Education under the Act of 1871 promulgated a Regulation, that "Symbols or emblems distinctive of any national or other society, political party or religious organization, shall not be exhibited or employed in the school room, either in its general arrangement or exercises, or on the person of any teacher or pupil." And therefore, that the Common Schools Act of 1871 does "prejudicially affect" rights and privileges which were secured to Roman Catholics as a class in respect to Denominational Schools, and is therefore unconstitutional, as being in conflict with ss. 1 of sec. 93 of B. N. A. Act.

And also that the omission in the Common Schools Act of 1871 to secure to all children-whose parents do not object-the reading of the Bible; and that when read by Roman Catholic children, if required by their parents, it shall be the Douay version without note or comment, prejudicially affects rights and privileges under ss. 1 of sec. 93, B. N. A. Act.

It was held by the Court:

That, neither the School Act of 1871, nor the School Act of 1858,

which it repealed, provided for the establishment of Denominational Schools, and that neither of those Acts conferred any legal rights or privileges upon any class of persons or upon any one Denomination of Christians, in the government or control of the schools organized thereunder; and that the schools established in pursuance of the Act of 1858 were not Denominational, and therefore that the School Act of 1871, which declares that the schools conducted under its provisions shall be non-denominational, is not ultra vires of the Legislature of New Brunswick as prejudicially affecting any legal right or privilege with respect to Denominational Schools which any class of persons had at the Union, or as being in conflict with any of the provisions of sect. 93 of the B. N. A. Act of 1867.

That if the right does exist of creating schools of a character exclusively Roman Catholic, and of using religious or national emblems in the exercises of the school, or upon the person of the teacher or pupil, and of having their own translation of the Bible read in mixed schools by the children of Roman Catholic parents, that this right is not taken away by any provisions of the Act of 1871, as it may still exist, if it is a right which legitimately comes under sec. 93 of the B. N. A. Act; for, if such a right did exist under the School Act of 1858, it would then become the duty of the Board of Education, under the Common Schools Act of 1871, to secure, by regulation, just what the Board of Education were bound to secure under the School Act of 1858.

That if this right did exist under the School Act of 1858, and was protected by the B. N. A. Act of 1867, and the Board of Education neglected to secure this right by proper regulations, or if any improper regulations were made under their authority, this could not affect the constitutionality of the Common Schools Act of 1871, although it might then be a case coming within sec. 4 of sect. 93, providing for remedial legislation by the Parliament of Canada.

In delivering the judgment of the Court, Chief Justice Ritchie said : The Regulations are not before us in such a way that we can deal with them, and we are not called upon to express any decided opinion as to their validity, because the constitutionality of the School Act of 1871 cannot in our opinion be affected by any regulations made under it-there being nothing unconstitutional in the Act itself.

As in this case there was no legal right under the School Act of 1858 to have Denominational schools or teachings, there is no injury in legal contemplation committed by the Legislature dealing with the

question in such a manner as to prevent that possibility from arising; and consequently there is no right to have the action of the Legislature abrogated.

The inability of a class of persons to have under the Common Schools Act, 1871, that which, possibly they might under certain exceptional and accidental circumstances have had, under the School Act of 1858, but which, they had no right to insist on having, is a damage not occasioned by anything which the law esteems an injury— it is a kind of damage termed in law damnum absque injuria, and for which there is no remedy.

See, Todd on Parliamentary Government in Col. (pp. 346-352) and Dominion Sessional Papers of 1877, No. 89, for a history of the controversy on the questions involved in this case, and of the action of the Dominion Government in reference thereto.

Discussion in the Imperial Parliament on this section.

On the 19th February, 1867, when the B. N. A, Bill was under discussion in the House of Lords, the Earl of Carnarvon expressed himself on the question of Education as follows:

Lastly, in the 93rd clause, which contains the exceptional provisions to which I referred, your Lordships will observe some rather complicated arrangements in reference to education. I need hardly say that that great question gave rise to nearly as much earnestness and division of opinion, on that, as on this side of the Atlantic. This clause has been framed after long and anxious controversy, in which all parties have been represented, and on conditions, to which all have given their consent. It is an understanding, which, as it only concerns the local interests affected, is not one that Parliament would be willing to disturb, even if, in the opinion of Parliament, it were susceptible of amendment; but I am bound to add, as the expression of my own opinion, that the terms of the agreement appear to me to be equitable and judicious. For the object of the clause is to secure to the religious minority of one Province the same rights, privileges and protection which the religious minority of another Province may enjoy. The Roman Catholic minority of Upper Canada, the Protestant minority of Lower Canada, and the Roman Catholic minority of the Maritime Provinces, will thus stand on a footing of entire equality. But, in the event of any wrong at the hand of the local majority, the minority have a right to appeal to the Governor General in Council, and may claim the application of any remedial laws that may be necessary from the Central Parliament of the Confederation.

On the 22nd of February, 1867, the Earl of Shaftesbury presented to the House of Lords, petitions, from the Governors, Principal, and Fellows of the McGill College, Montreal, from the Provincial Association of Protestant Teachers of Lower Canada and others, directing attention to several provisions of the Bill, and especially to the 93rd clause, which, in their operation they feared would have the effect of subjecting them to the will of those possessing the majority of the representation, and they desired the introduction of a clause for their security.

The Earl of Carnarvon in answering these petitions, while showing that the fear expressed had been attended to by the 80th clause, which provided that no change should be made in the districts which returned the Protestant minority without the consent of the members returned by those districts, stated:

To introduce the clause asked for, would violate one of the principles upon which the Bill was based—namely, that the Local Legislatures should have the power of amending their own Constitutions.

He could only say further that if he were to accept an amendment based on the petitions, it would be difficult to resist other amendments of an analogous character put forward by opposing interests. In fact, only a few minutes before he entered the House, that day, he had received a paper setting forth the views of a strong and very respectable Roman Catholic minority, who feared that the 93rd clause would not extend to them the protection which they conceived to be their due. His answer to them, as to his noble friend, must be, that to comply with their wishes would be to depart from a compact entered into by the representatives of all shades of religious and political opinions. If the compromise were departed from in favor of one party, it must inevitably be departed from in favor of another.

In Board of School Trustees v. Grainger et al. (25 Gr. Ch. 579), Held: That Local Legislatures may legislate as to separate schools provided that the legislation is not such as prejudicially affects the rights or privileges theretofore possessed by such schools, and may pass laws interfering with the position or mode of election, of trustees of separate schools as settled by Statute prior to Confederation.

Blake, V. C., in delivering the Judgment of the Court, said:

I cannot attach any weight to the argument that, under the words, "an appeal shall lie to the Governor-General in Council from any Act or decision of any Provincial authority" (sub-section 4), the persons interested in separate schools have the right to present such a difficulty as the present, to the Governor General in Council; the meaning to be attributed to the word "decision" is explained by the words