Section 93 of the Constitution Act, 1867
Section 93 also contains guarantees of publicly funded denominational and separate schools for Catholic or Protestant minorities in some provinces.
[6] Section 93 reads: Legislation respecting education93 In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions:—(1.)
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.)
The text of section 93 has not been amended since the Act was enacted in 1867, but it has had different scope in the provinces of Manitoba, Alberta, Saskatchewan, and Newfoundland and Labrador.
[2]: 339–401 The Fathers of Confederation agreed to entrench that system in the Constitution to provide guarantees to the religious minority in each of the new provinces of Ontario and Quebec.
Paragraph (3) provided that if a system of separate schools was established in a province after Confederation, and then subsequently reduced, an appeal lay to the federal government.
[8]: 259 Neither New Brunswick nor Nova Scotia had separate or denominational schools as a matter of law at Confederation, and neither province subsequently established them.
The abolition triggered two significant court cases which went on appeal to the Judicial Committee of the Privy Council in Britain,[11][12] and caused a major political crisis for the federal government.
When the federal government of Sir Wilfrid Laurier was considering establishing the two provinces of Alberta and Saskatchewan from the North-West Territories in 1905, the schools question became a major point of contention in Parliament.
[17] Term 17 followed the framework of section 93, but instead continued a system where six different denominations could each run their own schools: Catholic, Anglican, United, Moravian, Presbyterian, and Salvation Army.
[20] In a subsequent case, Adler v Ontario, the Supreme Court held that the Charter cannot be used to expand the school funding guarantee to religious groups not included in section 93.
[21] Section 23 of the Charter provides a guarantee of publicly funded minority language schools: English in Quebec, and French in the other provinces.
The amendments eventually resulted in the abolition of religious-based schools: By the late 20th century, social attitudes to religion had changed greatly in Quebec.
To achieve that goal, in 1997 the National Assembly of Quebec instituted the bilateral amendment process under the Constitution Act, 1982, which provides that a constitutional provision which only applies to "one or more, but not all, provinces" can be amended by joint resolutions of the provincial assembly and the two houses of the federal Parliament, the House of Commons and the Senate.
[27] The National Assembly passed a resolution to amend the Constitution Act, 1867 by eliminating the application in Quebec of paragraphs (1) through (4) of section 93.
