The different experience in Ontario as compared to Alberta and Saskatchewan is principally the result of the same constitutional provisions having effect on settlement at different stages in Canadian history.
Only Protestants or Roman Catholics, whichever is the minority faith population compared to the other in a community, can consider the establishment of separate school education.
The separate school establishment right is not available to citizens of any other faith (such as Orthodox Christians, Jews, Mormons, Muslims, Hindus or Sikhs).
When France's colonies in North America were conquered by Britain during the 18th century, British authorities were faced with the dilemma of ruling over a large Roman Catholic community.
Since the Glorious Revolution of 1688, however, Protestantism had been the official religion of the British state as evidenced by the Act of Settlement 1701 which forbade Catholics to become monarch.
His Britannick Majesty farther agrees, that the French inhabitants, or others who had been subjects of the Most Christian King in Canada, may retire with all safety and freedom wherever they shall think proper...This guarantee was later threatened on several occasions by assimilationist legislation such as the Royal Proclamation of 1763, but this was largely reversed by the Quebec Act 1774.
In the 1840s Methodist minister and Reformist politician Egerton Ryerson championed "common schools" that would educate the children of all faiths under one system.
However, Ryerson was not able to convince the Catholic minority and grudgingly agreed to clauses in his education reforms that allowed for minority-faith schools within the publicly funded system.
In 1864, the government of Nova Scotia reformed its system of education, withdrawing support from all schools which were religious or which used any language other than English as a medium of instruction.
These pre-existing rights for tax-funded minority faith schools were then part of the constitutional negotiations surrounding Canadian Confederation in the 1860s.
This was forcefully rejected by French Canadian delegates from Canada East, who demanded provincial control over education.
[3] The compromise was section 93 of the Constitution Act, 1867 which allows the federal government to intervene only to protect minority schools which are established after Confederation.
As held by the Supreme Court of Canada in Adler v. Ontario, the provincial education power under section 93 of the Constitution Act, 1867 is plenary, and is not subject to Charter attack.
As Iacobucci J. noted, it is the product of a historical compromise crucial to Confederation and forms a comprehensive code with respect to denominational school rights which cannot be enlarged through the operation of s. 2(a) of the Charter.
[10] Since the 19th century, funding for the Roman Catholic separate school system was provided up to Grade 10 under the British North America (BNA) Act.
The right to have a publicly funded separate denominational school system continues to be guaranteed to Roman Catholics in Ontario by s. 93 of the Constitution Act, 1867.
At any time, three or more residents, either Protestant or Roman Catholic, who believe that they are members of the minority faith locally, can initiate the process.
The way in which this agreement was written into the British North America Act, 1867 was to the effect that the condition of education in each colony (or territory) at the time it entered Confederation would be continued thereafter.
Consequently, the provinces of British Columbia, New Brunswick, Nova Scotia, and Prince Edward Island have never had an education system that included "separate schools".
The Committee restated its concerns on November 2, 2005, when it published its Concluding Observations regarding Canada's fifth periodic report under the Covenant.
The Committee observed that Canada had failed to "adopt steps in order to eliminate discrimination on the basis of religion in the funding of schools in Ontario."