Greater Montreal Protestant School Board v. Quebec (Attorney General) [1989] 1 S.C.R. 377: Rights and privileges respecting denominational schools -- Regulations establishing a uniform curriculum for all schools in Quebec -- Special allowance made for moral and religious instruction in schools recognized as Catholic and Protestant

Present: Dickson C.J. and Beetz, McIntyre, Lamer, Wilson, Le Dain and La Forest JJ.

ON APPEAL FROM THE COURT OF APPEAL FROM QUEBEC

Constitutional law -- Distribution of legislative powers -- Education -- Rights and privileges respecting denominational schools -- Regulations establishing a uniform curriculum for all schools in Quebec -- Special allowance made for moral and religious instruction in schools recognized as Catholic and Protestant -- Whether provincial legislation and the regulations adopted thereunder ultra vires the Quebec legislature -- Constitution Act, 1867, s. 93(1), (2) -- Education Act, R.S.Q., c. I-14, s. 16(7) -- Regulation respecting the basis of elementary school and preschool organization, (1981) 115 O.G. II 1213 -- Regulation respecting the basis for secondary school organization, (1981) 115 O.G. II 1223.

Constitutional law -- Distribution of legislative powers -- Education -- Powers, privileges or duties conferred by law on the separate schools and school trustees of Upper Canada at the time of Union extended by s. 93(2) of the Constitution Act, 1867 to the dissentient schools of Quebec -- Whether all those powers, privileges or duties enjoy the constitutional protection of s. 93(1) -- Constitution Act, 1867, s. 93(1), (2).

The Government of Quebec adopted, under s. 16(7) of the Education Act, two regulations which purported to establish a uniform curriculum for all non-denominational subjects for all schools in Quebec. The government made special allowance in its uniform curriculum for moral and religious instruction in schools recognized as Catholic or Protestant. The content of this component of a pupil's curriculum was not determined by the Minister of Education under the impugned regulations but by the Catholic or Protestant committee of the Conseil supérieur de l'Éducation in regulations made by those bodies. Furthermore, the school board was not without input for the curricula other than religious and moral instruction. It was charged with adapting the province-wide regime to local needs and adding to the prescribed curricula when necessary, with approval. The school board also participated in the evaluation of the curricula.

Before the Superior Court, the appellants sought a declaration that s. 16(7) of the Education Act and the regulations adopted thereunder were ultra vires as being inconsistent with s. 93(1) of the Constitution Act, 1867. The Court dismissed appellants' motion and the judgment was upheld by the Court of Appeal. In this Court, the appellants argued that s. 16(7) of the Education Act and the regulations were ultra vires the province because they violated a right protected under s. 93(1) enabling the Protestant minority in Quebec to manage and control its own schools and to regulate, subject to provincial rules of general application, the course of study to be followed in those schools. As an alternative, they argued that s. 93(2) of the Constitution Act, 1867 extended the power or privilege to determine the exact content of curriculum enjoyed by trustees in Upper Canada to the Quebec Protestants.

Held: The appeal should be dismissed.

Per Beetz, McIntyre, Lamer and La Forest JJ.: Under section 93(1) of the Constitution Act, 1867, the province has exclusive jurisdiction to legislate with respect to education, but it cannot prejudicially affect a right or privilege affecting denominational schools enjoyed by a particular class of persons by law in effect at the time of the Union. Section 93(1) protects not only the denominational aspects of denominational schools but also the non-denominational aspects which are necessary to give effect to denominational guarantees. The fact that the guarantee is constitutionally entrenched is relevant to its interpretation. As a constitutional text, s. 93(1) may deserve a "purposive" interpretation but, in so doing, courts must not improperly amplify the provision's purpose. While it may be rooted in notions of tolerance and diversity, the exception in s. 93(1) is not a blanket affirmation of freedom of religion or freedom of conscience. The entrenched right of specified classes of persons in a province to enjoy publicly-sponsored denominational schools based on a fixed statutory bench-mark should not be construed as a Charter human right or freedom.

In this case, the impugned legislation and regulations are intra vires the Quebec legislature. The Minister of Education successfully crafted regulations falling within the parameters of the provincial authority in relation to education and respecting the constitutional guarantees in s. 93(1). Under the scheme established by the regulations, the Minister has a broad power to establish a pedagogical regime for the preschools, elementary and secondary schools in the province. However, in schools recognized as Catholic or Protestant, it is the regulations of the Catholic or Protestant Committee of the Conseil supérieur de l'Éducation which govern religious and moral instruction. The regulations under attack here do not purport to set the content of moral and religious instruction in Protestant schools. They go no further than to include such instruction among the courses deemed compulsory in all schools. By carving out the denominational content of curriculum and leaving it in the hands of the Protestant Committee of the Conseil, the province has conformed to the law in effect at the time of the Union which gave the "Curé, Priest or officiating Minister" the exclusive right of selecting the books having reference to religion and morals in denominational schools, and thus the authority to set the content of curricula pertaining to "religion and morals". This exception to the province's plenary power in relation to education -- constitutionally entrenched by s. 93(1) -- has not been violated.

The constitutional protection over non-denominational aspects of denominational schools necessary to give effect to denominational guarantees has not been violated by the regulations. The power which the school commissioners and trustees had in 1867 to "regulate the course of study" to be followed in denominational schools has been entrenched only in so far as this limited regulatory power is necessary to give effect to denominational guarantees. The impugned legislation and regulations meet the constitutional requirement by granting to the school boards the power to adapt prescribed curricula to local needs and to create additional curricula, subject to approval, where they deem it necessary and to participate in the evaluation of the curricula generally. The regulations therefore allow the school boards to exercise their 1867 power over the non-denominational aspects of denominational schools necessary to give effect to denominational guarantees.

Appellants' position that Protestant educational philosophy extends constitutional protection beyond what is necessary to give effect to denominational guarantees is unacceptable. The appellants are attacking non-denominational aspects of the curriculum which are not necessary to give effect to denominational guarantees. By associating the content of the constitutional guarantee with a Protestant educational philosophy founded upon pluralism, the appellants would give to the Protestant community a right or privilege to determine the curriculum used in denominational schools which is completely incompatible with the exercise of the general regulatory power of the province over matters of curriculum falling outside religious and moral education.

Finally, appellants' alternative contention based on s. 93(2) of the Constitution Act, 1867 must be rejected. Section 93(2) extends all powers, privileges and duties (but not constitutional powers and privileges) conferred and imposed on the separate schools in Upper Canada at the time of Union to the dissentient schools in Quebec. But section 93(2) does not itself entrench rights or privileges which existed in either province by law in 1867. It is section 93(1), and not s. 93(2) on its own, which raises "Rights or Privileges with respect to Denominational Schools" to the status of constitutional norms. Therefore, where, by the operation of s. 93(2), a power or privilege which existed at the time of Union in Upper Canada is "extended" to dissentient Quebec Protestants or Catholics, the inquiry as to what greater constitutional powers and privileges dissentient Quebec Protestants and Catholics may enjoy in their own province does not end there. The Court is still required, not by s. 93(2) but by s. 93(1), to apply s. 93(1) to determine whether the power or privilege extended from Upper Canada to Quebec is "with respect to Denominational Schools" and whether that power or privilege is prejudicially affected by the legislation attacked in any given case. Accepting in this case that in 1867 in Upper Canada the exact content of a particular school's curriculum was, in the absence of specific regulation by the Council for Public Instruction of that Province, to be by law left to the discretion of the separate school trustees, this extended power or privilege did not result in a wider constitutional protection for the appellants. The power to set curriculum extended to Quebec Protestants has, by the application of s. 93(1), only been entrenched in so far as it is necessary to give effect to the denominational guarantee in Quebec.

Per Dickson C.J. and Wilson J.: The Court is required under s. 93(2) of the Constitution Act, 1867 to measure the protection afforded by law to separate schools in Ontario in 1867 against the protection afforded by law to dissentient schools in Quebec in 1867 and if, as a result of that comparison, it is found that the powers, privileges and duties of separate schools in Ontario in 1867 were greater, those additional powers, privileges or duties are extended by s. 93(2) to the dissentient schools in Quebec. Such additional powers, privileges or duties enjoy in general the constitutional protection of s. 93(1). Section 93(1) protection is not limited to powers, privileges or duties which relate specifically to the denominational aspects of such schools.

In the present case, however, the powers of the trustees of the separate schools in Ontario over the curriculum in their schools, which were extended by s. 93(2) to the dissentient schools in Quebec, were not constitutionally protected by s. 93(1) because they were subject in Ontario to the overriding regulatory authority of the Council of Public Instruction representing the province. It follows that, as far as curriculum is concerned, those powers, privileges and duties must be subject to that same regulatory authority on the part of the province of Quebec. The overriding regulatory authority of the province of Ontario, while it existed in law, could not be used to defeat the very purpose for which the separate schools in Ontario were established, namely the protection of Roman Catholic minority educational rights. Similarly, the province of Quebec cannot regulate the curriculum in the denominational schools in Quebec so as to undermine their distinctively denominational character. Therefore, even if the purpose of s. 93(2) was to enhance the constitutional protection afforded to dissentient schools in Quebec in order to equate their position with that of separate schools in Ontario, it would still be open to the legislature of Quebec to regulate the powers of dissentient school boards over curriculum, provided such regulation did not prejudicially affect the denominational character of such schools. Here, the impugned legislation and regulations did not prejudicially affect the denominational character of the denominational schools in Quebec. It was accordingly intra vires the Quebec legislature.

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