Reference re Bill 30, An Act to Amend the Education Act (Ont.)

Wilson J.‑‑This is an appeal from the decision of the Court of Appeal for Ontario on a question referred for its consideration by the Lieutenant‑Governor in Council (by Order in Council 1774/85, dated July 3, 1985) pursuant to the Courts of Justice Act, 1984, S.O. 1984, c. 11, s. 19. The question reads as follows:

Is Bill 30, An Act to amend the Education Act inconsistent with the provisions of the Constitution of Canada including the Canadian Charter of Rights and Freedoms and, if so, in what particular or particulars and in what respect?

By order of the Chief Justice of Ontario dated July 4, 1985, the Attorney General for the Province of Ontario was given carriage of the Reference and notice of the Reference was duly published. A number of parties were given leave by the Court of Appeal to intervene in the hearings before that Court. On February 18, 1986, a majority of the Court of Appeal (Zuber, Cory and Tarnopolsky JJ.A.) answered the Reference question in the negative: see Reference re an Act to amend the Education Act (l986), 53 O.R. (2d) 513. The Chief Justice of Ontario and Robins J.A. dissented.

The appellants have appealed to this Court pursuant to s. 37 of the Supreme Court Act, R.S.C. 1970, c. S‑19, as amended, and s. 19(7) of the Courts of Justice Act, 1984, S.O. 1984, c. 11. Leave to intervene was granted by this Court to the Quebec Association of Protestant School Boards. Notices of intention to intervene in this Court were duly filed by the Attorney General for the Province of Alberta and the Attorney General for the Province of Quebec.

1. Bill 30

The preamble to Bill 30 indicates that its purpose is to implement a policy of full funding for Roman Catholic separate high schools in Ontario. The preamble reads as follows:

Whereas section 93 of the Constitution Act, 1867 embodies one of the essential conditions which facilitated the creation of a united Canada in 1867 by guaranteeing to Roman Catholics in Ontario certain rights and privileges with respect to denominational schools; and whereas the Roman Catholic separate schools have become a significant part of the schools system in Ontario; and whereas it has been public policy in Ontario since 1899 to provide for public funds to support education in the Roman Catholic separate schools to the end of Grade 10; and whereas it is recognized that today a basic education requires a secondary as well as an elementary education; and whereas it is just and proper and in accordance with the spirit of the guarantees given in 1867 to bring the provisions of the law respecting Roman Catholic separate schools into harmony with the provisions of the law respecting public elementary and secondary schools, by providing legislative recogni‑ tion of and funding for secondary education by Roman Catholic separate schools....

The Bill permits a separate school board to elect by by‑law to perform the duties of a secondary school board with the approval of the Minister (s. 136‑a). Once such an election has been made and approved by the Minister, the separate school board becomes a "Roman Catholic school board" (s. 46‑a) and, according to s. 136‑e(1), becomes "entitled to share in the legislative grants for secondary school purposes". Section 136‑j exempts separate school supporters within the jurisdiction of a Roman Catholic school board from the payment of rates or taxes for secondary school purposes. But, by s. 136‑k, "[t]he provisions [of the Education Act, R.S.O. 1980, c. 129] ... that apply to ... the levying and collection of rates or taxes for separate school purposes apply with necessary modifications for secondary school purposes in respect of a Roman Catholic school board". Every public board of education is required by s. 136‑l to prepare a list of teaching and non‑teaching staff whose services will not be required because of an election by a Roman Catholic school board to perform the duties of a secondary school board. During the ten years following its election, the Roman Catholic school board must fill positions on its teaching staff by offering employment to those on that list who possess proper qualifications. There are other provisions concerning the functions of the Planning and Implementation Commission established in the Bill and transfers of use or ownership of real and personal property between public school boards and Roman Catholic school boards which are not central to the constitutional issues in this appeal.

The Ontario Court of Appeal, quite properly, considered the constitutional validity of Bill 30 as it stood at the date of the Reference. At that time Bill 30 had already been given first reading in the Ontario Legislature. Subsequent to the decision of the Court of Appeal, Bill 30 was passed into law as An Act to amend the Education Act, S.O. 1986, c. 21. This Act contains a number of sections which were not present in Bill 30 at the time of the Reference. In particular, s. 136‑la dealing with the hiring and promotion of teachers was not in the Bill. These changes prompted an application for directions to this Court on October 8, 1986. The question posed was as follows:

Whether this Court, on the appeal, should consider the constitutionality of Bill 30 in the form in which it appeared in the reference to the Court of Appeal for Ontario and not any question arising from a subsequent enactment not before that Court?

Assuming without deciding that it had jurisdiction pursuant to ss. 37 and 50 of the Supreme Court Act to render an opinion upon issues that were not before the Court of Appeal, this Court ruled that since the sections which were added to Bill 30 after the reference to the Court of Appeal were complex and important, it was "not disposed to adjudicate upon the constitutional validity of a law of Ontario without benefit of the wisdom of the Court of Appeal of that Province". I want to emphasize, therefore, that in this case the Court is determining the constitutionality of Bill 30 in the form referred to the Ontario Court of Appeal and not the constitutionality of the Act currently in force in Ontario.

2. The Court of Appeal

The majority of the Court of Appeal (Zuber, Cory and Tarnopolsky JJ.A.) held that Bill 30 was intra vires the Ontario Legislature under s. 93 of the Constitution Act, 1867 . Section 93 reads as follows:

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.

The majority, before addressing the issue whether the Legislature could validly enact Bill 30, emphasized the pivotal role which s. 93 had played in the negotiations leading up to Confederation and concluded, at pp. 567‑68, that "provision for the rights of Protestants and Roman Catholics to separate schools [i.e., s. 93] became part of `a small bill of rights' as a basic compact of Confederation".

It is unclear, however, from the reasoning of the majority, if I may say so with the greatest of respect, whether it upheld Bill 30 under the plenary power conferred on the province in relation to education by the opening words of s. 93 or because the legislation returned to separate school supporters rights and privileges constitutionally guaranteed to them by s. 93(1). There are passages in the reasons of the majority which would support either basis of decision. For example, the following passage, at p. 569, would seem to me to support the first basis:

By the opening paragraph of s. 93, the provincial legislatures were granted plenary power over education, subject only to the legal restrictions of head (1) and to the possibility, never realized, of being overridden by action of the Governor‑General in Council and the Parliament of Canada, under heads (3) and (4). Therefore, at least at any time prior to the coming into force of the Charter and of s. 15 thereof, there was nothing in s. 93 that would have prevented the provincial Legislature from providing for full funding of Roman Catholic separate high schools, unless it could be shown that such law would "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".

It may be that it was the majority's reliance on this reasoning which caused it earlier in its reasons, at p. 565, to comment that it was not necessary to express an opinion as to the continuing validity of the Privy Council's decision in Tiny Separate School Trustees v. The King, [1928] A.C. 363. That case, which reviewed the rights and privileges referred to in s. 93(1), i.e., those held by separate school supporters in Ontario by law at the time of Confederation, is primarily relevant to the alternate basis on which the majority may have reached its decision.

And there is some reason to believe that the alternate basis was the real basis of the decision. For the majority went on to say, at p. 570, that even if they were to ignore the Tiny decision and base their decision on an examination of the legislation in force‑‑the Common Schools Act [An Act respecting Common Schools in Upper Canada], C.S.U.C. 1859, c. 64, the Separate Schools Act (Scott Act) [An Act to Restore to Roman Catho‑ lics in Upper Canada certain rights in respect to Separate Schools], 26 Vict., c. 5, and the Grammar Schools Act of 1865 [An Act for the further improvement of Grammar Schools in Upper Canada], 29 Vict., c. 23‑‑they would have to conclude, at pp. 570‑71, that:

...secondary school education up to the pre‑university level was being given in separate schools, that the textbooks used were not disapproved, and that full and equal funding for such pupils and such grades was being provided by the province.

...

Therefore, . . . it seems clear that by s. 93 the province can now decide to return to separate schools the rights they exercised in 1867 to provide secondary school education and to receive equal proportionate funding for such education, unless there is something in the Charter to preclude it.

Given that the Bill could be validly enacted pursuant to s. 93 of the Constitution Act, 1867 , it then fell to the majority to consider whether any other provisions of the Constitution rendered the Bill ultra vires. Section 15 (equality) and s. 2(a) (freedom of conscience and religion) of the Canadian Charter of Rights and Freedoms had been advanced by those opposing the constitutionality of the Bill. The majority held that no part of the Constitution could be paramount over any other part. Thus, in its view, none of the provisions of the Charter could operate so as to render invalid any of the provisions of the Constitution Act, 1867 . This conclusion was supported in the case of separate schools, the majority found, by s. 29 of the Charter which provides:

29. Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.

According to the majority of the Court of Appeal, this section was intended to include not only constitutional guarantees of rights or privileges in respect of denominational, separate or dissentient schools but also "rights and privileges granted by laws enacted under the authority of the Constitution" (p. 572). In arriving at this interpretation of s. 29 of the Charter the majority relied heavily on the intention of the framers of the Charter as disclosed in the Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 1980‑1981. The majority concluded that nothing in the Charter could abrogate or derogate from the rights guaranteed by s. 93 or conferred by the province under legislation enacted by the province pursuant to its plenary power in relation to education. They said at pp. 575‑76:

...s. 29 was intended to protect not only "any rights or privileges guaranteed by ... the Constitution of Canada", such as those in s. 93 of the Constitution Act, 1867 , . . . but also "any rights or privileges guaranteed ... under the Constitution of Canada", such as those contained within provincial statutes enacted pursuant to the plenary power over education in the opening paragraph of s. 93. Bill 30, if enacted, would be one such statute and so must, at least in its basic purpose and over‑all thrust, receive the protection of s. 29 from any abrogation or derogation because of any of the rights or freedoms set out in the Charter , including ss. 2(a) and 15 .

...

These educational rights, granted specifically to the Protestants in Quebec and the Roman Catholics in Ontario, make it impossible to treat all Canadians equally. The country was founded upon the recognition of special or unequal educational rights for specific religious groups in Ontario and Quebec. The incorporation of the Charter into the Constitution Act, 1982 , does not change the original Confederation bargain. A specific constitutional amendment would be required to accomplish that. Section 29 of the Charter makes it clear that the minority education rights (an essential condition of Confederation) are not to be abrogated by ss. 2(a) or 15.

The majority added by way of caveat that its decision in this case did not mean that separate schools were completely immune from scrutiny under the Charter . Not at all. They were shielded from review only in their essential Catholicism. The majority stated at p. 576:

Laws and the Constitution, particularly the Charter , are excluded from application to separate schools only to the extent they derogate from such schools as Catholic (or in Quebec, Protestant) institutions. It is this essential Catholic nature which is preserved and protected by s. 93 of the Constitution Act, 1867 and s. 29 of the Charter . The courts must strike a balance, on a case‑by‑case basis, between conduct essential to the proper functioning of a Catholic school and conduct which contravenes such Charter rights as those of equality in s. 15 or of conscience and religion in s. 2(a). Thus, the right of a Catholic school board to dismiss Catholic members of its teaching staff for marrying in a civil ceremony, or for marrying divorced persons, has been upheld as permissible conduct for a separate school board, but would the same protection be afforded a board which refused to hire women or discriminated on the basis of race, national or ethnic origin, age or disability?

Howland C.J.O. and Robins J.A. dissented. While conceding that s. 93(1) represents a basic compact of Confederation, they held that the rights and privileges of Roman Catholics guaranteed under s. 93(1) at the time of Confederation were limited to the provision and funding of an elementary education and did not extend to the provision and funding of an education at the secondary or high school level. For that conclusion the minority relied on Tiny which it considered to be binding upon it. The minority added at p. 542 that "section 93(3) does not expand the rights and privileges protected by s. 93(1)".

The minority did not accept the proposition that any benefit given to separate schools in Ontario by post‑Confederation legislation enacted after the Charter came into effect was shielded from scrutiny under the Charter . Section 29 of the Charter , they found, only applies to rights and privileges in respect of separate schools that are constitutionally guaranteed. Bill 30 does not confer any guaranteed rights or privileges. The minority added at p. 550:

In our opinion, s. 29 does not authorize the creation of new rights nor does it elevate provincial statutes creating such rights to constitutional status. If that had been the intent of the Charter , a clear and explicit form of words could readily have been devised to make that result manifest. As it is, the section ensures that those rights guaranteed by s. 93(1) and those rights guaranteed under the various Acts subsequent to 1867, which now by s. 52(2) have come to form part of the "Constitution of Canada", are not abrogated or derogated from by the Charter . The words used, given their plain and ordinary meaning, cannot be read so as to embrace rights created by post‑Charter provincial enactments. Furthermore, to accept that s. 29 renders a statute immune from the Charter solely because it was enacted within the authority of the Legislature is to interpret the section in a manner directly contrary to s. 32(1)(b) of the Charter which makes it abundantly clear that the Charter applies to "all matters within the authority of the legislature of each province".

The minority found Bill 30 to be inconsistent with s. 15 of the Charter . In its view "[i]f the Charter 's right to equality without discrimination on religious grounds is to mean anything, it must mean at least that the followers of one religion are not to be the subjects of greater burdens or the beneficiaries of greater benefits imposed or provided by law than the followers of other religions" (p. 555). Bill 30, by providing benefits on the basis of religion to one religious group only, was held to be in conflict with the equality guarantee in s. 15. The minority of the Court of Appeal added that the violation of s. 15 of the Charter by Bill 30 could not be justified under s. 1 of the Charter given the multicultural and pluralistic society existing in Ontario today.

3. The Submissions of the Parties

In the hearing of this appeal the Court was greatly assisted by detailed and clear submissions from all counsel appearing before it. The large number of appellants, respondents and interveners makes it difficult to summarize in detail all the submissions that were made. Nevertheless the distinct positions of appellant and respondent may be briefly summarized.

The position advanced by many of the appellants was that the minority of the Court of Appeal was correct in law and that Bill 30 was therefore ultra vires. By providing Roman Catholics and Roman Catholic schools with financial benefits not made equally available to other taxpayers and other religious schools, Bill 30 violated the equality guarantee in s. 15(1) of the Charter . The public funding of denominational schools, they submitted, also violated freedom of religion as guaranteed by s. 2(a). The Bill could not be justified as a reasonable limit under s. 1.

The appellants also agreed with the view of the minority of the Ontario Court of Appeal that Bill 30 is not shielded from scrutiny by s. 29 of the Charter because s. 29 applies only to rights or privileges guaranteed by or under the Constitution itself. The rights and privileges contained in Bill 30 are, they submitted, not "guaranteed by or under the Constitution itself". The Privy Council had held in Tiny that Roman Catholic schools had no right in 1867 to public funding for grades 11, 12 and 13. They therefore have no constitutionally guaranteed right to such funding under s. 93 of the Constitution Act, 1867 . The Tiny case was correctly decided and, having been accepted and relied upon for over sixty years, should be viewed as determinative on this issue.

The respondents submitted that Bill 30 is intra vires under a combination of two parts of s. 93 of the Constitution Act, 1867 . They argued that under a combination of the opening words of s. 93 and s. 93(3) a provincial legislature is perfectly free, after Confederation, to enact legislation which augments the educational rights and privileges of denominational schools. If this submission is accepted, then the province is free to enact or repeal legislation such as Bill 30‑‑it stands in the same position as any other validly enacted provincial legislation‑‑subject only to a right of appeal to the Governor General in Council under s. 93(3) in the case of a repeal.

The respondents also made an alternative submission, namely that the legislation is intra vires because it returns to Roman Catholic separate school supporters in Ontario the rights and privileges they held by law in Ontario at the time of Union. These rights and privileges were constitutionally guaranteed under s. 93(1). They urged this Court to find that Tiny was wrongly decided and to overrule it.

On the Charter aspect the respondents argued that the Charter cannot apply to abrogate or derogate from rights acquired under s. 93 of the Constitution Act, 1867 . Some respondents submitted, in the alternative, that Bill 30 did not violate s. 2(a) or s. 15 of the Charter and others that, in light of the purposes of Bill 30, any violation of Charter rights was demonstrably justified in a free and democratic society.

4. The Issue

Before considering the merits of the appeal I want to stress, as did the Chief Justice of Ontario in the Court below, that it is not the role of the Court to determine whether as a policy matter a publicly funded Roman Catholic school system is or is not desirable. That is for the legislature. The sole issue before us is whether Bill 30 is consistent with the Constitution of Canada.

It is apparent from the reasons for judgment in the Court below and from the submissions of the parties that there are three distinct questions which must be addressed on the Reference. First, is Bill 30 a valid exercise of the provincial power in relation to education under the opening words of s. 93 and s. 93(3) of the Constitution Act, 1867 ? Second, is Bill 30 a valid exercise of provincial power because it returns to Roman Catholic separate school supporters rights which were constitutionally guaranteed to them by s. 93(1) of the Constitution Act, 1867 ? We are urged to decide this question regardless of our answer to the first question in order to obviate any further controversy concerning the rights and privileges of Roman Catholic separate school supporters in the Province of Ontario. The final question which must be examined if an affirmative answer is given to either or both of the above questions is whether the Constitution Act, 1982 and, in particular, the Canadian Charter of Rights and Freedoms is applicable to Bill 30 and, if so, to what extent and with what effect. I shall examine these issues in turn.

(a) The Opening Words of s. 93 and s. 93(3) of the Constitution Act, 1867

The provisions of the Constitution Act, 1867 which are especially relevant to the first question are as follows:

93. In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions:‑‑

...

(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:

On their face these provisions would appear to support the view that Bill 30 is a valid exercise of legislative power by the provincial legislature. The opening words of s. 93 vest an exclusive plenary power over education in the Province "subject and according to" the provisions that follow. Section 93(3) does not appear to derogate in any way from that power. It seems rather to contemplate its exercise where a province has a separate or dissentient school system by law at the time of Union or establishes one at any time after Union. In either of these circumstances it provides that "any Act or Decision of any Provincial Authority" affecting the rights or privileges of the province's Protestant or Roman Catholic minority shall be subject to appeal to the Governor General in Council. The enactment of legislation would seem to be an "Act or Decision" and "Provincial Authority" has been interpreted by the Privy Council as including a provincial legislature: see Brophy v. Attorney‑General of Manitoba, [1895] A.C. 202, at pp. 220‑21, and see also the Privy Council's judgment in Tiny at p. 371. Section 93(3) would appear, therefore, to provide in express terms for an appeal to the Governor General in Council from legislation passed by a provincial legislature which affects the rights and privileges of denominational minorities.

Counsel for the appellants submitted that s. 93 should be interpreted along the following lines. Section 93(1) permits a legal recourse if rights or privileges at law are prejudicially affected. For provinces where a denominational school system exists, s. 93(3) adds a political recourse if rights or privileges not at law are prejudicially affected. So, the appellants submit, s. 93(3) has a different and more limited purpose than that contended for by the respondents; it provides a remedy for acts or decisions affecting rights or privileges not at law. I do not find this analysis of s. 93 persuasive. If the expression "by Law" as used in s. 93(1) has the broad meaning adopted by Anglin C.J. in Tiny, i.e., as tantamount to "permitted by law", then it is hard to think of any right or privilege not "by law" in that sense. If the appellants' submissions were accepted, s. 93(3) would effectively become otiose. It is also difficult to imagine why a constitutional right of appeal would have been conferred from the removal of a right or privilege which was never formally and legally granted by the legislature.

In my view, s. 93(3) in no way limits the exercise of the province's plenary power. Rather, it expressly contemplates that after Confederation a provincial legislature may, pursuant to its plenary power, pass legislation which augments the rights or privileges of denominational school supporters. It would be strange, indeed, if the system of separate schools in existence at Confederation were intended to be frozen in an 1867 mold.

Prior authority would seem to support this view of s. 93. In City of Winnipeg v. Barrett, [1892] A.C. 445 (P.C.), the constitutionality of the Manitoba Public Schools Act, S.M. 1890, c. 38, was in issue. It was argued that the Manitoba statute was invalid as contravening s. 22 of The Manitoba Act, 1870, R.S.C. 1970, App., which forbade the provincial legislature from "prejudicially affect[ing] any right or privilege with respect to Denominational Schools which any class of persons have, by Law or practice in the Province at the Union". It is apparent that this provision differs from s. 93(1) of the Constitution Act, 1867 in only one respect‑‑it extends constitutional protection not only to rights and privileges held by law but also to those held "by practice". The parties in Barrett accepted that there was such a practice existing at the time of Union. Denominational schools could be set up at supporters' own expense and could be maintained by voluntary contributions or school fees. The schools could also be conducted in accordance with the supporters' own religious tenets. These "practices" were guaranteed by s. 22 of the Manitoba Act, 1870. The Privy Council ultimately held in Barrett that the 1890 legislation did not prejudicially affect those rights. But what was never questioned, either in argument or by their Lordships, was that the provincial legislature could, after the Union, validly pass legislation which augmented minority educational rights.

Having failed to establish that the provincial legislation prejudically affected any right or privilege with respect to denominational schools that was held at the time of Union, the Roman Catho‑ lic school supporters in Manitoba sought to appeal pursuant to s. 22(2) of the Manitoba Act, 1870. That section, substantially similar to s. 93(3) of the Constitution Act, 1867 , conferred a right of appeal from an act or decision by a provincial authority affecting rights or privileges of the Roman Catholic minority in relation to education. It fell to the Privy Council in Brophy, supra, to decide whether the right of denominational minorities in Manitoba to appeal to the Governor General in Council under s. 22(2) of the Manitoba Act, 1870 applied where legislation (the Manitoba Public Schools Act) was passed affecting rights and privileges which had been granted by post‑Confederation legislation. The rights and privileges which were granted to the Roman Catholic minority by this post‑Confederation legislation were summarized by Lord Halsbury L.C. in Brophy at p. 227:

. . . there existed denominational schools, of which the control and management were in the hands of Roman Catholics, who could select the books to be used and determine the character of the religious teaching. These schools received their proportionate share of the money contributed for school purposes out of the general taxation of the province, and the money raised for these purposes by local assessment was, so far as it fell upon Catholics, applied only towards the support of Catholic schools.

The Privy Council held that the right of appeal did apply in respect of rights and privileges originally granted by post‑Confederation legislation. What was again never questioned by the Privy Council was the ability of the Manitoba Legislature to add to the educational rights and privileges of denominational school supporters if it saw fit to do so. The Lord Chancellor stated at p. 219:

The question then arises, does the sub‑section extend to rights and privileges acquired by legislation subsequent to the Union? It extends in terms to "any" right or privilege of the minority affected by an Act passed by the Legislature, and would therefore seem to embrace all rights and privileges existing at the time when such Act was passed. Their Lordships see no justification for putting a limitation on language thus unlimited. There is nothing in the surrounding circumstances, or in the apparent intention of the Legislature, to warrant any such limitation. Quite the contrary.

The Lord Chancellor later in his judgment considered s. 93 of the Constitution Act, 1867 . He commented at p. 220:

Their Lordships being of opinion that the enactment which governs the present case is the 22nd section of the Manitoba Act, it is unnecessary to refer at any length to the arguments derived from the provisions of sect. 93 of the British North America Act. But in so far as they throw light on the matter they do not in their Lordships' opinion weaken, but rather strengthen the views derived from a study of the later enactment. It is admitted that the 3rd and 4th sub‑sections of sect. 93 (the latter of which is, as has been observed, identical with sub‑sect. 3 of sect. 22 of the Manitoba Act) were not intended to have effect merely when a provincial Legislature had exceeded the limit imposed on its powers by sub‑sect. 1, for sub‑sect. 3 gives an appeal to the Governor‑General, not only where a system of separate or dissentient schools existed in a province at the time of the Union, but also where in any province such a system was "thereafter established by the Legislature of the province". It is manifest that this relates to a state of things created by post‑Union legislation.

The decisions of the Privy Council in Barrett and Brophy clearly indicate, although admittedly by way of obiter, that it is intra vires a province to pass denominational schools legislation after Union, the repeal of which may be subject to an appeal to the Governor General in Council. In my view, subject to the comments I shall make concerning s. 93(1) of the Constitution Act, 1867 and the Charter of Rights , Bill 30 stands in precisely the same constitutional position as the various Acts of the Manitoba Legislature prior to 1890 which augmented the educational rights and privileges of the Roman Catholic minority in that province.

The purpose and history of s. 93 would seem to support this interpretation. The protection of minority religious rights was a major preoccupation during the negotiations leading to Confederation because of the perceived danger of leaving the religious minorities in both Canada East and Canada West at the mercy of overwhelming majorities. Given the importance of denomina‑ tional educational rights at the time of Confederation, it seems unbelievable that the draftsmen of the section would not have made provision for future legislation conferring rights and privileges on religious minorities in response to new conditions. In his address to the British Parliament in which he proposed second reading of the British North America Act, see U.K., H.L., Parliamentary Debates, 3rd. ser., vol. 185, col. 557, at p. 565, February 19, 1867, Lord Carnarvon explained the purpose of s. 93 in terms of a guarantee of equality:

...the object of the clause [s. 93] 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.

Some time after Confederation in the debate re second reading of Bill No. 58, The Remedial Act (Manitoba), in Debates of the House of Commons, 6th Sess., 7th Parliament, 59 Vict. 1896, col. 2719, at 2724, March 3, 1896, Sir Charles Tupper confirmed that s. 93 was part of a solemn pact resulting from the bargaining which made Confederation possible:

. . . I say it within the knowledge of all these gentlemen...that but for the consent to the proposal of the Hon. Sir Alexander Galt, who represented especially the Protestants of the great province of Quebec on that occasion, but for the assent of that conference to the proposal of Sir Alexander Galt, that in the Confederation Act should be embodied a clause which would protect the rights of minorities, whether Catholic or Protestant, in this country, there would have been no Confederation . . . . I say, therefore, it is important, it is significant that without this clause, without this guarantee for the rights of minorities being embodied in that new constitution, we should have been unable to obtain any confederation whatever. That is my reason for drawing attention to it at present.

Judicial authority affirms that religion was of fundamental importance. As the Privy Council stated in Brophy, supra, at p. 214:

There can be no doubt that the views of the Roman Catholic inhabitants of Quebec and Ontario with regard to education were shared by the members of the same communion in the territory which afterwards became the Province of Manitoba. They regarded it as essential that the education of their children should be in accordance with the teachings of their Church, and considered that such an education could not be obtained in public schools designed for all the members of the community alike, whatever their creed, but could only be secured in schools conducted under the influence and guidance of the authorities of their Church. [Emphasis added.]

The compromise or, as Duff C.J. in the Reference Re Adoption Act, [1938] S.C.R. 398 at p. 402, termed it, "the basic compact of Confederation", was that rights and privileges already acquired by law at the time of Confederation would be preserved and provincial legislatures could bestow additional new rights and privileges in response to changing conditions. As was said by Meredith C.J.C.P. in Ottawa Separate School Trustees v. City of Ottawa (1915), 34 O.L.R. 624 (reversed on other grounds), it was not intended that separate schools should be "left forever in the educational wilderness of the enactments in force in 1867" (p. 630). Instead, he said, "the machinery may be altered, the educational methods may be changed, from time to time, to keep pace with advanced educational systems." While these new rights and privileges could be legally repealed by the Legislature at a future date, a safeguard against their repeal as a result of local pressure insensitive to minority rights was provided by the inclusion of a right of appeal to the Governor General in Council under s. 93(3). This would appear to have also been the view of the Lord Chancellor in Brophy. He clearly believed that the purpose of s. 93(3) was to protect minorities in both Ontario and Quebec against the subsequent repeal of rights created after Confederation. He said at p. 223:

Bearing in mind the circumstances which existed in 1870, it does not appear to their Lordships an extravagant notion that in creating a Legislature for the province with limited powers it should have been thought expedient, in case either Catholics or Protestants became preponderant, and rights which had come into existence under different circumstances were interfered with, to give the Dominion Parliament power to legislate upon matters of education so far as was necessary to protect the Protestant or Catholic minority as the case might be.

I do not believe that the comments made by Beetz J. (for the majority) in Société des Acadiens v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549, foreclose a purposive approach to s. 93. In that case, Beetz J. (Estey, Chouinard, Lamer and Le Dain JJ. concurring) stated at p. 578:

Unlike language rights which are based on political compromise, legal rights tend to be seminal in nature because they are rooted in principle. Some of them, such as the one expressed in s. 7 of the Charter , are so broad as to call for frequent judicial determination.

Language rights, on the other hand, although some of them have been enlarged and incorporated into the Charter , remain nonetheless founded on political compromise.

This essential difference between the two types of rights dictates a distinct judicial approach with respect to each. More particularly, the courts should pause before they decide to act as instruments of change with respect to language rights. This is not to say that language rights provisions are cast in stone and should remain immune altogether from judicial interpretation. But, in my opinion, the courts should approach them with more restraint than they would in construing legal rights.

While due regard must be paid not to give a provision which reflects a political compromise too wide an interpretation, it must still be open to the Court to breathe life into a compromise that is clearly expressed. The contextual background of s. 93 is being reviewed in these reasons not for the purpose of enlarging upon the compromise but in order to confirm its precise content. The contextual background suggests that part of the compromise was that future legislation on the part of the province with respect to separate denominational schools was permissible. The province was to be able to grant new rights and privileges to denominational schools after Union in response to new conditions but that subsequent repeal of those post‑Union rights or privileges would be subject to an appeal to the Governor General in Council. This is apparent from the very text of s. 93. I would therefore conclude, subject to the comments that follow concerning the applicability of the Charter of Rights to Bill 30, that Bill 30 is a valid exercise of the provincial power to add to the rights and privileges of Roman Catholic separate school supporters under the combined effect of the opening words of s. 93 and s. 93(3) of the Constitution Act, 1867 .

(b) Section 93(1) of the Constitution Act, 1867

While, strictly speaking, it may be unnecessary in light of the above to consider whether the Roman Catholic separate schools in Ontario have a constitutionally guaranteed right to full funding by virtue of s. 93(1) of the Constitution Act, 1867 , I shall address the issue since full argument was made on it during the lengthy hearing before the Court. It also has relevance to the submissions made by the parties on the applicability of the Charter .

Section 93(1) of the Constitution Act, 1867 provides:

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:

It is immediately apparent that the scope of the rights and privileges protected under the section must be determined by ascertaining the rights and privileges in existence at the time of the Union. Was there any right or privilege entitling denominational secondary schools to full funding by law at the time of Confederation? To answer this it is necessary to consider the history of pre‑ Confederation legislation pertaining to education in Upper Canada. It is also necessary to consider the decision of the Privy Council in Tiny in which the effect of such legislation was reviewed.

Prior to Confederation there were three main classes of schools in Upper Canada‑‑common schools, grammar schools and separate schools. There was no counterpart of today's secondary school. In fact the evidence discloses that the word "secondary" was not used to describe any portion of the school system in Ontario until the end of the nineteenth century. Terms such as "high school" and "superior education" were used from time to time but as Professor Gidney, a historian who testified on behalf of the respondents, states in his affidavit, "ambiguities and contradictions in the phraseology used to identify educational institutions and their relationship to each other" appear to be common. Given the difficulty of terminology Professor Gidney concluded in his affidavit that "we are left with the task of interpreting contemporaries' usage as sensitively as possible in order to elucidate their intentions and their shared understandings of things". It must be remembered, however, that s. 93(1) only protects rights and privileges guaranteed by law. Our task therefore is to examine the laws in force prior to Confederation to see what rights or privileges they gave. Whether various bodies or officials were in fact exercising the powers statutorily conferred upon them is irrelevant to our inquiry.

The first Upper Canada legislation dealing with public schools was the Public Schools Act [An Act to establish Public Schools in each and every District of this Province], 47 Geo. 3, c. 6. That Act made provision for the establishment of "one public school in each and every district of this Province" (s. 2) and the appointment of trustees to manage the schools (s. 4) and "make such rules and regulations for the good government and management of the said public schools" (s. 5). By virtue of the Common Schools Act [An Act granting to His Majesty a sum of money, to be applied to the use of common schools throughout this province, and to provide for the regulations of said common schools], 56 Geo. 3, c. 36 these schools were renamed "common schools"; provision was made for the establishment of more schools (ss. 1‑3); trustees were given the express power to remove teachers (s. 5) and to "make rules and regulations for the good government of the ... common schools" (s. 6). Certain duties were imposed upon the trustees to report to Boards of Education on such matters as the books used in the schools (s. 8) and Boards of Education were given the power to apportion monies granted by the Legislature for the common schools (s. 13). The schools were named "common schools" because their function was to provide an education for the common or average person.

An Act to provide for the advancement of Education in this Province, 2 Vict., c. 10 put the various "grammar schools" which had developed in Upper Canada on a statutory footing. A board of trustees for each school was established which would superintend these schools and receive monies authorized to be paid under the Act. As the title of the Act suggests, the purpose of the grammar school system was to provide an advanced form of education. That meant, at the time, providing the students with an opportunity to study the languages and literatures of Greece and Rome. This was confirmed in 1853 by the Grammar Schools Amendment Act (U.C.) [An Act to amend the Law relating to Grammar Schools in Upper Canada], 16 Vict., c. 186, s. 5, which expressly provided that instruction was to extend to natural philosophy, mechanics, mathematics, Greek and Latin "so far as to prepare students for University College or any College affiliated to the University of Toronto".

It does not follow, however, that because the grammar schools were "higher" they were necessarily the forerunners to today's secondary schools. As Professor Gidney states in his affidavit:

We now take it for granted that schools will be organized primarily by age and level of subject difficulty: elementary schools deal with younger children and "the basics" or "3Rs"; secondary schools deal with teenagers, with more advanced levels of English and mathematics, and with elementary levels of more esoteric subjects such as biology or physics. This two‑stage structure, with high or secondary schools built atop elementary or public schools, was created in the latter decades of the nineteenth century. But it was not the primary way in which education was organized at or just before Confederation. Rather, the grammar and common schools were designed to overlap each other in their curriculum and the ages of their pupils. One did not complete an elementary education and then move on to such subjects as Latin or Greek or French. The grammar school was designed to take pupils soon after they had begun learning the 3Rs and provide them with both an English and a classical education at the same time . . . . My own analysis of a sample of the grammar school registers in the 1850's and 1860's tells me that it was common for pupils to begin grammar school at ages ten or eleven, and in some cases at eight or nine, while over half the students were under fourteen (which is now the typical age for beginning high school). The grammar school, in other words, was intended as a parallel institution that overlapped the common school curriculum and that existed to serve the specialized purpose of educating those students who sought a combined Classical and English education. Or to put it another way, the two sorts of schools were distinguished by their purposes or function rather than by the ages of their pupils or the level of instruction.

The distinction in law between common schools and grammar schools may well have been even smaller than that suggested by Professor Gidney. Section 11(4) of the 1853 Act permitted the uniting of common schools with grammar schools. This underlines the fact that, subject to regulation, there was at this time no statutory restriction as to what could be taught in a common school. It could extend to the same subjects as were taught in a grammar school. And the Common Schools Act of 1859, the Act respecting common schools which was in force at Confederation, still provided in ss. 27(7) and 79(9) for such unification.

The first provision for separate schools appeared in the Common Schools Act [An Act to repeal certain Acts therein mentioned, and to make further provisions for the establishment and maintenance of Common Schools throughout the Province], 4 & 5 Vict., c. 18, s. 11 which provided:

XI. Provided always, and be it enacted, that whenever any number of the Inhabitants of any Township or Parish professing a religious faith different from that of the majority of the Inhabitants of such Township or Parish, shall dissent from the regulations, arrangements, or proceedings of the Common School Commissioners, with reference to any Common School in such Township or Parish, it shall be lawful for the Inhabitants so dissenting, collectively, to signify such dissent in writing to the Clerk of the District Council, with the name or names of one or more persons elected by them as their Trustee or Trustees, for the purposes of this Act; and the said District Clerk shall forthwith furnish a certified copy thereof to the District Treasurer; and it shall be lawful for such dissenting Inhabitants, by and through such Trustee or Trustees, who for that purpose shall hold and exercise all the rights, powers and authorities, and be subject to the obligations and liabilities, hereinbefore assigned to and imposed upon the Common School Commissioners, to establish and maintain one or more Common Schools in the manner, and subject to the visitation, conditions, rules and obligations, in this Act provided with reference to other Common Schools, and to receive from the District Treasurer their due proportion, according to their number, of the monies appropriated by Law, and raised by assessment for the support of Common Schools, in the School District or Districts in which the said Inhabitants reside, in the same manner as if the Common Schools so to be established and maintained under such Trustee or Trustees, were established and maintained under the said Common School Commissioners, such monies to be paid by the District Treasurer upon the warrant of the said Trustee or Trustees.

This Act set out the rights, powers and authorities of Common School Commissioners (trustees) and provided that separate school trustees were to have the same rights, powers and authorities. Among those powers was the express power under s. 7(4) to "regulate for each School, respectively, the course of study to be followed in such School, and the Books to be used therein, and to establish general rules for the conduct of the Schools, and communicate them in writing to the respective Teachers". The trustees had the same power over the courses of study and books in the Common Schools Act [An Act for the Establishment and maintenance of Common Schools in Upper Canada], 7 Vict., c. 29, but in the later Acts their powers were defined in terms of the appointment of qualified teachers and the choice of textbooks. The teachers were, however, required to teach the branches of education according to the terms of their engagements with the trustees who were under a duty to report to the District Superintendent of Common Schools the branches of education being taught, the number of pupils in each branch, and the textbooks being used. No other official or body was, in the later Acts, given an express power to regulate the courses of study to be followed in the schools.

So by 1843 this tripartite system of education, consisting of common schools, grammar schools and separate schools, was firmly in place. A number of amending Acts which affected all three branches of the educational system were passed from 1843 on. But none of these statutes bears directly on the interpretation of s. 93(1) of the Constitution Act, 1867 . The legislation which was in effect at the time of Union and which is therefore crucial to the proper interpretation of s. 93(1) of the Constitution Act, 1867 is found in four statutes: the Common Schools Act of 1859; the Separate Schools Act [An Act respecting Separate Schools], C.S.U.C. 1859, c. 65; the Separate Schools Act (Scott Act) of 1863, c. 5; and the Grammar Schools Act of 1865, c. 23.

The Common Schools Act of 1859 consolidated many of the provisions relating to common schools which had been in the earlier Acts. It is of particular interest for two reasons (1) it was the legislation which governed common schools at the time of Confederation and (2) the Separate Schools Act of 1859 and later the Separate Schools Act (Scott Act) of 1863, made the main provisions of the Common Schools Act of 1859 applicable to the separate schools. It is therefore necessary to examine the provisions of this Act quite closely.

Section 27 of the Common Schools Act of 1859 provided for the establishment of rural school sections. Subsection 16 of that section then provided:

27. It shall be the duty of the Trustees of each school section, and they are hereby empowered:

...

16. To permit all residents in such section between the ages of five and twenty‑one years, to attend the school ... but such permission shall not extend to the children of persons in whose behalf a separate school has been established, according to the Act respecting the establishment of separate Schools.

The proviso in s. 27(16) meant that common school trustees in rural school sections were not obliged to permit children who were eligible to attend a separate school to attend the common school. This section was made applicable to urban school sections by s. 79(18).

The Common Schools Act of 1859 does not confer on common school trustees, as did s. 7(4) of the 1841 Act, an express power to prescribe the courses to be taught. Nevertheless, I believe that such a power in the trustees was implicit in the scheme of the legislation. Section 79(8), applicable to urban Boards of School Trustees, gave these trustees the power to employ teachers and also to determine "the terms of employing them; the amount of their remuneration, and the duties which they are to perform". The duties presumably included the teaching of subjects prescribed by the trustees since s. 82(1) provided that it was the duty of every teacher of a common school "to teach diligently and faithfully all the branches required to be taught in the School according to the terms of his engagement with the Trustees, and according to the provisions of this Act". There were no provisions in the Common Schools Act of 1859 limiting common school teachers to teaching only certain branches. Section 27(8), applicable to rural school sections, did not expressly confer power on the rural school trustees to determine the duties of teachers but I think it is probably implicit in their power "to contract with and employ Teachers for such School section", especially in light of the fact that s. 82(1) was equally applicable to teachers in rural school sections.

While the 1859 Act (as some of the earlier Acts referred to) imposed a duty on trustees to report to the Local Superintendent "the branches of education taught in the school" (s. 27(23) subpara. (4), and s. 79(17) for urban Boards of School Trustees), there was no express and exclusive power in the Council of Public Instruction to set down the branches of education to be taught. There was a power in the Council of Public Instruction to "make ... regulations ... for the organization, government and discipline of Common Schools..." (s. 119(4)) and to "to examine, . . . recommend or disapprove of textbooks for the use of schools..." (s. 119(5)). As well, there was a corresponding duty imposed on the trustees "to see that no unauthorized books are used in the school, and that the pupils are duly supplied with a uniform series of authorized textbooks, sanctioned and recommended by the Council of Public Instruction" (s. 27(18) and s. 79(15)). But the exact content of a particular school's curriculum would seem, in the absence of specific regulation by the Council for Public Instruction, to be by law left to the discretion of the trustees. No regulations pertaining to courses of instruction were produced by counsel. Indeed, the evidence before the Court suggested that the interpretation I have put upon the legislation was acted upon by the common school trustees. In Tiny, at p. 665, Anglin C.J. stated:

The provisions of the Common Schools Act were generally understood to contemplate that, at all events in cities, towns, and villages, and in rural districts where s. 32 of the Act of 1859 applied, the trustees should determine, according to their conception of local educational requirements, the subjects to be taught and the scope of the education to be imparted in the school or schools under their charge and would appear to confer upon them the legal right to do so. It was a statutory duty in 1867 to provide in all common schools education suitable for pupils ranging from 5 to 21 years of age and of both sexes.

With the law in the state thus indicated it is not surprising that in many of the larger centres, where higher educational standards were necessary to meet local requirements, common schools, at and prior to Confederation, were carrying on, with the approval and encouragement of the provincial educational authorities, courses in practically all the branches of learning now included in the curricula of high schools as well as public schools and were imparting to their pupils the education requisite to enable them to matriculate into the University, to enter the Normal School, and to take up the studies prescribed for the "learned professions".

I would conclude, therefore, that the trustees of the common schools had by law the power, subject to regulation, to prescribe what branches of education were to be taught in a particular school and could, by law, prescribe any level of instruction which, in their view, the needs of the particular community warranted. This would include instruction at the secondary school level.

Sections 120‑125 of the Common Schools Act of 1859 set out the manner in which the annual grant for common schools was calculated. The key sections are ss. 120 and 121. Section 120 provided:

120. Out of the share of the Legislative School Grant coming to Upper Canada, and the additional sums of money from time to time granted in aid of Common Schools or in aid of Common and Grammar Schools in Upper Canada, and not otherwise expressly appro‑ priated by law, the Governor in Council may authorize the expenditure of the following sums annually....

There then followed an enumeration of a number of fixed sums for various purposes. Section 121 provided:

121. The whole of the remainder of the grants in the one hundred and twentieth Section mentioned and not exclusively appropriated, in the foregoing sub‑sections, shall be expended in aid of the Common Schools according to the provisions of this Act.

The provisions of the Common Schools Act of 1859 were generally made applicable to separate schools by the Separate Schools Act of 1859. Section 24 of this Act provided:

24. The Trustees of such Separate Schools forming a body Corporate under this Act, shall have the same power to impose, levy and collect School rates or subscriptions, upon and from persons sending children to, or subscribing towards the support of such Schools, and all other powers in respect of Separate Schools, as the Trustees of Common Schools have and possess under the provisions of the Act relating to Common Schools.

Section 33 provided:

33. Every such Separate School shall be entitled to a share in the fund annually granted by the Legislature of this Province for the support of Common Schools, according to the average number of pupils attending such School during the twelve next preceding months, or during the number of months which may have elapsed from the establishment of a new Separate School, as compared with the whole average number of pupils attending School in the same City, Town, Village or Township.

The Separate Schools Act (Scott Act) of 1863, was the last statute pertaining to separate schools enacted prior to Confederation. It is entitled An Act to restore to Roman Catholics in Upper Canada certain rights in respect to Separate Schools. Its preamble reads:

WHEREAS it is just and proper to restore to Roman Catholics in Upper Canada certain rights which they formerly enjoyed in respect to separate Schools, and to bring the provisions of the Law respecting Separate Schools more in harmony with the provisions of the Law respecting Common Schools....

It repealed ss. 18 to 36 of the Separate Schools Act of 1859. It authorized Roman Catholics to establish separate schools and elect trustees "for the management" of each school (ss. 2‑6). The trustees were vested with "all the powers in respect of Separate Schools, that the Trustees of Common Schools have and possess under the provisions of the Act relating to Common Schools [C.S.U.C., 1859, c. 64]" (s. 7) and all "the same duties ... as Trustees of the Common Schools" (s. 9). This meant that separate school trustees, like common school trustees, had a duty to permit residents between 5 and 21 years of age to attend school and a power, subject to regulation, to determine the subjects to be taught and the level of instruction. Separate school supporters were exempted from payment of municipal rates for common schools (s. 14) but were subject to pay school rates levied by the separate school trustees (s. 7). By virtue of s. 20, separate school supporters were also entitled to a share, proportionate to the numbers of pupils, in the fund annually granted by the Legislature for the support of common schools:

20. Every Separate School shall be entitled to a share in the fund annually granted by the Legislature of this Province for the support of Common Schools, and shall be entitled also to a share in all other public grants, investments and allotments for Common School purposes now made or hereafter to be made by the Province or the Municipal authorities, according to the average number of pupils attending such school during the twelve next preceding months, or during the number of months which may have elapsed from the establishment of a new Separate School, as compared with the whole average number of pupils attending School in the same City, Town, Village or Township.

Finally, separate schools were subject to inspection by the Chief Superintendent and were subject to "such regulations, as may be imposed, from time to time, by the Council of Public Instruction for Upper Canada" (s. 26). Interestingly, the Council's control over the separate school curriculum was arguably weaker than that over common schools as the Separate Schools Act of 1859 contained no provision similar to s. 119(5) of the Common Schools Act of 1859 giving the Council supervision over textbooks used in the schools.

I turn now to a consideration of the Tiny case (1926), 59 O.L.R. 96; aff'd. (1926), 60 O.L.R. 15 (C.A.); aff'd. [1927] S.C.R. 637; aff'd. [1928] A.C. 363, in which the effect of these various pre‑Confederation statutes was reviewed.

In Tiny the board of trustees of the separate school in the Township of Tiny, on behalf of themselves and all other separate school trustees in the province, brought a petition of right challenging the validity of certain provincial legislation prohibiting the teaching of and funding for secondary school subjects in separate schools. The challenged legislation also denied separate school supporters exemption from the rates levied in support of public secondary schools. The trustees submitted that this legislation offended s. 93(1) of the British North America Act because it prejudicially affected a right or privilege with respect to denominational education possessed by Roman Catholics at the date of Confederation. They also sought a proportionate share of public monies granted by the Legislature "for common school purposes" computed in accordance with their statutory rights at the date of Confederation.

The plaintiffs failed at trial. Rose J. held that because the rights and privileges of the separate schools at Confederation concerning money grants depended upon legislation of the former Province of Canada and were expressly described as grants "of this province", the Province of Ontario was unaffected by any such obligation (p. 150). Accordingly separate school supporters had no legal right to share in any appropriations. He was upheld on this issue by the Court of Appeal. The effect of such an interpretation is that s. 93(1) which protects all rights and privileges which any class of persons had by law at the time of Union is an empty shell in Ontario because all rights and privileges were granted by the law of the Province of Canada. Such an interpretation seems patently unsound. I would adopt the views of Anglin C.J. in the Supreme Court of Canada on this point. In rejecting the position taken by Rose J. and the Ontario Court of Appeal on this issue he stated at p. 657:

This view is utterly at variance with the spirit and intent of s. 93(1) of the B.N.A. Act. Unless the legislatures of Ontario and Quebec are debarred from prejudicially affecting the rights and privileges of the respective religious minorities in regard to maintenance and support which their denominational schools enjoyed at Confederation under legislation of the former Province of Canada, the protection of such rights and privileges afforded by sub‑s. 1 of s. 93 becomes illusory and the purpose of the Imperial legislation is subverted.

The Judicial Committee of the Privy Council agreed with Anglin C.J.: see pp. 373‑74.

Rose J. also held that pursuant to the Common Schools Act of 1859 the common schools and thus the separate schools were to be subject to such regulations as might be imposed from time to time by the Council of Public Instruction. As this was the relevant legislation in force at the time of Confederation Rose J. held that the right preserved by s. 93(1) of the Constitution Act, 1867 was merely the right to maintain separate schools subject to regulation by the Council. Rose J. also held in the alternative that even "if ...the class of persons represented by the petitioners had by law at the Union a right to a share, ascertainable in a way fixed by statute, in such moneys as might be granted by the Ontario Legislature for common school purposes", there was "no proof that the legislation and regulations affect that right prejudicially" (p. 152). This was because in his view those rights had always been subject to a broad power of regulation in favour of the Council.

The Ontario Court of Appeal unanimously dismissed the appeal: (1926), 60 O.L.R. 15. A further appeal to the Supreme Court of Canada was dismissed because the justices were evenly divided: [1927] S.C.R. 637. Anglin C.J., with whom Rinfret J. concurred, Mignault J. concurring in separate reasons, would have allowed the appeal. Duff and Lamont JJ., Newcombe J. concurring in separate reasons, dismissed the appeal. Those justices who would have dismissed the appeal held that the regulatory power of the Council of Public Instruction was sufficiently broad to have enabled it, had it so chosen, to prohibit secondary level instruction. The existence of such a broad power was sufficient to deny s. 93(1) protection.

The appeal was also dismissed by the Privy Council: [1928] A.C. 363. The Privy Council shared the view that the broad power of regulation vested in the Council of Public Instruction, including the power to determine what courses of study could be offered, was sufficient to prevent the separate schools from providing secondary school education. Even though the broad power of regulation had never been used by the Council prior to Confederation, its very existence meant that separate secondary school education fell outside the protection of s. 93(1).

On the funding issue the Privy Council was required to interpret s. 120 of the Common Schools Act of 1859. This is the section which provided that out of the sum granted for common schools "and not otherwise expressly appropriated by law" the Governor in Council could authorize certain expenditures set out in the section in aid of the common schools. Section 20 of the Scott Act provided that separate schools were entitled "to a share in the fund annually granted by the Legislature ... for the support of Common Schools". But since there was no limit on the sums that could be "otherwise appropriated" for the common schools, the Privy Council held that there was no guaranteed right in the separate schools to funding. Viscount Haldane held at p. 388:

...the question really turns on whether the authorities of the Province had power to make apportionments and payments out of the funds granted before the balance was arrived at which should be available for common school purposes. In their Lordships' opinion it is clear that there was such power....

In their Lordships' view, in the face of the provisions referred to, it is impossible to contend successfully that it was ultra vires after Confederation to make new appropriations out of the grants which would diminish what would otherwise have come to the appellants. Whether the case is looked at from the point of view of regulation, or whether it is regarded from that of discretion in power of appropriation, the result is the same.

The appellants rely on Tiny and submit that at the date of Confederation separate school supporters, together with all other common school supporters, had the right to public funding of elementary school education for their children but no right to such funding for secondary school education. The appellants also submit that, since Tiny has stood for almost sixty years as an authoritative decision on this issue, it should not now be disturbed.

The Attorney General of Ontario, in asking this Court to review the Privy Council's decision in Tiny, submitted that the courts in Tiny were asked the wrong question. All of the judgments concentrated on the question whether the separate schools had an unfettered discretion to operate their schools free from any regulatory interference. The Attorney General submits that the real question, unsatisfactorily addressed by the various courts in Tiny, was what level of instruction were separate schools permitted by law to provide in 1867. I would agree with this submission. When the correct question is asked it is seen that every judge who participated in the Tiny decisions, with the exception of Duff J. in this Court, held that separate schools were permitted by law to offer any level of courses at the time of Confederation. For example, in the Privy Council Viscount Haldane stated at p. 376 that "before Confederation the common schools and with them the separate schools were left free, by statute ... to educate pupils up to the age of twenty‑one, and some of them were in the habit of giving to the older pupils advanced teaching such as would fit them to enter the University".

The essence of the various Tiny decisions was that the presence in the statute of an apparently unfettered power of regulation in the Council made it impossible for the separate schools to have any rights or privileges by law capable of being protected by the guarantee in s. 93(1). Any "rights" they might otherwise have had were totally defeasible because they were subject to a statutory power of regulation "in the full sense": per Viscount Haldane at p. 386.

It is, however, well established today that a statutory power to make regulations is not unfettered. It is constrained by the policies and objectives inherent in the enabling statute. A power to regulate is not a power to prohibit. It cannot be used to frustrate the very legislative scheme under which the power is conferred. This principle was cogently expressed in Padfield v. Minister of Agriculture, Fisheries and Food, [1968] A.C. 997, and was recently approved by this Court in Oakwood Development Ltd. v. Rural Municipality of St. François Xavier, [1985] 2 S.C.R. 164. The roots of this principle stretch back beyond the date of Confederation. In considering the exercise of a power of expropriation or compulsory acquisition of property statutorily granted to a company Lord Cranworth L.C. in Galloway v. City of London (1866), L.R. 1 H.L. 34, stated at p. 43:

The principle is this, that when persons embarking on great undertakings, for the accomplishment of which those engaged in them have received authority from the Legislature to take compulsorily the lands of others, making to the latter proper compensation, the persons so authorized cannot be allowed to exercise the powers conferred on them for any collateral object; that is, for any purposes except those for which the Legislature has invested them with extraordinary powers.

The power of the Council of Public Instruction was to make regulations for explicitly stated purposes‑‑"for the organization, government and discipline of common schools, for the classification of schools and teachers, and for school libraries throughout Upper Canada". Its power did not extend to prohibiting a secondary level of instruction if such was deemed necessary by the trustees in order to meet local educational needs. I would adopt what Mignault J. said in this Court in Tiny, at p. 707, with respect to the scope of the Council's regulatory power:

It seems to me inconceivable that when it granted to the Roman Catholics of Upper Canada the privilege of having their own separate schools, the Legislature could have intended to render this privilege valueless by allowing the Council of Public Instruction of that Province to restrict, by regulations, the scope of the education to be given in these schools.

I would also adopt the following comments of Anglin C.J. at p. 671:

The statutes which entitled pupils up to the age of 21 years to attend the common and separate schools were certainly not designed to enable the Council of Public Instruction, under the guise of regulation, so to restrict the courses of studies for which the trustees might provide that they would be suitable only for pupils up to the age of, say, 12, or even 16 years.

As was forcibly pointed out during the argument, that would be to prohibit, not to regulate . . . . If the power of regulation of the Council of Public Instruction could be so exercised, the work of the schools could be indefinitely cut down . . . . But that an emasculation of the courses of study which Catholic separate school trustees were at the Union entitled to provide in their denominational schools for pupils up to 21 years of age would prejudicially affect a right or privilege with respect to such schools legally enjoyed by them is indisputable . . . . Legislation purporting to authorize such an injustice would contravene s. 93 (1) of the British North America Act; and it is obvious that what the legislature cannot do by direct action its creature may not do by regulation.

In the Privy Council Viscount Haldane noted (without any elaboration) at p. 389 that "it is indeed true that power to regulate merely does not imply a power to abolish". But he did not go on to point out that a right subject to a power of regulation is nevertheless a right and that the power must be exercised in conformity with the objectives of the Act. He simply concluded that the existence of the regulatory power at the date of Confederation, even although it had never been exercised up to the time of Confederation, prevented the separate schools at the time of Confederation from having the right to provide a secondary level of education for their pupils. For the reasons I have expressed above, this conclusion does not appear to me to be sound.

The Privy Council's disposition of the funding issue is, in my respectful view, equally unsatisfactory. The Privy Council seems not to have fully appreciated the purpose of s. 20 of the Scott Act and its relationship to s. 120 of the Common Schools Act of 1859. The whole purpose of these two sections was to preserve the separate school system. The security afforded the Roman Catholic minority through the tying of funding for its schools to a proportion of the funding for the common schools was in the certainty that the Legislature would never cut off funding for the common schools. There would therefore always be a grant in which the separate schools would be entitled to share. However, by interpreting "otherwise appropriated by law" as permitting appropriations to schools other than "common schools" serving the majority, the Privy Council created a result quite contrary to the one which seems to have been intended by the draftsmen of the Scott Act. It created a situation where the schools of the majority could be fully funded by the Legislature but the separate schools' funding was dependent upon the grace, generosity and good will of the Legislature. This hardly seems consonant with the purpose of the Scott Act, which, as stated in its preamble, was to:

...restore to Roman Catholics in Upper Canada certain rights which they formerly enjoyed in respect to separate Schools, and to bring the provisions of the Law respecting Separate Schools more in harmony with the provisions of the Law respecting Common Schools....

The view expressed by Anglin C.J. in this Court's decision in Tiny at pp. 678‑79 seems apposite:

To exclude from the additional monetary benefits in which the right to "a share" was conferred on the separate schools in 1863 grants "for a common school purpose" ... would defeat the apparent intention of the Legislature in 1863 to put separate schools on a footing of absolute equality with common schools in regard to all grants, municipal or legislative, of public moneys.

...

If, therefore, a grant of public moneys is made by the Legislature or by a municipal authority to aid or assist in the carrying out of what would in 1867 have been deemed a common school purpose, either it must be so made that it is apportionable between the common schools (or their present day successors) and the separate schools, or compensation to the latter for their proportion of such grant must be provided for.

A further reason why the rights of separate school supporters to a secondary level of instruction should not be dismissed as non‑rights and why the phrase "otherwise expressly appropriated by law" in s. 120 of the Common Schools Act of 1859 should not be interpreted so broadly as to allow the Legislature to impair the funding of separate schools, is that s. 93(1) of the Constitution Act, 1867 was intended to give constitutional value to the rights and privileges conferred in the Scott Act and the Common Schools Act of 1859. Section 93(1) should, in my view, be interpreted in a way which implements its clear purpose which was to provide a firm protection for Roman Catholic education in the Province of Ontario and Protes‑ tant education in the Province of Quebec. To interpret the provisions of the Scott Act and the Common Schools Act of 1859 in the way in which the Privy Council interpreted them in Tiny is to render this constitutionalized protection illusory and wholly undermine this historically important compromise.

I would therefore conclude that Roman Catholic separate school supporters had at Confederation a right or privilege, by law, to have their children receive an appropriate education which could include instruction at the secondary school level and that such right or privilege is therefore constitutionally guaranteed under s. 93(1) of the Constitution Act, 1867 . My reasons in support of this conclusion may be briefly summarized. By section 7 of the Scott Act separate school trustees were given the same powers and duties as common school trustees. They were subject to a duty to allow pupils between the ages of 5 and 21 to attend their schools and to provide them with a suitable education. As in the case of the common school trustees the separate school trustees had, by law, a right to manage and control their schools. They also had a broad power, subject to regulation by the Council of Public Instruction, to determine the courses to be taught and to prescribe the level of education required to meet the needs of the local community. As Anglin C.J. pointed out in Tiny this was not a mere practice tolerated by the educational authorities but was permitted by law. I believe the Privy Council was in error in holding that the existence of the Council's general regulatory power (which, in my view, had to be exercised in conformity with the provisions of the enabling statute) nullified the trustees' power to provide a secondary level of instruction in their schools if they deemed it appropriate.

It is clear that if the foregoing right was to be meaningful an adequate level of funding was re‑ quired to support it. This Court held unanimously in Attorney General of Quebec v. Greater Hull School Board, [1984] 2 S.C.R. 575, that the right of dissentient schools in Quebec to a proportionate share of government funding was a right protected by s. 93 of the Constitution Act, 1867 . Likewise, in my view, the right of separate schools in Ontario. They were entitled to the proportionate funding provided for in s. 20 of the Scott Act. This conclusion, it seems to me, is fully consistent with the clear purpose of s. 93, namely that the denominational minority's interest in a separate but suitable education for its children be protected into the future. I would therefore conclude (subject to the comments that follow on the applicability of the Charter of Rights) that Bill 30, which returns rights constitutionally guaranteed to separate schools by s. 93(1) of the Constitution Act, 1867 , is intra vires the Provincial Legislature.

(c) The applicability of the Charter of Rights

The appellants urged upon the Court that Bill 30 contravened s. 15 and s. 2(a) of the Charter in that it provided full funding for Roman Catholic secondary schools but not for other secondary schools, denominational or non‑denominational, in the province. The respondents submit that s. 29 of the Charter is a complete answer to this allegation. Section 29 provides:

29. Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.

This section, the respondents argued, makes Bill 30 immune from Charter review because Bill 30 deals with "rights or privileges guaranteed ... under the Constitution of Canada". The respondents are no doubt correct if Bill 30 is supported under s. 93(1) of the Constitution Act, 1867 . It would then fall fairly and squarely within the language of s. 29. The Charter cannot be applied so as to abrogate or derogate from rights or privileges guaranteed by or under the Constitution. But does s. 29 provide immunity from Charter review if the Bill is supportable only under the plenary power and s. 93(3)?

The respondents submitted that post‑Confederation legislation enacted under the Legislature's plenary power in relation to education and s. 93(3), while it may not be guaranteed by the constitution, is guaranteed under the constitution and is therefore immune from Charter review under s. 29. I have some difficulty with this submission if what the respondents are saying is that rights or privileges acquired under legislation enacted by a province pursuant to its plenary power in relation to education in the opening words of s. 93 have the same protection as the rights and privileges protected by s. 93(1). This cannot be so. It is clear from the wording of s. 93(3) that post‑Confederation legislation referred to in that subsection may be subsequently amended or repealed by the legislature which passed it in a way which affects rights or privileges initially granted by it. The only recourse if such occurs is an appeal to the Governor General in Council. It cannot be concluded, therefore, that rights or privileges conferred by post‑Confederation legislation under s. 93(3) are "guaranteed" within the meaning of s. 29 in the same way as rights or privileges under s. 93(1).

This does not mean, however, that such rights or privileges are vulnerable to attack under ss. 2(a) and 15 of the Charter . I have indicated that the rights or privileges protected by s. 93(1) are immune from Charter review under s. 29 of the Charter . I think this is clear. What is less clear is whether s. 29 of the Charter was required in order to achieve that result. In my view, it was not. I believe it was put there simply to emphasize that the special treatment guaranteed by the constitution to denominational, separate or dissentient schools, even if it sits uncomfortably with the concept of equality embodied in the Charter because not available to other schools, is nevertheless not impaired by the Charter . It was never intended, in my opinion, that the Charter could be used to invalidate other provisions of the Constitution, particularly a provision such as s. 93 which represented a fundamental part of the Confederation compromise. Section 29, in my view, is present in the Charter only for greater certainty, at least in so far as the Province of Ontario is concerned.

To put it another way, s. 29 is there to render immune from Charter review rights or privileges which would otherwise, i.e., but for s. 29 be subject to such review. The question then becomes: does s. 29 protect rights or privileges conferred by legislation passed under the province's plenary power in relation to education under the opening words of s. 93? In my view, it does although again I do not believe it is required for this purpose. The Confederation compromise in relation to education is found in the whole of s. 93, not in its individual parts. The section 93(3) rights and privileges are not guaranteed in the sense that the s. 93(1) rights and privileges are guaranteed, i.e., in the sense that the legislature which gave them cannot later pass laws which prejudically affect them. But they are insulated from Charter attack as legislation enacted pursuant to the plenary power in relation to education granted to the provincial legislatures as part of the Confederation compromise. Their protection from Charter review lies not in the guaranteed nature of the rights and privileges conferred by the legislation but in the guaranteed nature of the province's plenary power to enact that legislation. What the province gives pursuant to its plenary power the province can take away, subject only to the right of appeal to the Governor General in Council. But the province is master of its own house when it legislates under its plenary power in relation to denominational, separate or dissentient schools. This was the agreement at Confederation and, in my view, it was not displaced by the enactment of the Constitution Act, 1982 . As the majority of the Court of Appeal concluded at pp. 575‑76:

These educational rights, granted specifically to the Protestants in Quebec and the Roman Catholics in Ontario, make it impossible to treat all Canadians equally. The country was founded upon the recognition of special or unequal educational rights for specific religious groups in Ontario and Quebec. The incorporation of the Charter into the Constitution Act, 1982 , does not change the original Confederation bargain. A specific constitutional amendment would be required to accomplish that.

I would conclude, therefore, that even if Bill 30 is supportable only under the province's plenary power and s. 93(3) it is insulated from Charter review.

5. Disposition

I would dismiss the appeal but in the circumstances without costs. I would answer the Reference question as follows:

Question Is Bill 30, An Act to amend the Education Act inconsistent with the provisions of the Constitution of Canada including the Canadian Charter of Rights and Freedoms and, if so, in what particular or particulars and in what respect?

Answer No.

The reasons of Beetz and Estey JJ. were delivered by

Estey J.‑‑I have had the benefit of reading the reasons for judgment of my colleague Wilson J. and, with respect, I reach the same conclusion but by a different and shorter route. In the result, I conclude that Bill 30, An Act to amend the Education Act, is not inconsistent with the provisions of the Constitution of Canada. Because Wilson J. has fully set out and reviewed the Bill which gave rise to these proceedings, the circumstances which led up to the appeal to this Court, and the judgments in the Court of Appeal, it is possible to proceed directly to the issues required to be settled in the disposition of this appeal.

The first question that must be addressed in this appeal is whether Bill 30 is a valid exercise of the provincial power in relation to education under the opening words of s. 93 and s. 93(3) of the Constitution Act, 1867 . Like my colleague Wilson J., I conclude that Bill 30 is a valid exercise of this provincial power. The only remaining question is whether the exercise of this valid provincial power can be limited, or in this case entirely truncated, by the operation of the Charter . This judgment concludes that the Charter cannot operate to erase this provincial power under the Constitution. Bill 30 is therefore upheld. Unlike my colleague Wilson J., I conclude with respect that it is therefore unnecessary to consider the operation of s. 93(1) of the Constitution Act, 1867 , to re‑examine the scope of the rights guaranteed to Roman Catholics by the Constitution Act, 1867 , or to reconsider the decision of the Privy Council on that issue in Tiny Separate School Trustees v. The King, [1928] A.C. 363. This judgment of the Privy Council supports and indeed relies upon the factual conclusions reached in all the courts below except the Supreme Court. It would be most inappropriate and indeed dangerous for this Court over half a century later to review and then reverse or revise findings of fact made at trial by Rose J., confirmed by a unanimous Court of Appeal and undisturbed by the even division of this Court. At the Supreme Court, Duff J., who had been both a student and a teacher in the school systems of Ontario there under examination, agreed with the factual findings of the courts below. Where it is not essential to the disposition of the issue here, it would be imprudent for an appellate court sitting almost sixty years distant from the scene to reassess a factual situation peculiarly within the experience of the members of the lower courts who were called upon to make their judgment of then recent history. For all these reasons, in my view, Tiny, supra, should not now be reopened. The state of separate school education in 1867 in Ontario is in my view, therefore, wholly irrelevant to the measurement of the constitutionality of Bill 30 in this appeal.

Before one can discuss the main point around which this appeal turns it is necessary to clear away some underbrush which, though argued at length, in truth only conceals the main point.

1. The Opening Words of s. 93 , and s. 93(3) of the Constitution Act, 1867

The provisions of the Constitution Act, 1867 which are relevant to this appeal are as follows:

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:

...

(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.

The opening words of s. 93 are a clear grant of legislative power to the province, providing the province with the authority to make laws in relation to education. As such, the opening words of s. 93 are similar to the various grants of provincial power found in s. 92 of the Constitution Act, 1867 and might well have been included in s. 92 along with the related federal responsibility under s. 93(3). This would have resulted in a subsection of s. 92 in a form very similar to that of s. 92(10) (Local Works and Undertakings) which also acknowledges a related federal authority.

Section 93(3) provides for an appeal to the Governor General in Council when "any Act or Decision of any Provincial Authority" affects any right or privilege "of the Protestant or Roman Catholic Minority" that existed either: (a) at the time of Confederation, or (b) was "thereafter established by the Legislature". Subsection (3) thus contemplates that after Confederation the legislature may establish a new system of separate schools or may enlarge an existing system of separate schools. Should this system of schools be later repealed or otherwise affected by the legislature, an appeal to the Governor General in Council would lie, in addition to any right to appeal to the courts challenging legislative action prejudicially affecting the rights guaranteed under s. 93(1).

When read with the opening words of s. 93, which provide the province with a general plenary power to "exclusively make laws in relation to Education", it is clear that the province can make any laws with respect to education subject only to two limitations. First, any such laws may not violate the minimum constitutional guarantees found in s. 93(1), and second, the exercise of this provincial power may also face federal intervention under s. 93(4). Support for this general proposition can be found in both Brophy v. Attorney‑General of Manitoba, [1895] A.C. 202, and Tiny Separate School Trustees v. The King, supra.

With respect to the operation s. 93(3), Lord Halsbury L.C., speaking for the Privy Council in Brophy, supra, stated at p. 220:

It is admitted that the 3rd and 4th sub‑sections of sect. 93 (the latter of which is, as has been observed, identical with sub‑sect. 3 of sect. 22 of the Manitoba Act) were not intended to have effect merely when a provincial Legislature had exceeded the limit imposed on its powers by sub‑sect. 1, for sub‑sect. 3 gives an appeal to the Governor‑General, not only where a system of separate or dissentient schools existed in a province at the time of the Union, but also where in any province such a system was "thereafter established by the Legislature of the province". It is manifest that this relates to a state of things created by post‑Union legislation.

The Privy Council in Tiny, supra, returned to the analysis of s. 93(3), when Viscount Haldane stated at pp. 369‑70:

Sub‑s. 3 contemplates that within the powers of the Provincial legislature Acts might be passed which did affect rights and privileges of religious minorities in relation to education, and gives a different kind of remedy, which appears, as has already been pointed out, to have been devised subsequently to the Quebec resolutions of 1864, and before the bill of 1867 was agreed on. Whenever an Act or decision of a Provincial authority affecting any right or privilege of the minority, Protestant or Roman Catholic, in relation to education is challenged, an appeal is to lie to the Governor‑General in Council, as distinguished from the Courts of law. No doubt if what is challenged is challenged on the ground of its being ultra vires, the right of appeal to a Court of law remains for both parties unimpaired. But there is a further right not based on the principle of ultra vires. That this is so is shown by the extension of the power to challenge to any system of separate or dissentient schools established by law after Confederation, and which accordingly could not be confined to rights or privileges at the time of Confederation.

The following conclusions can be drawn from the above analysis. The appeal process established by s. 93(3) is primarily a political appeal; it is not the legal right to challenge constitutionality that is found in s. 93(1). It is clear that no right of appeal lies under s. 93(3) unless there has been an "Act or Decision of any Provincial Authority" which affects rights or privileges. Rights or privileges granted after Confederation can be protected by the political appeal process in s. 93(3); rights or privileges in place at the time of Confederation can be protected by either the political appeal process in s. 93(3) or a legal challenge in the courts pursuant to s. 93(1). It is therefore a basic premise or a binding assumption on the part of the authors of s. 93(3) that for a right of appeal to arise under s. 93(3), the province has by legislation established or enlarged, after Confederation, a separate school system and has thereafter abo‑ lished or affected the rights granted to the minority under that legislation.

The ultimate question posed in this appeal is whether Bill 30, which extends full funding for secondary education to separate schools already in existence, falls within the provincial power contemplated in s. 93(3). The dissent in the Court of Appeal was of the opinion that s. 93(3) did not expand the rights or privileges protected by s. 93(1) and that the reference to "thereafter established" in s. 93(3) ". . . would apply to a province such as Manitoba or Newfoundland which established a system of separate schools after Confederation". If this were so, these key words would have no application to Ontario. With all respect, I cannot accept the reasoning of the minority. It would in my view be quite incorrect to conclude that the words "thereafter established" in s. 93(3), and the appeal process found therein, only apply to provinces which at the time of Union had no publicly funded separate school system. There is no compelling reason to interpret so restrictively the words in s. 93(3). In my respectful view, the plain meaning of the words "thereafter established" necessarily includes additional rights or privileges, such as full funding for secondary education in Ontario, that have been granted subsequent to Confederation and in addition to the minimum rights and privileges guaranteed in s. 93(1).

I conclude therefore that this post‑Confederation legislative power of the province to legislate with respect to education includes the establishment of separate schools providing education at the secondary school level. Without this post‑Confederation legislative sovereignty in the province, the right of appeal which is granted under s. 93(3) would be illusory and completely without any future use. It is also important to note that s. 93(4) provides for an extraordinary federal jurisdiction over education in the event that an appeal under s. 93(3) meets with the favour of the Governor General in Council. The Parliament of Canada may make any such remedial laws as are necessary for the implementation of any decision by the Governor General in Council in response to an appeal under s. 93(3). Indeed, the federal power to enact remedial laws under s. 93(4) does not appear to be limited only to situations where there has been an appeal to the Governor General in Council. The opening words of s. 93(4) contemplate that whenever it appears to the Governor General in Council that a provincial law is "requisite for the due Execution of the Provisions" of s. 93, Parliament may enact remedial legislation. It would appear, although it is not necessary to decide, that the remedial power of Parliament can be exercised either in the event of an appeal to the Governor General in Council or upon the initiative of the Governor General in Council should it be deemed necessary. Some counsel suggested that s. 93(4) has been effectively removed from the Constitution because it has never been used. While it is not necessary to decide whether the lack of exercise of this federal power under s. 93(4) has rendered this power obsolete or atrophic, the removal of the federal power in this matter would not reduce but could indeed strengthen the freedom of the province to exercise its unfettered power, apart from s. 93(1) which is not here applicable, under the opening part of s. 93. In any event, it should be observed that s. 93(4) is a key provision in the delicate balance of interests found in s. 93, and it is a grant of federal power as vital as any found in s. 91 of the Constitution Act, 1867 . Consequently it is difficult to understand how lack of exercise can operate as a repeal.

As a result, in order that life may be given to s. 93(3) and (4) it is fundamental that the province enjoy the power to create or add to a separate school system. The next question that must therefore be addressed is the application of the Charter to the exercise of this provincial power.

2. Application of the Charter of Rights

The appellants have argued that Bill 30 violates s. 2(a) and s. 15 of the Charter in that Bill 30 provides full funding for Roman Catholic secondary schools but not for other secondary schools, denominational or non-denominational, in the province. Section 2(a) and s. 15 of the Charter provide as follows:

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

It is axiomatic (and many counsel before this Court conceded the point) that if the Charter has any application to Bill 30, this Bill would be found discriminatory and in violation of s. 2(a) and s. 15 of the Charter of Rights . Notwithstanding this conclusion, the real contest in this appeal is clearly between the operation of the Charter in its entirety and the integrity of s. 93. By section 52 of the Constitution Act, 1982 , s. 93 is a part of the Constitution of Canada. Section 93 is a fundamental constitutional provision because it is a part of the pattern of the sharing of sovereign power between the two plenary authorities created at Confederation. The importance of this provision is underlined by its separate existence outside the catalogue of powers in ss. 91 and 92.

Once section 93 is examined as a grant of power to the province, similar to the heads of power found in s. 92, it is apparent that the purpose of this grant of power is to provide the province with the jurisdiction to legislate in a prima facie selective and distinguishing manner with respect to education whether or not some segments of the community might consider the result to be discriminatory. In this sense, s. 93 is a provincial counterpart of s. 91(24) (Indians, and lands reserved for Indians) which authorizes the Parliament of Canada to legislate for the benefit of the Indian population in a preferential, discriminatory, or distinctive fashion vis‑à‑vis others.

The role of the Charter is not envisaged in our jurisprudence as providing for the automatic repeal of any provisions of the Constitution of Canada which includes all of the documents enumerated in s. 52 of the Constitution Act, 1982 . Action taken under the Constitution Act, 1867 is of course subject to Charter review. That is a far different thing from saying that a specific power to legislate as existing prior to April 1982 has been entirely removed by the simple advent of the Charter . It is one thing to supervise and on a proper occasion curtail the exercise of a power to legislate; it is quite another thing to say that an entire power to legislate has been removed from the Constitution by the introduction of this judicial power of supervision. The power to establish or add to a system of Roman Catholic separate schools found in s. 93(3) expressly contemplates that the province may legislate with respect to a religiously‑based school system funded from the public treasury. Although the Charter is intended to constrain the exercise of legislative power conferred under the Constitution Act, 1867 where the delineated rights of individual members of the community are adversely affected, it cannot be interpreted as rendering unconstitutional distinctions that are expressly permitted by the Constitution Act, 1867 .

I therefore would conclude that s. 93(3) does indeed introduce a recognition of a legislative power granted in the opening words of s. 93 and surviving the operations of s. 93(1). This legislative power in the province is not subject to regulation by other parts of the Constitution in any way which would be tantamount to its repeal. The Charter would not be available to disallow the implementation of s. 93(1), or legislation for the protection of the rights embedded by s. 93(1), or legislation contemplated in s. 93(3).

This conclusion, that Bill 30 finds its validity in the exercise of provincial power under s. 93 and that the exercise of this power cannot be abolished or truncated by the Charter , is sufficient to dispose of this appeal. However, as there was much discussion before the Court regarding the operation of s. 29 of the Charter , it may be useful to make some comments in response to those arguments. The interpretation of s. 29 was also critical to the finding by the majority in the Ontario Court of Appeal that Bill 30 was not subject to review by the Charter . Section 29 provides as follows:

29. Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.

It was argued by the respondents that the "rights or privileges" which are protected from Charter review by s. 29 include the rights and privileges that have been granted by the passage of Bill 30 itself. Section 29 is thereby interpreted as applying to post‑Confederation legislation because that legislation is considered by the terms of s. 29 to be a guarantee "by or under the Constitution" protecting rights or privileges of separate schools.

There are several approaches one could take when examining the ambiguous wording in s. 29. The majority below chose to focus on the words "or under" found in s. 29 and they concluded that these words were intended to cover guarantees in addition to those granted specifically by the Constitution itself. The words "under the Constitution" it was said should include rights or privileges granted by laws enacted under the authority of the Constitution. The majority held that this interpretation was supported by the French version of s. 29 which employs the single phrase "en vertu de" in the place of "by or under". Further, the respondent in this appeal argued that an interpretation of s. 29 which restricted the protection it provided to only those rights specifically guaranteed by the Constitution would render s. 29 redundant as the Charter cannot possibly operate so as to overrule any rights specifically granted in other parts of the Constitution.

The minority of the Court of Appeal was not persuaded by this interpretation of s. 29 and chose instead to focus on the operation of the word "guaranteed" in s. 29. To be protected by s. 29, the rights referred to therein must be constitutionally guaranteed and a constitutional guarantee does not attach to rights or privileges conferred by an ordinary provincial statute. The minority also expressed concern that to interpret s. 29 as protecting all statutory enactments with respect to separate schools from Charter review would additionally have the effect of transforming these additional privileges granted to separate schools into guarantees under the Constitution and thus forever immune from legislative repeal or amendment.

I have concluded, with respect to those who have concluded otherwise, that it is unnecessary to resolve the meaning of "by" or "under" because the dominant word in s. 29 is "guaranteed". Statutes cannot by their very nature guarantee anything, susceptible as they are to legislative repeal. As the rights granted by Bill 30 are not "guaranteed" under the Constitution Act, 1867 (Tiny, supra, at p. 387), s. 29 cannot operate so as to protect these rights. I would therefore adopt the reasoning of the minority at the Court of Appeal with respect to the interpretation to be given to s. 29 of the Charter . I repeat however that Bill 30 cannot be struck down by the Charter because Bill 30 is a valid exercise of a specific power to legislate granted under s. 93; Bill 30 does not require the protection of s. 29 in order to be upheld.

Conclusion

I would dismiss the appeal and answer the reference question in the negative.

The following are the reasons delivered by

Lamer J.‑‑I have had the benefit of reading the reasons for judgment prepared in this appeal by my colleagues, Wilson and Estey JJ. I agree with them that this appeal should be dismissed. However, I would dismiss the appeal only on the basis of the opening words of s. 93 and s. 93(3) of the Constitution Act, 1867 , for the reasons given by Wilson J. I also agree with Wilson J. as to the effect of the Canadian Charter of Rights and Freedoms on s. 93 of the Constitution Act, 1867 .

Given my decision on this first point, it is unnecessary for me to deal with the interpretation of s. 93(1) of the Constitution Act, 1867 and Tiny Separate School Trustees v. The King, [1928] A.C. 363.

I would therefore dismiss the appeal and answer the reference question in the negative.