Maher V. Town Council of Portland - Decision of The Judicial Committee of The Privy Council

Decision of The Judicial Committee of The Privy Council

Mr Maher appealed from the Supreme Court of New Brunswick to the Judicial Committee of the Privy Council, at that time the highest court in the British Empire. (The Supreme Court of Canada had not yet been created.) The appellant was represented by Joseph Brown, Q.C., and Mr Duff of the New Brunswick bar. Sir John Burgess Karslake and Attorney General King of New Brunswick appeared for the respondent, defending the legislation.

The Judicial Committee heard the case on July 17, 1874. During oral argument, the judges repeatedly questioned whether the schools established under the Parish Schools Act could be termed "denominational," as those schools were not under the legal control of any particular religious denomination, and could change if the religious composition of the local electorate changed. After extensive questioning of counsel for the appellant during oral argument, the Judicial Committee did not call on counsel for the respondent and dismissed the appeal from the bench.

Lord Justice James gave the decision of the Committee. In short oral reasons, he quoted a lengthy passage from the reasons of Justice Fisher in the New Brunswick Supreme Court. James L.J. agreed with Justice Fisher that the schools established under the Parish Schools Act had not been denominational schools. He held that the fact that a school in a particular area could be under the control of one religious denomination through the electoral process, and later could be under the control of another denomination if there were changes in the local electorate, demonstrated that there was no legal right involved. The changes under the Common Schools Act therefore did not affect any legal right or privilege protected by s. 93(1) of the Constitution Act, 1867. He ruled that the Common Schools Act was constitutional.