Maher V. Town Council of Portland - Decision of The New Brunswick Supreme Court - Majority Reasons of Chief Justice Ritchie

Majority Reasons of Chief Justice Ritchie

Chief Justice Ritchie began by holding that the courts had the power to review the constitutionality of provincial statutes under the Constitution Act, 1867. He stated that this position had long been established in the New Brunswick courts, but he thought it necessary to state it expressly, since there had been some recent decisions in Quebec which questioned that principle. Chief Justice Ritchie referred to the Colonial Laws Validity Act, as well as the advisory decision of the judges of England with respect to the Clergy Reserves Act of the Province of Canada, as establishing that a colonial law had to comply with the terms of an Imperial statute which applied to the colony. On that basis, the laws of New Brunswick had to comply with the terms of the Constitution Act, 1867.

Turning to the constitutional issue, Chief Justice Ritchie stated that to decide if the rights of the Roman Catholic minority were infringed by the Common Schools Act, it was necessary to determine what rights they had under the law immediately before Confederation, since s. 93 of the Constitution Act, 1867 protected whatever rights they possessed at that time. He noted that there clearly were some denominational schools, operated by churches and teaching the specific tenets of those churches beliefs. He referred to specific schools run by the Methodist, Anglican, Presbyterian and Roman Catholic churches. However, those schools were not affected by the Common Schools Act and therefore did not have to be considered in his decision. Rather, it was the schools established under the Parish Schools Act which had to be considered since they were established under the law immediately in force prior to Confederation, and were affected by the changes made by the Common Schools Act.

Chief Justice Ritchie noted that the local school trustees were elected by the voters generally, and were under the supervision of the provincial Board of Education and the provincial Superintendent. Although the Parish Schools Act did provide that teachers were to inculcate the principles of Christianity, honesty and morality, the Act also provided that in doing so, teachers were not to require a student to read any religious book or join in any act of devotion to which the student's parents objected. Bible readings were permitted where authorised by local regulation, including the option of using the Douay version for Roman Catholic students, but without any additional note or comment by the teacher. By another section of the Parish Schools Act, contentious books relating to theology were not permitted in the school libraries.

One of the arguments advanced by the applicants was that even though the Act did not specifically confer control over the schools on any denomination, in practice the schools were under denominational control in those areas where a particular religious group formed the majority and thus could elect local trustees of their religious group. Those trustees in turn would allow teaching of their denomination's particular principles. The applicants argued that the schools were in fact denominational in nature, and therefore that right had to be protected. Chief Justice Ritchie rejected that argument, noting that any religious teachings were done without the authority of the Parish Schools Act, and may or may not have been with the sanction of the provincial Board of Education. That practice could not interfere with the right of all inhabitants under the Act to have a school free and independent of denominational connection.

Chief Justice Ritchie concluded that the Parish Schools Act created a general system of education for the benefit of all inhabitants of the Province, without reference to class or creed. The schools were public schools, not under the control of any denomination. No denomination had any particular rights in the schools and did not have the right to have their own religious doctrines taught in the schools. Rather, there was a general recognition of Christian precepts as part of the education of the students, without favouring any denomination in particular.