Constitutional and Statutory Basis For Separate Schools
The right to separate schools is provided by the Constitution of Canada in the three provinces of Ontario, Alberta and Saskatchewan, and by federal statute in the three territories, the Northwest Territories, Yukon and Nunavut.
The Constitution Act, 1867, provides that education is a matter of exclusive provincial jurisdiction, subject to the requirement that provincial laws relating to education must respect the rights to denominational and separate schools held by religious minorities prior to Confederation. The relevant provision for Ontario is s. 93(1) of the Constitution Act, 1867 as originally enacted. For Alberta and Saskatchewan, the relevant provision is s. 93(1), as amended by the Alberta Act and the Saskatchewan Act, respectively.
As held by the Supreme Court of Canada in Adler v. Ontario, the provincial education power under section 93 of the Constitution Act, 1867 is plenary, and is not subject to Charter attack. As Iacobucci J. noted, it is the product of a historical compromise crucial to Confederation and forms a comprehensive code with respect to denominational school rights which cannot be enlarged through the operation of s. 2(a) of the Charter. It does not represent a guarantee of fundamental freedoms.
Section 93 of the Constitution Act, 1867 only applies to provinces, not territories. Instead, the right to separate schools is protected in the three territories by the federal Acts of Parliament which establish those three territories. The Northwest Territories Act, the Yukon Act and the Nunavut Act all provide that the territorial legislatures can legislate with respect to education, provided they respect the right of religious minorities (whether Protestant or Roman Catholic) to establish separate schools.
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