Manitoba Schools Question - Second Court Case: Remedial Powers of The Federal Government (Brophy V. Manitoba, 1894)

Second Court Case: Remedial Powers of The Federal Government (Brophy V. Manitoba, 1894)

Although education is normally a matter of exclusive provincial jurisdiction under the Constitution of Canada, there is a special power for the federal government in relation to separate schools. Section 93(3) of the Constitution Act, 1867 provides that there is an appeal 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." Section 93(4) provides that if a province does not comply with a decision of the Governor-in-Council in an appeal under s. 93(3), then Parliament has the power to enact "... 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." Section 22 of the Manitoba Act had similar provisions authorising an appeal to the Governor General in Council and remedial legislation by Parliament.

Following the Privy Council decision in Barrett, pressure arose for the federal government to take action under these provisions. However, it was not clear if the changes to the Manitoba school system set out by the 1890 Act were sufficient to authorise the federal government to hear an appeal and to enact remedial legislation, in light of the Privy Council's conclusion that the system of taxpayer funded denominational schools which were established in the early 1870s was not constitutionally protected.

To resolve this uncertainty, the federal government referred the matter to the Supreme Court of Canada as a reference question, asking if these constitutional provisions applied. The Supreme Court held that those provisions did not apply, since the post-1870 denominational schools were not constitutionally protected. This decision was appealed to the Privy Council, which overturned the Supreme Court. The Privy Council held that when the Province had created a system of taxpayer funded denominational schools in the early 1870s, it had given a "right or privilege" to the Protestants and Roman Catholics in relation to education. Although that "right or privilege" was not constitutionally entrenched by s. 22(1) of the Manitoba Act, the abolition of the denominational schools could be appealed to the federal government under s. 22(2) of the Manitoba Act, and Parliament could enact remedial legislation under s. 22(3).