Reference re Education Act (Que.) [1993] 2 S.C.R. 511: Reform of organization of Quebec school boards -- Creation of linguistic school boards -- Denominational status -- Right to dissent

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Constitutional law -- Education -- Reform of organization of Quebec school boards -- Creation of linguistic school boards -- Denominational status -- Right to dissent -- Constitution Act, 1867, s. 93 -- Education Act, S.Q. 1988, c. 84, ss. 49, 111, 122, 123, 124, 126 to 139, 206, 223, 227, 230, 261, 354, 423, 424, 425, 428, 439, 519, 521, 522, 527, 568.

In 1988 the Quebec National Assembly passed a new Education Act ("Bill 107"). That Act comprises a fundamental reform of the organization of school boards in the province. The Quebec public school system would move from a system organized according to religion to one organized according to language. The organization of the new linguistic school boards will result in the dissolution of the existing "boards for Catholics" and "boards for Protestants". All the property, rights and assets and the staff of these boards will then be transferred to the linguistic boards. However, this reform will not entail the dissolution of the five existing dissentient school boards in the province or of the four existing "confessional" or denominational school boards of Montréal and Québec. The government assumes the power to dissolve a dissentient school board if it becomes inactive and to alter the territory of denominational school boards. When the new educational structures are put in place, Bill 107 provides for a dissent procedure available to religious minorities, Catholic or Protestant. The Minister is responsible for ruling on any disagreements among the various school boards as to transfers of staff and material resources. He must ensure that the dissentient school board has the assets it needs to operate at its disposal. He is under the same obligation in cases where the territory of a denominational school board has been altered. Bill 107 also lays down a principle of proportional access to public funds for denominational or dissentient school boards. On the island of Montréal, management of the borrowing and property taxes of school boards is transferred to the Conseil scolaire de l'île de Montréal. Finally, Bill 107 preserves the Conseil supérieur de l'éducation and its Catholic and Protestant subcommittees. Additionally, although the educational structure created by the Act for linguistic school boards is administratively neutral, schools may be recognized as Catholic or Protestant in accordance with an educational plan adopted pursuant to the Act. Linguistic school boards are also required to organize and offer religious and moral instruction, Catholic or Protestant, and provide it to whoever requests it. Finally, Bill 107 gives the government and the Minister wide regulatory powers. Ordinarily, determining the curriculum is a matter for government regulation. In general, Bill 107 provides for the management of schools and school boards, the election of commissioners and the supervision and control of their management, both material and pedagogical.

To ensure that certain provisions of Bill 107 were constitutional, the Quebec government submitted the following constitutional questions to the province's Court of Appeal:

1.Does the Education Act (S.Q. 1988, c. 84), in particular ss. 111, 354, 519, 521, 522 and 527, prejudicially affect the rights and privileges protected by s. 93(1) and (2) of the Constitution Act, 1867 by providing for the establishment of French language and English language school boards which will succeed to the rights and obligations of school boards for Catholics and Protestants?
2.Does the Education Act, in particular ss. 126 to 139 and 206, prejudicially affect the rights and privileges protected by s. 93(1) and (2) of the Constitution Act, 1867 in its provisions:

(a)which stipulate the manner in which the right to dissent is to be exercised and the manner in which dissentient school boards are to be established;

(b)which give the government the power to change the legal structures of the dissentient school boards and to terminate the existence of those which do not perform any of the functions contemplated in the Act;

(c)which restrict access to these school boards to persons who belong to the same religious denomination as that of these school boards?

3.Does the Education Act, in particular ss. 122, 123, 124, 206, 519, 521 and 522, prejudicially affect the rights and privileges protected by s. 93(1) and (2) of the Constitution Act, 1867:

(a)by continuing the existence of the confessional school boards in their territories;

(b)by allowing the government to change these territories;

(c)by providing for a means of transferring part of their rights and obligations to French language and English language school boards;

(d)by restricting access to these school boards to persons who belong to the same religious denomination as that of these school boards?

4.Does the Education Act, in particular ss. 423, 424, 425, 428 and 439, prejudicially affect the rights and privileges protected by s. 93(1) and (2) of the Constitution Act, 1867 in that

(a)it gives the Conseil scolaire de l'Île de Montréal the power to borrow money on behalf of all school boards on the island of Montréal;

(b)it authorizes the Conseil scolaire to establish rules for apportioning the proceeds of the tax it collects on behalf of these school boards?
5.Does the Education Act, in particular ss. 49, 223, 227, 230, 261 and 568, prejudicially affect the rights and privileges protected by s. 93(1) and (2) of the Constitution Act, 1867, in that it gives the Catholic committee and the Protestant committee of the Conseil supérieur de l'éducation the authority:

(a)to establish rules respecting the confessional nature of the schools of the confessional and dissentient school boards;

(b)to approve the programs of studies for religious instruction offered in such schools and to determine the qualification of persons providing that instruction and those assigned to pastoral or religious care and guidance in such schools?

On two occasions following the hearing in the Court of Appeal the National Assembly passed new statutes (S.Q. 1990, cc. 8 and 28) amending certain provisions of Bill 107 at issue in the reference. The Court of Appeal agreed to rule on the Act as amended and answered the questions in the negative, except questions 2(a), 3(b) and 4(a), which were answered in the affirmative. The Court of Appeal's answers were unanimous, except with respect to questions 3(b) and 4(b).

After the Court of Appeal's decision the National Assembly again passed a statute (S.Q. 1990, c. 78) which amended certain provisions of Bill 107 that were the subject of the reference. This Court is ruling on the provisions of Bill 107 as amended.

Held: The provisions of Bill 107 at issue in this appeal do not prejudicially affect the rights and privileges protected by s. 93(1) and (2) of the Constitution Act, 1867. The five constitutional questions are answered in the negative, provided in the case of question 3(b) there is no territorial reduction within the boundaries of the municipal corporations of the cities of Montréal and Québec, unless the territory so detached is served by a confessional board offering the same rights and privileges.

Question 1

The province has the power to create linguistic school boards which shall be denominationally neutral, to define their territories and to reassign the property of the old boards to the new ones. The province can go ahead with such a reorganization so long as it does not prejudicially affect the rights and guarantees set out in s. 93 of the Constitution Act, 1867. This means chiefly that the right to dissent must be maintained outside Québec and Montréal and that in those two cities, Catholics and Protestants must continue to have access to denominational schools. The boards for Catholics and the boards for Protestants are not the result of the exercise of a right of dissent and are therefore not protected by s. 93. The abolition of the existing boards is therefore not in itself an infringement of the rights guaranteed by the Constitution. Further, if the province has the power to create linguistic school boards, it is proper that it should also have the power to determine their territories.

Question 2

(a) Sections 126 to 139 of Bill 107, which provide for the exercise of the right to denominational dissent outside Québec and Montréal, are constitutional. The basis of the right to dissent does not preclude or alter its exercise and does not conflict with the protection given to religious minorities by s. 93. The right to dissent is still linked to the notion of a denominational minority. Recognition of membership in a denominational minority or verification of the latter by the linguistic school board does not limit the right to dissent. The linguistic board has no discretionary authority: its only function is to recognize a situation of fact. Further, Bill 107 now provides in ss. 510 et seq. that exercise of the right to dissent will be possible more or less concurrently with the establishment of the new linguistic school boards. Since the electoral list must be drawn up before the notice of dissent can be served, it is normal that there should be a slight time lag at the start of the process. This is consistent with the very idea of dissent, which is a relative condition. Finally, the method of allocating property and assets in s. 133 does not prejudicially affect the right to dissent either. The system of the Minister allocating "property necessary" for the operation of the school boards rests on a principle which appears to be capable of guaranteeing the rights of dissentients. The necessity test is objective. It means that the means for exercising the right to dissent must be made available without discrimination, with no prejudicial effects, and the dissentient boards must be on the same footing in this respect as the linguistic boards from which they separate. This includes equality of access to public funds, to means of taxation and, in the event of a reorganization, to the distribution of immovable property, physical facilities and existing personnel. The Minister cannot leave the dissentient school board without resources. If a dissentient board considers it has been wronged, it may resort to the courts to challenge the allocation.

(b) The government's power to alter the legal structures of dissentient school boards respects the guarantees provided by s. 93. The rights and privileges protected by that section are not patrimonial rights. What s. 93 guarantees is the right to dissent per se, not the right to certain legal institutions through which it may be exercised. The legislature can therefore alter them without infringing the constitutional protections and redistribute the property of the abolished or transformed boards to others. There is thus no objection to the principle of redistributing the patrimony of the existing school boards for Protestants and Catholics amongst the linguistic boards, provided the new institutions and their establishment maintain the right to dissent or to denominational schools, as the case may be, and their accessories, and provide for fully equal enjoyment of them. The provisions of Bill 107 in this regard meet these requirements and include transitional provisions which in themselves are adequate. The government's power to wind up an inactive dissentient board does not conflict with a right or privilege of a class of persons in respect of denominational schools since, as it is inactive, the board no longer represents an exercise of the right to dissent. The abolition of an inactive board at a given time does not prevent subsequent exercise of the right to dissent.

(c) Section 206 of Bill 107 is valid. The legislature can limit access to dissentient schools without infringing constitutionally protected rights. Accepting children from another denomination is not a right or privilege of a denominational nature. Even if attendance is considered in relation to financing, the admission of children of other denominations was not a necessary factor to the effectiveness of the constitutional guarantees and was not related thereto, in particular since in 1867 the trustees could only impose taxes on parents of the dissentient faith.

Question 3

(a) The declaration that the legal existence of the denominational school boards of Québec and Montréal continues in s. 122 of Bill 107 does not breach constitutionally guaranteed rights. Since Confederation Quebeckers have been entitled to denominational schools if they live outside Québec and Montréal and are a religious minority or if they are Catholics and Protestants living in Québec or Montréal. All provincial legislation on education has therefore to so provide, failing which it is constitutionally invalid. Bill 107 meets this requirement.

(b) The provisions of Bill 107 authorizing the government to alter the territories of the confessional school boards of Québec and Montréal do not infringe the s. 93 guarantees to the extent there is no territorial reduction within the boundaries of the municipal corporations of the two cities. A reduction of territory beyond the municipal boundaries would only be valid if the territory so detached was served by a confessional board offering the same rights and privileges.

(c) As regards the transfer of the rights and obligations of the confessional school boards to the linguistic school boards, the provisions of Bill 107 do not infringe s. 93. The comments about dissentient schools in this connection in question 2(a) also apply here. Rights of ownership, powers to hire staff and powers to use material resources are incidental rights that are only protected to the extent that they are necessary to preserve the denominational character of education. As Bill 107, and in particular s. 533, provides that confessional boards will have everything required for their operation, there is no unfair treatment.

(d) The right to denominational education conferred on the inhabitants of Québec and Montréal and protected by s. 93 is not infringed or even altered by the limitation on attendance at denominational school boards contained in s. 206 of Bill 107. As indicated in the answer to question 2(c), accepting children from another faith is not a right or privilege of a denominational nature. There was no constitutional guarantee of financing based on a given attendance, since in 1867 the taxing power belonged to the municipal corporations and the amount assigned to the respective boards of school commissioners was paid in proportion to "the population of the religious persuasion represented by such Boards" and since the legislature was free to establish separate schools for non-Christians without infringing the right to denominational schools.
Question 4

(a) The assignment to the Conseil scolaire de l'île de Montréal of the power to borrow on behalf of all school boards on the island of Montréal does not infringe any right or privilege conferred by s. 93 of the Constitution Act, 1867. Since before Confederation the Montréal school boards had no borrowing power, there can be no question of protection under s. 93. The legislature can therefore grant such a power to the Conseil without infringing the Constitution.

(b) The assignment of the power to allocate the proceeds of school taxes to the Conseil scolaire de l'île de Montréal does not infringe s. 93. In 1867 the power to levy school taxes in the territory of Montréal was the function of the municipal corporation, not the school boards. The legislature can therefore transfer the taxing power to the Conseil without infringing the Constitution. Under s. 439 of Bill 107, each board is guaranteed fair and proportional access to school taxes.

Question 5

(a) The establishing of rules respecting the confessional nature of dissentient and confessional school boards by the Catholic and Protestant committees of the Conseil supérieur de l'éducation is not contrary to any right guaranteed by s. 93 of the Constitution Act, 1867. After the amendments made in 1990, the committees no longer have to recognize the schools of confessional and dissentient boards. Their status is guaranteed by law. The Conseil is only authorized to take steps to guarantee the already established confessional status.

(b) Granting the Catholic and Protestant committees of the Conseil supérieur de l'éducation the power to approve programs of study and standards applicable to the qualifications of staff assigned to religious instruction does not prejudicially affect the rights and privileges protected by s. 93. The effect of Bill 107 is to leave within the class of persons concerned the decisions both as to the setting up of religious programs and the qualifications of staff providing religious instruction or care and guidance. Control of such subjects is the responsibility of agencies established for this class of persons and consisting of their representatives.

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