Greater Montreal Protestant School Board v. Quebec (Attorney General), [1989] 1 S.C.R. 377

The Protestant School Board of Greater Montreal, the Greater Quebec School Board, the Lakeshore School Board and the Quebec Association of Protestant School Boards Appellants

v.

The Attorney General of Quebec Respondent

and

The Attorney General for Ontario and the Attorney General of Newfoundland Interveners

indexed as: greater montreal protestant school board v. quebec (attorney general)

File No.: 20415.

1988: June 7; 1989: March 16.

Present: Dickson C.J. and Beetz, McIntyre, Lamer, Wilson, Le Dain* and La Forest JJ.

on appeal from the court of appeal from quebec

Constitutional law -- Distribution of legislative powers -- Education ‑‑ Rights and privileges respecting denominational schools -- Regulations establishing a uniform curriculum for all schools in Quebec -- Special allowance made for moral and religious instruction in schools recognized as Catholic and Protestant -- Whether provincial legislation and the regulations adopted thereunder ultra vires the Quebec legislature -- Constitution Act, 1867, s. 93(1), (2) -- Education Act, R.S.Q., c. I-14, s. 16(7) -- Regulation respecting the basis of elementary school and preschool organization, (1981) 115 O.G. II 1213 ‑‑ Regulation respecting the basis for secondary school organization, (1981) 115 O.G. II 1223.

Constitutional law -- Distribution of legislative powers -- Education -- Powers, privileges or duties conferred by law on the separate schools and school trustees of Upper Canada at the time of Union extended by s. 93(2) of the Constitution Act, 1867 to the dissentient schools of Quebec -- Whether all those powers, privileges or duties enjoy the constitutional protection of s. 93(1) -- Constitution Act, 1867, s. 93(1), (2).

The Government of Quebec adopted, under s. 16(7) of the Education Act, two regulations which purported to establish a uniform curriculum for all non‑denominational subjects for all schools in Quebec. The government made special allowance in its uniform curriculum for moral and religious instruction in schools recognized as Catholic or Protestant. The content of this component of a pupil's curriculum was not determined by the Minister of Education under the impugned regulations but by the Catholic or Protestant committee of the Conseil supérieur de l'Éducation in regulations made by those bodies. Furthermore, the school board was not without input for the curricula other than religious and moral instruction. It was charged with adapting the province‑wide regime to local needs and adding to the prescribed curricula when necessary, with approval. The school board also participated in the evaluation of the curricula.

Before the Superior Court, the appellants sought a declaration that s. 16(7) of the Education Act and the regulations adopted thereunder were ultra vires as being inconsistent with s. 93(1) of the Constitution Act, 1867. The Court dismissed appellants' motion and the judgment was upheld by the Court of Appeal. In this Court, the appellants argued that s. 16(7) of the Education Act and the regulations were ultra vires the province because they violated a right protected under s. 93(1) enabling the Protestant minority in Quebec to manage and control its own schools and to regulate, subject to provincial rules of general application, the course of study to be followed in those schools. As an alternative, they argued that s. 93(2) of the Constitution Act, 1867 extended the power or privilege to determine the exact content of curriculum enjoyed by trustees in Upper Canada to the Quebec Protestants.

Held: The appeal should be dismissed.

Per Beetz, McIntyre, Lamer and La Forest JJ.: Under section 93(1) of the Constitution Act, 1867, the province has exclusive jurisdiction to legislate with respect to education, but it cannot prejudicially affect a right or privilege affecting denominational schools enjoyed by a particular class of persons by law in effect at the time of the Union. Section 93(1) protects not only the denominational aspects of denominational schools but also the non‑denominational aspects which are necessary to give effect to denominational guarantees. The fact that the guarantee is constitutionally entrenched is relevant to its interpretation. As a constitutional text, s. 93(1) may deserve a "purposive" interpretation but, in so doing, courts must not improperly amplify the provision's purpose. While it may be rooted in notions of tolerance and diversity, the exception in s. 93(1) is not a blanket affirmation of freedom of religion or freedom of conscience. The entrenched right of specified classes of persons in a province to enjoy publicly‑sponsored denominational schools based on a fixed statutory bench-mark should not be construed as a Charter human right or freedom.

In this case, the impugned legislation and regulations are intra vires the Quebec legislature. The Minister of Education successfully crafted regulations falling within the parameters of the provincial authority in relation to education and respecting the constitutional guarantees in s. 93(1). Under the scheme established by the regulations, the Minister has a broad power to establish a pedagogical regime for the preschools, elementary and secondary schools in the province. However, in schools recognized as Catholic or Protestant, it is the regulations of the Catholic or Protestant Committee of the Conseil supérieur de l'Éducation which govern religious and moral instruction. The regulations under attack here do not purport to set the content of moral and religious instruction in Protestant schools. They go no further than to include such instruction among the courses deemed compulsory in all schools. By carving out the denominational content of curriculum and leaving it in the hands of the Protestant Committee of the Conseil, the province has conformed to the law in effect at the time of the Union which gave the "Curé, Priest or officiating Minister" the exclusive right of selecting the books having reference to religion and morals in denominational schools, and thus the authority to set the content of curricula pertaining to "religion and morals". This exception to the province's plenary power in relation to education ‑‑ constitutionally entrenched by s. 93(1) ‑‑ has not been violated.

The constitutional protection over non‑denominational aspects of denominational schools necessary to give effect to denominational guarantees has not been violated by the regulations. The power which the school commissioners and trustees had in 1867 to "regulate the course of study" to be followed in denominational schools has been entrenched only in so far as this limited regulatory power is necessary to give effect to denominational guarantees. The impugned legislation and regulations meet the constitutional requirement by granting to the school boards the power to adapt prescribed curricula to local needs and to create additional curricula, subject to approval, where they deem it necessary and to participate in the evaluation of the curricula generally. The regulations therefore allow the school boards to exercise their 1867 power over the non‑denominational aspects of denominational schools necessary to give effect to denominational guarantees.

Appellants' position that Protestant educational philosophy extends constitutional protection beyond what is necessary to give effect to denominational guarantees is unacceptable. The appellants are attacking non‑denominational aspects of the curriculum which are not necessary to give effect to denominational guarantees. By associating the content of the constitutional guarantee with a Protestant educational philosophy founded upon pluralism, the appellants would give to the Protestant community a right or privilege to determine the curriculum used in denominational schools which is completely incompatible with the exercise of the general regulatory power of the province over matters of curriculum falling outside religious and moral education.

Finally, appellants' alternative contention based on s. 93(2) of the Constitution Act, 1867 must be rejected. Section 93(2) extends all powers, privileges and duties (but not constitutional powers and privileges) conferred and imposed on the separate schools in Upper Canada at the time of Union to the dissentient schools in Quebec. But section 93(2) does not itself entrench rights or privileges which existed in either province by law in 1867. It is section 93(1), and not s. 93(2) on its own, which raises "Rights or Privileges with respect to Denominational Schools" to the status of constitutional norms. Therefore, where, by the operation of s. 93(2), a power or privilege which existed at the time of Union in Upper Canada is "extended" to dissentient Quebec Protestants or Catholics, the inquiry as to what greater constitutional powers and privileges dissentient Quebec Protestants and Catholics may enjoy in their own province does not end there. The Court is still required, not by s. 93(2) but by s. 93(1), to apply s. 93(1) to determine whether the power or privilege extended from Upper Canada to Quebec is "with respect to Denominational Schools" and whether that power or privilege is prejudicially affected by the legislation attacked in any given case. Accepting in this case that in 1867 in Upper Canada the exact content of a particular school's curriculum was, in the absence of specific regulation by the Council for Public Instruction of that Province, to be by law left to the discretion of the separate school trustees, this extended power or privilege did not result in a wider constitutional protection for the appellants. The power to set curriculum extended to Quebec Protestants has, by the application of s. 93(1), only been entrenched in so far as it is necessary to give effect to the denominational guarantee in Quebec.

Per Dickson C.J. and Wilson J.: The Court is required under s. 93(2) of the Constitution Act, 1867 to measure the protection afforded by law to separate schools in Ontario in 1867 against the protection afforded by law to dissentient schools in Quebec in 1867 and if, as a result of that comparison, it is found that the powers, privileges and duties of separate schools in Ontario in 1867 were greater, those additional powers, privileges or duties are extended by s. 93(2) to the dissentient schools in Quebec. Such additional powers, privileges or duties enjoy in general the constitutional protection of s. 93(1). Section 93(1) protection is not limited to powers, privileges or duties which relate specifically to the denominational aspects of such schools.

In the present case, however, the powers of the trustees of the separate schools in Ontario over the curriculum in their schools, which were extended by s. 93(2) to the dissentient schools in Quebec, were not constitutionally protected by s. 93(1) because they were subject in Ontario to the overriding regulatory authority of the Council of Public Instruction representing the province. It follows that, as far as curriculum is concerned, those powers, privileges and duties must be subject to that same regulatory authority on the part of the province of Quebec. The overriding regulatory authority of the province of Ontario, while it existed in law, could not be used to defeat the very purpose for which the separate schools in Ontario were established, namely the protection of Roman Catholic minority educational rights. Similarly, the province of Quebec cannot regulate the curriculum in the denominational schools in Quebec so as to undermine their distinctively denominational character. Therefore, even if the purpose of s. 93(2) was to enhance the constitutional protection afforded to dissentient schools in Quebec in order to equate their position with that of separate schools in Ontario, it would still be open to the legislature of Quebec to regulate the powers of dissentient school boards over curriculum, provided such regulation did not prejudicially affect the denominational character of such schools. Here, the impugned legislation and regulations did not prejudicially affect the denominational character of the denominational schools in Quebec. It was accordingly intra vires the Quebec legislature.

Cases Cited

By Beetz J.

Referred to: Reference Re Bill 30, An Act to amend the Education Act (Ont.), 1987 CanLII 65 (SCC), [1987] 1 S.C.R. 1148; Hirsch v. Protestant Board of School Commissioners of Montreal, 1928 CanLII 500 (UK JCPC), [1928] A.C. 200; Attorney General of Quebec v. Greater Hull School Board, 1984 CanLII 29 (SCC), [1984] 2 S.C.R. 575; Quebec Association of Protestant School Boards v. Attorney General of Quebec, 1985 CanLII 3147 (QC CS), [1985] C.S. 872; City of Winnipeg v. Barrett, [1892] A.C. 445.

By Wilson J.

Referred to: Reference Re Bill 30, An Act to amend the Education Act (Ont.), 1987 CanLII 65 (SCC), [1987] 1 S.C.R. 1148.

Statutes and Regulations Cited

Act for the further improvement of Grammar Schools in Upper Canada, S. Prov. C. 1865, 29 Vict., c. 23.

Act respecting Common Schools in Upper Canada, C.S.U.C. 1859, c. 64.

Act respecting Provincial Aid for Superior Education, -- and Normal and Common Schools, C.S.L.C. 1861, c. 15, ss. 21(3), (4), 65(2).

Act respecting Separate Schools, C.S.U.C. 1859, c. 65.

Act respecting the Conseil supérieur de l'Éducation, R.S.Q., c. C‑60, ss. 2, 9(a), 17, 22, 30 [am. 1979, c. 23, s. 27].

Act to again amend the Education Act, S.Q. 1979, c. 80, s. 3.

Act to restore to Roman Catholics in Upper Canada certain rights in respect to Separate Schools, S. Prov. C. 1863, 26 Vict., c. 5.

Canadian Charter of Rights and Freedoms, s. 23.

Code of Civil Procedure, R.S.Q., c. C‑25, s. 453.

Constitution Act, 1867, s. 93.

Education Act, R.S.Q., c. I‑14, s. 16(7) [ad. 1979, c. 80, s. 3].

Regulation respecting the basis for secondary school organization, (1981) 115 O.G. II 1223.

Regulation respecting the basis of elementary school and preschool organization, (1981) 115 O.G. II 1213.

Authors Cited

Carignan, Pierre. "La raison d'être de l'article 93 de la Loi constitutionnelle de 1867 à la lumière de la législation préexistante en matière d'éducation" (1986), 20 R.J.T. 375.

Chevrette, François and Herbert Marx and André Tremblay. Les problèmes constitutionnels posés par la restructuration scolaire de l'île de Montréal. Québec: Ministère de l'Éducation, 1972.

Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswells, 1985.

APPEAL from a judgment of the Quebec Court of Appeal, 1987 CanLII 590 (QC CA), [1987] R.J.Q. 1028, 6 Q.A.C. 237, 41 D.L.R. (4th) 229, affirming a judgment of the Superior Court, [1986] R.J.Q. 48. Appeal dismissed.

Colin K. Irving and Allan R. Hilton, for the appellants.

Jean‑Yves Bernard and Luc Leblanc, for the respondent.

John Cavarzan, Q.C., for the intervener the Attorney General for Ontario.

Alphonsus E. Faour, for the intervener the Attorney General of Newfoundland.

///Wilson J.//

The reasons of Dickson C.J. and Wilson J. were delivered by

WILSON J. -- I have had the benefit of reading the judgment of my colleague, Justice Beetz, in this appeal and I am in complete agreement with him that the denominational content of education in denominational schools in Quebec is constitutionally protected by s. 93(1) of the Constitution Act, 1867. I agree with him also that the non-denominational content of education in denominational schools in Quebec is constitutionally protected by s. 93(1) to the extent the protection of such content is necessary to maintain the denominational character of those schools.

However, I respectfully differ from my colleague as to the way in which s. 93(1) and (2) of the Constitution Act, 1867 relate to one another for purposes of determining the full measure of the constitutional protection afforded to denominational schools in the province of Quebec. I reproduce these provisions here for convenience:

93. In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions: --

(1)Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union:

(2)All the Powers, Privileges and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen's Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen's Protestant and Roman Catholic Subjects in Quebec:

Section 93(1) precludes the enactment by the Quebec legislature of any law which prejudicially affects any "Right or Privilege" which "any Class of Persons" had by law in Quebec in 1867 "with respect to Denominational Schools". This calls as a first step for a historical analysis to determine what those rights and privileges were. My colleague has undertaken that analysis.

Section 93(2) provides that all the powers, privileges and duties which were conferred or imposed by law in 1867 on separate schools in Ontario "shall be and the same are hereby extended" to dissentient schools in Quebec. This, in turn, requires a review of the powers, privileges and duties of separate schools in Ontario in 1867 to see whether they are greater than the powers, privileges and duties dissentient Protestants and Roman Catholics had with respect to their schools in Quebec in 1867. This Court undertook the historical analysis required in order to ascertain the extent of the powers, privileges and duties of separate schools in Ontario in the Reference Re Bill 30, An Act to amend the Education Act (Ont.), 1987 CanLII 65 (SCC), [1987] 1 S.C.R. 1148 (hereinafter the "Separate Schools Reference").

Section 93(2) then requires us to measure the protection afforded by law to separate schools in Ontario in 1867 against the protection afforded by law to dissentient schools in Quebec in 1867 and if, as a result of that comparison, it is found that the powers, privileges and duties of separate schools in Ontario were greater, those additional powers, privileges and duties (as the case may be) are extended by s. 93(2) to the dissentient schools in Quebec. The question then becomes whether such additional powers, privileges and duties (if any) enjoy the constitutional protection of s. 93(1) and this in turn may depend in part on the meaning to be attached to the words "with respect to Denominational Schools" in that subsection.

My colleague interprets the words "with respect to Denominational Schools" in s. 93(1) as if they read "with respect to the denominational aspects of Denominational Schools". In other words, he reads "with respect to Denominational Schools" as limiting s. 93(1) protection to the powers, privileges and duties extended to dissentient schools in Quebec by s. 93(2) which relate specifically to the denominational aspects of such schools. While other powers, privileges and duties may be extended by s. 93(2) to dissentient schools in Quebec, they are not, according to my colleague's interpretation, immune from the Quebec legislature under s. 93(1).

The difficulty raised by this interpretation of s. 93(1) is that it requires us to decide which powers, privileges and duties of separate schools in Ontario at the Union were related to the denominational aspects of such schools and which were not. Yet we know from the Ontario pre-Confederation legislation and the Separate Schools Reference, supra, that the protection provided to the separate schools in Ontario at the Union was not through identifiable aspects of the curriculum but through the separate school trustees' substantial measure of control over the curriculum by virtue of their authority to hire teachers and prescribe the subjects they were to teach. Roman Catholics were protected in Ontario with respect to the type of instruction given in their schools by the authority over curriculum conferred on the trustees. The trustees of the separate schools, in effect, were given the same authority over the curriculum in their schools as the common school trustees enjoyed with respect to the curriculum in the common schools.

However, and I believe that this is at the heart of the difficulty in reading s. 93(1) and (2) together, the power of the trustees in the separate schools in Ontario over the courses taught was, like the power of the trustees of the common schools, subject to the overriding regulatory authority of the Council of Public Instruction representing the province. The trustees' power was not absolute and, even although no regulations had in fact been passed in Ontario in relation to the curriculum by the time of Union, the overriding regulatory authority of the province was there by law. It seems to me therefore that, as far as curriculum is concerned, the powers, privileges and duties of the separate school trustees which are extended by s. 93(2) to the dissentient schools in Quebec must be subject to that same regulatory authority on the part of the province of Quebec.

What is the effect then of the opening words of s. 93(1)? Do they remove the regulatory authority of the province so that the powers of dissentient school trustees over curriculum becomes absolute in Quebec? I would think not since this would give a greater degree of constitutional protection to dissentient schools in Quebec than was enjoyed by separate schools in Ontario. This is clearly contrary to the intent of s. 93(2). I think there are two possible approaches to the question. The first is to say that, because of the overriding regulatory authority of the province of Ontario, there are no additional powers, privileges and duties with respect to curriculum falling under the constitutional protection of s. 93(1) by virtue of the extension in s. 93(2). The power of the separate school trustees over curriculum was illusory because it was defeasible. There was nothing to extend. The second is to say that the regulatory authority of the province of Ontario was limited and did not extend to those aspects of the curriculum which were necessary for the maintenance and preservation of the denominational character of the separate schools. In other words, while the overriding regulatory authority of the province of Ontario was there in law, it could not be used to defeat the very purpose for which the separate schools were established, namely the protection of Roman Catholic minority educational rights. Similarly, the province of Quebec cannot regulate the curriculum in the denominational schools in Quebec so as to undermine their distinctively denominational character.

I favour the second approach and it leads me to conclude that, even if the purpose of s. 93(2) was to enhance the constitutional protection afforded to dissentient schools in Quebec in order to equate their position with that of separate schools in Ontario (and I think it was), it would still be open to the legislature of Quebec to regulate the powers of dissentient school boards over curriculum, provided such regulation did not prejudicially affect the denominational character of such schools. In other words, I reach the same result in this case as my colleague reaches through reading a qualification into the words "with respect to Denominational Schools" in s. 93(1). I believe, however, that the difference in approach may be significant in the case of powers, privileges and duties unrelated to the content of the curriculum. It would be my view that all powers, privileges and duties conferred or imposed on separate schools in Ontario at the time of Union other than those specifically made subject by law to the overriding control of the province (as was the curriculum) are extended by s. 93(2) to dissentient schools in Quebec and have the constitutional protection of s. 93(1). This is so because, in my view, the words "with respect to Denominational Schools" in s. 93(1) do not contain the internal limitation imported into those words by my colleague. The only reason, in my view, why the dissentient schools in Quebec do not have, by virtue of the extension in s. 93(2), constitutional protection under s. 93(1) for the substantial measure of control over curriculum which the separate schools enjoyed as a factual matter in Ontario at the time of Union is that the province of Ontario had by law the overriding authority to restrict that control if it so desired, provided that in so doing it did not undermine the denominational character of the separate schools. No greater power can be extended to the dissentient schools in Quebec under s. 93(2).

I do not believe that the appellants succeeded in establishing that the impugned legislation and regulations prejudicially affect the denominational character of the denominational schools in Quebec. I would accordingly dismiss the appeal with costs and answer the constitutional question in the negative.

//Beetz J.//

The judgment of Beetz, McIntyre, Lamer and La Forest JJ. was delivered by

BEETZ J. --

I - Proceedings

The problem of defining the ambit of the guarantee provided for denominational schools in s. 93 of the Constitution Act, 1867 again comes before the Court in the present appeal.

This is an appeal, by leave of this Court, from a judgment of the Quebec Court of Appeal of May 4, 1987, 1987 CanLII 590 (QC CA), [1987] R.J.Q. 1028, dismissing an appeal from a judgment of Brossard J. of the Superior Court of October 31, 1985, [1986] R.J.Q. 48, which in turn dismissed the appellants' motion for declaratory judgment brought under art. 453 of the Code of Civil Procedure, R.S.Q., c. C-25. Before the Superior Court, the appellants sought a declaration that s. 16(7) of the Education Act, R.S.Q., c. I-14, and two orders-in-council issued thereunder which purport to establish a uniform curriculum for all schools in Quebec were ultra vires as being inconsistent with s. 93 of the Constitution Act, 1867 and s. 23 of the Canadian Charter of Rights and Freedoms.

The submissions of the parties before this Court were limited to the validity of the impugned legislation and regulations under s. 93 of the Constitution Act, 1867. In so far as it remains relevant to the proceedings before this Court, the appellants' Amended Motion for Declaratory Judgment of February 4, 1985 seeks the following conclusions:

(i) Protestants, as one of the classes of persons referred to in Section 93 of the Constitution Act, 1867, have the right to the maintenance of a system of Protestant schools under the management and control of boards of school commissioners or trustees representing the said class of persons with the right to provide both elementary and secondary education and the right to regulate the course of study to be followed in such schools.

(ii) Such rights extend to the territories of the Applicant school boards and all other Protestant school boards.

AND THAT IN CONSEQUENCE:

Section 16(7) of the Education Act (R.S.Q. 1977, c. I-14), as amended by Section 3 of S.Q. 197[9], c. 80 . . . prejudicially affect[s] a right with respect to denominational schools which existed in Quebec at the time of the Union and [is], in consequence, ultra vires the National Assembly;

The Orders in Council 551-81 and 552-81 both dated 25 February 1981 purporting to establish a uniform régime pédagogique for pre-elementary, elementary and secondary schools under the control of commissioners and trustees are similarly ultra vires and of no force and effect;

Before both the Superior Court and the Court of Appeal the respondent opposed the motion for declaratory judgment on the ground that the appellant should have proceeded by way of action rather than motion. This issue did not form part of the appeal before this Court and I expressly refrain from commenting on the appropriateness of the appellants' decision to proceed by way of motion under art. 453 C.C.P.

II - Section 93 and the Stated Constitutional Question

Section 93 of the Constitution Act, 1867 gives the provincial legislatures exclusive jurisdiction in relation to education. It also guarantees certain rights to classes of persons with respect to denominational schools and to both Protestant and Catholic dissentient schools. Section 93 provides as follows:

93. In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions:--

(1)Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union:

(2)All the Powers, Privileges and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen's Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen's Protestant and Roman Catholic Subjects in Quebec:

(3)Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie 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:

(4)In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make 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.

On December 17, 1987, the Chief Justice stated the following constitutional question in connection with this appeal:

Are section 16(7) of the Education Act, R.S.Q. 1977, c. I-14, and the Orders-in-Council issued thereunder bearing number 551-81, which establishes the curriculum to be followed in elementary schools, and bearing number 552-81, which establishes the curriculum to be followed in secondary schools, ultra vires the National Assembly of Quebec or inapplicable to the Appellant school boards and the other members of the Appellant Association by virtue of section 93 of the Constitution Act, 1867?

III - The Impugned Legislation and Regulations

Section 16 of the Education Act, R.S.Q., c. I-14, was amended by An Act to again amend [sic] the Education Act, S.Q. 1979, c. 80, s. 3, to read in part as follows:

16. The Government may make regulations:

(7) for the establishment of the pedagogical system in the schools placed under the control of the school commissioners or trustees.

In this appeal, the appellants allege that two regulations made in 1981 pursuant to s. 16 are ultra vires the province: the Regulation respecting the basis of elementary school and preschool organization, O.C. 551-81, February 25, 1981, (1981) 115 O.G. II 1213 (the "Elementary School Regulations"), and the Regulation respecting the basis for secondary school organization, O.C. 552-81, February 25, 1981, (1981) 115 O.G. 1223 (the "Secondary School Regulations").

In explanatory notes reproduced with both sets of regulations, the provincial government described what it termed the "triple objective" of the new preschool, elementary and secondary school organization:

. . . these regulations seek the consolidation and improvement of public education services. More specifically, they have been promulgated to facilitate the access of all Quebec children to quality educational services, to advance equality of educational opportunity, and to promote increased personalization of educational services.

The preambles of the Elementary School and Secondary School Regulations attest to the fact that the Minister submitted the draft regulations to the Conseil supérieur de l'Éducation, an administrative body established by statute which was formed to oversee the religious and moral aspects of public education in Quebec. The Conseil gave its opinion on September 30, 1980, in accordance with ss. 9(a) and 30 of An Act respecting the Conseil supérieur de l'Éducation, R.S.Q., c. C-60. The Conseil is made up of twenty-four members, including sixteen or more Catholics, four or more Protestants, and one or more non-Catholics or non-Protestants, appointed by the provincial government after consultation with religious authorities and parents, teachers, school boards and socio-economic groups (s. 2). This Act further provides for the establishment of Catholic and Protestant committees of the Conseil which, as I shall explain below, play a role in determining the moral and religious content of school curriculum put into place by the regulations attacked in this case. Section 17 directs, for example, that the Protestant committee shall include "representatives of the Protestant denominations, parents and teachers" appointed by the provincial government on the recommendation of the Conseil which shall first consult the associations or organizations most representative of the Protestant denominations, parents and teachers. Section 22 gives wide powers to these committees, including the authority to recognize confessional educational institutions as either Catholic or Protestant, as the case may be; to make regulations respecting Christian education, religious and moral instruction and religious service in such recognized institutions; and to approve, from the point of view of religion and morals, the curricula, textbooks and teaching material in such recognized institutions.

Both the Elementary School Regulations and the Secondary School Regulations under attack here are complex and I do not propose to review them exhaustively in these reasons. It is nevertheless necessary, in order to determine whether the Regulations are the product of a proper exercise of the province's jurisdiction in relation to education, to examine certain of their provisions, with particular attention to those singled out by the appellants in argument.

The Secondary School Regulations are comprised of five divisions. In Division II, entitled "Education Services", s. 2 allows the school board to take the necessary steps to insure the quality of the language of instruction. Section 3 gives the Minister of Education broad powers to set the curricula in secondary schools. The school boards' authority is limited to adapting the province-wide curricula to local needs and to designing additional curricula, subject to the approval of the Minister or (presumably in the case of additional religious or moral curricula) the approval of the Catholic or Protestant committee of the Conseil supérieur de l'Éducation. Section 3 directs as follows:

3. Curricula

Curricula are prescribed or approved by the Minister.

Curricula include compulsory objectives and conceptual content, as well as any other objectives and conceptual content the school board adapts to the needs of its school population according to the priorities of the area.

In addition to the prescribed curricula, the school board may design curricula to meet its own particular needs provided they are approved by the Minister or, where applicable, the Catholic or Protestant committee of the Conseil supérieur de l'éducation. Unless otherwise indicated, such approval is valid only for the school board involved.

Section 4 directs that textbooks must be available to the pupil:

4. Textbooks

Where the list of approved teaching material indicates one or more textbooks for a particular programme, the pupil must have the required textbook(s) at his personal disposal to cover the programme.

It is important, as we shall see below, that the Minister and not the school board approves teaching materials and indicates which textbooks are required. Section 1 includes the following definitions:

"textbook": any printed material for pupils, possibly including audio-visual materials or other teaching aids, covering all or certain important elements of a curriculum for one or more years of study;

"teaching material": any object, material, volume or work (written, audio-visual or other) useful to the application of all or certain elements of a curriculum;

Under section 5, the role of the school board is limited to providing the appropriate teaching materials which have previously been approved by the Minister. Section 10 gives the school board an advisory role in the evaluation of the curricula:

10. Evaluation of curricula

The school board takes part in evaluating the curricula to enable the Minister to make informed decisions concerning their continuation or modification.

Division III of the Secondary School Regulations outlines the "Organizational Framework for Education Services". It sets, for example, the age admission requirements, the school calendar and the number of teaching hours per day. Sections 27, 29, 31, 33, and 35 provide the breakdown of compulsory courses in different subjects during the five years of secondary schooling. Section 1 includes definitions of the terms "course" and "subject" which, not surprisingly, link these concepts to "curriculum":

"course": an organized set of learning activities defined by a curriculum and covered in a number of hours divided over the school year or part of the year and officially approved for the purposes of promotion or certification;

"subject": a branch of learning outlined in a curriculum and constituting an area for theoretical or practical study;

Here again, the Secondary School Regulations provide for substantial control by the Minister over curricula for public schools across the province. The number of credits devoted to each discipline varies from year to year. Each year, however, at least 2 credits must be devoted to "Moral and Religious Instruction". Section 26 directs that normally, one credit corresponds to 25 hours of activities but that the school board in question may allocate the time otherwise, provided that it ensures that the compulsory aspects of the curricula have been satisfied. Sections 28, 30, 32, 34 and 36 set the rules for the optional curricula approved by the Minister. Section 39 specifies the following rule for moral and religious instruction in schools recognized as Catholic or Protestant:

39. Moral and religious instruction in schools recognized as Catholic or Protestant

In schools recognized as Catholic or Protestant, the regulations of the Catholic or Protestant committee of the Conseil supérieur de l'Éducation respecting such educational institutions apply to any moral and religious instruction given in them.

However, any child may be exempted from such instruction if his parents so request, or if the child so requests, with his parents' consent. In that event, the pupil must take courses or do personal research pertaining to moral training or religious knowledge.

Thus in schools recognized by the Catholic or Protestant Committee of the Conseil as confessional educational institutions, the appropriate committee, and not the Minister, sets the content of the religious and moral curricula. This aspect of curriculum is not part of the province-wide regime and is not controlled by the Minister except in so far as it is the Minister that names the members of these committees.

For elementary school and preschool organization, the Elementary School Regulations provide for a regime similar to that prescribed for secondary schools. Division II, Subdivision I of these Regulations relates to preschool education. Section 5 again gives the Minister a broad power to determine the content of preschool curricula, while the school board's input is limited to adapting the prescribed programme to local needs and adding denominational or non-denominational curricula after obtaining the applicable approval:

5. Educational and motivational activities programme

The educational and motivational activities programme is prescribed or approved by the Minister.

The educational and motivational activities programme includes the compulsory developmental objectives and any other objectives adapted by the school board to the needs of its school population according to the priorities of the area.

In addition to the prescribed educational and motivational activities programme prescribed by the Minister, the school board may design programmes to meet its own particular needs, provided these programmes are approved by the Minister and, where applicable, by the Catholic or Protestant committee of the Conseil supérieur de l'éducation. Unless otherwise indicated, such approval is valid only for the school board involved.

As under the secondary school regime, the school board's input at the preschool level is limited to providing teaching materials which have been approved by the Minister (s. 6); pupil evaluation (s. 7); participating in the evaluation of the "educational and motivational activities programme" to enable the Minister to make informed decisions as to its content (s. 9); and to provide for the special needs of pupils within the limits of the objectives set by the Minister (ss. 10 and 11).

Much the same can be said for Division II, Subdivision 2 which deals with education at the elementary level. Section 18 directs that curricula are prescribed or approved by the Minister, in terms which are identical to those cited above in s. 3 of the Secondary School Regulations. The remainder of the subdivision (ss. 19 to 34) is identical to the corresponding rules in the "Education Services" division of the Secondary School Regulations discussed above.

Division III of the Elementary School Regulations is entitled "Organizational Framework for Education Services". Rules are established for both the preschool and the elementary school levels for admission and enrolment, the pupils' school calendar and the time to be devoted to academic activities during the week. The elementary school level is divided into two cycles of three years each, with the Minister prescribing in s. 43 the number of hours per week to be devoted to each of the compulsory subjects in the curriculum. Moral and religious instruction is compulsory, although s. 45 provides that only moral instruction and not religious instruction is compulsory in schools other than those recognized as Catholic or Protestant. Section 44 repeats the rule cited above regarding moral and religious instruction in schools recognized as Catholic or Protestant, giving the Catholic or Protestant committee of the Conseil supérieur de l'Éducation, and not the Minister, the authority to give content to this aspect of the curricula.

While the purpose of the Regulations may conform to the "triple objective" announced by the government in the explanatory notes, the Regulations are also plainly intended to establish a uniform pedagogical system in schools under the control of school commissioners and trustees. Yet the legislator has not done this without nuance. In what can be nothing but an effort to respect what is conventionally understood as the distinction between denominational and non-denominational teaching, the government has made special allowance in its uniform curriculum for moral and religious instruction in schools recognized as Catholic or Protestant. The content of this component of a pupil's curriculum is not determined by the Minister under the impugned Regulations but rather by the Catholic or Protestant committee of the Conseil supérieur de l'Éducation in regulations made by those bodies pursuant to s. 22 of An Act respecting the Conseil supérieur de l'Éducation. Furthermore, the school board is not without input for the curricula other than religious and moral instruction. It is charged with adapting the province-wide regime to local needs and adding to the prescribed curricula when necessary, with approval. The school board participates in the evaluation of the curricula. The appellants are left with the difficult argument that, notwithstanding this allowance made for moral and religious instruction in recognized Protestant schools, and notwithstanding the school board's input to curricula which I have described above, the imposition of the uniform curriculum by the Minister prejudicially affects a right or privilege with respect to Protestant denominational schools protected by s. 93 of the Constitution Act, 1867.

IV - Submissions of the Appellants

In the written argument presented on their behalf before this Court, the appellants made the following submissions:

Submission 1

The Appellant school boards and the other members of the Appellant Association represent a class of persons whose rights with respect to the schools forming part of [the existing Protestant school] system are protected by Section 93(1).

Submission 2

The rights protected by Section 93(1) extend both to the primary and secondary levels of the Protestant school system as those terms are understood today.

Submission 3

One of the rights so protected . . . is the right, exercised through their school commissioners and trustees, to manage and control their own schools, including the right . . . to regulate the course of study to be followed.

It is the third submission to which the parties devoted their significant energies at the hearing of this appeal. Indeed it was the position of the Attorney General of Quebec that the question central to the resolution of this appeal turns on the jurisdiction of the province to determine the programme of study in all public schools in the province, including those schools which operate under the protection of the denominational guarantee in s. 93(1) of the Constitution Act, 1867. I agree that the issue as to whether the province can establish uniform curriculum across the province is to be determined solely on the basis of legislative jurisdiction. Whether or not the constitutional limits placed on the provincial jurisdiction in s. 93(1) leave the Quebec government the power to make the Regulations is an issue logically distinct from the question of precisely who benefits from the constitutional protection. My conclusion in this case allows me to assume without deciding that these appellants are a "class of persons" to which s. 93(1) refers. Determining whether the province has the legislative authority under s. 93 to adopt s. 16(7) of the Education Act and to make the Elementary School and Secondary School Regulations will be sufficient to dispose of this appeal.

V - The Scope of Provincial Jurisdiction under Section 93

The appellants contend that s. 16(7) of the Education Act and the Elementary School and Secondary School Regulations are ultra vires the province because they violate a right protected under s. 93(1) enabling the Protestant minority in Quebec to manage and control its own schools and to regulate, subject to provincial rules of general application, the course of study to be followed in those schools. The Attorney General of Quebec, on the other hand, argues that the Regulations are intra vires the province's general legislative jurisdiction in relation to education as provided for in the opening words of s. 93. Is the province's jurisdiction, as qualified by s. 93(1), sufficient to support the Regulations?

"In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions:", these opening words of s. 93 are, as Estey J. noted in Reference Re Bill 30, An Act to amend the Education Act (Ont.), 1987 CanLII 65 (SCC), [1987] 1 S.C.R. 1148 (the "Separate Schools Reference"), at p. 1201, "a clear grant of legislative power to the province". The "exclusivity" of this power is, of course, not at issue here, no more than is the fact that the power is in some way limited by the remaining terms of s. 93. I agree generally with the description of the basic provincial power given by Viscount Cave L.C. in Hirsch v. Protestant Board of School Commissioners of Montreal, 1928 CanLII 500 (UK JCPC), [1928] A.C. 200 (P.C.), at p. 215, cited with approval by Chouinard J. in Attorney General of Quebec v. Greater Hull School Board, 1984 CanLII 29 (SCC), [1984] 2 S.C.R. 575, at pp. 585-86:

While s. 93 of the Act of 1867 protects every right or privilege with respect to denominational schools which any class of persons may have had by law at the Union, it does not purport to stereotype the educational system in the Province as then existing. On the contrary, it expressly authorizes the Provincial Legislature to make laws in regard of education subject only to the provisions of the section; and it is difficult to see how the Legislature can effectively exercise the power entrusted to it unless it is to have a large measure of freedom to meet new circumstances and needs as they arise.

As Viscount Cave notes, this basic provincial power is subject to limitations. Section 93(1) provides that nothing in any provincial law adopted pursuant to the basic legislative power over education "shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union". The outcome of this appeal depends on the content which is to be given to this limitation.

Much was made in argument as to the method of interpretation which is appropriate to s. 93(1) of the Constitution Act, 1867. Indeed although all three judges in the Court of Appeal agreed that the imposition by the province of the pedagogical regimes set forth in the Regulations did not prejudicially affect any right or privilege with respect to denominational schools guaranteed by s. 93(1), they disagreed as to the appropriate rule of interpretation which gives content to these protected rights and privileges. Nichols J.A., speaking in this regard on behalf of himself and L'Heureux-Dubé J.A., as she then was, said that a restrictive interpretation should be given to the rights or privileges in s. 93(1). The exclusive provincial power set forth in the opening words of the section is deserving of a liberal interpretation, but the limitation on that power, as an exception to a general rule, in their view, is not. The rights or privileges are frozen in time, determined by reference to the laws in force "in the Province at the Union". Consequently, Nichols J.A. decided that the exception should be interpreted restrictively (at p. 1045):

[TRANSLATION] Section 93(1) does not in itself have any substantive constitutionalized content, as is the case for example with the fundamental rights recognized by the Canadian Charter of Rights and Freedoms. Constitutionalization by reference does not call for a wide and liberal interpretation, in an evolutionary and creative manner, of the rights so crystallized. It only requires that they be interpreted in their legislative context, applying the rules of statutory interpretation.

McCarthy J.A. disagreed (at p. 1033):

In my view, if the "large and liberal" interpretation referred to in Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, must be given to the exclusive powers of the province to make laws "in relation to Education", it must also be given to the rights and privileges which certain classes of persons held by law at confederation "with respect to Denominational Schools". The choice of a particular drafting technique ought not to affect the rights and privileges guaranteed under a constitution.

I am of the view that in this case, the resolution to the problem is not to be found in one rule of interpretation as opposed to another. I note that McCarthy J.A. decided that even with a large and liberal interpretation of s. 93(1) rights and privileges, the adoption by the province of the pedagogical regime in the impugned Regulations did not prejudicially affect the rights or privileges guaranteed by s. 93(1). It is true, of course, that the fact that the guarantee is constitutionally entrenched is relevant to its interpretation. As a constitutional text, s. 93(1) may deserve a "purposive" interpretation but, in so doing, courts must not improperly amplify the provision's purpose. While it may be rooted in notions of tolerance and diversity, the exception in s. 93 is not a blanket affirmation of freedom of religion or freedom of conscience. The entrenched right of specified classes of persons in a province to enjoy publicly-sponsored denominational schools based on a fixed statutory bench-mark should not be construed as a Charter human right or freedom or, to use the expression of Professor Peter Hogg, a "small bill of rights for the protection of minority religious groups" (see Hogg, Constitutional Law of Canada (2nd ed. 1985), at p. 824). As Professor Pierre Carignan explains in "La raison d'être de l'article 93 de la Loi constitutionnelle de 1867 à la lumière de la législation préexistante en matière d'éducation" (l986), 20 R.J.T. 375, at p. 451:

[TRANSLATION] In the case under consideration, the drafters in 1867 certainly did not see this as a fundamental right. If they had, it would have been given the same protection throughout Canada. The only effect of the provision is to prevent various legislatures from backing away from the legislation on denominational schooling in effect in 1867 in their respective territories. Accordingly, the extent of the constitutional protection varies from one province to another. By so doing, the drafters were demonstrating not so much a preference towards entrenchment as a desire to facilitate the creation of the proposed federation by disarming the opposition of those who, favouring denominational schools, might fear that a political reorganization would threaten already established legislative protection in this area.

This is not to say that we should ignore the plain purpose of s. 93(1) or ignore its constitutional context. Wilson J. explained in the Separate Schools Reference, supra, at p. 1194, that "[s]ection 93(1) should . . . be interpreted in a way which implements its clear purpose which was to provide a firm protection for Roman Catholic education in the Province of Ontario and Protestant education in the Province of Quebec." The exception to the provincial power does confer constitutional rights on specific groups in a specific manner, in keeping with what Wilson J. characterized as an "historically important compromise" struck at Confederation. It is true that the rights or privileges under ordinary law to which s. 93(1) refers have been frozen at Confederation. But just like the basic provincial power which, as Viscount Cave explained, was not "stereotyped" at the Union, the exception to that power has also matured over time through judicial interpretation. The approach courts have taken to the interpretation of the expression "with respect to Denominational Schools" in cases such as Hull, supra, which I will discuss below, demonstrates that the law in force "at the Union" cannot on its own set the content of the constitutional right in s. 93(1).

While the text of s. 93(1) should of course be interpreted as a constitutional document, it must not be read in such a manner as to supplant or frustrate the operation of what Professor Carignan has called the "mécanisme de constitutionnalisation". The very text of s. 93(1) instructs courts as to the manner in which content should be given to the rights and privileges provided for in the exception. As Wilson J. observed, in the Separate Schools Reference, supra, at pp. 1177-78, "It must be remembered . . . that s. 93(1) only protects rights and privileges guaranteed by law. Our task therefore is to examine the laws in force prior to Confederation to see what rights or privileges they gave." The interpretive task is inherently different from that with which courts are faced when called upon to give content to constitutional rights entrenched in a document such as the Charter. I am wary of deciding cases such as this one on the basis of one or another method of interpretation rather than the specific direction provided by the legislator in s. 93(1). Both the restrictive and liberal methods of interpretation, when misused, wrongly become rhetorical devices rather than rules of law.

The text which sets out the exception is plain: the expressions "by Law" and "at the Union" limit the protection to rights and privileges established by statutes in force at the time of Confederation. Courts have recognized repeatedly, as the parties note in their written arguments, that the law of Quebec with respect to education at the time of Confederation is found principally in a consolidation statute entitled An Act respecting Provincial Aid for Superior Education, -- and Normal and Common Schools, C.S.L.C. 1861, c. 15 (hereinafter the "1861 Statute").

Under the 1861 Statute, authority over schools was divided between, on the one hand, a government-appointed Council of Public Instruction and, on the other hand, school commissioners and trustees representing the local community. The relevant powers of the Council of Public Instruction for present purposes were set forth in s. 21(3) and (4):

21. It shall be the duty of the said Council --

22. To make from time to time, with the approval of the Governor in Council, such regulations as the Council deems expedient for the organization, government and discipline of Common Schools, and the classification of Schools and Teachers;

23. To select or cause to be published, with such approval as aforesaid, books, maps and globes, to be used to the exclusion of others, in the Academies, Model and Elementary Schools under the control of School Commissioners or Trustees, due regard being had in such selection to Schools wherein tuition is given in French and to those wherein tuition is given in English; But this power shall not extend to the selection of books having reference to religion or morals, which selection shall be made as provided by the second sub-section of the sixty-fifth section of this Act concerning Common Schools;

The relevant authority of the school commissioners and trustees is provided for in s. 65(2):

65. It shall be the duty of the School Commissioners and Trustees:

66. To regulate the course of study to be followed in each School, -- to provide that no other books be used in the Schools under their jurisdiction than those approved and recommended by the Council of Public Instruction; -- to establish general rules for the management of the Schools, and to communicate them in writing to the respective Teachers; -- to fix the time of the annual public examination, and to attend the same;

But the Curé, Priest or officiating Minister, shall have the exclusive right of selecting the books having reference to religion and morals, for the use of the Schools for children of his own religious faith;

The appellants contend that the degree of control vested in the hands of the Minister of Education by s. 16(7) of the Education Act effectively eliminated the right of school commissioners and trustees to "regulate the course of study" which they had in 1867 by virtue of s. 65(2) of the 1861 Statute. According to the appellants, this right to "regulate the course of study" implies a right for the Protestant minority, through their school commissioners and trustees, to manage and control their own schools, including the right to determine the curriculum to be taught in those schools. This would be a "right or privilege" protected by s. 93(1) of the Constitution Act, 1867.

Before determining whether the impugned Regulations violate the constitutional guarantee found in s. 93(1), two preliminary questions must be answered. First, what was the extent of the school commissioners and trustees power over curriculum under the 1861 Statute? I will address this issue in the remaining part of this chapter. Second, in what measure is this 1861 power a "Right or Privilege with respect to Denominational Schools" which falls within the guarantee provided for in s. 93(1)? I will consider this in Part VI of these reasons. If, in answer to this second question, such a right and privilege has been constitutionally entrenched, do the impugned Regulations violate the constitutional norm so that they must be declared ultra vires?

Brossard J. of the Superior Court considered the first question by examining the interaction of ss. 21 and 65 of the 1861 Statute in order to ascertain whether the Council or the commissioners and trustees controlled the content of curriculum (at p. 61):

[TRANSLATION] One does not need a doctorate in pedagogy to see at once that the exclusive power of the Council of Public Instruction over the choice of books necessarily implies at least an indirect control over the subject-matter and content of the course of study to be followed in each school, the "regulation" of which is left to commissioners and trustees, but in keeping with regulations adopted by the Council for "the organization and government" of schools. In other words, the power of commissioners to "regulate the course of study to be followed in each School" was not absolute. [Footnotes omitted.]

Nichols J.A. is the only member of the Court of Appeal who expressly considered the interaction of ss. 21 and 65. He focussed on the grant of authority to the school commissioners and trustees in s. 65. Section 65(2) imposed a "duty" on school commissioners to regulate the course of study in each school. Nichols J.A. considered this word important: when a legislative authority imposes a duty it can be presumed to implicitly grant the power necessary to fully acquit that duty but no more (at p. 1048):

[TRANSLATION] However, this implicit delegation of the exercise of a power does not strip the person delegating of the power itself.

Thus, when the Legislative Assembly of Canada decrees that it shall be the duty of the school commissioners and trustees "to regulate the course of study to be followed", it implicitly vests in them the power to regulate the course of study, but such delegation does not amount to an absolute abandonment of the power itself.

Nichols J.A. went on to canvass the historical development of the school commissioners' and trustees' authority to regulate the course of study in schools, which authority eventually found expression in s. 65(2). He analyzed the statutory powers of school commissioners and trustees on the basis of laws in force from 1801 through to the 1861 consolidation. He concluded (at pp. 1054 and 1055):

[TRANSLATION] This overview of the legislation prior to 1867 shows, in my view, that because of the way the school system was organized school commissioners and trustees did not have the power to adopt the teaching system of their choice.

It was they who, at the lowest level of the hierarchy, had the duty to implement in the schools under their jurisdiction whatever teaching system the government was attempting to apply generally and uniformly.

This shows . . . that the legislature has consistently wanted to maintain control over the course of study which the commissioners and trustees, at the bottom of the hierarchy, were to establish in their schools.

In my view the plain meaning of s. 21(3) and (4), when read in conjunction with s. 65(2), is that the Council and the school commissioners and trustees had distinct roles in the administration of education in the province at Confederation, and particularly with respect to the curriculum followed in the schools in the province. The power of the central authority, exercised by the Council pursuant to s. 21(3) and (4), was broad but not unfettered. Thus to borrow the language employed by Wilson J. in the Separate Schools Reference, it was a power to regulate, but not to prohibit. Our focus in this case is the authority over matters of curriculum. I see the authority of the Council in s. 21(4) to "select or cause to be published" the books to be used to the exclusion of others, in schools including those under the control of the school commissioners, as the source of authority over the content of the curriculum followed in those schools. Needless to say, in 1861 books represented the central and indeed controlling feature for content of school curriculum. (This remains true today; as we have seen, the province gives substance to its power to set curriculum under the impugned Regulations by retaining the power to approve textbooks and teaching materials.) The link between the substantive content of school curriculum and school books is made plainer by the exception to the Council's authority over books. The power to choose books "having reference to religion or morals" was to be made not by the central authority but rather by the "Curé, Priest or officiating Minister" pursuant to s. 65(2), presumably because this was seen as too dangerously close to what would eventually become the constitutionally protected right of the religious minority to set the denominational aspect of school curriculum.

The power of school commissioners and trustees to "regulate the course of study to be followed in each school" was not in conflict with the Council's authority over the books to be used. Section 65(2) is specific in this regard: the local authorities had the duty "to provide that no books be used in Schools under their jurisdiction than those approved and recommended by the Council of Public Instruction". The school commissioners' and trustees' role appears to have been a complementary one: they implemented and monitored the curriculum which was set, with the exception of religious and moral training, by the central authority. This was, as we have seen, the conclusion which Nichols J.A. arrived at after his survey of the pre‑Confederation legislation. This division of authority would make practical sense in that it would have been appropriate for the local authorities to be charged with local administration of curriculum, while the central authority endeavoured to assure a uniform quality and content across the province. The exception to the rule -- that the Curé, Priest or officiating Minister select books having reference to religion or morals -- was designed to take away from the central authority the power to set the denominational component of the curriculum.

By way of conclusion, therefore, I observe that the Council of Public Instruction had a general power to select books which gave it a broad authority to set curriculum across the province. But the Council could not set the content of curricula pertaining to "religion and morals". Furthermore, this exception, which is plainly "in respect of Denominational Schools", to use the terms of s. 93(1) of the Constitution Act, 1867, consequently falls within the protection afforded to the religious minority. As for the school commissioners' and trustees' power to "regulate the course of study to be followed in each school" under s. 65(2) of the 1861 Statute, this authority was consistent with that of the Council to set curricula generally. This said, the power to regulate the course of study, while not in itself an authority over substantive curriculum, certainly gave the school commissioners and trustees the power to monitor and implement the curriculum imposed upon their schools by the Council. In what measure is this 1861 regulatory power of school commissioners and trustees a "Right or Privilege with respect to Denominational Schools" which falls within the guarantee provided for in s. 93(1) of the Constitution Act, 1867? As I will explain in the next section of these reasons, I believe that some of this regulatory power over curricula is constitutionally protected under s. 93(1). To repeat, this is separate from the clear protection afforded to "religious and moral instruction" which is extended as an exception to the central authority's general power to set curricula. There are, as I shall endeavour to explain below, certain aspects of non-denominational curricula which are nevertheless "with respect to Denominational Schools" and which, on the strength of the 1861 regulatory power of school commissioners, are now constitutionally entrenched and out of reach of the central authority.

VI -The Constitutionality of the Impugned Legislation and Regulations under Section 93(1)

It remains to be determined whether the impugned regulations violate the s. 93(1) constitutional guarantee based on the content which I have attributed to that guarantee here. In my view, the Minister has succeeded in crafting regulations which fall within the parameters of the provincial authority in relation to education and, at the same time, which respect the constitutional guarantees in s. 93(1).

Under the scheme established by the Regulations, the Minister has broad powers to establish a pedagogical regime for the preschools, elementary and secondary schools in the province. Religious and moral instruction has, however, been treated differently in schools recognized as Catholic or Protestant, pursuant to s. 44 of the Elementary School Regulations and s. 45 of the Secondary School Regulations. In schools recognized as Protestant, for example, it is the regulations of the Protestant Committee of the Conseil supérieur de l'Éducation which govern religious and moral instruction -- regulations which have not been attacked by the appellants in this case. As I noted earlier, the regulations under attack here do not purport to set the content of moral and religious instruction in Protestant schools. They go no further than to include such instruction among the courses deemed compulsory in all schools. By carving out the denominational content of curriculum and leaving it in the hands of the Protestant Committee of the Conseil, the province has, in my view, conformed to s. 65(2) of the 1861 statute which gave the Curé, Priest or Minister the exclusive right of selecting the books having reference to religion and morals in denominational schools. This exception to the provinces' plenary power in relation to education -- constitutionally entrenched by s. 93(1) -- has not been violated. The appellants did not argue that the Minister's power to name members of the Protestant Committee, on the advice of members of the denominational community pursuant to s. 17 of An Act respecting the Conseil supérieur de l'Éducation, itself violated s. 93(1). Presumably they have accepted, for the purposes of present argument, the decision of Brossard J. at first instance that the 1861 power has, de facto, passed from the hands of the "Curé, Priest or officiating Minister" to the corresponding committee of the Conseil, and that this delegation does not prejudicially affect the rights or privileges protected by s. 93(1): see [1986] R.J.Q. 48, at p. 62, in which Brossard J. refers to his decision in Quebec Association of Protestant School Boards v. Attorney General of Quebec, 1985 CanLII 3147 (QC CS), [1985] C.S. 872, at p. 905.

While the constitutional guarantee for the denominational content of the curriculum has plainly been protected in the Regulations, it was open to argument that certain non-denominational aspects of the curriculum, which also merit protection under s. 93(1), have not been respected. It may seem incongruous to speak of non-denominational aspects of education that fall under the protection of a constitutional guarantee "with respect to Denominational Schools". But there is nothing new in this idea. In deciding that a provincial law providing for a new system of school financing across the province was in violation of s. 93(1) of the Constitution Act, 1867, Chouinard J. explained in Hull, supra, that the constitutional protection of rights or privileges "with respect to Denominational Schools" sometimes extends beyond that which is "denominational" in the narrow sense of this word since "Denominational status does not exist in a vacuum" (p. 584). In support of this view, he cited the following text prepared by Professors François Chevrette, Herbert Marx and André Tremblay:

[TRANSLATION] It is clear that the spirit of s. 93 seeks to guarantee the denominational status of education as that status existed in 1867, that is, in relation to education provided in dissentient schools in the province and in the schools of Montréal and Québec. In this regard, the ultimate aim of the section is a religious one, and that aim was undoubtedly given constitutional form. The question remains whether only that aim was so treated, or whether certain concrete means of achieving it were as well, namely a number of powers and administrative devices to ensure that the denominational status of education would be respected and maintained in practice. There is also no doubt of the answer to this question: constitutional form was also given to a number of means of achieving the result, and the wording of s. 93 itself seems clear in this regard, since it speaks of any "Right or Privilege with respect to Denominational Schools" rather than referring merely to "denominational schools".

It should be noted that in themselves, and viewed in isolation, these means are not necessarily religious in nature, for they may include financial powers, the power to hire teachers and so on; however, such means should still be related to the denominational status of education directly and connected directly with maintaining it.

(Les problèmes constitutionnels posés par la restructuration scolaire de l'île de Montréal (1972), at p. 22.)

In the same way, certain non-denominational aspects of curriculum may fall within the protection of the s. 93(1) guarantee because they are "with respect to Denominational Schools". In other words, constitutional protection "with respect to Denominational Schools" has both denominational and non-denominational components. The problem in Hull, in this case and in other like cases, is determining the extent to which these non-denominational aspects of curriculum merit constitutional protection.

The appellants, in their written argument, urge for a very wide interpretation of the rights or privileges in relation to denominational schools which benefit from s. 93(1) protection. The appellants argue for protection of aspects of curriculum not conventionally thought of as denominational. In their view, the nature of Protestant denominational education is such as to require this wide interpretation in order to protect Protestant denominational schools. Their factum makes this position plain:

Evidence was introduced to show the essential nature of Protestant denominational schools and to demonstrate the difference between that essential nature and the entirely different but more familiar concept of Catholic denominational education.

That evidence, which was uncontradicted, shows that Protestant education is inherently pluralistic. While the Bible and religion generally are studied, the approach is an objective one and the schools do not attempt to teach the beliefs of any one church. The predominant background is the Judeo-Christian heritage. The emphasis in secular subjects is on objective inquiry and openness in investigation. There has traditionally been a substantial degree of community involvement with the schools in all their major aspects including the curriculum. Brossard, J. found as a fact that there are fundamental differences between Catholic and Protestant denominational schools.

. . . Appellants seek to protect and preserve a vital aspect of an educational system which reflects the values and priorities of the community they represent.

The appellants contend that the Regulations undermine the constitutional protection of Protestant schools because they are contrary to Protestant educational philosophy. Their view is that, because of the inherently pluralistic nature of the Protestant faith, much of what is generally considered to be the non-denominational aspect of education is coloured by the denominational educational philosophy upon which the school is organized. Because certain non-denominational aspects of curriculum are necessarily affected by this Protestant educational philosophy, they too should benefit from constitutional protection. The appellants argue that since the Regulations effectively vest complete control over curriculum other than religious and moral instruction exclusively in the Minister, this part of the protected right of denominational school boards has been eliminated. If evidence of prejudice caused by the Regulations is necessary, the appellants cite the following examples:

(a)The concept of universality embodied in the two regimes is contrary to Protestant educational philosophy. Flexibility to deal adequately with students who are less gifted or more gifted than the average is greatly reduced.

(b)Elective courses in secondary schools are rendered virtually impossible by the number and the extent of obligatory courses imposed by the regimes.

(c)The obligatory and only course in Canadian history, "History of Quebec and Canada", does not touch upon any history of Canada, apart from Quebec, from 1929 to the present. No optional course in Canadian history may be taught without the consent of the Minister.

(d)Teaching English as a second language is forbidden prior to grade 4, contrary to sound pedagogical practice and the wishes of the parents.

(e)Appellants are required to teach a number of non-academic courses such as "Social & Personal Development", "Career Guidance" and "Home Economics" to all students in each of the years determined by the regimes. These rigid requirements further limit the possibility of expanded academic studies for those students who might best profit from them.

The appellants claim that they invoke s. 93(1) in an effort to protect and preserve a vital aspect of an educational system which reflects the values and priorities of the community they represent. They are clearly of the view that part of non-denominational school curriculum falls within s. 93(1). Yet the appellants do not argue that their power over curriculum is exclusive. Again, I cite from the written argument submitted on their behalf, at p. 27:

[The appellants'] right to establish a curriculum which reflects the values and priorities of their community is not inconsistent with the right of the Province to legislate or adopt regulations of general application respecting curriculum, for example to ensure that all students achieve adequate standards in core subjects or a knowledge of matters of particular concern to Quebec students. It is only where a protected right is prejudicially affected, as is the case here, that the guarantees of Section 93 limit the authority of the Province.

I cannot agree that s. 93(1) grants to Protestants a control over curriculum which is as sweeping as that suggested by the appellants. By associating the content of the constitutional guarantee with a Protestant educational philosophy founded upon pluralism, the appellants would give to the Protestant community a right or privilege to determine the curriculum used in denominational schools which is completely incompatible with the exercise of a general regulatory power of the province over matters of curriculum which fall outside religious and moral education. A parallel can be drawn between the effect of this position and that of the respondent in City of Winnipeg v. Barrett, [1892] A.C. 445 (P.C.) In upholding the Manitoba Public Schools Act, 1890 in the face of a challenge by the local Catholic community that the Act violated protected rights or privileges in the equivalent to s. 93 in the Manitoba Act, 1870, Lord MacNaghten stated (at p. 459):

With the policy of the Act of 1890 their Lordships are not concerned. But they cannot help observing that, if the views of the respondents were to prevail, it would be extremely difficult for the provincial legislature, which has been entrusted with the exclusive power of making laws relating to education to provide for the educational wants of the more sparsely inhabited districts of a country almost as large as Great Britain, and that the powers of the legislature, which on the face of the Act appear so large, would be limited to the useful but somewhat humble office of making regulations for the sanitary conditions of school-houses, imposing rates for the support of denominational schools, enforcing the compulsory attendance of scholars, and matters of that sort.

To give the proper content to s. 93(1) in this case, the Court must decide which non-denominational aspects of curriculum are, from the point of view of constitutional law, "with respect to" Protestant denominational schools. In arriving at his conclusion that the Regulations impugned in the case at bar were intra vires, McCarthy J.A. very ably drew the line between those aspects of curriculum which enjoy constitutional protection and those which do not. At page 1035, he stated that:

. . . to interpret properly section 93 of the Constitution Act, 1867, one must first distinguish between the denominational and the non-denominational aspects of denominational schools and then distinguish further between those non-denominational aspects, such as financing, which are necessary to give effect to denominational guarantees and those which are not so necessary. The pedagogical regimes here in question fall into the last category. They are therefore within the legislative competence of the province in relation to education.

Furthermore, the protection over the non-denominational aspects of denominational schools which are necessary to give effects to denominational guarantees, to use the language of McCarthy J.A., is also assured in the Regulations. The 1861 power of school commissioners and trustees to "regulate the course of study" in denominational schools has been entrenched only in so far as this limited regulatory power is necessary to give effect to denominational guarantees. I believe the impugned Law and Regulations meet the constitutional requirement by granting to the school boards the power to adapt prescribed curricula to local needs and to create additional curricula, subject to approval, where they deem it necessary and to participate in the evaluation of the curricula generally. The Attorney General of Quebec correctly observed in written argument:

[TRANSLATION] The trustees of dissentient schools, whether Catholic or Protestant, are therefore subject to the regulation of curricula. However, in view of the constitutional protection they are given, they may adapt these curricula by offering them in a manner consistent with their religious values and regulate their schools so as to diffuse in them their own religious values.

The Regulations allow the school boards to exercise their 1861 power over the non-denominational aspects of denominational schools which are necessary to give effect to denominational guarantees.

McCarthy J.A. has traced a fine line which, I believe, serves to render more precise much of the discussion of the s. 93(1) that has come before in the case law. I offer the following example of how McCarthy J.A.'s distinction furthers an understanding of the cases in this complicated field. After observing that "[d]enominational status does not exist in a vacuum" for the purposes of distinguishing between protected and unprotected aspects of denominational schools in Hull, supra, at p. 584, Chouinard J. cited the following dictum with approval:

In Hirsch in this Court, 1926 CanLII 67 (SCC), [1926] S.C.R. 246, Anglin C.J., who was not overruled by the Privy Council on this point, wrote at p. 269:

From what has been said it is apparent that we would regard legislation designed to impair the right of Protestants, as a class of persons in the province of Quebec, to the exclusive control, financial and pedagogic, of their schools, as ultra vires of the provincial legislature. [Emphasis added.]

To Chouinard J.'s approval of this dictum I would add the refinement that McCarthy J.A. has provided us in the Court of Appeal here. The pedagogical control to which Anglin C.J. alludes is only exclusive in so far as it is necessary to assure the protection of the constitutional value. The only non-denominational aspects of a pedagogical regime which are protected by s. 93(1) are those which are "necessary to give effect to denominational guarantees".

There is plainly an honest difference of opinion between the educational experts of the appellant school boards and those of the Minister of Education as to what kind of pedagogical regime is best suited to preschool, elementary and secondary school pupils. Whatever the merits of the approaches to education espoused by the appellant school boards and the Minister respectively, s. 93(1) of the Constitution Act, 1867 is not the appropriate device to settle their differences. The constitutional guarantee is explicitly stated to be "with respect to Denominational Schools". In an effort to attack the principle of a uniform curriculum for all schools, the appellants have framed what may well be a legitimate pedagogical argument in constitutional terms which, I believe, is inappropriate. As I have said, I do not accept the appellants' position that Protestant educational philosophy extends constitutional protection beyond what is necessary to give effect to denominational guarantees. The appellants are attacking non-denominational aspects of curriculum which are not necessary to give effect to denominational guarantees. I agree with McCarthy J.A. that whatever the pedagogical value of the Regulations may be, they are within the legislative competence of the province in relation to education.

VII -The Constitutionality of the Impugned Legislation and Regulations under Section 93(2)

The appellants invoke s. 93(2) of the Constitution Act, 1867 as an alternative basis on which to attack the legislation and regulations at issue here. Section 93(2) directs that "All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen's Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen's Protestant and Roman Catholic Subjects in Quebec".

On the strength of the judgment of this Court in the Separate Schools Reference, rendered after the decision in the Court of Appeal in the case at bar, the appellants argue in their factum that "the right of Quebec Protestants in respect of curriculum can be no less than [that] enjoyed by Roman Catholics in Ontario" as described by Wilson J. in that case. This argument seems to postulate that the Protestant School Board of Greater Montreal and Greater Quebec School Board are boards of dissentient schools, as well as the Lakeshore School Board and all the boards represented by the Association of Protestant School Boards. This may not be entirely free from doubt but I am prepared to assume without deciding that the postulate is well founded.

Section 93(2) does not itself entrench rights or privileges which existed in either province by law at the Union. It is section 93(1), and not s. 93(2) on its own, which raises "Right or Privilege with respect to Denominational Schools" to the status of constitutional norms. What section 93(2) does do is add a step to the analysis which necessarily comes before the determination of which rights and privileges enjoyed by law at the Union have become entrenched in Quebec under s. 93(1). In essence, s. 93(2) extends all powers, privileges and duties (but not constitutional powers and privileges) conferred and imposed in Upper Canada on the separate schools and school trustees of the Queen's Roman Catholic subjects to the dissentient schools of the Queen's Protestant and Roman Catholic subjects in Quebec. Section 93(2) does not replace the rule in s. 93(1), but it does complete it. If, for example, by the operation of the provision in s. 93(2), powers and privileges which existed at the time of Confederation in Upper Canada are "extended" to dissentient Quebec Protestants or Catholics, the inquiry as to what greater constitutional powers and privileges dissentient Quebec Protestants or Catholics may enjoy in their own province does not end there. The Court is still required, not by s. 93(2) but by s. 93(1), to determine whether the power or privilege extended from Upper Canada to Quebec is "with respect to Denominational Schools" and whether that right, power or privilege is prejudicially affected by the legislation attacked in any given case. (Other powers extended by s. 93(2) might be relevant, at least in theory, to protection afforded by s. 93(3) and (4).)

The Attorney General of Ontario intervened on behalf of the respondent on this issue. Together they argue that the law in Upper Canada at the Union divided authority over curriculum between the central Council of Public Instruction and the separate school trustees in a manner similar to the division of authority under the 1861 Statute in Quebec. Furthermore, they contend that in the Separate Schools Reference, Wilson J. did not recognize a power over the content of curriculum for separate school trustees which, by operation of s. 93(2), would invalidate the Quebec legislation and regulations here. The respondent concludes its submission on this point: [TRANSLATION] ". . . the situation in Quebec is the same as in Ontario. The province sets the curricula and the trustees, Catholic as well as Protestant, offer them in accordance with their own philosophy."

In the Separate Schools Reference, Wilson J. explained that four statutes in force at the time of Confederation in Upper Canada are relevant to the interpretation of s. 93(1): An Act respecting Common Schools in Upper Canada, C.S.U.C. 1859, c. 64 (the "Common Schools Act, 1859"); An Act respecting Separate Schools, C.S.U.C. 1859, c. 65; An Act to restore to Roman Catholics in Upper Canada certain rights in respect to Separate Schools, S. Prov. C. 1863, 26 Vict., c. 5 (the "Scott Act, 1863"), and An Act for the further improvement of Grammar Schools in Upper Canada, S. Prov. C. 1865, 29 Vict., c. 23. I do not propose to analyze these statutes exhaustively here: Wilson J. has done this, albeit from a different perspective, in the Separate Schools Reference, and I will make liberal use of her analysis here.

At pages 1182-85 passim, Wilson J. described the shared authority over curriculum between the central and local authorities at Confederation. Although the law in force at the Union did not confer an express power upon separate school trustees in Upper Canada to determine the courses to be taught in their schools, Wilson J. believed that such a power was implicit in the scheme of the legislation. She based this conclusion on the power which trustees had to employ teachers and, in the case of trustees in urban areas, the power to determine the duties which those teachers would perform. Wilson J. detailed the scope of the authority of the central Council for Public Instruction to make regulations for the organization, government and discipline of common schools and to recommend or disapprove textbooks, as well as the corresponding duty imposed on the trustees to see that no books unauthorized by the Council of Public Instruction were used in the schools. She then concluded (at p. 1184):

But the exact content of a particular school's curriculum would seem, in the absence of specific regulation by the Council for Public Instruction, to be by law left to the discretion of the trustees.

The appellants argue that s. 93(2) extends the power or privilege to determine the exact content of curriculum enjoyed by trustees in Upper Canada to the Quebec Protestants identified in that provision.

Accepting Wilson J.'s conclusions for the purposes of present argument, the Court still must assess in what measure this power or privilege extended by operation of s. 93(2) to Quebec Protestants is entrenched in Quebec as a "Right or Privilege with respect to Denominational Schools" pursuant to s. 93(1). The extent to which the separate school trustees' power to set the non-denominational component of curriculum in Upper Canada is entrenched for Quebec is most crucial to the resolution of this appeal. Does this extended power or privilege result in a wider constitutional protection for the appellants under s. 93(1) than the entrenched protection over non-denominational curriculum which I have described above?

In my view this cannot be the case. While the precise content of the law in each province may have varied at the Union, the manner in which the Court must determine to what extent a right, power or privilege is, from the point of view of constitutional law, "with respect to Denominational Schools" in a given province does not vary, even when those rights, powers or privileges are "extended". The distinction which McCarthy J.A. established in the Court of Appeal in this case regarding which aspects of curriculum enjoy constitutional protection in Quebec under s. 93(1) remains applicable where a right, power or privilege to set curriculum is extended by operation of s. 93(2). As is the case in respect of the powers granted to school commissioners and trustees under the 1861 Statute in Quebec, the power to set curriculum extended to Quebec Protestants has only been entrenched in so far as it is necessary to give effect to the denominational guarantee in Quebec. Because this power is not necessary to secure the s. 93(1) guarantee which is, as I have said, amply protected elsewhere, I do not believe the argument based on s. 93(2) strengthens the attack on the impugned law and regulations. The appellants do not succeed in their argument based on s. 93(2).

VIII - Conclusion

For the reasons given above, s. 16(7) of the Education Act and the Elementary and Secondary School Regulations are intra vires the province pursuant to s. 93 of the Constitution Act, 1867. I would answer the constitutional question in the negative and dismiss the appeal, with costs. No order as to costs is made for or against the interveners.

Appeal dismissed with costs.

Solicitors for the appellants: Colin K. Irving and Allan R. Hilton, Montréal.

Solicitors for the respondent: Bernard, Roy & Associés, Montréal.

Solicitor for the intervener the Attorney General for Ontario: The Ministry of the Attorney General for Ontario, Toronto.

Solicitor for the intervener the Attorney General of Newfoundland: Ronald J. Richards, St. John's.

• Le Dain J. took no part in the judgment.