Supreme Court of Canada

Court File: 22112; 22119; 22123; 22124; 22129

Date: 1993-06-17

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

Counsel:

Colin K. Irving and Allan R. Hilton, for appellants, Quebec Association of Protestant School Boards.

François Houde and Bernard Jacob, for appellants, Fédération des commissions scolaires du Québec.

Jean Pomminville and Marie-Josée Vachon, for appellants, Commission scolaire Chomedey de Laval.

François Aquin and Yves Carrières, for appellants, Conseil scolaire de l'île de Montréal.

Marcel Cinq-Mars, Q.C., André Durocher and Jude Parent, for appellants, Commission des écoles catholiques de Montréal.

Jean-Yves Bernard and Luc Leblanc, for respondent.

Jacques Larochelle and Line Magnan, for interveners, Jeanne-D'Arc Audet-Grenier, Renelle Grenier-Gagné, Aurèle Grenier and Achille Larouche.

The judgment of the court was delivered by

[1] Gonthier J.:—At issue in this appeal are certain questions concerning the constitutionality of provisions of the Education Act, S.Q. 1988, c. 84 ("Bill 107") in light of s. 93 of the Constitution Act, 1867, submitted by reference to the Quebec Court of Appeal and on which that court gave its opinion on September 21, 1990, [1990] R.J.Q. 2498, 32 Q.A.C. 1, 23 A.C.W.S. (3d) 351.

I

Background

[2] Following the tabling of the report of the Royal Commission on Education in the Province of Quebec in 1966, the provincial legislature undertook a series of initiatives to make the education system better suited to modern Quebec. By that new legislation, Bill 107, the Quebec Government sought to carry out a very sweeping reform of the educational institutions in the province.

[3] In 1984, Quebec had passed the Act respecting public elementary and secondary education, S.Q. 1984, c. 39 ("Bill 3"), which led to court challenges as a result of which the Act was declared to be wholly inoperative by the Superior Court: Quebec Association of Protestant School Boards v. A.-G. Que. (1985), 21 D.L.R. (4th) 36, [1985] C.S. 872. Rather than appealing this judgment rendered by Brossard J., the Quebec Legislature chose to table a new bill in the National Assembly. Bill 107 was assented to on December 23, 1988, but the Quebec Legislature felt it was advisable to submit certain questions to the Court of Appeal to ensure that certain provisions of the Act complied with s. 93 of the Constitution.

[4] On April 26, 1989, the Government of Quebec adopted Order in Council 610-89 and submitted to the Quebec Court of Appeal, pursuant to the Court of Appeal Reference Act, R.S.Q., c. R-23, five sets of questions concerning the province's jurisdiction over legislative reform of education. On two occasions following the hearing in the Court of Appeal the Quebec Legislature passed statutes amending certain provisions of Bill 107 at issue in the reference. These were the Act to amend the Education Act and the Act respecting the Conseil supérieur de l'éducation, S.Q. 1990, c. 8, assented to on May 4, 1990, and the Act to amend the Education Act and the Act respecting private education, S.Q. 1990, c. 28, assented to on June 22, 1990. After consulting the parties, the Court of Appeal agreed to rule on Bill 107 as amended.

[5] On September 21, 1990, the Court of Appeal, per LeBel and Beauregard JJ.A., handed down its decision in the reference and between October 5 and 17, 1990, the bodies intervening in the Court of Appeal filed notices of appeal in this court. Two months later, the Quebec Legislature passed the Act to amend the Education Act and the Act respecting private education, S.Q. 1990, c. 78, which also amended certain provisions that were the subject of the reference, in accordance with the opinions of the Court of Appeal. On March 18, 1991, the application by the Attorney-General of Quebec asking this court to rule on the provisions of Bill 107 as amended was allowed.

A. Constitutional questions

[6] The constitutional questions are as follows:

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

2. Does the Education Act, in particular ss. 126 to 139 and 206, prejudicially affect the rights and privileges protected by s. 93 (1) and (2) of the Constitution Act, 1867 in its provisions:

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

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

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

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

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

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

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

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

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

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

(b) it authorizes the Conseil scolaire to establish rules for apportioning the proceeds of the tax it collects on behalf of these school boards?

5. Does the Education Act, in particular ss. 49, 223, 227, 230, 261 and 568, prejudicially affect the rights and privileges protected by s. 93 (1) and (2) of the Constitution Act, 1867, in that it gives the Catholic committee and the Protestant committee of the Conseil supérieur de l'éducation the authority:

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

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

[7] The question underlying this entire dispute is, as the appellant the Quebec Association of Protestant School Boards states at p. 11 of its factum:

... whether it is open to the National Assembly in exercising its authority to create a new non-denominational language board system to appropriate or in the case of Montreal and Quebec City, to authorize the appropriation of the existing minority Protestant system under the conditions laid down by Bill 107.

B. Description of proposed reform

[8] The primary purpose of Bill 107 is to refocus educational institutions on the school and create a network of institutions to bring parents closer to the school and have them participate more actively in its management and orientation.

[9] Bill 107 also comprises a fundamental reform of the organization of school boards. The Quebec public school system would move from a system organized according to religion to one organized according to language. Thus, the new legislation divides the province into two groups of territories, one of territories for French-language school boards and the other of territories for English-language school boards.

[10] The organization of these new linguistic school boards will result in the dissolution of the existing "boards for Catholics" and "boards for Protestants". All the property, rights and assets and the staff of these boards will then be transferred to the linguistic boards.

[11] However, this reform will not entail the dissolution of the five existing dissentient school boards, namely the Protestant dissentient school board of Baie-Comeau, the Catholic dissentient school board of Greenfield-Park, the Laurentian Protestant dissentient school board, the Catholic dissentient school board of Portage-du-Fort and the Protestant dissentient school board of Rouyn. Similarly, the four existing "confessional" or denominational school boards of Montreal and Quebec will continue to exist.

[12] The government assumes the power to dissolve a dissentient school board when it becomes inactive and to alter the territory of denominational school boards.

[13] I adopt the description of LeBel J.A. (at p. 2513), which sets out clearly the background to the reference (translation):

After the new educational structures are in place, the legislation provides for a dissent procedure available to denominational religious minorities, Catholic or Protestant ... in the event of disagreement between the dissentients and the linguistic school boards, the Minister is responsible for ruling on problems caused by transfers of staff and material resources. The Minister must ensure that the dissentient school board has the assets it needs to operate at its disposal ... He is under the same obligation in cases where the territory of a denominational school board has been altered ... The Act also lays down a principle of proportional access to public funds, in financing and operating the school system, for denominational or dissentient school boards ...

On the island of Montréal, management of the borrowing and property taxes of school boards is transferred to the Conseil scolaire de l'île de Montréal, a public corporation, composed of a majority of members appointed by representatives of school boards and a few representatives of parents appointed by the Government ...

Finally, the Act preserves the organization known as the Conseil supérieur de l'éducation and its Catholic and Protestant subcommittees ...

Additionally, although the educational structure created by the Act for linguistic school boards is administratively neutral, schools may be recognized as Catholic or Protestant in accordance with an educational plan adopted pursuant to the Act. Linguistic school boards are also required to organize and offer religious and moral instruction, Catholic or Protestant, and provide it to whoever requests it.

Finally, the Act gives the government and the Minister wide regulatory powers. Ordinarily, determining the curriculum is a matter for government regulation ... In general, the Act provides for the management of schools and school boards, the election of commissioners and the supervision and control of their management, both material and pedagogical.

C. Parties and interveners

[14] The appellants and the interveners in the case all intervened in the reference to the Court of Appeal.

[15] The Conseil scolaire de l'île de Montréal is a body created in 1972 pursuant to the Act to promote school development on the island of Montreal, S.Q. 1972, c. 60. Its argument relates only to the fourth constitutional question. It is of the view that it might usefully inform the courts of the role it plays vis-à-vis the school boards on the island of Montreal as regards borrowing and apportioning tax proceeds, and that it could thus assist in determining whether or not, in these matters, Bill 107 has a prejudicial effect within the meaning of s. 93 of the Constitution Act, 1867.

[16] The Fédération des commissions scolaires du Québec was created to promote the interests of education and to bring together the various Catholic school boards in Quebec. It feels it should take all necessary steps to defend and protect the interests of its members — at present 173 Catholic school boards — and of catholic school boards in Quebec in general. In this court, the Fédération is appealing the answers given by the Court of Appeal to Qq. 1, 2 (a) and (b) and 3 (b) and (c).

[17] The Montreal Catholic School Commission is responsible for Catholic public schools serving the territory of the Montreal school municipality. It is one of the school boards which in 1985 asked the Superior Court to strike down Bill 3. In the instant reference, it is challenging the legality of Bill 107 as a whole; alternatively, it is asking this court to declare the provisions submitted to it to be unconstitutional.

[18] The Quebec Association of Protestant School Boards, which comprises 26 Protestant school boards, is asking this court to answer constitutional Qq. 1, 2 and 3 in the affirmative.

[19] The Commission scolaire Chomedey de Laval, which represents Catholics residing in the territory served by it, is especially concerned with constitutional Qq. 1, 2 and 5. However, it is asking this court to declare Bill 107 completely ultra vires the National Assembly. Further, it is questioning the Privy Council decision in Hirsch v. Protestant Bd. of School Com'rs of Montreal, [1928] 1 D.L.R. 1041, [1928] A.C. 200, 48 Que. K.B. 115, when it refused to recognize constitutional guarantees for the religious majority outside Quebec and Montreal.

[20] The bodies I have just mentioned all appealed from the Court of Appeal judgment.

[21] Jeanne D'Arc Audet-Grenier, Renelle Grenier-Gagné, Aurèle Grenier and Achille Larouche were interveners in the Court of Appeal and obtained leave from this court to intervene. These persons, who reside in various places in Quebec outside the City of Quebec and Montreal, and who profess the Catholic faith, would like the court to declare that Bill 107 is totally inoperative and ultra vires.

D. Legal framework of reference

[22] The reference raises no issue as to the application of the Canadian Charter of Rights and Freedoms, including s. 23. It is concerned only with whether certain legislative provisions are consistent with s. 93 (1) and (2) of the Constitution Act, 1867:

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:

93. Dans chaque province et pour chaque province, la législature pourra exclusivement légiférer sur l'éducation, sous réserve et en conformité des dispositions suivantes:

(1) Rien dans cette législation ne devra préjudicier à un droit ou privilège conféré par la loi, lors de l'Union, à quelque classe particulière de personnes dans la province relativement aux écoles confessionnelles;

(2) Tous les pouvoirs, privilèges et devoirs conférés ou imposés par la loi dans le Haut-Canada, lors de l'Union, aux écoles séparées et aux syndics d'école des sujets catholiques romains de la Reine, seront et sont par les présentes étendus aux écoles dissidentes des sujets protestants et catholiques romains de la Reine dans la province de Québec;

[23] In view of the importance of this section in the appeal at bar, serving as it does as a reference point, it is worth looking more closely at the section and recalling its origins and the nature and scope of the guarantees it provides.

[24] Section 93 is unanimously recognized as the expression of a desire for political compromise. It served to moderate religious conflicts which threatened the birth of the Union. At the time, disagreements between communities hinged on religion rather than language.

[25] This court noted the essential nature of s. 93 in Reference re: Act to Amend the Education Act (Ontario) (1987), 40 D.L.R. (4th) 18, [1987] 1 S.C.R. 1148, 36 C.R.R. 305 ("Ontario Separate Schools Reference").

[26] The introductory part of the section assigns exclusive jurisdiction over education legislation to the provinces. The Privy Council and this court have on numerous occasions affirmed this principle, which is not at issue in the present appeal: City of Winnipeg v. Barrett, [1892] A.C. 445 (P.C.); Hirsch v. Protestant Bd. of School Com'rs of Montreal, [1926] 2 D.L.R. 8, [1926] S.C.R. 246; affirmed on this point [1928] 1 D.L.R. 1041, [1928] A.C. 200, 48 Que. K.B. 115; A.-G. Que. v. Greater Hull School Board (1984), 15 D.L.R. (4th) 651, [1984] 2 S.C.R. 575, 28 M.P.L.R. 146; Ontario Separate Schools Reference, and Greater Montreal Protestant School Board v. Quebec (Attorney-General) (1989), 57 D.L.R. (4th) 521, [1989] 1 S.C.R. 377, 20 Q.A.C. 241 ("G.M.P.S.B."), inter alia. Professor Pierre Carignan is of the view (Les garanties confessionnelles à la lumière du renvoi relatif aux écoles séparées de l'Ontario (Montreal: Thémis, 1992)) that provincial jurisdiction over education was essential in order to obtain the support of Lower Canada during the pre-Confederation negotiations.

[27] Section 93 goes on to impose limits on this jurisdiction, limits resulting from the creation of guarantees for certain classes of persons. 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" (1986), 20 R.J.T. 375 at p. 451, Professor Carignan states (translation):

... the only effect of the provision is to prevent the 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. The drafters were thereby demonstrating not so much a preference for entrenchment as a desire to facilitate 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.

[28] Section 93 (1) may be described, as Professor Carignan does, as a constitutionalizing provision and s. 93 (2) as a provision extending the scope of the law. While s. 93 (1) crystallizes certain pre-existing rights and privileges, it must not make the introductory provision meaningless. Imposing too many limits on provincial legislatures would prevent them from exercising their jurisdiction over education effectively. As Viscount Cave L.C. says in Hirsch, supra, at p. 1052, s. 93

... does not purport to stereotype the educational system of the Province as then existing. On the contrary, it expressly authorizes the provincial Legislature to make laws in regard to education subject only to the provisions of the section; and it is difficult to see how the Legislature can effectively exercise the power so entrusted to it unless it is to have a large measure of freedom to meet new circumstances and needs as they arise.

[29] As to s. 93 (2), Beetz J. in G.M.P.S.B., supra, considers at p. 548 that it

... does not ... entrench rights or privileges which existed in either province by law at the Union. It is s. 93 (1), and not s. 93 (2) on its own, which raises "Right[s] or Privilege[s] with respect to Denominational Schools" to the status of constitutional norms ... Section 93 (2) does not replace the rule in s. 93 (1), but it does complete it.

[30] The question which is at the heart of the present constitutional reference is therefore whether the legislation complies with the guarantees given with respect to denominational education in 1867. However, as LeBel J.A. points out (at p. 2509) (translation):

II

Background

A. Legislation in effect in 1867

[31] When in s. 93 the framers prohibit the legislatures from prejudicially affecting certain rights, they do not list or describe those rights. The only indication we have is that these are rights or privileges "with respect to Denominational Schools". The framers provide no further definition of their nature or extent, but refer us to those recognized by law at the Union. This choice can be explained by the variety of situations existing in the founding provinces.

[32] As Wilson J. says in the Ontario Separate Schools Reference, supra, at p. 45: "Our task therefore is to examine the laws in force prior to Confederation to see what rights or privileges they gave." This needs to be done in light of the judicial decisions clarifying that legislation.

(1) The Lower Canada Education Act of 1861

(a) Legislation relevant to the reference

[33] In education the Act in effect in Lower Canada in 1867 was the "Act respecting Provincial Aid for Superior Education, — and Normal and Common Schools", C.S.L.C. 1861, c. 15 ("1861 Act"). It provides for two kinds of system. The general system applied to "rural areas", that is throughout Lower Canada apart from the Cities of Quebec and Montreal. Special provisions applied to those two municipalities. The differences related to both the central administration and the local administration.

[34] As the issue here concerns denominational education as a right or privilege protected by s. 93 of the Constitution, I shall not consider the central administration. It is clear that there was no denominational aspect there at the time of the Union, since as this court noted in Hirsch, supra, at p. 17, it was not until 1869 (Act to amend the law respecting Education in this Province, S.Q. 1869, c. 16) that the Council of Public Instruction was given two committees, one Roman Catholic and the other Protestant.

[35] In the so-called rural areas, that is outside Quebec and Montreal, the 1861 Act provided (s. 27) for the establishment of "common" schools, that is, according to the ordinary meaning of the words, schools open to all children whatever their race, language or religion. In each municipality the school meeting, comprising all landholders and householders, elects school commissioners. All levels of the local school administration are denominationally neutral: at least, the Act assigns no denomination to them.

[36] However, the 1861 Act does not prohibit denominational instruction in common schools. Nor does it prevent a school being given a denominational character. Indeed, it is for this reason that the educational system in general had a bi-denominational character in 1861, with on the one hand the majority schools, using the opportunity open to them under the Act of giving a school a denominational character, and on the other dissentient schools, to which I shall return, the purpose of which was precisely to be denominational schools.

[37] The 1861 Act allows (translation) "religious groups who are numerically inferior to acquire a parallel local administration through administrators elected among themselves": Pierre Carignan, "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", supra, at p. 411. Section 55 is the key provision:

55. When in any Municipality, the regulations and arrangements, made by the School Commissioners for the conduct of any School, are not agreeable to any number whatever of the inhabitants professing a religious faith different from that of the majority of the inhabitants of such Municipality, the inhabitants so dissentient may collectively signify such dissent, in writing, to the Chairman of the Commissioners, and give in the names of three Trustees, chosen by them for the purposes of this Act ...

[38] What makes the difference between the designated group and the rest of the population is very clearly expressed: it is religious faith. The legislature's intent is indicated by its taking this one criterion into account: there is no mention here of language or race. Under this section, therefore, it was possible for parents belonging to a faith other than that of the majority to break away and form their own schools. The facts disclose that a majority of the population was Roman Catholic in most rural areas of Lower Canada at that time. In general, therefore, the right to dissent was available to Protestants, taking into account once again the facts. In the few regions with a Protestant majority — the counties of Mégantic, Missisquoi, Shefford, Sherbrooke and Stanstead — it was the Roman Catholics who could exercise their right of dissent.

[39] The 1861 Act undoubtedly ascribed a denominational character to dissentient schools, as Viscount Cave noted in Hirsch, supra, at pp. 1047-8. In particular, s. 56 (3) provides that only individuals belonging to the dissentient minority can vote and be elected to the position of trustee.

[40] In short, in the rural areas of Quebec two types of school and school board existed by law: the "common" schools, which were neutral, open to everyone, and eventually de facto denominational, and the dissentient schools, which were de jure denominational. That was the conclusion of the Privy Council in Hirsch, supra, at pp. 1047-8, which this court adopted in Greater Hull, supra:

It is convenient at this stage to deal, as regards these schools in the rural area, with the first of the two questions above formulated, namely, whether any and which of them were denominational schools in which any class of persons had by law any right or privilege at the Union. That the dissentient schools in the rural area fall within that category can hardly be doubted ... No doubt it is true, as stated by the Canadian Courts, that in most of the school districts in the rural area the majority of the landholders and householders are Roman Catholics, and, accordingly, that the common schools in those districts (other than the dissentient schools) are in fact controlled by members of that religious community; but, if so, the result is due to the circumstances of the particular school districts, and it is not a right or privilege to which any class of persons are "by law" entitled.

(Emphasis added.)

[41] In this respect, the Privy Council was following the position it had taken in 1874 in Maher v. Town of Portland (reported in Wheeler's Confederation Law of Canada (London: Eyre & Spottiswoode, 1896), at p. 338), dealing with common schools in New Brunswick. The ability which a majority of electors had, through the exercise of their right to vote, to elect commissioners of the same faith and through them to establish denominational education in a school did not give the school a denominational status at law and so did not give rise to a right to denominational schooling. Although as I have already said the common schools were frequently as a matter of fact denominational, this was still accidental, dependent on the will of the commissioners and on the vagaries of elections in which the right to vote and eligibility were not subject to any religious requirement. In such a system, there were no denominational schools that could be the object of a right conferred by law, nor was there any particular class of persons who could enjoy such a right. Under s. 55, dissent itself arose out of a state of fact and not of law, that is, when "the regulations and arrangements, made by the School Commissioners for the conduct of any School, are not agreeable to any number whatever of the inhabitants professing a religious faith different from that of the majority ...".

[42] The right to dissent conferred by the legislature was necessary because it corresponded to a real need of part of the population. The legislature, obviously aware that common schools might be managed and administered by the members of a religious majority — even though religious faith was not a criterion for eligibility (because of the system for electing commissioners, it was statistically more likely that they would belong to the religious majority of the municipality) — and that accordingly the children of the religious minority might not be given instruction in their faith in the school system managed by the majority, provided a mechanism by which they could opt out of it. This explains the right to dissent contained in the 1861 Act. It is hardly necessary to point out that this is a right, an option, offered to the minority and not an obligation. The children of the minority could continue to attend the majority's schools. As Pierre Carignan says ("La place faite à la religion dans les écoles publiques par la loi scolaire de 1841" (1982-83), 17 R.J.T. 9 at p. 45), speaking of s. XI of the "Act to repeal certain Acts therein mentioned, and to make further provision for the establishment and maintenance of Common Schools throughout the Province", S.C. 1841, c. 18, which in his view is reproduced in s. 55 of the 1861 Act:

School dissent is an exceptional provision in the sense that, far from being applicable everywhere and in all circumstances, it is a remedy for extraordinary circumstances. Section XI does not create a denominational system, nor does it create a network of dissentient schools. It simply opens the door a little way to denominational schooling within a system which in principle is intended to establish common schools.

(Emphasis added.)

[43] For the Municipalities of Quebec and Montreal, on the other hand, the 1861 Act clearly created two school networks, one under the control of Roman Catholic commissioners and the other under that of Protestant commissioners. The source of the special legislative provisions for the two cities is the 1841 Education Act. This Act governed the system of education for United Canada, that is Upper and Lower Canada, and when it speaks of "Cities and Towns corporate" this in 1841 referred to Toronto, Montreal and Quebec. It is clear that the legislature took care to make exceptional provision for the cities because of their special demographic, cultural and social character. In 1843 Upper Canada opted out of the school legislation which did not suit its needs and obtained its own legislation on the matter: "Act for the establishment and maintenance of Common Schools in Upper Canada", S.C. 1843, c. 29. When school legislation was later adopted for Lower Canada in 1845, and in 1846, with the "Act to repeal certain Enactments therein mentioned, and to make better provision for Elementary Instruction in Lower Canada", S.C. 1846, c. 27, the legislature did not do so in a way fundamentally different from the provisions of the 1841 Education Act. Indeed, it can be seen that the 1846 Education Act is derived directly from that of 1841. Additionally, as no significant amendment was subsequently made either, the 1861 Act also largely resembles that of 1841. The special provisions made for Montreal and Quebec, in effect at the time of the Union, are a holdover from those established for the incorporated cities in 1841.

[44] The administration and control conferred by the 1861 Act on the members of a particular denomination gave a denominational character, Catholic or Protestant, to the school systems in these two municipalities de jure. This was the conclusion of the Privy Council in Hirsch, supra, at p. 1049: "Then, were the common schools in the Cities of Montreal and Quebec denominational schools in which any class of persons had by law a right or privilege at the Union? In their Lordships' opinion they were."

[45] It is also important to consider the provisions of the 1861 Act on financing. This was to come from three sources: government grants, taxes and school fees.

[46] The government grants were distributed by the Superintendent of Education as specified in s. 24 (1):

24. It shall be the duty of the Superintendent of Education —

25. To receive from the Receiver General all sums of money appropriated for Common School purposes, and to distribute the same among the School Commissioners and Trustees of the respective Municipalities, according to law, and in proportion to the population of the same, as ascertained by the then last Census ...

(Emphasis added.)

[47] Section 55 (2), setting out the duties of the trustees of dissentient schools, repeats the same principle:

55 (2)... and they shall be entitled to receive from the Superintendent or from the School Commissioners, a sum out of the general or local School Fund, proportionate to the dissentient population they represent ...

(Emphasis added.)

[48] In Greater Hull, supra, this court noted the contradiction between this section and s. 57 (3), "which for the same trustees and the same dissentient schools, established a proportionality on the basis not of population but of the number of children attending the schools" (p. 661). As the 1861 Act is a revised statute, priority ought to be given to the most recent enactment, namely s. 57 (3), which is taken from the 1849 Act ("Act to amend the School Law of Lower-Canada", S.C. 1849, c. 50) whereas s. 55 (2) is taken from the 1846 Education Act. It must therefore be concluded that in 1861 the dissentient schools received a share of public money proportional to the number of students attending the dissentient schools as compared with those attending the common school.

[49] As for school taxes, under s. 58 the trustees of dissentient schools could only impose property taxes on and collect them from dissentients. All other taxpayers, whatever their religion, came under the majority school board. Under s. 73 of the 1861 Act, the amount of taxation authorized is "a sum equal to that allowed out of the Common School Fund (for such Municipality)". Section 74 further provided that commissioners and trustees could cause to be levied such additional sum beyond that provided for in s. 73 as they thought it necessary to raise for the support of the schools under their control.

[50] Under s. 131, commissioners in the two major cities could not collect any school rates. The municipal corporations took an amount from their revenue and paid it to the boards of school commissioners, "in proportion to the population of the religious persuasion represented by such Boards respectively". Patrice Garant, Jacques Gosselin and Bernard Tremblay, "Les soubresauts de la réforme scolaire: la constitutionnalité de la Loi 3" (1985), 16 R.D.U.S. 205, are of the view at p. 228, that (translation)

[i]t is thus a serious legal and historical error to ascribe any taxing power to the school corporation of Montréal and Québec before 1867. There was no "school rate" in those territories, only a municipal rate for school purposes part of which was implicitly compulsory, another part implicitly at the discretion of the municipal authorities and a third part expressly at their discretion.

[51] The school fees, or monthly stipend, present no great problem. Ordinarily they were paid by each student to the commissioners or trustees, depending on the school attended.

(b) Content of constitutional guarantee

[52] Section 93 of the Constitution crystallizes the rights and privileges pertaining to denominational schools under the law in effect at the time of Confederation: it is in a sense a snapshot of the legislative situation in 1867. The picture it provides indicates that in the rural areas of Quebec religious minorities alone were entitled to denominational schools, by means of dissenting rights, and that in the two major cities, Catholics and Protestants were also entitled to denominational schools, regardless of their relative numbers. In the "rural" areas, the religious majority was not entitled to any constitutional protection. The framers of the Constitution preserved the characteristics which the schools had in 1867 by providing protection based on the legal status of the institutions.

[53] Such a disparity in constitutional protection, whether within the same province or from sea to sea, would be ridiculous and even unacceptable if it applied to fundamental rights, but as Beetz J. said in G.M.P.S.B., supra, at p. 535: "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."

[54] As the rights and privileges protected by s. 93 (1) of the Constitution are those with respect "to Denominational Schools", it is helpful in determining the scope of the constitutional protection to try to distinguish the content of denominational status beyond the definition of the denominational school itself.

[55] This court has already had occasion to deal with the concept of denominational status, in particular in G.M.P.S.B., supra. At pp. 542-3 Beetz J. cites with approval François Chevrette, Herbert Marx and André Tremblay ("Les problèmes constitutionnels posés par la restructuration scolaire de l'île de Montréal" (Québec: Ministère de l'Education, 1972)), who note at p. 22 that (translation):

... 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 certain 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".

(Emphasis added.)

[56] It is hard to see how denominational status could exist "in a vacuum", to use the language of Chouinard J. in Greater Hull, supra, at p. 658. Denominational status includes the accessories, the means whereby it can be exercised.

[57] Chevrette, Marx and Tremblay go on to state at p. 22 (translation):

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 and connected directly with maintaining it.

(Emphasis added.)

[58] It is on this basis that in Ottawa Separate School Trustees v. Mackell (1916), 32 D.L.R. 1, [1917] A.C. 62, the Privy Council excluded language from the constitutional protections provided by s. 93.

[59] Beetz J. was of the view that "... constitutional protection 'with respect to Denominational Schools' has both denominational and non-denominational components" (G.M.P.S.B., supra, at p. 543). Of course, in cases where the application of s. 93 (1) is at issue, the whole problem is to determine which components should be protected.

[60] The question arose in G.M.P.S.B. It was also at issue in Greater Hull, where this court concluded that the right conferred on commissioners and trustees to receive grants on a proportional basis and the right to levy taxes within the boundaries of their respective municipalities are rights with respect to denominational schools, and so protected by s. 93 (1) of the Constitution.

[61] In this reference, LeBel J.A. considered several judgments on school legislation, from Hirsch, supra, to G.M.P.S.B., including Greater Hull and the Ontario Separate Schools Reference, supra. He came to the following conclusion (at p. 2538) (translation): "None of the cases considered above has ever recognized that the legal framework, still less the legal methods for promoting the exercise of the right to dissent, were protected and immutable."

[62] What s. 93 of the Constitution guarantees "rural" inhabitants of Quebec is the right to dissent itself, not the form of the institutions which have made it possible to exercise that right since 1867. This means, for example, that while the right of dissent obviously includes the means and framework in which it is exercised, the latter are not in themselves constitutionally guaranteed. The framers of the Constitution were wise enough not to determine finally the form of institutions, as it is those very institutions which must be capable of change in order to adapt to the varying social and economic conditions of society. Moreover, as we shall see, the institutions have been altered by the legislature many times since 1867. To give only one example which dates from some 20 years ago, I refer to the Act respecting the regrouping and management of school boards, S.Q. 1971, c. 67, which deprived the right of dissent of practical effect since each denomination, Catholic and Protestant, had a system organized on a denominational basis. However, in agreeing to merge their schools the dissentients to some extent abandoned their dissent but not their right or the option to exercise it. As LeBel J.A. pointed out (translation) "post-Confederation legislation cannot limit or restrict constitutional rights. These continue to exist even if it has not been possible to exercise them effectively" (p. 2537).

[63] It must be borne in mind that the rights and privileges guaranteed by s. 93 of the Constitution are not in any way patrimonial rights. This follows from the very wording of the section and the terms and conditions of the 1861 Act. The latter confers a right of ownership of real and personal property used for the education of children on corporations of commissioners or trustees, artificial persons, and not on classes of persons covered by s. 93, even though the former acquire the property out of taxes paid by individuals who make up the latter and use it for their benefit. As the provisions state:

54. ... And all Lands, School Houses or other property, real or personal, belonging to Common Schools, in any part of Lower Canada, under any law or by any title whatsoever, are vested in the Corporation of the School Commissioners respectively, of the Municipality in which such property is situate.

55. It shall be the duty of the School Commissioners or Trustees in each Municipality:

56. To take possession of lands and School Houses acquired, given to, or erected by the School Trustees or Commissioners ...

57. To acquire and hold for the Corporation, by any title whatsoever, all real or personnel property, moneys or income for the purposes of Education ...

[64] The class of persons mentioned in s. 93 of the Constitution does not have any patrimony as such. The right it has is that of indicating its disagreement with the religious majority with the accessories attached to that right, namely the means necessary to enjoy it.

[65] As I have indicated, particular institutions are not the subject of that right. Where institutions are altered, it is quite natural for the property of the abolished or transformed boards to be passed on to others. The Quebec Legislature is contemplating the redistribution of the patrimony of the existing school boards for Protestants and Catholics amongst the linguistic boards. There is no objection to this in principle, provided the new institutions and their establishment maintain, as we shall see, the rights to dissent or to denominational schools, as the case may be, and their accessories, and provide for fully equal enjoyment of them.

[66] With all due respect, I cannot concur in the reasoning of Brossard J. in Quebec Association of Protestant School Boards v. A.-G. Que., supra, to the extent that he suggests that, by transferring the property of the old dissentient school boards, which in 1971 and 1972 became school boards for Catholics and school boards for Protestants, to the new linguistic boards, Bill 3 deprives the class of persons contemplated by s. 93 of the Constitution of the patrimony amassed by them and deprives them of vested rights. In my opinion, this reasoning is based on a misunderstanding of the subject of the right and indicates confusion as to the holders of the right of ownership over the property. Further, while one may well admit that the property belongs to the taxpayers, as a result of the 1971-1972 reform the dissentients have joined the majority (by their own agreement). Then, as Garant, Gosselin and Tremblay, supra, point out at p. 241 (translation):

... the question that arises is how the rights resulting from dissent can be maintained and become "vested rights" when the "class of persons" which can claim them is no longer identifiable because it has in a sense decided to lay aside its right to dissent, which entails an interruption in the effective and continuous exercise necessary for the establishment of a vested right.

[67] The concept of vested rights rests on the notion of effective exercise of the rights, failing which they disappear through abandonment or non-user.

(2) The 1863 Upper Canada Education Act

[68] The constitutional guarantee conferred by s. 93 includes also rights granted under the legislation of Upper Canada.

[69] In Ontario the school system was basically neutral. As LeBel J.A. points out (translation) "the possibility of dissent was only gradually established with the influx of Irish or French-speaking Catholics" (p. 2519). The "Act to restore to Roman Catholics in Upper Canada certain rights in respect to Separate Schools", S.C. 1863, c. 5 ("Scott Act"), in effect in 1867, gave Roman Catholics the right to an independent administration. Educational institutions for Roman Catholics cannot be described as dissentient schools, since in order to establish a school of their denomination they did not need to be in the minority or in disagreement with the regulations of the other educational system. Under s. 2, it was sufficient that there be at least five Catholics wishing to create their own school.

[70] For Professor Carignan (Les garanties confessionnelles à la lumière du renvoi relatif aux écoles séparées de l'Ontario, supra), the Scott Act is (translation) "a political compromise between supporters and opponents of denominational schooling". I agree with him that it sought (translation) "to give Roman Catholic schools treatment similar to that enjoyed by dissentient schools in Lower Canada" (p. 117).

B. Principal legislative changes from 1867 to the present day

[71] As Professor Gilles Pépin notes ("L'article 93 de la Constitution et les droits relatifs à la confessionalité des écoles du Québec" (1988), 48 R. du B. 427 at p. 431 (translation):

In short, the Fathers of Confederation (or the framers of the Constitution) have as it were said to us, if you want to know what the guaranteed rights are, look at the legislation in effect in the provinces before the 1867 Union. It does not matter whether this legislation has since been amended or repealed. Post-1867 legislation does not create guaranteed rights and usage, tolerance, de facto situations, social context, natural law, tradition and so on are also irrelevant.

[72] However, it is worth looking briefly at some post-Confederation legislation and describing how educational legislation has developed to the present time in order to gain a better perspective on current educational institutions in light of the constitutional guarantees of s. 93.

[73] For about a hundred years there were no major or significant changes in educational legislation in Quebec. The change in direction of the educational system began around 1960. As Professor Patrice Garant notes at pp. 24-5 of Droit et législation scolaire (Montreal: McGraw-Hill, 1971) (translation):

... the cornerstone, the real inspiration, for the 1964 reform was the report of the Royal Commission on Education established in 1961. That Commission worked on analysing our educational system and finding what reforms were needed. In five years, it developed a new concept of education and a new school system in Quebec. Its first volume on "the upper levels of the school system" was almost the sole source of the celebrated 1964 legislation known as Bill 60.

[74] Bill 60 contained two governing statutes: the Education Department Act, R.S.Q. 1964, c. 233, and the Superior Council of Education Act, R.S.Q. 1964, c. 234.

[75] The purpose of the Education Department Act was to merge the youth department and the education department to form the education department. The body created by the Superior Council of Education Act was to collaborate with the Minister of Education and be responsible for developing education policy. Section 15 of the Superior Council of Education Act creates two committees, one Catholic and the other Protestant, which under s. 22 are responsible for supervising the denominational aspects of schools.

[76] According to Professor Garant, supra, at p. 28 (translation):

With the creation of the denominational committees, the legislature sought to provide effective protection for denominational status in the education system. For this reason, it gave these committees a decision-making power in strictly religious matters.

[77] The denominational committees were not strictly speaking a new creation of the legislature. They were the heirs of the two committees in the old Department of Public Instruction (Act to amend the law respecting Education in this Province, S.Q. 1869, c. 16, s. 2). However, their status and function, with which we are primarily concerned, were changed. Their regulatory authority, hitherto covering virtually everything that concerned education, was now confined to the moral and religious education of students.

[78] To meet the needs of the people of Quebec at the end of the sixties, the public education system had to cease being exclusively denominational. The changes were not radical, however. Professor Garant, supra, states at p. 91 (translation):

... educational institutions which come under the regional and local school corporations are not denominational so far as the content of education is concerned unless they are expressly recognized by one or other of the committees formed for this purpose. In strict law, therefore, public educational institutions or public schools are neutral, unless they are declared Catholic or Protestant and so limited to applying the regulations of these committees and the programs approved by them. On this last point, it may be noted that the committees only draw up programs of religious instruction; however, the law gives them a right of veto over the general programs established by the Department of Education, so that such programs will not be inconsistent with the denominational character of the institutions, recognized and protected as such by the Act and regulations.

Nonetheless, under s. 22f of the Act, neutral public institutions or schools may be required by the two denominational committees to provide religious or moral instruction, which has the effect of mitigating the absolute nature of their neutrality.

(Emphasis added.)

[79] Further, s. 203 (4) of the Education Act, R.S.Q. 1964, c. 235, speaks of "Catholic or Protestant public schools". Does this mean that there really were no neutral schools in Quebec in 1964? Professor Garant, supra, explains that this wording is in fact an error, corrected by the Act to promote the French language in Québec, S.Q. 1969, c. 9, s. 2 of which speaks of "Catholic, Protestant or other public schools".

[80] There then followed the reforms of 1971 (Act respecting the regrouping and management of school boards) and 1972 (Act to promote school development on the island of Montreal) setting up school boards for Catholics and school boards for Protestants. Despite their names, these boards and their schools were open to non-Catholics and to non-Protestants. The purpose of these statutes was, as Brossard J. said in Quebec Association of Protestant School Boards v. A.-G. Que., supra, at pp. 52-3:

... to consolidate the various existing school boards, both outside the Cities of Quebec and Montreal and on the Island of Montreal. The object was to rationalize and to extend the territories in such a way that the whole of the territory of Quebec would be served by school boards ...

One of the effects of these statutes was precisely to dissolve all existing dissentient school boards, other than the five listed in Sch. E of the impugned Act. These two statutes rationalized and completed more than one hundred years of annexations, integrations and fusions, as a result of which all the assets and personnel of the dissentient school corporations were transferred to enlarged new school boards which were "for Catholics" and "for Protestants".

(Emphasis added.)

III

Analysis

A. First question

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

[81] The sections referred to in the question are as follows:

111. The Government shall, by order, divide the territory of Quebec into two groups of territories: one of territories for French language school boards and the other, of territories for English language school boards. The territory of the Cree School Board, that of the Kativik School Board and that of the Commission scolaire du Littoral established by chapter 125 of the statutes of Québec, 1966-67, are excluded from such division, however.

A school board shall be established in each territory.

The order shall determine the name of the school board.

The order shall be published in the Gazette officielle du Québec between 1 January and 1 March and comes into force on the date of its publication.

354. The Government may, in the order referred to in section 111, delimit territories within the territory of Québec or part thereof for French-language regional school boards or for English-language regional school boards.

A regional school board shall be established in each territory. The name of the regional school board shall be determined in the order.

The French-language or English-language school boards, as the case may be, whose territories are within that of a French-language or English-language regional school board shall, on the date of coming into force of the order, become a member of the regional school board.

519. The provisional council, in co-operation with the other provisional councils concerned, or with the confessional school boards where such is the case, shall decide as to the allocation of the rights of ownership in the immovables of the existing school boards situated in the territory of the new school board.

Registration of the transfer of ownership of immovables shall be made in accordance with the provisions of section 121.

521. The provisional council, in co-operation with the other provisional councils concerned, or with confessional school boards, where such is the case, shall decide as to the allocation of the rights, other than the rights of ownership in immovables, and obligations of the existing school boards situated wholly or partly within the territory of the new school board.

522. The provisional council, in co-operation with the other provisional councils concerned, or with confessional school boards, where such is the case, shall establish a plan of reassignment of personnel of the existing school boards to the new school boards in accordance with the terms and conditions of transfer and reassignment that are contained in the applicable collective agreements, or, in the case of personnel who are not members of a certified association, that are provided by regulation of the Government; every plan of reassignment is subject to the approval of the Minister.

523. All existing school boards, except the confessional school boards, cease to exist on 1 July in the year following the year of publication of the order respecting territorial division.

[82] This question goes to the fundamental purpose of Bill 107, namely the Quebec Government's power to create linguistic school boards which shall be denominationally neutral, to define their territories and to reassign the property of the old boards to the new ones, leaving aside the terms and conditions discussed in the other questions of the reference.

[83] The provisions under consideration concern and set up the common system, that is, they do not deal specifically with the denominational schools of Quebec and Montreal or with the dissentient schools elsewhere in the province.

[84] The Court of Appeal unanimously answered this question in the negative. Beauregard J.A. considered that there was no objection in principle to the provincial legislature legislating in this way, as long as the right to dissent is maintained. There is nothing to prevent the provincial legislature providing that boards will be French-language and English-language, since s. 93 (1) and (2) make absolutely no mention of the language used by the boards and in the schools. Beauregard J.A. was of the view that the legislature could also provide for the dissolution of the existing boards for Catholics and for Protestants. He also held that in terminating the existence of the Protestant school board and Catholic school board corporations, the legislature could make provision for distributing their property after their dissolution.

[85] LeBel J.A. for his part concluded that (translation) "the creation of a denominationally neutral system of school boards, organized on the basis of language, is a valid exercise of provincial powers" (p. 2540). As the dismantling of the existing system does not affect the right to dissent or the denominational rights themselves, it is not an infringement of s. 93 of the Constitution.

[86] The Fédération des commissions scolaires du Québec submits that the provisions for succession to the rights and obligations of the school boards for Catholics and for Protestants and their abolition prejudicially affect the rights and privileges protected by s. 93. It recognizes that educational institutions are not protected as such, but maintains that they are protected as an expression of the implementation of the rights conferred by legislation prior to July 1, 1867. This appellant takes the view that s. 93 protects not only rights and privileges, but also their concrete expression. In the case at bar, the concrete expression of this constitutional protection is found in the current existence of school boards for Protestants and for Catholics, which enable classes of persons to obtain educational services corresponding to their beliefs.

[87] The Commission scolaire Chomedey de Laval contends that the purpose of Bill 107 is to destroy the denominational school system which has taken over a hundred years of effort and investment of time and money to establish. Bill 107 thus prejudicially affects the right Catholics had at the time of the Union to manage and control their denominational schools.

[88] The Montreal Catholic School Commission considers that the school boards for Catholics and for Protestants created by a post-Confederation statute are the successors of the common and dissentient school boards. As such, they cannot be abolished.

[89] The respondent submits that there is nothing to prevent the legislature replacing common school boards with linguistic school boards. He notes that the way in which school boards are organized has changed considerably in recent years. He alleges that in transferring to new school boards property which is already being used for education and which was paid for primarily by the government, Bill 107 creates no prejudice.

[90] Like the Court of Appeal, I conclude that the provisions in question are constitutional. By legislating on education in this way, the Quebec Government is pursuing a legitimate purpose which is in keeping with s. 23 of the Canadian Charter of Rights and Freedoms. Although the measures contemplated by the legislature will occasion a fundamental upheaval in the institutions to which the province has been accustomed for over a hundred years — even though they have been altered on several occasions, as I noted, they have always focused on religion — the legislature's power to create some other kind of school system, neutral or for denominations other than Catholics and Protestants, has been recognized since the Privy Council decision in Hirsch, supra.

[91] The province can go ahead with such a reorganization provided that in doing so it does not prejudicially affect the rights and guarantees set out in s. 93 of the Constitution. As I have already explained — and I shall have occasion to return to this later — this means chiefly that the right to dissent must be maintained outside Quebec and Montreal and that in those two cities, Catholics and Protestants must continue to have access to denominational schools.

[92] It is natural and normal for the linguistic boards to be the successors of the boards for Catholics and the boards for Protestants. Like the latter, they are boards which are not the result of the exercise of a right of dissent and are therefore not protected by s. 93.

[93] The abolition of the existing boards is also not in itself an infringement of the rights guaranteed by the Constitution. Furthermore, if the province has the power to create linguistic school boards, it is proper that it should also have the power to determine their territories.

B. Second question

2. Does the Education Act, in particular ss. 126 to 139 and 206, prejudicially affect the rights and privileges protected by s. 93 (1) and (2) of the Constitution Act, 1867 in its provisions:

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

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

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

[94] The sections at issue here read as follows:

126. Any number of natural persons of full age who are resident in the territory of a school board, except the territory of a confessional school board, and who are of a religious denomination, Catholic or Protestant, different from that of the majority of persons entered on the school board's latest electoral list, may serve on the school board a notice in writing informing it of their intention to establish a dissentient school board.

Before serving the notice of dissent, the persons who wish to establish a dissentient school board shall request the school board to recognize that they are of a religious minority, Catholic or Protestant.

127. Where the school board does not recognize that the persons wishing to establish a dissentient school board are of a religious minority, Catholic or Protestant, it shall without delay contact the persons entered on its list of electors to verify whether they are Catholic or Protestant or of another religious affiliation.

The list of electors is the list which was used at the last general election of commissioners, subject to applications for entry, striking off or correction. The director general shall deposit the latest list of electors at the head office of the school board and give public notice thereof. The provisions of the Act respecting school elections (1989, chapter 36) concerning the revision of the list of electors apply; for that purpose, the director general shall exercise the duties and powers of the returning officer.

In the absence of such a list, the school board shall without delay make an enumeration of its electors, within the meaning of the Act respecting school elections, so as to determine if they are Catholic or Protestant or of another religious affiliation.

Persons refusing to respond or who cannot be contacted are deemed not to belong to the religious denomination of those persons wishing to form a dissentient school board.

As soon as the results of the verification or enumeration are known, the school board shall inform the persons wishing to establish a dissentient school board of the results.

Where the school board fails to fulfil all or part of the obligations prescribed in this section, the Minister shall appoint a person to carry out the unfulfilled formalities at the expense of the school board.

128. The notice of dissent may be served when the school board has recognized that the persons wishing to establish a dissentient school board are of a religious minority, Catholic or Protestant or, as the case may be, when the results of the verification or of the enumeration indicate such a fact.

129. The notice of dissent shall be served, before 31 December, on the school board and on the Minister.

The dissentient school board is established on the date of service of the notice in all or part of the territory of the school board as described in the notice of dissent.

130. The notice of dissent shall include the following information:

(1) the name of the dissentient school board;

(2) the description of the territory of the dissentient school board;

(3) the name of three persons who will form a provisional council;

(4) the name of the person who will act as director general of the dissentient school board until the council of commissioners appoints a person to that office.

In addition, each person concerned shall indicate, in the notice, his name, address, age and religious denomination and affix his signature opposite such information.

131. Where a notice of dissent is served on each school board having jurisdiction over a common territory by persons who are of the same religious minority, Catholic or Protestant, the Government may, by order, establish a single dissentient school board which shall provide educational services in such territory as it may determine.

The order shall determine the name of the new dissentient school board.

The order comes into force on the date of its publication in the Gazette officielle du Québec.

132. The provisional council shall be responsible for taking such preliminary measures as are required for the operation of the dissentient school board in its territory from 1 July of the year following the year of service of the notice of dissent as well as such measures as are required for the organization of the first school year beginning on the same date.

For that purpose, the provisional council shall exercise the functions and powers of the dissentient school board as if it were the council of commissioners.

133. The provisional council of the dissentient school board, the school board on which the notice of dissent has been served and, where applicable, the regional school board of which the latter school board is a member shall apportion the rights and powers of the school board on which the notice of dissent has been served and, where applicable, of the regional school board among the dissentient school board, the school board on which the notice of dissent has been served and, where applicable, the regional school board.

Where the right to dissent is exercised in the year of publication of an order reducing the boundaries of the territory of a confessional school board, the latter shall be a party to the apportionment provided for in the first paragraph. In the case provided for in section 131, each school board on which the notice of dissent has been served shall be a party to the apportionment.

The Minister shall rule on any dispute among the school boards concerned except disputes respecting the transfer and reassignment of employees who are members of a certified association within the meaning of the Labour Code or employees who are entitled to a special recourse pursuant to a regulation of the Government made under section 451. The Minister shall ensure that his decision does not deprive the dissentient school board or, as the case may be, the confessional school board of any property necessary for its operation.

Section 121 applies to the transfer of ownership of immovables.

134. The Act respecting school elections applies to the election of the first commissioners of the dissentient school board.

Between 1 January and 1 March of the year following the year of service of the notice of dissent, the provisional council shall divide the territory of the dissentient school board into electoral divisions in accordance with the rules provided in the Act respecting school elections. The date of the poll shall be the second Sunday of the following month of June.

The first commissioners shall take office on the following 1 July and shall exercise alone the functions and powers of the council of commissioners until representatives of the parents' committee and, where applicable, of the parents of the minority of students referred to in section 146 are elected. The first commissioners shall remain in office until the date fixed for the next general election.

135. At the request of the dissentient school boards concerned whose territories are contiguous, or of a majority of electors of these dissentient school boards, the Government may, by order, amalgamate their territories to form a new school board or extend the boundaries of the territory of one of the school boards by annexing the whole territory of the other school board.

In the case of amalgamation, a new dissentient school board shall be established in the territory determined by the order and the school boards whose territories are annexed shall cease to exist.

Where the whole territory of a school board is annexed, the school board shall cease to exist.

Sections 119 and 121, adapted as required, apply to these changes.

136. The Government may, by order, divide the territory of any dissentient school board upon request by the board and establish a new territory of the dissentient school board or annex part of its territory to that of another dissentient school board consenting thereto whose territory is contiguous.

In the case of a division for the purpose of establishing a new territory, a new dissentient school board shall be established in the territory determined in the order.

Sections 120 and 121, adapted as required, apply to those changes.

137. The Government may, of its own motion, make an order contemplated in section 135 or 136.

138. Any order issued under section 135, 136 or 137 shall determine, where such is the case, the name of the new dissentient school board and, subject to the norms governing the transfer and reassignment of staff prescribed by regulation of the Government under section 451, that of the person who will act as director general of the new dissentient school board until the council of commissioners appoints a person to that office.

The order comes into force on 1 July following the date of its publication in the Gazette officielle du Québec or on any later date indicated therein.

139. The Government may, by order, terminate the existence of any dissentient school board which does not perform any of the functions contemplated in sections 208 to 220.

The order comes into force on 30 June following the date of its publication in the Gazette officielle du Québec or on any later date indicated therein.

Before the coming into force of the order, the Minister shall apportion the rights and obligations of the dissentient school board among the school boards whose territories coincide with that of the dissentient school board. Section 121 applies to the transfer of ownership of immovables.

206. Only those persons who belong to the same religious denomination as that of a confessional or dissentient school board and who elect to come under the jurisdiction of the school board come under the jurisdiction of that school board.

[95] The first series of sections, from ss. 126 to 139, concerns the exercise of the right to denominational dissent outside Quebec and Montreal. Section 206 concerns attendance at denominational and dissentient schools.

[96] The Court of Appeal concluded that these provisions were unconstitutional, answering subquestion 2 (a) in the affirmative. Beauregard J.A. and LeBel J.A. were both of the view that the principle of the right to dissent as embodied in these sections is consistent with the right guaranteed by s. 93 of the Constitution. However, they considered that the enactments were inadequate as regards the immediate and effective exercise of the right to dissent when the linguistic boards are created. In their view, Bill 107 prejudicially affects constitutional rights by completely suspending the exercise of the right to dissent, albeit temporarily, since a two-year period would elapse before minorities could have their own schools.

[97] It should be noted, however, that the provisions submitted for the Court of Appeal's consideration were different from those set out above. Sections 129 and 132 to 134 were amended by the Act to amend the Education Act and the Act respecting private education, S.Q. 1990, c. 78. The amended Bill 107 contains a series of new provisions dealing with the exercise of the right to dissent when the new school boards are established. The provisions are ss. 515.1 to 515.4. As in the submission of the Attorney-General of Quebec they are a remedy for the defects noted by the Court of Appeal, they should be set out:

515.1 Between 1 June and 30 October of the year of publication of the order respecting territorial division referred to in section 111, the provisional council of a French-language school board or of an English-language school board shall, for the purpose of the exercise of the right to dissent referred to in section 515.2, draw up the list of electors of the new school board in accordance with the rules provided in the Act respecting school elections as if an election were to be held on 31 December of the same year.

In drawing up the list of electors, the provisional council shall verify whether the persons are Catholic or Protestant or of another religious affiliation. Every person who refuses to respond or who cannot be contacted is deemed to be neither Catholic nor Protestant.

The director general shall deposit the list of electors at the head office of the existing school boards and shall give public notice thereof. The provisions of the Act respecting school elections concerning the revision of the list of electors apply; for that purpose, the director general shall exercise the functions and powers of the returning officer.

515.2 Any number of natural persons of full age who are entered on the list of electors of the French-language school board or of the English-language school board drawn up under section 515.1 and who are of a religious denomination, Catholic or Protestant, different from that of the majority of the persons entered on the list may serve a written notice of dissent on the provisional council of the school board.

The notice of dissent must be served before 31 December of the year of publication of the order respecting territorial division referred to in section 111.

The dissentient school board is established on the date of service of the notice in the territory, or part thereof, of the French-language school board or of the English-language school board as described in the notice of dissent.

515.3 The notice of dissent must be made in conformity with section 130.

515.4 Section 515 applies to the provisional council of a dissentient school board.

[98] As to the right of dissent itself, the Quebec Association of Protestant School Boards is of the view that the terms of Bill 107 do not meet the requirements of s. 93 of the Constitution. Under the new legislation, this right is enjoyed by Catholics and Protestants who are a minority within the school board population. Since the school boards in question are linguistic, Anglophone Protestants will be unable to exercise their right to dissent unless they form a minority within the English-language board, which would not be likely. The effect of Bill 107 is that only Francophone Protestants and Anglophone Catholics could exercise the right to dissent.

[99] In the submission of the association, the amendments made to Bill 107 after the Court of Appeal judgment are furthermore insufficient since, according to that body, the measures contemplated are unrealistic and impractical.

[100] As to limiting attendance only to members of the denomination, the association considers that this will have a detrimental effect on the viability of schools and adversely affect the financial support needed to maintain them.

[101] The Fédération des commissions scolaires du Québec submits arguments only on the first two subquestions. It is of the view that the entire dissent process provided for in Bill 107 prejudicially affects the rights and privileges protected by s. 93, and not merely its transitional aspect. The Fédération argues that a preliminary requirement to the exercise of the right to dissent, which did not exist in 1861, prejudicially affects the classes of persons contemplated by s. 93. This appellant further notes that the right to dissent is no longer exercised in relation to a single majority group as in 1861, but in respect of each linguistic school board in a given territory. Finally, it is of the view that a right, the application or exercise of which is conditional on the good faith of the government, has nothing in common with the absolute right which existed in 1867.

[102] In the submission of the Commission scolaire Chomedey de Laval, the way in which Bill 107 approaches the right to dissent deprives majorities of everything which the exercise of their rights has enabled them to acquire over the years and compels them to start again from scratch, provided they form a minority. The commission also challenges the terms and conditions necessary to exercise the right to dissent and objects that the new legislation does nothing to ensure continuity of rights regarding the denominational nature of the school, control of the moral and religious qualities of teachers and the right of religious authorities to select religious books and visit schools.

[103] The Montreal Catholic School Commission points out that Bill 107 as a whole is designed to discourage the formation of dissentient school boards. It imposes an undue burden on the exercise of dissent, quite different from the situation prevailing in 1861. This appellant was of the view that Bill 107 denies exercise of the right to dissent and that the first subquestion should accordingly be answered in the affirmative. It further alleges that the power given to the government to alter dissentient school boards by amalgamating or splitting them up is unconstitutional.

[104] The Attorney-General of Quebec points out that Bill 107 is careful to preserve the right to dissent and that its concern is to modernize the way in which this is exercised. By authorizing the government to alter the institutional structure or school territories, Bill 107 is merely reproducing the 1861 Act. The respondent alleges that as in 1861 grants or revenue from taxation and monthly payments for children of another faith attending a dissentient school were excluded, it cannot be said that the new legislation, by limiting access to dissentient schools to children of the dissentient denomination, affects a denominational right.

[105] In the submission of the Attorney-General of Quebec, following the legislative amendments made in 1990, the right to dissent may be exercised at any time and a dissentient school can be quickly established.

(1) Way in which dissent is exercised and dissentient school boards created

[106] Although the principal purpose of the legislation is to modernize the Quebec school system at the primary and secondary levels through an in-depth reform, it still gives religious instruction an important place. In the opinion of LeBel J.A., this could avoid recourse to dissent. However, the legislature leaves open the possibility of organizing denominational dissent and provides new mechanisms to govern its exercise.

[107] Section 126 enunciates the principle of the right to dissent and the conditions for exercising it. Its first paragraph is in a sense the equivalent of s. 55 of the 1861 Act. Under that section, three conditions were necessary before a dissentient declaration could be made. The 1861 Act provided that dissent could be exercised (1) by a minority, (2) by a denominational minority, and (3) which is not in agreement with the regulations made by the religious majority. Bill 107 retains only the first two criteria, as indeed the Quebec Legislature has always done since 1899 (Education Act, S.Q. 1899, c. 28, s. 123). In short, the requirements of the modern statute are less stringent than they could have been under s. 93 of the Constitution.

(a) Basis of dissent

[108] The right to dissent is still linked to the notion of a denominational minority. Since the constitutionally guaranteed right may be exercised by a minority in respect of the inhabitants of a given school municipality, Anglophone Protestants and Roman Catholic Francophones will not often be able to use this mechanism with regard to linguistic school boards. In view of the purpose and reasons for the right to dissent, they will not have need of it since they will constitute the religious majority, and consequently the school board will probably meet their needs and aspirations. Of course one can conceive of cases where this theoretical situation will not reflect the real needs of certain parents, but s. 93 of the Constitution and the 1861 Act it crystallizes are also not a perfect solution. It should also be recalled that outside the two major cities, s. 93 provides the religious majority with no form of protection.

[109] Fundamentally, the right to dissent is a right the exercise of which is contingent. It may vary in accordance with a double factor. It is predicated on the composition of the population in a given territory. If the territory of a school municipality is altered or if the movements of population change the demography of the territory, minorities may become majorities, or vice versa.

[110] The basis of the right to dissent provided for by the Quebec Legislature in Bill 107 does not preclude or alter its exercise and does not conflict with the constitutional protection given to religious minorities.

(b) Procedure

(i) Verifying the request to dissent

[111] Sections 126, 127 and 128 impose a three-step procedure: persons wishing to exercise the right of dissent must make an application for recognition that they belong to a religious minority, Catholic or Protestant; then, there is recognition of membership in a denominational minority or verification of the latter by the linguistic school board; finally, a notice of dissent is sent to the school board and the Minister of Education. The notice of dissent leads to the creation of a denominational school board, under the authority of a provisional council.

[112] These provisions give the linguistic school board from which the religious minority wishes to separate a part to play in their enumeration and in verifying the denomination. As Beauregard J.A. wrote: (translation) "[t]he linguistic board has no discretionary authority: its only function is to recognize a situation of fact" (p. 2583). The intervention of the linguistic board is certainly a difference from the 1861 Act, which gave dissent a unilateral character not subject to any administrative control, but this does not in any way limit the right to dissent. This is merely a mechanism for administrative verification which was probably unnecessary in the last century because of the social structure and demographic situation in the province.

[113] I cannot see how by these provisions the right to dissent itself, as protected by the Constitution, is infringed. Its exercise is in keeping with what the legislature laid down in 1861.

(ii) Establishment of dissentient schools, time periods and completion

[114] One of the main sources of concern may come from the time required to establish the dissentient denominational system. Two situations must be distinguished: first, the setting up of a dissentient system at the time the new linguistic system is itself being implemented, and second, the exercise of the right to dissent after the system of linguistic boards has been established. As I mentioned, it is the time initially allowed by the legislature for exercising the right to dissent in the first situation which led the Quebec Court of Appeal to declare the provisions of Bill 107 dealing with the right to dissent to be unconstitutional.

[115] Bill 107 now sets up a provisional system, in s. 510 et seq. It appears from reading these sections and from the oral explanations given by counsel for the respondent in this court that exercise of the right to dissent will be possible more or less concurrently with the establishment of the new linguistic school boards. Only the main chronological steps need be set out here, designating as "year A" the one in which the government publishes the territorial division order under s. 111 of Bill 107. By April 15th of year A at the latest the existing school boards, that is, the school boards for Catholics and school boards for Protestants, are to proceed with the establishment of provisional councils for the new linguistic boards (s. 510). Under s. 515.1, these provisional councils shall between June 1st and October 30th of year A draw up a list of electors of the new linguistic school boards in accordance with the rules provided in the Act respecting School Elections, R.S.Q., c. E-2.3, which indicates the religious affiliation of each registered elector. Any number of natural persons entered on this list who are of the religious denomination, Catholic or Protestant, different from that of the majority of electors may serve a written notice of dissent on the provisional council (s. 515.2) before December 31st of year A. Under s. 515.2 in fine, "[t]he dissentient school board is established on the date of service of the notice in the territory, or part thereof, of the French-language school board or of the English-language school board as described in the notice of dissent" (emphasis added).

[116] Finally, it can be seen that the new dissentient school boards are not at a disadvantage compared with the new linguistic school boards in terms of establishment time, since both in fact begin operation at the same time, namely July 1st of the year following that of publication of the order (s. 530).

[117] Since the religious minority can declare its dissent as soon as the electoral list is drawn up, this is a far cry from the requirements of the last century when minorities first had to be informed of the regulations established by the majority in order to indicate their disagreement. There is a slight time lag at the start of the process, since they must wait until the list is drawn up in order to be able to serve the notice of dissent. This hiatus is normal and consistent with the very idea of dissent, which is a relative condition. One cannot be dissentient in the absolute or a priori.

[118] It must be noted that the Constitution provides no guarantee that existing institutions or vested rights will be maintained. Consequently, reform of the educational system is possible, with the transitional inconvenience involved in any major institutional reorganization. However, such inconvenience must not make the effective exercise of the right to dissent impracticable or have a serious adverse effect on it. In this regard, a distinction should be made between difficulties which are inevitable because they are due to the Act itself and those which arise in its implementation. I agree that the time periods specified by Bill 107 may lead to problems, but I am not persuaded that they are a necessary consequence. If they occur, they are more likely to be attributable to those responsible for implementing the Act. Other remedies would then be available to ensure that the right to dissent can be exercised on an equal basis.

[119] The Fédération des commissions scolaires du Québec and the Quebec Association of Protestant School Boards point out that although the provisional council of the dissentient school board has the same powers as the provisional council of the linguistic school board, the dissentients are not entitled to financing and staff. However, s. 531 and the provisions falling under the heading "Functions and powers of provisional councils", applicable to the provisional council of a dissentient school board under ss. 515 and 515.4, provide otherwise. Moreover, these provisions make the dissentient provisional council, where applicable, necessarily a party with the linguistic provisional council to any allocation of immovable property (s. 519), to the three-year plan of allocation and destination of immovables and to the establishment of the list of schools (s. 520), to the allocation of other rights (s. 521), to the establishment of the personnel reassignment plan (s. 522), and to the organization of the first school year (s. 523).

[120] This means that these essential aspects of the establishment of new school services cannot be carried out so long as the notice of dissent has not been given or the time period for doing so expired. Everyone therefore has an interest in seeing the electoral list drawn up and the right to dissent, where such is the case, exercised as soon as possible.

[121] For the second situation, reference must be made to s. 126 et seq. I do not think that the establishment of dissentient boards in such circumstances creates any particular difficulty.

(c) Allocation of property

[122] Doubts have been expressed concerning an intervention by the Minister of Education in the event of a dispute (ss. 133 and 533) at the time of the allocation of property and rights, as it is argued that there is always a risk of bad faith. The latter should not be presumed, however. Further, as counsel for the respondent pointed out, the Minister's intervention and the fairness of his decision go more to the implementation of Bill 107 than to the constitutionality of the provisions. Of course, if a statute is drafted so that it cannot be applied, its quality may be doubted: but that is not the case here.

[123] The same s. 133, and s. 533, contain a criterion which is particularly noteworthy, since the legislature speaks of "property necessary" for the operation of the dissentient school boards and denominational boards. This necessity test is objective: the level of available services is the yardstick. It means that the means for exercising the right to dissent must be made available without discrimination, with no prejudicial effects, and the dissentient boards must be on the same footing in this respect as the linguistic boards from which they separate. This includes equality of access to public funds, to means of taxation and, in the event of a reorganization, to the distribution of immovable property, physical facilities and existing personnel. Speaking of the right of Catholic taxpayers in Ontario to have secondary schools for their children, Wilson J. said in the Ontario Separate Schools Reference, supra, at p. 59:

It is clear that if the foregoing right was to be meaningful an adequate level of funding was required to support it. This court held unanimously in A.-G. Que. v. Greater Hull School Board (1984), 15 D.L.R. (4th) 651, [1984] 2 S.C.R. 575, 28 M.P.L.R. 146, that the right of dissentient schools in Quebec to a proportionate share of government funding was a right protected by s. 93 of the Constitution Act, 1867.

[124] When we speak of equality, this must be understood in the sense of equivalence and not that of strict quantitative identity, as Chouinard J. noted in Greater Hull, supra, at p. 663: "Proportionality is more significant. Whether on the basis of total population or that of school attendance, the principle of a fair and non-discriminatory distribution is recognized" (emphasis added).

[125] There are those who would have preferred to see the criteria defined more precisely in the Act. That seems difficult as necessity depends on a number of factors and there are different needs for each situation. If a dissentient board considers it has been wronged, it may resort to the courts to challenge the allocation.

[126] On this point, finally, I adopt the comments of LeBel J.A. (at p. 2546) (translation):

Nor does the method of allocating property and assets in s. 134 [now 133] prejudicially affect the right to dissent. It is even more favorable in a sense than the provisions of s. 55 of the 1861 education Act. The latter gave them no right to have property owned by the school board transferred. By contrast, the system of the Minister allocating property necessary for the operation of the school boards rests on a principle which appears to be capable of guaranteeing the rights of dissentients. As arbitrator of disputes as to the transfer of property, the Minister cannot leave the dissentient school board without resources.

(Emphasis added.)

(2) Power of the government to alter the legal structure of dissentient school boards and wind up those which are no longer functional

[127] As I have already said, the Constitution guarantees the right to dissent per se, not to certain legal institutions through which it may be exercised. The legislature can therefore alter them without infringing the constitutional protections.

[128] It is true that the 1861 Act said nothing about the government's power to wind up an inactive dissentient board. Such a power does not conflict with a right or privilege of a class of persons in respect of denominational schools since, as it is inactive, the board no longer represents an exercise of the right to dissent. It is, as Beauregard J.A. puts it (translation), "purely a matter of administration which does not fundamentally affect the right to dissent. It is normal for the government, which has a duty to ensure order in the administration of public affairs, to have such a power" (p. 2584). The abolition of an inactive board at a given time does not prevent subsequent exercise of the right to dissent.

(3) Exclusion of children of another denomination

[129] The Court of Appeal unanimously held that the restriction of the student body to members of the religious faith of the dissentient and denominational boards does not prejudicially affect a right protected by s. 93 of the Constitution.

[130] In the opinion of Beauregard J.A. the fact that at Confederation a school board could admit or refuse to admit a child from another religion was not an essential characteristic of the right to dissent. I share his view when he says at p. 2585 that this situation (translation) "has nothing to do with the right of a religious minority to dissociate itself from the majority with respect to teaching in schools".

[131] In Hirsch, supra, the Privy Council noted that the 1861 Act is not very clear on the question of attendance at dissentient schools. Viscount Cave said that in fact s. 66, which could be interpreted as authorizing all schools to admit children of any faith, does not apply to dissentient schools. That means that they accept only children of their own faith, and this appears to be reinforced by s. 56 (2). However, Viscount Cave was of the view that dissentient schools could accept children from another denomination "as a matter of favour" (p. 1047). He deduced from the language used by the legislature that dissentient schools "were reserved (except as a matter of favour) for children of the dissentient faith" (p. 1047). None the less, the constitutionally protected rights and privileges regarding attendance are not to be found in the 1861 Act but rather in the Upper Canada Scott Act in accordance with s. 93 (2) of the Constitution. The Privy Council in fact held that so far as attendance is concerned any doubt, if it exists, "is removed by para. 2 of s. 93 of the B.N.A. Act, which extends to dissentient schools in Quebec all the powers and privileges by law conferred on the Roman Catholic schools of Upper Canada, including the provisions of the Upper Canada Act of 1863, c. 5" (p. 1047). Section 12 deals with the attendance of students:

12. The Trustees of Separate Schools may allow children from other School Sections, whose parents or lawful guardians are Roman Catholics, to be received into any Separate School under their management, at the request of such parents or guardians; and no children attending such School shall be included in the return hereafter required to be made to the Chief Superintendent of Education, unless they are Roman Catholics.

13. Les syndics des écoles séparées pourront permettre que les enfants appartenant à d'autres arrondissements scolaires, dont les parents ou tuteurs sont catholiques romains, soient reçus dans une école séparée sous leur charge, sur la demande qui leur en sera faite par les parents ou tuteurs des dits enfants; et les enfants assistant à telle école ne seront pas compris dans le rapport qu'il est ci-dessous prescrit de faire au surintendant-en-chef de l'éducation, à moins qu'ils ne soient catholiques romains.

[132] As this court indicated in G.M.P.S.B., supra, there are two stages to a constitutional analysis. Once it has been determined that a power was conferred on the separate schools in Upper Canada and it is considered, pursuant to s. 93 (2), that it is to be extended to Quebec, in order to conclude that the power is constitutionally protected it is still necessary for the right or privilege to relate to denominational schools under s. 93 (1). This must therefore be established. In the event of an affirmative answer, the question then is whether the legislation at issue prejudicially affects this power or privilege.

[133] In applying this reasoning, the first question to be asked is what the situation was in Ontario regarding attendance. As we have seen, it has been decided that the separate schools in Ontario were reserved for Catholic children. Under s. 93 (2), this limitation of the right of attendance at dissentient schools was extended to Quebec.

[134] The mere possibility in view of the law's silence of a dissentient school accepting children from another denomination "as a matter of favour" is not in my view a denominational right or privilege stricto sensu. Could it nevertheless be part of what Beetz J. in G.M.P.S.B. regards, to use the words of McCarthy J., as a non-denominational aspect necessary to give effect to the denominational guarantees? I refer here to attendance as related to financing. However, contrary to what some may argue, the admission of children from other denominations does not seem to have been particularly advantageous for a dissentient school board. In particular, the trustees could only impose taxes on parents of the dissentient faith, as provided in ss. 55 (4), 57 (1) and (5) and 58. I conclude that the admission of children of other denominations was not a necessary factor to the effectiveness of the constitutional guarantees and was not related thereto.

[135] Section 206 of Bill 107 is therefore valid: the legislature can so limit access to dissentient schools without infringing constitutionally protected rights.

C. Third question

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

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

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

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

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

[136] Sections 122 to 124 are part of the division entitled "Confessional and dissentient school boards".

122. The Commission des écoles catholiques de Montréal, the Protestant School Board of Greater Montréal, the Commission des écoles catholiques de Québec and the School Board of Greater Québec shall continue to exist under this Act in their territories and under their names.

123. The Government may, by order, change the boundaries of the territory of a confessional school board.

The order shall be published in the Gazette officielle du Québec between 1 January and 30 June and comes into force on 1 July of the year following the year of publication.

124. Before the coming into force of an order reducing the boundaries of the territory of a confessional school board, the confessional school board and the school boards, other than confessional school boards, whose territories wholly or partly coincide with the removed portion shall apportion among themselves the rights and obligations of the confessional school board.

Before the coming into force of an order extending the boundaries of the territory of a confessional school board, the confessional school board and the school boards, other than confessional school boards, whose territories wholly or partly coincide with the added portion shall apportion among themselves the rights and obligations of these school boards other than confessional school boards.

The Minister shall rule on any dispute among the school boards concerned except disputes respecting the transfer and reassignment of employees who are members of a certified association within the meaning of the Labour Code or employees for whom a regulation of the Government made under section 451 provides a special recourse. The Minister shall ensure that his decision does not deprive the confessional school board of the property necessary for its operation.

Section 121 applies to the transfer of ownership of immovables.

[137] Section 206, imposing a limitation on attendance at denominational school boards, was reproduced under the preceding question.

[138] Sections 519, 521 and 522 deal with the functions and powers of provisional councils.

519. The provisional council, in co-operation with the other provisional councils concerned, or with the confessional school boards where such is the case, shall decide as to the allocation of the rights of ownership in the immovables of the existing school boards situated in the territory of the new school board.

Registration of the transfer of ownership of immovables shall be made in accordance with the provisions of section 121.

521. The provisional council, in co-operation with the other provisional councils concerned, or with confessional school boards, where such is the case, shall decide as to the allocation of the rights, other than the rights of ownership in immovables, and obligations of the existing school boards situated wholly or partly within the territory of the new school board.

522. The provisional council, in co-operation with the other provisional councils concerned, or with confessional school boards, where such is the case, shall establish a plan of reassignment of personnel of the existing school boards to the new school boards in accordance with the terms and conditions of transfer and reassignment that are contained in the applicable collective agreements, or, in the case of personnel who are not members of a certified association, that are provided by regulation of the Government; every plan of reassignment is subject to the approval of the Minister.

[139] This group of questions concerns the special situation of the so-called denominational or confessional school boards of the Cities of Quebec and Montreal.

[140] The Court of Appeal answered subquestion 3 (a) in the negative. LeBel J.A. considered that s. 122 (translation) "contains a simple statement that the legal existence of the school boards in question will continue and temporarily defines their territories. It in no way prejudicially affects constitutionally guaranteed rights" (p. 2552). On subquestion 3 (b), however, the Court of Appeal was divided. LeBel J.A., writing for the minority, answered in the negative. He indicated that the alteration of territories would prejudicially affect the rights and privileges protected by the Constitution only if it reduced the territories so that they were smaller than the present municipal territories of the Cities of Quebec and Montreal. The majority concluded that the provisions were unconstitutional as they did not permit the immediate and effective exercise of the right to dissent in a territory once the territory of a denominational board had been subtracted from it. On this point the minority concurred in the opinion of the majority, but only for territories outside the municipal limits of Quebec and Montreal. Following the judgment of the Court of Appeal, Bill 107 was amended and now contains a supplementary provision, s. 123.1, submitted for this court's consideration:

123.1 Where an order reduces the boundaries of the territory of a confessional school board, every French-language school board or English-language school board whose territory wholly or partly coincides with the removed portion shall, before 30 September of the year of publication of the order, draw up a list of the persons entered on its latest list of electors and of the persons entered on the latest list of electors of the confessional school board who are domiciled in the removed portion and who, if the order were effective, would be qualified electors of the school board.

The list drawn up shall be substituted for the latest list of electors referred to in sections 126 and 127 as regards the exercise of the right to dissent in the territory of the school board before 31 December of the same year.

[141] As regards the transfer of rights and obligations contemplated by subquestion 3 (c), the Court of Appeal concluded that the provisions did not infringe s. 93 of the Constitution, in particular because the rights of ownership of property and the assignment of personnel are not protected as such by the Constitution.

[142] In the view of the Court of Appeal, subquestion 3 (d) must be answered in the negative, chiefly for the same reasons as subquestion 2 (c).

[143] The Fédération des commissions scolaires du Québec took a position on subquestions (b) and (c). In its submission, Bill 107 prejudicially affects the rights and privileges protected by s. 93 of the Constitution because it contains no limitation on the government's power to reduce the territory of the denominational school boards of Montreal and Quebec. Further, it alleges that the mechanism for transferring rights and obligations from a denominational school board to a non-denominational school board adversely affects constitutionally guaranteed rights by placing denominational school boards at the mercy of an arbitrary decision by the Minister of Education without restraining the exercise of this power.

[144] The Montreal Catholic School Commission contends that the existence of a legal structure responsible for administering denominational schools is a fundamental right guaranteed by the Constitution to a class of persons, and so cannot be abolished.

[145] This appellant is also afraid that the territory of the protected class of persons be restricted to the municipal limits of the City of Montreal.

[146] The Montreal Catholic School Commission submits that ownership of school immovable property and other assets is a non-denominational aspect of the protected rights which is necessary in order to give effect to the denominational guarantees, and that the appropriation or expropriation without compensation of property acquired by denominational school boards over the years prejudicially affects their constitutional rights. It further notes that Bill 107 offers no guarantee that denominational boards will be treated proportionately and on an equal footing with linguistic boards.

[147] This appellant in dealing with the question on limitation of attendance in Quebec and Montreal also examines subquestion 2 (c). In general it argues that Bill 107, by preventing dissentient school boards and denominational school boards from admitting all children, prevents Catholic schools from accomplishing their purposes.

(1) Continuation of existence of denominational boards

[148] At issue here are the school boards of Quebec and Montreal, where, as I have already said, a special situation exists which the framers chose to protect. I cannot subscribe to the view of Beauregard J.A. of the Court of Appeal, who preferred to think that the framers intended to provide protection for the right of dissent as such and nothing more, whatever the area of the provincial territory concerned (at p. 2575) (translation):

Despite a certain construction that may be placed on Hirsch, supra, and A.G. of Quebec v. Greater Hull School Board, [1984] 2 S.C.R. 575, it is hard to believe that s. 93 (1) gives specific constitutional rights to the inhabitants of the cities of Québec and Montréal and different constitutional rights to the inhabitants of the rest of the province. It seems clear that what s. 93 (1) protects is the right to dissent throughout the province, and that this right shall be exercised through dissentient boards, or even better, through denominational boards as was the case in Québec and Montréal before Confederation ... In other words, the inhabitants of the cities of Québec and Montréal also enjoyed the right to dissent, but that right was exercised by the establishment of denominational schools in those two cities.

[149] As I indicated earlier, Quebeckers are entitled to denominational schools if they live outside Quebec and Montreal and are a religious minority or if they are Catholics and Protestants living in Quebec or Montreal. All provincial legislation on education since 1867 has had to so provide, failing which it is constitutionally invalid.

[150] The legislation before the court meets this requirement and the answer to the first subquestion must accordingly be negative.

(2) Territorial changes

[151] As the protection provided by the framers of the Constitution takes a special form in the two major urban centres, the question arises as to where it applies. To determine this, the territorial boundaries must be defined.

[152] It will be recalled that formerly s. 30 of the 1861 Act recognized that the government could alter territories since "the Governor in Council may, from time to time, alter the limits of existing School Municipalities, subdivide the same, or establish new ones, of all which public notice shall be given ...".

[153] It will be noted that no distinction is made as to areas of the territory of Quebec. This means that this power may also be exercised in Quebec and Montreal, where the 1861 Act indicates the school territory. On reading the language used in s. 128, it deals with municipalities, "cities". In his article "L'article 93 de la Constitution et les droits relatifs à la confessionnalité des écoles du Québec", supra, at p. 449, Professor Pépin observes (translation): "From 1867 to the present day, the territorial boundaries of these two school municipalities [Quebec and Montreal] have been changed by means of dismemberment (annexations, mergers, new municipalities) ...".

[154] Bill 3, which was the subject of a judicial challenge in 1985, limited the Catholic and Protestant denominational school boards of Montreal and Quebec to the territories they had in 1867, namely those covered by the two cities at the time. The legislature at that time appeared to consider that the rights and privileges protected by s. 93 of the Constitution, guaranteed to the inhabitants of Quebec and Montreal, could only be so guaranteed for persons residing within the limits of the cities at the time of the Union. Brossard J. [in Ontario Association of Protestant School Boards v. A.-G. Que., supra] found the provisions proposed by the legislature in this regard less than reasonable and properly concluded at p. 68 D.L.R.:

The court considers that the legal territorial limits of the Cities of Montreal and Quebec, whatever their evolution over time, effectively constitute the only natural, objective and logical border which can be recognized for the "classes of persons" referred to in s. 93.

(Emphasis added.)

[155] Both the letter and the spirit of the 1861 Act indicate that the words "Cities of Quebec and Montreal" refer not so much to territories defined by a given area as to administrative and legal institutions.

[156] In her article "La nouvelle Loi sur l'instruction publique et les droits constitutionnels relatifs aux écoles confessionnelles: quelques considérations" (1990), 31 C. de D. 216, Sonia Pratte is of the view at p. 269 that (translation):

Pre-Confederation legislation establishes a correlation between the municipal and school corporations of Montréal and Québec. It is reflected in the special provisions for financing, taxation and appointment of commissioners. Under s. 129 of the Act, each of the cities of Québec and Montréal was in principle regarded as a single municipality, but if school districts were to be established this implied that it would be on the same territory.

[157] Reference may also be made regarding financing to s. 131, which very clearly confers the power on the municipal political corporations:

131. In the Cities of Quebec and Montreal, no rate shall be imposed for the purposes of Common Schools, but the City Treasurer of each of the said Cities shall, out of the moneys in his hands forming part of the funds of the Corporation of such City ... pay to the respective Boards of School Commissioners of such City ...

(Emphasis added.)

[158] In Hirsch, supra, the Privy Council did not rule on the question of the territorial base but simply noted, at pp. 1050-1, that an eventual annexation should not prejudicially affect constitutionally protected classes of person:

It appears that the boundaries of the Cities of Montreal and Quebec have since the Union been extended, and that the Roman Catholic and Protestant Boards of Commissioners have carried their operations into the added areas. The Supreme Court refrained from pronouncing an opinion as to the effect of any such annexation on school rights in the annexed territories, and their Lordships accordingly do not deal with that question; but it is clear that no post-Union annexation of territory could deprive any class of person of the protection afforded to them by s. 93 of the Act of 1867.

[159] I fully concur in the view of LeBel J.A., who considered at p. 2551 that (translation):

... the only thesis that provides the necessary coherence for a rational application of the s. 93 guarantees is that set out by Brossard J. in his 1985 judgment. Before Confederation Montréal and Québec were regarded by the legislature as separate communities. Their mixture of peoples, the variety of languages and religions, their demographic density, made them separate communities where different legislative solutions were necessary. We can assume that the legislature knew that municipal institutions must evolve in an expanding country such as Canada was at that time. The procedures for altering institutions and territories were known. The intention was to protect rights within the legal entities represented by the cities of Québec and Montréal, as they would develop and evolve.

(Emphasis added.)

[160] The territorial basis of the protected school rights coincides with the municipal boundaries of the two major cities. If the latter are altered, the basis of the right is as well.

[161] Any territorial alteration involves considering two alternatives: increasing or decreasing the territory. In the case of annexation it suffices to refer to the remarks of Viscount Cave (Hirsch, supra, at p. 1051), already quoted: "... it is clear that no post-Union annexation of territory could deprive any class of person of the protection afforded to them by s. 93 of the Act of 1867". In the other situation, the government could theoretically reduce a denominational board's territory to nothing, or almost nothing. To the extent that the power given to the government prejudicially affects the privileges protected by s. 93 of the Constitution, by reducing a territory so that it is smaller than the municipal boundaries of Quebec or Montreal and thus doing away with the denominational school boards in that territory, in general the dissentient regime that would be established would not replace the rights conferred on Catholics and Protestants from the outset. On this point, I essentially agree with LeBel J.A. As he notes at p. 2553, the power is still subject to observance of the constitutional guarantees (translation):

Only an alteration reducing the territory of the denominational school board, but establishing another having the same rights and powers, would not prejudicially affect the rights of a class of persons with constitutional guarantees. Outside the municipal territory, on the other hand, these restrictions would be in keeping with s. 93, provided the general provisions on the exercise of denominational dissent comply with the s. 93 guarantees ...

[162] The new provisions authorizing the government to alter the territories of the confessional school boards are valid to the extent that they do not reduce the limits to be less than those of the municipal corporations of Quebec and Montreal or provided the changes do not prejudicially affect the constitutional rights and privileges of Catholics and Protestants residing in the territory of either municipality. Such a reduction of territory beyond these municipal boundaries could thus not take place unless the territory thus separated is served by a confessional school board offering the same rights and privileges.

(3) Transfer of rights and obligations

[163] This question concerns the transfer of the property of the confessional boards to the linguistic boards. I note that in G.M.P.S.B., supra, this court has already held that rights of ownership, powers to hire staff and powers to use material resources are incidental rights that are only protected to the extent that they are necessary to preserve the denominational character of education. As Bill 107, and in particular s. 533, provides that confessional boards will have everything required for their operation, there is no unfair treatment. What I said about dissentient schools in this connection also applies here.

(4) Limitation on attendance

[164] Section 206 of Bill 107 has already been discussed in answer to the preceding constitutional question. However, it must now be analyzed in the specific context of Quebec and Montreal. In those two cities, it will be recalled that under the 1861 Act the schools are both common and denominational (ss. 27, 128, 130 and 131). This means that, whether Roman Catholic or Protestant, the school must accept children from another denomination than its own. This is what Anglin C.J.C. noted in Hirsch, supra, at pp. 16-17:

As already pointed out, in 1867, only common schools were provided for in the cities of Montreal and Quebec ... It follows that in the city of Montreal every child between the ages of five and 16 years resident within the municipality retained after 1867 the right conferred by the Act of 1861 to attend any school under the control of the commissioners, whether Catholic or Protestant; and the correlative obligation to receive and provide for them incumbent upon both bodies of commissioners likewise remained unimpaired.

(Emphasis added.)

[165] The question that arises is the following: is the right enjoyed by Catholics and Protestants, namely the particular classes of persons in the two cities, to admit children of any denomination to their schools a right "with respect to Denominational Schools"?

[166] The Montreal Catholic School Commission argued that the admission of students from denominations other than the Catholic faith allows Catholics to accomplish their purposes. Even if this were so, it would not provide an answer as to the extent of the rights pertaining to denominational schools under the legislation in force in 1867.

[167] As we have seen, the rights of a class of persons comprising a dissentient minority outside Quebec and Montreal are to have denominational schools under its control for the education of its children. They do not include the denominational right or privilege of admitting children of other faiths. The special arrangements for Quebec and Montreal leave aside the requirement of dissent but do not, to my mind, broaden the object of the denominational privilege. The common school status of the denominational schools in Quebec and Montreal responded to the varied demography of these cities and allowed them to fulfil the function of the common schools elsewhere of providing access to schooling for all sectors of the population. Essentially, we are dealing with access to a service which was not related to the rights of a class of persons. Likewise, access to common schools elsewhere was not so related.

[168] The provisions governing school financing lead to the same conclusion. Attendance and financing are closely linked, and moreover, financing is part of what relates to denominational schools. In the Cities of Quebec and Montreal, under the 1861 Act, the taxing power belonged to the municipal corporations and the amount allocated to the respective boards of school commissioners is allocated "in proportion to the population of the religious persuasion represented by such Boards" (s. 131 — emphasis added). There is no question here of the religious persuasion of students. Accordingly, it cannot be concluded that the more students there were in a given board, the greater the financing was.

[169] Moreover, in Hirsch, supra, this court and the Privy Council established that the Quebec Government could create neutral school boards or boards for other denominations. This court unanimously answered "Yes" to the question "Can the Provincial Legislature pass legislation to establish separate schools for persons who are neither Catholics nor Protestants?"

[170] Viscount Cave stated at p. 1052: "It appears to their Lordships that it would be possible to frame legislation for establishing separate schools for non-Christians without infringing the rights of the two Christian communities in their denominational schools ...".

[171] There can therefore be no constitutional guarantee of financing based on a given attendance.

[172] The Montreal Catholic School Commission and the Quebec Association of Protestant School Boards pointed to the inconsistency between Bill 107 and the School Elections Act, by which the right to vote and eligibility for positions as commissioners are conferred on everyone, regardless of religion. The combined effect of the two statutes, they submitted, is to prevent the children of certain electors from being admitted to denominational schools.

[173] The third constitutional question submitted to this court focuses on the continuation of the existing institutions, and not their characteristics or elements. As Beauregard J.A. pointed out (at p. 2587) (translation):

... it should be noted that the government is not seeking the Court's opinion on whether the system of denominational boards in Québec and Montréal, as it exists at the present time, complies with the provisions of s. 93 (1) and (2), and so no opinion is expressed in this regard. In particular, no opinion is expressed on the question of whether the fact the right to vote and the right to be eligible for positions as commissioners are conferred on everyone, regardless of religion, is consistent with the right to dissent under s. 93 (1) and (2).

(Emphasis added.)

[174] This court also has no need to consider the point.

[175] In conclusion, the right to denominational education conferred on the inhabitants of Quebec and Montreal and protected by s. 93 of the Constitution in my opinion is not infringed or even altered by the limitation on attendance at denominational school boards contained in s. 206 of Bill 107.

D. Fourth question

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

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

(b) it authorizes the Conseil scolaire to establish rules for apportioning the proceeds of the tax it collects on behalf of these school boards?

[176] The sections concerned in this question, which deals exclusively with the Conseil scolaire de l'île de Montréal, are the following:

423. Only the Council may, with the authorization of the Minister and on the conditions he determines, borrow money by any legal means for its purposes and the purposes of school boards on the island of Montréal.

Sections 288 to 290, adapted as required, apply to the Council.

424. The funds required for the amortization of the principal and the payment of interest on the bonds or other evidences of indebtedness or securities issued by the Council from 1 July 1989 shall be derived from the general revenue of the Council and of the school boards on the island of Montréal.

The funds required for the amortization of the principal and the payment of interest on the bonds or other evidences of indebtedness or securities forming part of the bonded debt of the Council on 30 June 1989 shall be derived from the general revenue of the Council and of the school boards on the island of Montréal.

425. The bonds or other evidences of indebtedness or securities issued by the Council from 1 July 1989 constitute a direct, general and unconditional undertaking of the Council and of the school boards on the island of Montréal and rank pari passu with all other undertakings of the Council and of the school boards on the island of Montréal in respect of loans of money not secured by hypothec or other encumbrance.

The same applies to those bonds or other evidences of indebtedness or securities forming part of the bonded debt of the Council on 30 June 1989.

428. The Council shall receive government subsidies, which have not been transferred as loan securities, relating to the bonds or other evidences of indebtedness or securities forming part of any bonded debt contracted for its purposes and those of the school boards on the island of Montréal.

429. The Council shall, for each school year, apportion the proceeds of the school tax and investment income from all or part of those proceeds according to the following rules:

(1) each school board on the island of Montréal shall receive, not later than 3 January each year, the amount it has required, up to an amount equal to the lesser of the limits determined pursuant to section 308, as if the school tax were levied by the school board itself;

(2) the remainder, after deducting the amount determined by resolution of the Council for its purposes, shall be apportioned among the school boards to ensure the upgrading of education in economically disadvantaged areas of those school boards, at such periods and according to such allocation rules as established by resolution of the Council.

Within 60 days from the adoption by the Council of any such resolution contemplated in subparagraph 2 of the first paragraph, a school board may, by way of a resolution submitted to the Minister, oppose the resolution of the Council. The Minister shall rule on any dispute so submitted to him; for this purpose, he may modify the amount determined by the Council for its purposes or change the periods for remittance or the allocation rules of the Council.

The remainder referred to in subparagraph 2 of the first paragraph must be apportioned in a fair and equitable manner.

[177] The new Act provides for the continued existence of the body, the Conseil scolaire de l'île de Montréal, created in 1972 by the Act to promote school development on the island of Montreal. The fourth constitutional question relates to the exclusive allocation of borrowing power to the Conseil. A school board cannot borrow directly: it is the Conseil which obtains and administers loans. This constitutional question also concerns the power given to the Conseil to establish rules for allocating the tax it levies on behalf of school boards.

[178] The Court of Appeal unanimously answered the first subquestion in the affirmative. In LeBel J.A.'s view, since the pre-Confederation legislation gave dissentients the right not to pay the cost of operating common schools (translation), "the very existence of this possibility that dissentients may be responsible for the payment of money owed for common schools or by school corporations to which they do not belong prejudicially affects a guaranteed right, which makes s. 93 applicable" (p. 2557). Beauregard J.A. found that the fact that the borrowing power was given to the Conseil without indicating that it had to act equitably when allocating among the various school boards the cost of reimbursing loans and the payment of interest made the provisions unconstitutional.

[179] The second subquestion divided the Court of Appeal. The majority, per LeBel J.A., considered that the provisions examined were valid under s. 93 of the Constitution. The Act to amend the Education Act and the Act respecting private education, S.Q. 1990, c. 28, substantially amended s. 439. In its original version, the complete absence of any limits on the power to allocate school taxes would have prejudicially affected the rights guaranteed by s. 93. The provision now contains new mechanisms for allocating the proceeds of school taxes and the income from their investment. Further, each school board has a right of appeal to the Minister of Education, who may alter the allocation made by the Conseil scolaire de l'île de Montréal. LeBel J.A. concluded that this appeal mechanism (translation) "gives each school board fair and proportional access to school taxes" (p. 2562).

[180] Beauregard J.A., who wrote the minority opinion, concluded that the provisions prejudicially affected constitutionally protected rights because they did not state that the Conseil scolaire and the Minister of Education had to act fairly as between the various school boards in exercising the powers conferred on them.

[181] The Montreal Catholic School Commission argues that, at the time of the Union, the denominational school boards had the right to borrow since under arts. 357 to 361 of the Civil Code of Lower Canada they had all the powers of corporations. It submits that the power to borrow is a non-denominational aspect of the powers of school boards which is necessary to give effect to the constitutional guarantees. According to this appellant, therefore, in abolishing the borrowing power of denominational school boards Bill 107 is unconstitutional as it prejudicially affects guaranteed rights. On the second subquestion, this appellant argues that the criterion for allocation of the proceeds of taxes is inadequate to satisfy the constitutional guarantees of equality and proportionality.

[182] The Conseil scolaire de l'île de Montréal submits that should this court consider that the power delegated to the Conseil scolaire to borrow for its own purposes and for the purposes of school boards on the island of Montreal trenched on an incidental power relating to denominational schools, the legislative revision dealing with the exercise of protected rights, while altering it, is not ultra vires the National Assembly. It argues that the combining of school boards on the island of Montreal, introduced for borrowing purposes by the Conseil scolaire, is consistent with trends in methods of school financing and, by optimizing the management of the financial resources available to the denominational schools, helps to protect their rights and privileges. In this appellant's submission, it should be noted that no pre-Confederation statute gave the denominational school boards of Quebec and Montreal the power to borrow. In any case, it argues, this borrowing power is not as such a power relating to denominational rights or a power necessary to the exercise of denominational rights.

[183] The Conseil scolaire de l'île de Montréal further points out that as a result of the Court of Appeal judgment, the Quebec government amended Bill 107 by adding s. 425.1:

425.1 The Government shall grant to a confessional or dissentient school board a subsidy equal to any amount it may be required to pay as a result of the application of section 424 or 425 for the purposes of the other school boards on the island of Montréal or of the Council.

[184] This obligation imposed on the government removes any concern as to liability for the costs of operating common schools.

[185] As to subquestion 4 (b), namely the allocation of the proceeds of taxes by the Conseil, the Conseil deals with it taking into account the amendments made by the Quebec Legislature following the Court of Appeal judgment. It argues, however, that even before the amendment s. 439 was constitutionally valid.

[186] The Conseil first deals with the school commissioners' power to impose taxes in pre-Confederation legislation, a question which in its view arises both with regard to dissentient school boards, which might eventually be established in the territory where the appellant exercises jurisdiction, and with regard to the two existing denominational school boards in Montreal. In the appellant's submission the 1861 Act does not deprive the government of the power to tax for purposes additional to the ones specific to a class of persons protected by s. 93 of the Constitution. The government may impose the taxes itself or entrust this power to some other agency.

[187] Furthermore, in 1861 in Quebec and Montreal the taxing power was given to the municipal corporations, not the commissioners. Accordingly Bill 107, in giving the Conseil the power that belonged to the municipal corporations, cannot affect a right guaranteed to a class of persons under s. 93 of the Constitution.

[188] The Conseil then argues that the rights of the class of persons protected by s. 93 are not prejudicially affected since the right to impose the tax at the first level was not constitutionalized and the imposition of a levy is not in itself a right pertaining to the denominational status of schools. As to the allocation of the proceeds of the tax provided for in s. 439 of Bill 107, this appellant submits that it has no discretion and must comply with the requirements of the Act.

[189] Finally, the Conseil argues that the duty imposed on it to allocate the balance of taxes fairly and in a non-discriminatory way suffices to meet the requirements of the constitutional guarantees conferred by s. 93.

[190] The respondent points out that before 1867 the school boards had no borrowing power, and that accordingly the legislature can confer this role on the Conseil scolaire de l'île de Montréal. The Quebec and Montreal school boards also had no power to levy school taxes, since this was the function of the municipal corporations.

[191] The 1861 Act is silent on the question of the borrowing powers of school boards or trustees. Garant, Gosselin and Tremblay, supra, note that the borrowing power did not appear until 1886. As this power does not exist in pre-Confederation legislation, there can be no question of protection under s. 93 of the Constitution. The legislature can therefore grant such a power to the Conseil scolaire de l'île de Montréal without infringing the Constitution.

[192] The argument of the Montreal Catholic School Commission that the school boards have all the powers of a corporation under arts. 357 to 361 of the Civil Code of Lower Canada, and so by implication the power to borrow, cannot be sustained. This appellant relied on Laurentide Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705, [1990] I.L.R. ¶93-049, 45 M.P.L.R. 1, in which this court held that the Civil Code could apply to a municipal corporation. That case had very little to do with the present issue, since it concerned the civil liability of municipalities. Further, this court has held that "political" corporations must be governed by public law and that civil law can only apply to them in exceptional cases.

[193] Moreover, even if the Montreal Catholic School Commission's position were to be admitted, and this provision held unconstitutional, the right would have to be one relating to denominational status itself or to its exercise. As LeBel J.A. points out (translation), "[t]he borrowing power would at most be an incidental power" (p. 2556). Beauregard J.A. is even more categorical [at p. 2589] (translation):

In any case, the question of whether school boards had the power to borrow at Confederation is of no importance since that borrowing power is not as such a power relating to denominational status or a power which is necessary for the exercise of denominational status. Even if we were to accept that in 1867 the law authorized majority boards, dissentient boards and the separate boards of Québec and Montréal to borrow, it does not follow that by divesting all the school boards of this borrowing power the legislature would affect the right to dissent provided for in s. 93 (1) and infringe the powers guaranteed by s. 93 (2).

[194] If this power was seen as having an aspect relating to denominational status, however, it would still be necessary that noncompliance with it cause some prejudice for the provisions creating it to be invalidated. On the contrary, it is much more advantageous to the school boards for the Conseil to have the borrowing power. As it has had this power for some 20 years (exclusively from 1972 to 1985 and concurrently from 1985 to the present), the Conseil has been able to obtain benefits which the school boards themselves would not necessarily have: financial credibility, favorable borrowing rates and so on.

[195] The defect criticized by Beauregard J.A. was rectified by s. 425.1, which was added to Bill 107 after the Court of Appeal's decision and which is a complete answer to his objection.

[196] The second part of the question concerns the taxing power which the Quebec Leglature wishes to confer on the Conseil scolaire de l'île de Montréal by authorizing it to distribute the proceeds of taxation.

[197] Once again, we must turn to the 1861 Act. Under s. 73, outside the two major cities it is the commissioners and trustees who have the power and duty to levy school taxes. In Quebec and Montreal it is the municipal corporations that have the power of financing school corporations. The municipalities levy the basic taxes under s. 131. Accordingly, in the territory of Montreal, since it is the municipality and not the school boards which have the taxing power, the legislature can transfer it to the Conseil.

[198] A problem would arise in the event a dissentient school were created outside the territory of the City of Montreal, either as the result of a reduction in the territory of the denominational boards in Montreal or otherwise. In such a situation, a dissentient school could then be created on the island of Montreal and, under Bill 107, it would be subject to the authority of the Conseil, while, as I have just said, it would "ordinarily" have the right to collect its taxes itself. It is not certain that this would have a prejudicial effect.

[199] One may also take a broad view of the guarantees offered by the Constitution, as does René Hurtubise, "La confessionnalité de notre système scolaire et les garanties constitutionnelles" (1962), 65 R. du N. 167. According to that author, and I share his view, fundamentally what matters is having the financial and physical resources to operate school boards. The taxing power is only one possible means of attaining this end. If it can be done otherwise, such as by an equal, or at least appropriate and equitable, allocation of financing sources, it is hard to speak of a prejudicial effect.

[200] Section 439 of Bill 107, amended in 1990, provides mechanisms for allocating the proceeds of school taxes and investment income as well as a right of appeal to the Minister of Education for dissatisfied boards. Each board is guaranteed fair and proportional access to school taxes. Bill 107 thus meets the requirements laid down by this court in Greater Hull, supra, and in the Ontario Separate Schools Reference, supra, in particular.

E. Fifth question

5. Does the Education Act, in particular ss. 49, 223, 227, 230, 261 and 568, prejudicially affect the rights and privileges protected by s. 93 (1) and (2) of the Constitution Act, 1867, in that it gives the Catholic committee and the Protestant committee of the Conseil supérieur de l'éducation the authority:

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

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

The sections considered are the following:

49. The principal is responsible for the management of the school staff and he shall determine the duties and responsibilities of each member of the staff in accordance with the norms and other decisions of the school board and the provisions of the collective agreements or, as the case may be, the applicable regulations of the Government.

The principal shall also satisfy himself that every teacher he assigns to Catholic or Protestant moral and religious instruction has the qualifications required by the Catholic or the Protestant committee established by the Act respecting the Conseil supérieur de l'éducation (R.S.Q., chapter C-60).

223. A school board may, in addition to the programs of studies established by the Minister, develop and offer local programs of studies in elective subjects whether or not established by the Minister, to meet any special needs of the students. It may grant to such programs, with the authorization of the Minister, a number of credits greater than that provided for in the basic school regulations.

The local programs of studies in respect of Catholic or Protestant moral and religious instruction, shall be submitted to the Catholic committee or Protestant committee for approval in accordance with section 22 of the Act respecting the Conseil supérieur de l'éducation.

In addition, a school board may, subject to the provisions of the basic school regulations and unless the Minister decides otherwise, develop and offer a program of studies in a subject it determines leading to an occupation or a profession and for which it may deliver an attestation of qualification.

227. Catholic or Protestant moral and religious instruction and Catholic pastoral care and guidance services or Protestant religious care and guidance services are provided in accordance with the regulations of the Catholic committee or the Protestant committee, as the case may be.

228. Every school board shall ensure that only the textbooks and instruction material or class of teaching material approved by the Minister and, where they relate to Catholic or Protestant moral and religious instruction, approved by the Catholic committee or the Protestant committee, as the case may be, are used for the teaching of any program of studies established by the Minister.

It shall also ensure that only the textbooks and instruction material or classes of instruction material approved by the Catholic committee or the Protestant committee, as the case may be, are used for the teaching of local programs of studies in Catholic or Protestant moral and religious instruction.

In accordance with section 7, it shall place at the disposal of the students, free of charge, the textbooks and instruction material used for the teaching of the programs of studies, and shall ensure that students have access, free of charge, to reference and reading material.

261. Every school board shall, in assigning personnel to its schools and adult education centres, take into account the staffing requirements submitted to it by the school principals and the directors of the adult education centres, and the applicable collective agreements.

Every school board shall ensure that any person it hires as a teacher holds a teaching licence issued by the Minister, except in cases where such a licence is not required.

It shall also ensure that any person it assigns to Catholic pastoral care and guidance or Protestant religious care and guidance meets the qualification requirements established by the Catholic or Protestant committee, as the case may be.

568. Section 22 of the Act respecting the Conseil supérieur de l'éducation (R.S.Q., chapter C-60) is replaced by the following section:

"22. It shall be the duty of such committees:

(a) to make regulations respecting Catholic or Protestant moral and religious instruction, Catholic pastoral care and guidance and Protestant religious care and guidance, in educational institutions;

(b) to make regulations respecting the qualifications of the teaching staff which provides Catholic or Protestant moral and religious instruction, and of the teaching staff which provides Catholic pastoral care and guidance or Protestant religious care and guidance, in educational institutions;

(c) to approve, for Catholic or Protestant moral and religious instruction, the curricula, educational guides, textbooks, teaching material or classes of teaching material;

(d) to approve, for Catholic pastoral care and guidance or Protestant religious care and guidance, the handbooks of objectives and the accompanying teachers' guides;

(e) to make regulations to recognize educational institutions other than those of a confessional or dissentient school board as either Catholic or Protestant, and to ensure the confessional character of educational institutions recognized as Catholic or Protestant and of educational institutions of a Catholic or Protestant confessional or dissentient school board;

(f) to recognize educational institutions other than those of a confessional or dissentient school board as either Catholic or Protestant and to withdraw such recognition from institutions which no longer fulfill the necessary conditions therefor;

(g) to make recommendations to the Council, the Minister of Education or the Minister of Higher Education and Science respecting any matter within their competence.

This section will not apply to confessional or dissentient school boards until the date fixed by the Government."

[201] The Court of Appeal answered the last constitutional question in the negative. According to Beauregard J.A., there is now no objection in principle to the legislature providing that the religious authority responsible for the general content of religious instruction shall consist of a committee representing Catholics or Protestants, as the case may be. There is also nothing to prevent the legislature assigning to such committees the power to make regulations to ensure the denominational character of the schools concerned. LeBel J.A., for his part, considered that this power had no prejudicial effect on guaranteed constitutional rights and that it was (translation) "likely to improve and protect the exercise in keeping with the powers of general supervision over the system of education which school legislation has given the Council of Public Instruction since before Confederation" (p. 2566).

[202] On the second subquestion, LeBel J.A. felt that Bill 107 had the effect of leaving the classes of persons concerned to make the decisions both on establishing religious programs and on the qualifications of staff assigned to provide religious instruction or care and guidance. Accordingly, the classes of persons covered by s. 93 of the Constitution were not prejudicially affected.

[203] As a consequence of the 1990 legislative amendments, the question is clearly less controversial than when it came before the Court of Appeal. Accordingly, the parties submitted few arguments.

[204] The Commission scolaire Chomedey de Laval concludes that the provisions contemplated by the fifth question were invalid by reason of the unconstitutionality of Bill 107 as a whole, on the grounds already indicated. It considers that the answer to be given to the fifth question in such circumstances is purely academic.

[205] The Montreal Catholic School Commission adopts the same position as the Commission scolaire Chomedey de Laval.

[206] The Attorney-General of Quebec argues that there is nothing to prevent entrusting religious matters to the Catholic committee and Protestant committee of the Conseil supérieur de l'éducation. As a result of the amendments made in 1990, the committees no longer have to recognize the schools of the denominational and dissentient school boards, since their status is guaranteed by the Act. By virtue of this denominational status, however, such schools fall under one or other of the committees which inherited the functions assigned to the parish priest and minister of religion by the 1861 Act.

(1) Establishing rules respecting the confessional nature of dissentient school boards and confessional school boards

[207] Before Confederation the 1861 Act provided, in s. 18, that the Governor in Council could appoint a Council of Public Instruction. The council was given a number of powers, in particular regarding control of normal schools, the governing and discipline of common schools, classification of schools, teachers and the choice of textbooks and school materials.

[208] It should be noted that in 1867 there was no subdivision of the council by denomination. It was in 1869 that the Act to amend the law respecting Education in this Province, S.Q. 1869, c. 16, set up separate Catholic and Protestant committees:

2. The said council, so soon as reorganized under this act shall resolve itself into two committees, the one consisting of the roman catholic and the other of the protestant members thereof, and the matters and things which by law belong to the said council shall be referred to the said committees respectively, in so far as they shall specially affect the interests of roman catholic and of protestant education respectively ...

[209] When the Superior Council of Education Act, now R.S.Q., c. C-60, created the Superior Council of Education in 1964, it continued the existence of the two separate committees.

[210] After the amendments made in 1990, the committees no longer have to recognize the schools of confessional and dissentient boards. Their status is guaranteed by law.

[211] I adopt the observations of LeBel J.A. in his reply to the first subquestion (at p. 2566) (translation):

... the Act gives the committees the general power to make regulations to ensure confessional status. The committees are not given the power to decide whether the confessional character of a dissentient school will be recognized. That result is acknowledged. The Conseil is only authorized to take steps to guarantee the already established confessional status. The conferring of such a power does not prejudicially affect guaranteed constitutional rights.

(2) Setting up of religious programs and qualification of teaching staff

[212] In G.M.P.S.B., supra, this court recognized, at p. 542, that the transfer of the power to approve books and the content of denominational or religious instruction "from the hands of the 'Curé, Priest or officiating Minister' to the corresponding committee of the conseil ... does not prejudicially affect the rights or privileges protected by s. 93 (1) ...".

[213] As LeBel J.A. observes (at p. 2567) (translation):

The effect of the legislative amendment is to leave within the class of persons concerned the decisions both as to the setting up of religious programs and the qualification of staff providing religious instruction or care and guidance. Control of such subjects is the responsibility of agencies established for this class of persons and consisting of their representatives.

[214] I am consequently of the view that the question should be answered in the negative.

IV

Conclusion

[215] For these reasons, and in light of the legislation amended subsequent to the Court of Appeal's opinion, I would decide the appeal by answering the questions posed as follows.

[216] I would answer Q. 1, regarding the creation of linguistic school boards that will succeed to the rights and duties of school boards for Catholics and for Protestants, in the negative. I consider that such a reform does not infringe any right or privilege conferred by s. 93 of the Constitution.

[217] I would answer Q. 2 in the negative. Subquestion 2 (a) deals with exercise of the right to dissent. The provisions at issue as amended by the legislature after the Court of Appeal judgment do not prejudicially affect rights and privileges protected by s. 93 of the Constitution. The government's power to alter the legal structures of dissentient school boards, which is the subject of subquestion 2 (b), respects the guarantees provided by s. 93. The provisions authorizing the government to dissolve inactive dissentient boards do not infringe these guarantees. As the rights of ownership of property and assignment of staff are not protected by s. 93 as such, the legislative provisions on these matters are valid since they make provision for an equitable allocation among school boards and include transitional measures which in themselves are adequate. As to the limitation on attendance at dissentient schools, which is the subject of subquestion 2 (c), this does not breach rights and privileges under s. 93 of the Constitution.

[218] I would answer the third constitutional question in the negative. The declaration that the legal existence of the boards in question in Quebec and Montreal continues does not breach rights guaranteed by s. 93. The provisions authorizing the government to alter territories do not infringe those guarantees, provided there is no territorial reduction within the boundaries of the municipal corporations of the two cities, unless the territory so detached is served by a confessional board offering the same rights and privileges in denominational matters. Subquestion 3 (d), which relates to attendance at confessional schools in Quebec and Montreal, is answered in the same manner as subquestion 2 (c).

[219] I would answer the fourth question in the negative. The assignment of powers to borrow and to allocate the proceeds of school taxes to the Conseil scolaire de l'île de Montréal in accordance with the provisions at issue does not infringe any right or privilege conferred by s. 93.

[220] I would answer the fifth question in the negative. The establishing of rules respecting the confessional nature of dissentient and confessional school boards by the Catholic and Protestant committees of the Conseil supérieur de l'éducation is not contrary to any right guaranteed by s. 93. The same is true of the granting to those committees of the power to approve programs of study and standards applicable to the qualifications of staff assigned to religious instruction.

[221] No order should be made as to costs.

[222] Judgment accordingly.