In Alberta there is no constitutional grounds for “permeation”, as it is currently being practiced by many separate school jurisdictions. Particularly since the adoption of the Charter of Rights and Freedoms in 1982, there is nothing that gives ‘permeation’ any status superior to the Charter. Separate schools are as subject to the Charter as are public schools.....
(If you would like to hear David on the Polticoast Podcast please skip 18 min in to hear his interview:
Separate school education inflicts a financial cost we can no longer afford and an social injustice we should no longer tolerate. Here are my six objections:Read more
One of the questions we have heard the most is, "Can it be done?" The answer is yes, and we point to Newfoundland, Quebec and Manitoba as examples of jurisdictions where citizens chose to put education first. Take a moment to listen to this CBC special on the unification of school boards in Newfoundland:
As Newfoundland Premier Brian Tobin said as they concluded their separate Catholic school system:
"We couldn't afford it," he said. "We weren't putting our money into providing the best education system for our children. We were putting our money into maintaining buildings — some of which were half empty — and busing people an hour away rather than letting them go to the school in their community because it wasn't a denominational fit."
1997: Twenty Years ago Newfoundland voted to get rid of their separate Catholic schools.
-The question posed in the 1997 referendum was this: "Do you support a single school system where all children, regardless of their religious affiliation, attend the same schools where opportunities for religious education and observances are provided?"
-A whopping 73 per cent of voters said yes.
-Since the province's church-run school system was part of the Constitution, Newfoundland and Labrador needed a constitutional amendment in order for the change to go through. Canada's Senate passed the amendment in December of 1997.
-That same month, the Senate passed a very similar constitutional amendment for Quebec. It allowed Quebec to restructure its school system from a religion-based system to one organized along linguistic lines.
-Today, only three provinces maintain a system of publicly funded separate schools (primarily Catholic) alongside their public secular systems - Ontario, Alberta and Saskatchewan.
As people consider the petition asking for a provincial referendum, we are getting questions about separate school education and the Constitution.
In Alberta, separate school education is a constitutional entitlement ( privilege). It is called an entitlement to distinguish it from a “human right” since it is not something that all Albertans share on an equal basis. It is not a 'right' within the meaning of the Charter of Rights.
In fact, separate school education probably violates the Charter of Rights, which is why Section 29 of the Charter protects separate school education from a legal challenge. But section 29 does not protect separate school education from a constitutional amendment.
Constitutional entitlements are not chiseled in stone. Constitutions change over time either by amendment or by new enactments, or by judicial decisions. At one time Alberta did not own the natural resources under the ground. That was changed by the Natural Resources Transfer Agreement Act, 1930. At one time women were not recognized as persons when considering appointments to the Senate. That was changed by a decision of what was then the supreme court of Canada.
The approved way of dealing with the issue is simple and straight forward, and it doesn’t take a lot of time. It’s been done twice in the past 20 years. In 1997 both the province of Newfoundland and Labrador and the province of Quebec did away with denominational education. In Newfoundland and Labrador the government acted on the outcome of a provincial referendum that strongly supported the creation of a single public school system and the end of seven denominational school systems. In Quebec the National Assembly (Legislative Assembly of that province) acted without a referendum. A referendum is optional for the government.
The bare bones of the procedure is simple. The government drafts a resolution with an attached amendment to part of the provincial constitution (in our case, the Alberta Act, 1905). The attachment contains the exact wording of the desired amendment. If the resolution is adopted by the legislative assembly it is sent, with the attached wording of the desired amendment, to the Government of Canada. The Government of Canada adopts the desired wording as it is put forward by the provincial government.
In 1997 Prime Minister Chretien imposed a “3-line whip” on the government caucus in both the House of Commons and the Senate. His position was that education is the responsibility of the provincial government and a federal government is conscience bound to do what the provincial government wants done, unless what the province wants done is clearly contrary to the Charter of Rights or the basics of democracy.
Since the Government of Canada has enacted amendments for both Newfoundland and Labrador and Quebec dealing with the end of denominational education, it is probably safe to assume that the Government of Canada would enact a similar amendment if Alberta asked for it.
The challenge is not the constitution. The challenge is to determine what is best for Alberta at the beginning of the 21st century and, if that is unification of the two systems, the next challenge is to encourage the government to find the political will to do what the public wants done. (As a famous French politician once said, “The people, the people, where are the people? I must find them, for I am their leader.”)
This morning, Premier Notley told reporters that the NDP has no plans to scrap Catholic education system despite the (now international) sex-ed controversy.....Read more
The open letter (here) penned by retiring separate school trustee Patricia Grell has promoted an important conversation about the future of separate school education. The letter has also brought into the open some misconceptions or misstatements that are promoted and shared by ecclesial leaders of the Roman Catholic Church....
Retiring school trustee Patricia Grell (Edmonton Separate) has written a heartfelt and provocative letter describing her disenchantment with the experience of being a Roman Catholic separate school trustee. Ms. Grell is a committed, well-educated and well-informed person of the Roman Catholic faith. She also has current, relevant and extensive experience. All of this makes her open letter well worth reading, by all Albertans with an interest in excellent education for all students.
Basically, Ms. Grell speaks to three vitally important issues...Read more
Two weeks ago I spoke to the 2017 Annual Congress of the Canadian School Boards' Association (CSBA). (The text of my remarks can be found, here.) Part of the message was about passionate advocacy on behalf of public education.
Advocates for public education must be able to describe unique characteristics that are vital to the well-being of the community in one way or another. Mere distinctions, without meaningful differences, are of no use.
Hopefully, the characteristics we proclaim justify our passionate advocacy. Personally, I find it hard to be passionate about "compulsory attendance", or "taxpayer funded", or "elected school boards". There may be some basis for passion behind such descriptions, but it certainly isn’t obvious to the listener. I don’t feel it.
Here's what I offered 350+ trustees and senior executive staff from across Canada.
Alberta’s teachers are represented by, and advance the interests of the teaching profession through, one of the most effective teacher associations in the world. I have a high regard for the Alberta Teachers’ Association (A.T.A.), and I know that the Annual Representative Assembly is in session this weekend (May 20 – 22, 2017). (The A.R.A. is the primary assembly for policy making, budget setting, and receiving important progress reports.)
One of the important issues related to the unification of public and separate school jurisdictions is that of process. How would unification be accomplished?
First and foremost, the existence of separate school education derives from the Constitution, so unification would require a constitutional amendment. What is the context?
WARNING: This post will bore most readers to death. It is only for a very few masochists with a peculiar bent, such as a few academics, politicians, media people and ordinary citizens. Most of you can skip to the very last paragraph now.
The first question is, “what constitution”? Do Canadians have only one constitution, the Constitution of Canada, or do the provinces have a (complementary) constitution that is somewhat ‘different’ than the Constitution of Canada and, perhaps, somewhat different from province to province?
The Constitution Act, 1982 (Canada) seems quite clear:
“45. Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.” (emphasis added).
Two things are apparent. The first is that Prime Minister Trudeau (the elder), as well as Premiers Lougheed, Davis, and Blakeney (and the other Premiers) were acknowledging and specifying that each province has a constitution. The second apparent thing is that, in each province, the constitution is not a single document (upper case “C”): it is a “class” of documents, with the possibility (likelihood) of there being more than one document in the class.
This supports the supposition, held by many political scientists and politicians, that a province’s constitution is not consolidated: the totality of the constitution may be found in a number of documents, including a Constitution, statute law, and judicial decisions.
Certainly, the Government of Alberta believes that there is a constitution unique to Alberta. The Government of Alberta also believes that the constitution of the province is not found in a single document, a Constitution: Alberta’s constitution, in the belief of the Government of Alberta, is unconsolidated.
For example, any Government of Alberta would hold that the Natural Resources Transfer Agreement Act, 1930 is part of the constitution of Alberta, though it may not be part of the Constitution of Canada.
As further evidence, the Constitution of Alberta Amendment Act, 1990, begins with Whereas clauses, including these two:
“WHEREAS Her Majesty in right of Alberta has proposed the land so granted be protected by the Constitution of Canada, but until that happens it is proper that the land be protected by the constitution of the Province (emphasis added); and
WHEREAS section 45 of the Constitution Act, 1982 empowers the legislature of a province, subject to section 41 of that Act, to amend the constitution of the province (emphasis added)…”
The name of the Act (The Constitution of Alberta Amendment Act) certainly indicates that the Government of Alberta was amending something that was pre-existing, namely a provincial constitution.
So, there is a constitution of Alberta as there is a constitution of each other province.
We come then to Alberta’s (small c) constitution.
The Constitutional Referendum Act of Alberta becomes the focus of our attention.
2(1) The Lieutenant Governor in Council shall order the holding of a referendum before a resolution authorizing an amendment to the Constitution of Canada is voted on by the Legislative Assembly.
Having spent seven years on the Legislative Review Committee of Cabinet, I feel safe in interpreting this to mean that the Constitutional Referendum Act does not apply to the constitution of Alberta. Section 2(1) refers to an amendment to the Constitution of Canada (emphasis added). Alberta distinguishes between the Constitution of Canada and the constitution of the province. The Act does not refer to an amendment to the constitution of Alberta.
(In any case, the Constitutional Referendum Act is not apparently part of the constitution of the province. The government can amend or repeal it as they think best.)
At this point, the challenge is to identify the elements of the provincial constitution. Particularly, we are faced with needing to come to a conclusion about whether the Alberta Act, 1905 is part of the Constitution of Canada or of the constitution of Alberta. A third possibility is that the contents of the Act are sometimes part of the Constitution of Canada and sometimes part of the constitution of the province.
In this regard, it is helpful to look for guidance from two considerations. First, what part of our life is "constitutionally shaped" but not uniform across all provinces. Second, what aspects (if any) of our constitutional complex have been amended with reliance upon section 45 of the Constitution Act, 1982, the provision that relates to amending provincial constitutions?
On both counts, education comes up first.
On the balance of probabilities, I would conclude that the Alberta Act, 1905 or at least those parts of it that relate to education are part of the constitution of the province and do not trigger the application of the province's Constitutional Referendum Act. In support of this position, I observe that Ontario extended upward (to higher grades) the system of separate school education and did this without triggering the intervention of the federal government.
Subsequently, both Newfoundland and Labrador and Quebec changed the constitution of each province with respect to education. In one case (Newfoundland) the change followed a province-wide referendum (two, in fact) held at the discretion of government of the day, without any requirement that one be held. In the case of Quebec the change took place without a referendum. Although Quebec had referendum legislation in place, the Government of Canada did not require that province to hold a referendum.
In both cases the relevant amendment to the provincial constitution followed section 45 of the Constitution Act, 1982, which relates to the amendment of the constitution of the province. In the case of Newfoundland and Labrador, which entered Confederation after the initial creation of the country, the amendment was to Article 17 of the British North America Act, 1949, the legislation by which Newfoundland entered Confederation. In the case of the Quebec change, the amendment was to a provision of the British North America Act, 1867.
These things seem clear to me:
- provinces have constitutions which can (and should be) be understood apart from the Constitution of Canada.
- Alberta has a constitution which needs to be understood and dealt with apart from the Constitution of Canada.
- The Constitutional Referendum Act (Alberta) applies only to amendments to the Constitution of Canada: by omission, it does apply to not the constitution of Alberta.
- An amendment to deal with separate school education would be an amendment to the constitution of the province and not the Constitution of Canada.
- The Constitutional Referendum Act (Alberta) would not be invoked preliminary to an amendment dealing with separate school education.