Separate school education, Alberta, and the Constitution in the 21st Century

Alberta and Saskatchewan have separate school education because it was imposed as the outcome of central Canadian power politics played out between 1896 and 1905.  The seed had been planted in 1759.

All of this begs the question, if separate school education is entrenched in the constitution, is any future for separate school education, but one, even possible, regardless of what may be desirable?

Most Canadians are not mindful of the reality that, in each Canadian province citizens live with both a federal Constitution and a provincial constitution.  We are all (somewhat) familiar with, and mindful of, the federal Constitution — the Constitution Act, 1867 (formerly the British North America Act) and amendments up to an including the Constitution Act, 1982.  What is not obvious, and so often ignored, is that some of the Constitution Act, 1867 is actually not the constitution of the federation but of one or another of the founding provinces.  Similarly, each later province (B.C., Alberta, Saskatchewan, Manitoba, Prince Edward Island, Newfoundland and Labrador) has a constitution peculiar to itself, in the form of the legislation that admitted it to Confederation as a province.  For example, the Alberta Act, 1905 is an integral part of the Constitution of Alberta.  (So is the Natural Resources Transfer Agreement Act, 1930).  Neither is part of the constitution of Ontario, or Quebec, for example.

Apparently there is some dispute among scholars about whether provinces have a constitution.  Regardless of what scholars opine, the Government of Alberta believes that Alberta has a Constitution unique to itself.  In 1990 the Government of Alberta passed a piece of legislation which they titled The Constitution of Alberta Amendment Act, 1990.  (The government can only amend a pre-existing constitution.)

The reality of provincial constitutions that complement the federal Constitution is evidenced by the fact that the Constitution of Canada (Constitution Act, 1982) includes four different amending formulae, depending upon the substance and the reach of the proposed amendment.  Particularly, the Constitution of any province can be amended by the province itself, without the involvement of any other province and without the exercise of any discretion by the federal government.

The best evidence of this web of constitutions can actually be found around education.  An issue that embroils Alberta at this moment involves separate school education, which is the exception in Canada, not the standard.  British Columbia, New Brunswick, Nova Scotia, and Prince Edward Island have no separate school education, and never have had.  Newfoundland had no public school system when it entered Confederation:  all education was provided by one of seven denominational school systems financed from the public purse.  Quebec and Ontario entered Confederation with separate school systems.  (In Ontario they operated to the end of junior high school.)  Manitoba had separate school education when it entered Confederation and unilaterally disestablished it (the Manitoba schools question of the 1890’s).

The Manitoba experience begs the question, can denominational separate school education be abolished by a province?  The short answer is, certainly yes.

The political turmoil in Manitoba (and Ontario and Quebec) around the schools question in the 1890’s was caused by the absence of a clear means of changing the Manitoba Constitution.

The Constitution Act, 1982 cleared away the uncertainty, and we have seen the clarity of the result.  Ontario subsequently amended its Constitution to institutionalize separate school education to the end of high school.  Quebec moved in the opposite direction and disestablished denominational separate school education in favour of two more-or-less parallel systems characterized by language (either French or English).  Newfoundland and Labrador disestablished seven denominational schools systems and replaced them with a single public school system.

For readers with a political mind, three things emerge from the post-1982 experience.  The first is that in both Newfoundland and Labrador and in Quebec the leadership of the Roman Catholic church was extensively and very publicly involved in opposition to the (ultimately successful) intention of the provincial government -- to do away with denominational education systems.  The Church wanted to maintain publicly funded and denominationally controlled (or influenced) schools.  The second lesson is that in both cases the provincial governments were not deterred by the expressed positions of the leadership of the Roman Catholic church and, in the outcome, it seems that many Roman Catholics accepted disestablishment without abandoning or  rejecting the provincial government that had done the deed.

The third interesting political fact is that, in both cases, the federal government was also the object of extensive high profile lobbying by the leadership of the Roman Catholic church, and the federal government adopted the position that it was not going to stand in the way of whatever the provincial government wanted to accomplish regarding separate school education in its province.

(Procedurally, it is important to remember that Albertans did not vote on the disestablishment of separate school education in Quebec; nor did they vote on the disestablishment of denominational school systems in Newfoundland and Labrador.  When an Alberta government acquires the courage to end separate school education in Alberta, no other province will be involved in amending Alberta’s constitution in that regard, and the federal government will not stand in the way.)

Alberta could, if its elected leaders choose the course, end or reasonably limit separate school education in the province.  In doing so, they would join the majority of provinces that have no separate school education.  Ironically, they would join Quebec, which may have imposed separate school education on Alberta and Saskatchewan in 1905 and has subsequently rejected it.

The question remains, is separate school education a viable and beneficial public project for the 21st century?


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