Separate School Education and the Constitution

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.”)


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