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.