Separate school education was invented by the British Empire in the aftermath of the Battle of the Plains of Abraham, in 1759. The government was formally tied to the Church of England and Roman Catholics, as a class of people, were denied important personal and civil rights.
There was turmoil in the Empire’s American colonies, and the government was anxious to do what it could to assure the loyalty of the new subjects in Quebec, who were French-speaking, Roman Catholic, and familiar with the French tradition of civil law.
The innovation was to allow the colonists to speak French, continue to use the French model of civil law, and have Catholic education for their children. At the same time, separate school education was recognized, so that incoming English colonists would have the right to organize a Protestant (Anglican) education for their own children.
Subsequently, the mirror image of the Quebec model was established in Ontario, so that the Roman Catholic minority would be able to organize their own schools and avoid having their children educated in the Protestant oriented schools of the majority.
From 1763 (when the Treaty of Paris permanently transferred Quebec to the British Empire) until 1867, the organization of education in Quebec and Ontario evolved from the decisions made immediately after the Battle of the Plains of Abraham.
During the negotiations that led to the creation of Canada in 1867, the Fathers of Confederation agreed that each colony entering Confederation would be allowed to retain the system of education it had upon entry. Quebec and Ontario entered with parallel public and separate school systems. New Brunswick and Nova Scotia entered without separate school education, as did B.C. and Prince Edward Island, later. When Newfoundland and Labrador entered Confederation in 1949 they had no public school system but they did have 7 denominationally controlled systems that were funded by a combination of grants from the colony (then province) and tuition fees and fund-raising.
This is an important first representation of the reality that the Constitution of Canada is not a single document and not a uniform reality for every Canadian regardless of where they live. In Canada, every Canadian lives with a federal Constitution and with a provincial Constitution that differs slightly from province to province, and the Constitution is made up of a number of statutes.
Three provinces – Manitoba, Saskatchewan, and Alberta – came into Confederation by a different route, because they were not self-governing colonies at the time they became provinces: they had been ‘owned’ by the Hudson Bay Company and were transferred to Canada, to become a substantial part of the Northwest Territory. The Government of Canada – responding to significant political pressure from Ontario and Quebec -- established parallel public and separate school systems throughout.
(The organization of education in the new territory was not of much concern to the people of B.C., N.B., N.S. or P.E.I. but it was of great concern to the people of Quebec and Ontario. Quebec was hopeful that the dominant settlement would be French-speaking and Roman Catholic and tend toward support for Quebec in national politics. Ontario was hopeful that the dominant settlement would be English-speaking and Protestant, and tend toward support for Ontario in national politics. Each province insisted on the parallel system of education in the two new provinces, in case the settlement outcome was not as they hoped. Settlement patterns and the shifting balance in federal politics was in the forefront of every decision, just after the Riel Rebellions and the hanging of Louis Riel.)
Manitoba became a province with dual public and separate school systems in place. That province subsequently did away with separate school education, which caused considerable turmoil in Ontario and Quebec, and in the Parliament of Canada. The cause of the turmoil was two-fold. First, the English/Protestant majority was ‘tilting the field’. Second, there was no clarity and agreement about whether, or how, a province might amend its constitution. This was the so-called “Manitoba Schools question”. The disestablishment of separate school education in Manitoba stood.
Alberta and Saskatchewan moved from territorial status to provincial status shortly after the turmoil of the Manitoba Schools question. Given that parallel systems were in place at the time, the Government of the Northwest Terrritory –representing the majority of the settlers -- petitioned the federal government to admit the two new provinces without separate school education. There were many representations in support of this (just as there were many representations against).
The Liberal Government of Sir Wilfred Laurier imposed the continuation of separate school education on the two new provinces, prompting Sir Clifford Sifton, Laurier’s western lieutenant, to resign from the government in protest.
Alberta and Saskatchewan have separate school education because of the outcome of a battle fought in Quebec more than 250 years ago, confirmed by an imposition of Ontario and Quebec politicians in 1905 in response to the politics in those two provinces at that time.
The most important component of all these decisions was that there was no regard for individual rights, perhaps not even for human rights. The rights that were being privileged were group rights and, particularly, denominational rights. In fact, individual rights were expressly suppressed in order to strengthen group and denominational rights. This explains section 29 of the Constitution Act, 1982, which exempts separate school education from the scope of the provisions of the Canadian Charter of Rights and Freedoms.