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.....
Separate school education is peculiar around the world. For a description of separate school education, see (here). Only three Canadian provinces embody the concept (Ontario, Saskatchewan, and Alberta). The posts to this web site focus on separate school education in Alberta.
Of the three Canadian provinces, only Alberta has moved to eliminate the possibility of Protestant separate school education and limit the right to provide separate school education to Roman Catholics. (Both Saskatchewan and Ontario continue to have isolated instances of Protestant separate school education, where Protestants are or have been the minority locally: Alberta eliminated Protestant separate school education in 2012). The result is that Alberta has a State-Church link that is unique in Canada. At least insofar as education is concerned, Roman Catholicism is the State Church, funded in its education/permeation and proselytizing by revenue from the provincial government.
This link creates tension around the concept of ‘permeation’ — the idea that separate schools can permeate all their activities with the doctrine and perspective of the Roman Catholic Church, even, some would argue, when such doctrines and perspectives may be contrary to the tenets of civil democratic society. The legal counsel for the Alberta Catholic School Trustees’ Association wrote (Catholic Dimension, Fall 2008, page 8): “So let Catholic education be ‘separate’, different, radical and based upon a concept of education fundamentally opposed to that of the public school system.” (emphasis added)
When Alberta became a province in 1905 the schooling framework that was ‘constitutionalized’ was the one found in the 1901 School Ordinance of the North-west Territories. Section 17 of the Alberta Act reads:
“17(1) Nothing in any … law shall prejudicially affect any right or privilege with respect to separate schools which any class of persons have at the date of the passing of this Act, under the terms of chapters 29 and 30 of the Ordinances of the North-west Territories, passed in the year 1901, or with respect to religious instruction in any public or separate school as provided for in the said ordinances.
“(2) In the appropriation by the Legislature or distribution by the Government of the province of any moneys for the support of schools organized and carried on in accordance with the said chapter 29, or any Act passed in amendment there shall be no discrimination against schools of any class described in the said chapter 29.
“(3) Where the expression “by law” is employed in paragraph (3) of the said section 93, it shall be held to mean the law as set out in the said chapters 29 and 30; and where the expression “at the Union” is employed, in the said paragraph (3), it shall be held to mean the date at which this Act comes into force.”
The School Ordinance of 1901 lays out two principles that frame the concept of permeation in Alberta: both principles are very limiting.
First, the Ordinance says that separate schools are to function in the same way as public schools, with no greater rights or privileges. Within the Ordinance, what distinguishes the two systems is not that one has greater operational rights – or greater latitude with respect to education, or permeation — than the other; only that one cannot be overwhelmed by the majority electorate if they are of another Christian faith.
Section 45 of the 1901 Ordinance reads as follows:
“After the establishment of a separate school district under the provisions of this Ordinance such separate school district and the board thereof shall possess and exercise all rights, powers, privileges and be subject to the same liabilities and method of government as is herein provided in respect of public school districts.” (emphasis added)
There is nothing in the Ordinance that explicitly or by implication empowers a separate school jurisdiction to ‘permeate’ faith beyond what a public school jurisdiction could do. There is nothing that exempts a separate school jurisdiction from the uniform application of human rights legislation or any other provincial legislation.
The question is then, what can both public and separate school jurisdictions do with respect to religious exercises, instruction, etc?
Section 138 and 139 of the 1901 Ordinance speaks to this issue:
“138(1) No religious instruction except as hereinafter provided shall be permitted in the school of any district from the opening of such school until one half hour previous to its closing in the afternoon after which time any such instruction permitted or desired by the board may be given.
“(2) It shall however be permissible for the board of any district to direct that the school be opened by the recitation of the Lord’s Prayer.
“139. Any child shall have the privilege of leaving the school room at the time at which religious instruction is commenced as provided for in the next preceding section or on remaining without taking part in any religious instruction that may be given if the parents or guardians do desire.”
There is nothing in the Ordinance that explicitly or by implication allows a separate school jurisdiction to make religion any more present in the school than is set out by the words of these sections.
There is nothing in the Alberta Act, 1905 that expands the basis for permeation. There is nothing in the Education Act that permits more permeation than the School Ordinance, 1901, provided.
There has been no judicial decision in Alberta that addresses and allows permeation.
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.
With the statutory background, it is helpful to consider how the idea of ‘permeation’ may have originated.
One hundred fifty years ago Canada (including the west) was considered to be a Christian nation. Not only was there widespread agreement about values, virtues and ends, there was widespread agreement that these were necessarily rooted in Christianity — whether one was Protestant or Roman Catholic. There was no public acknowledgement that our values, virtues and ends could have any origin except in Christianity. In this context the character of separate schools was differentiated from public schools by doctrinal and formalistic features that were like distinct superstructures on top of common foundation: appearances might be different but the foundational beliefs were thought to be the same. To be particular for a moment, ‘We, Canadians, (it was thought) were all Christians, notwithstanding different views about when baptism should take place, or whether the Communion table was open or restricted to members of the denomination (and so on).’
Over time the political process became more and more open to the proposition that education in a civil democratic society should be non-denominational and neutral relative to religion. This proposition was more and more applied to public schools (which moved away from religious doctrine and formalistic events as the basis for social cohesion) and resisted by separate schools. Although separate schools had no legal basis for resisting, they did have political influence and, as long as their doctrine continued to be more or less aligned with the value propositions of civil democratic society, it was not politically significant to contest with separate school supporters over the issue of permeation.
In the last half century the value propositions of the Roman Catholic Church have, more and more often, diverged more and more from those of the civil democratic society. There is no justification for the civil democratic community to continue allowing permeation of doctrinal beliefs that are “fundamentally opposed to (those) of the public school system.”
The end of the State-Church connection would not likely mean the end of Catholic education in the province. Catholic schools could still operate as parochial schools (owned by the Roman Catholic Church) or as private schools (operated by incorporated bodies), as is the case in other Canadian provinces and in other nations around the world. Either as parochial or private schools they would be free to ‘permeate’ to the extent that other private schools permeate their convictions: they would also be clearly subject to the same limitations on their permeation, without any suggestion of a unique position providing a unique allowance to permeate in ways contrary to the tenets of civil democratic society.