Section Twenty-nine of the Canadian Charter of Rights and Freedoms
Encyclopedia
Section Twenty-nine of the Canadian Charter of Rights and Freedoms is the section of Charter
that most specifically addresses rights regarding denominational schools and separate school
s. Section 29 is not the source of these rights but instead reaffirms the pre-existing special rights belonging to Roman Catholics and Protestants, despite freedom of religion
and religious equality
under sections 2
and 15
of the Charter. Such rights may include financial support from the provincial governments
. In the case Mahe v. Alberta
(1990), the Supreme Court of Canada
also had to reconcile denominational school rights with minority language
education
al rights under section 23
of the Charter.
contains a number of denominational school rights. They usually belong to Catholics and Protestants wherever they form the minority population of the relevant province. The current Chief Justice of Canada
Beverley McLachlin
once referred to this as an early form of freedom of religion in Canada.
Section 93 of the Constitution Act, 1867
awards jurisdiction over education to the provincial governments, with a few exceptions. Namely, Catholics have denominational school rights in Ontario
and both Catholics and Protestants have these rights in Quebec
. Quebec was and is predominantly Catholic (though the effects this has had on the province's politics have changed over the years; see Quiet Revolution
). Section 17 of the Alberta Act, 1905 also guarantees denominational school rights for Catholics in Alberta
. While the rights for Catholics and Protestants seem to contradict Charter values of equality, section 29 clarifies the privileges cannot be challenged on Charter grounds. It was inserted because the authors of the Constitution Act, 1982
did not want to be held responsible for challenging the old system.
As noted in the Supreme Court case Reference re Full Funding for Roman Catholic Separate High Schools (1987), this clarification is really the only function of section 29. Section 29 does not itself shield the special rights from the Charter, since the rights are themselves a part of the Constitution and thus cannot be unconstitutional or subject to Charter review. This line of thinking was confirmed by the Supreme Court in Gosselin (Tutor of) v. Quebec (Attorney General)
(2005).
(1996) religious freedoms under sections 2 and 15 of the Charter were used to argue that lack of government funding for Jewish Canadian schools and certain Christian schools in Ontario was unconstitutional, since by contrast Catholic schools received government money. The majority of the Supreme Court, however, dismissed the argument, noting section 93's importance as an agreement made between the founders of the nation to make Confederation
possible. Since it was a political deal and not based upon the principle of freedom, section 2 of the Charter could not extend section 93 rights to other religions. Moreover, to find that section 2 could extend denominational school rights would contradict the specificity of section 93, and section 29 indicates such a contradiction cannot exist and that denominational schools are not Charter issues.
In Mahe v. Alberta
, the Court found that minority language rights of French Canadian
s in Alberta required that the French community be represented on the school board. While this seemed to border on altering denominational school rights and raised section 29 concerns, since the school board in this case was a religious one, the Court justified it since the religious content of the education was unchanged, and the powers of the school board were merely "regulated" so that the religious teachings could be provided in French
.
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
that most specifically addresses rights regarding denominational schools and separate school
Separate school
In Canada, separate school refers to a particular type of school that has constitutional status in three provinces and statutory status in three territories...
s. Section 29 is not the source of these rights but instead reaffirms the pre-existing special rights belonging to Roman Catholics and Protestants, despite freedom of religion
Freedom of religion
Freedom of religion is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance; the concept is generally recognized also to include the freedom to change religion or not to follow any...
and religious equality
Social equality
Social equality is a social state of affairs in which all people within a specific society or isolated group have the same status in a certain respect. At the very least, social equality includes equal rights under the law, such as security, voting rights, freedom of speech and assembly, and the...
under sections 2
Section Two of the Canadian Charter of Rights and Freedoms
Section Two of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada's Charter of Rights that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or...
and 15
Section Fifteen of the Canadian Charter of Rights and Freedoms
Section Fifteen of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs and rights or privileges...
of the Charter. Such rights may include financial support from the provincial governments
Provinces and territories of Canada
The provinces and territories of Canada combine to make up the world's second-largest country by area. There are ten provinces and three territories...
. In the case Mahe v. Alberta
Mahe v. Alberta
Mahé v. Alberta, [1990] 1 S.C.R. 342 is a leading decision of the Supreme Court of Canada. The ruling is notable because the court established that section 23 of the Canadian Charter of Rights and Freedoms requires that parents of the official-language minority in each province have the right...
(1990), the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
also had to reconcile denominational school rights with minority language
Minority language
A minority language is a language spoken by a minority of the population of a territory. Such people are termed linguistic minorities or language minorities.-International politics:...
education
Education in Canada
Education in Canada is for the most part provided publicly, funded and overseen by federal, provincial, and local governments. Education is within provincial jurisdiction and the curriculum is overseen by the province. Education in Canada is generally divided into primary education, followed by...
al rights under section 23
Section Twenty-three of the Canadian Charter of Rights and Freedoms
Section Twenty-three of the Canadian Charter of Rights and Freedoms is the section of the Charter that constitutionally guarantees minority language educational rights to French-speaking communities outside Quebec, and, to a lesser extent, English-speaking minorities in Quebec...
of the Charter.
Text
The section reads:Purpose
The Constitution of CanadaConstitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
contains a number of denominational school rights. They usually belong to Catholics and Protestants wherever they form the minority population of the relevant province. The current Chief Justice of Canada
Chief Justice of Canada
The Chief Justice of Canada, like the eight puisne Justices of the Supreme Court of Canada, is appointed by the Governor-in-Council . All nine are chosen from either sitting judges or barristers who have at least ten years' standing at the bar of a province or territory...
Beverley McLachlin
Beverley McLachlin
Beverley McLachlin, PC is the Chief Justice of Canada, the first woman to hold this position. She also serves as a Deputy of the Governor General of Canada.-Early life:...
once referred to this as an early form of freedom of religion in Canada.
Section 93 of the Constitution Act, 1867
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
awards jurisdiction over education to the provincial governments, with a few exceptions. Namely, Catholics have denominational school rights in Ontario
Ontario
Ontario is a province of Canada, located in east-central Canada. It is Canada's most populous province and second largest in total area. It is home to the nation's most populous city, Toronto, and the nation's capital, Ottawa....
and both Catholics and Protestants have these rights in Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
. Quebec was and is predominantly Catholic (though the effects this has had on the province's politics have changed over the years; see Quiet Revolution
Quiet Revolution
The Quiet Revolution was the 1960s period of intense change in Quebec, Canada, characterized by the rapid and effective secularization of society, the creation of a welfare state and a re-alignment of politics into federalist and separatist factions...
). Section 17 of the Alberta Act, 1905 also guarantees denominational school rights for Catholics in Alberta
Alberta
Alberta is a province of Canada. It had an estimated population of 3.7 million in 2010 making it the most populous of Canada's three prairie provinces...
. While the rights for Catholics and Protestants seem to contradict Charter values of equality, section 29 clarifies the privileges cannot be challenged on Charter grounds. It was inserted because the authors of the Constitution Act, 1982
Constitution Act, 1982
The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of "patriating" the constitution, introducing several amendments to the British North America Act, 1867, and changing the latter's name in Canada to the Constitution Act, 1867...
did not want to be held responsible for challenging the old system.
As noted in the Supreme Court case Reference re Full Funding for Roman Catholic Separate High Schools (1987), this clarification is really the only function of section 29. Section 29 does not itself shield the special rights from the Charter, since the rights are themselves a part of the Constitution and thus cannot be unconstitutional or subject to Charter review. This line of thinking was confirmed by the Supreme Court in Gosselin (Tutor of) v. Quebec (Attorney General)
Gosselin (Tutor of) v. Quebec (Attorney General)
Gosselin v. Quebec , [2005] 1 S.C.R. 238, 2005 SCC 15 is a leading Supreme Court of Canada on the constitutional protection of minority language rights under section 23 of the Canadian Charter of Rights and Freedoms. The case was part of a trilogy of minority language rights cases including Solski...
(2005).
Interpretation
In the case Adler v. OntarioAdler v. Ontario
Adler v. Ontario, [1996] 3 S.C.R. 609 is a leading decision of the Supreme Court of Canada on the constitutional obligation to fund private denominational education...
(1996) religious freedoms under sections 2 and 15 of the Charter were used to argue that lack of government funding for Jewish Canadian schools and certain Christian schools in Ontario was unconstitutional, since by contrast Catholic schools received government money. The majority of the Supreme Court, however, dismissed the argument, noting section 93's importance as an agreement made between the founders of the nation to make Confederation
Canadian Confederation
Canadian Confederation was the process by which the federal Dominion of Canada was formed on July 1, 1867. On that day, three British colonies were formed into four Canadian provinces...
possible. Since it was a political deal and not based upon the principle of freedom, section 2 of the Charter could not extend section 93 rights to other religions. Moreover, to find that section 2 could extend denominational school rights would contradict the specificity of section 93, and section 29 indicates such a contradiction cannot exist and that denominational schools are not Charter issues.
In Mahe v. Alberta
Mahe v. Alberta
Mahé v. Alberta, [1990] 1 S.C.R. 342 is a leading decision of the Supreme Court of Canada. The ruling is notable because the court established that section 23 of the Canadian Charter of Rights and Freedoms requires that parents of the official-language minority in each province have the right...
, the Court found that minority language rights of French Canadian
French Canadian
French Canadian or Francophone Canadian, , generally refers to the descendents of French colonists who arrived in New France in the 17th and 18th centuries...
s in Alberta required that the French community be represented on the school board. While this seemed to border on altering denominational school rights and raised section 29 concerns, since the school board in this case was a religious one, the Court justified it since the religious content of the education was unchanged, and the powers of the school board were merely "regulated" so that the religious teachings could be provided in French
French language
French is a Romance language spoken as a first language in France, the Romandy region in Switzerland, Wallonia and Brussels in Belgium, Monaco, the regions of Quebec and Acadia in Canada, and by various communities elsewhere. Second-language speakers of French are distributed throughout many parts...
.