Renton Patterson is the President of Civil Rights in Public Education (CRIPE). Here we talk about the history of the separate school system, violation of the Charter, the International Convention on Civil and Political Rights, and more.
Scott Douglas Jacobsen: Why is there a separate school system in the first place?
Renton Patterson: A brief account of how and why we have a Roman Catholic separate school system:
Any discussion of the separate school issue and what to do about it to-day must take into account the origin of separate schools, over 150 years ago.
In 1841, when Upper Canada (Ontario) and Lower Canada (Quebec) were joined together in a legislative union known as the United Province of Canada, the Day Act provided that “any number of Inhabitants of any Township or Parish professing a religious faith different from that of the majority of Inhabitants of such Township or Parish” may “dissent from the regulations” and set up their own school.
At a time when religious intolerance was widespread, provision for a religious minority to “dissent from the regulations” and therefore from the religious majority, was a solution that suited the time.
The intent, then, of the original legislation, was to establish social harmony by allowing antagonistic faith groups to separate in different schools. The original intent was not to elevate any one faith group into a position of privilege.
Despite the above, subsequent legislation made it easier to establish separate schools for Roman Catholics but more difficult to establish them for others.
One piece of such legislation, the Tache Act of 1855, applied only to Ontario, but was introduced into the Legislature by a member from Quebec, and was passed on the strength of Quebec votes.
Similarly, the Scott Act of 1863, which turned out to be the basis of today’s separate schools, applied only to Ontario, but was presented each year for four years before it finally passed – again because of a solid Quebec (Roman Catholic) vote. The vote was 76 to 31 for the Scott Act, but the Ontario vote was 31 to 21 against.
These two acts demonstrate that Roman Catholic legislators of the United Province of Canada, being a majority, voted into law, a privilege, for the Roman Catholic citizens of Upper Canada (Ontario).
In the early years, the Legislature was held alternately in Upper Canada (Ontario) and Lower Canada (Quebec) during the winter months. Many legislators were farmers, and when the Ontario legislators met in Quebec, and the session ran into spring, many returned home to tend to their land before the legislative session was over.
It was not unheard of for legislation to be introduced late in the session when a number of Ontario members had left for home, legislation which Ontario legislators may oppose.
In a flurry of activity prior to Confederation, both the Quebec Protestants and the Ontario Roman Catholics tried to improve their respective school provisions, which failed. It was instead agreed that the settlement of 1863 should be embodied in the new federal constitution of the Canadian provinces.
Thus, section 93 of the British North America Act ensured that any change to the school provisions must be made with the approval of the federal government which ensured that school privileges could not be removed prematurely, nor in a frivolous manner.
Some writers refer to the laws which govern Roman Catholic separate schools as “minority rights.” It stretches the imagination to view the largest religious organization in the province as a “minority.” The “minorities” are more properly Hindus, Jews, Serbian Orthodox, Muslim, Anglican, etc. and they, as religious minorities, have no rights.
Politically, a “right” is an entitlement enjoyed by all citizens as outlined in charters of rights. A “privilege” is an advantage (or immunity) enjoyed by an individual citizen or group of citizens.
These “minority rights” (as some call them) are really privileges, they are advantages or immunities enjoyed by a group.
Publicly-funded separate schools for Roman Catholic citizens represent a privilege given to the largest religious organization in Ontario — the majority.
When talking about publicly-funded Roman Catholic separate schools, we are not talking about minority rights, we are talking about majority privilege.
No charter of rights would ever grant a privilege.
Privileges are anathema to rights.
Jacobsen: Why does the Supreme Court of Canada confirm the existence of the publicly-funded separate school system as a violation of the Canadian Charter of Rights and Freedoms (CRIPE, 2017)? Yet, the separate school system persists in the country.
Patterson: The Supreme Court agrees that the public funding of the Roman Catholic separate school systems is a violation of the Charter. This is the result of a Supreme Court Reference re Ontario’s Bill 30, the Bill to extend the public funding of RC schools to the end of high school.
In the Bill 30 decision Justice Estey wrote: “It is axiomatic (and many counsel before this Court conceded the point) that if the Charter has any application to Bill 30, this Bill would be found discriminatory and in violation of s. 2(a) and s. 15 of the Charter of Rights.”
However, Justice Wilson wrote that “The Charter cannot be applied so as to abrogate or derogate from rights or privileges guaranteed by or under the constitution.”
Her reason for saying this is spelled out through no fewer than 12 references to the “confederation bargain”, one being the statement: “The rights or privileges protected by s. 93(1) …. cannot be prejudicially affected…..both are immune from Charter review…..because the whole of s. 93 represents a fundamental compromise of Confederation in relation to denominational schools.”
The “confederation compromise” is spelled out in s. 93(2); Ontario must provide separate schools for Roman Catholic and Quebec must supply the same for Protestants. Through the decision on Bill 30, the Supremes turn the Charter into a bare-faced lie. No federal political party finds this bothersome – why?????
In most cases in a developed society, new laws automatically over-ride older laws. Our Charter or Rights and Freedoms was introduced, but the Supremes won’t let its terms get in the way of how they wanted to rule in the Bill 30 case. Heck, they didn’t even consider section 32 of the Constitution Act, 1982 with the title “Application of Charter”.
They didn’t have the fortitude to consider it because it would blow away their reasoning for allowing Bill 30 to be implemented. It reminds me of a statement by Pierre Trudeau, who is responsible for our Charter: “When each citizen is not equal to all other citizens in the state, we are faced with a dictatorship, which arranges citizens in a hierarchy according to their beliefs.”
Jacobsen: The International Convention on Civil and Political Rights is a United Nations document, which Canada both signed and pledged to uphold as a United Nations member state (General Assembly of the United Nations, 1966).
However, Canada, nationally, and Ontario, provincially, have been admonished four times. Why? The reason is simple: “non-action of both governments to correct the abuse” (Ibid.). What is the non-action? Why do both governments refuse to act? What are the consequences for the general public from the non-action? Frankly, four times is a lot.
Patterson: The non-action is the refusal of either Canada or Ontario to abide by the “views” of the United Nations Human Rights Committee, which stated: “….the Covenant does not oblige States parties to fund schools which are established on a religious basis. However, if a State party chooses to provide public funding to religious schools, it should make this funding available without discrimination.”
It would be extremely easy for Canada to abide by the ICCPR by simply invoking its power of disallowance – section 56 of The Constitution Act, 1867. Mr. Justice LaForest, (former Justice, Supreme Court of Canada), in his book on disallowance stated that “The makers of our Constitution, in order to prevent the local legislatures from abusing their legislative rights, granted to the government the power of annulling provincial legislation.”
Why do both governments refuse to act? Their answers just refer to a certain section of the Constitution Act, 1867, section 93. But since there are avenues they may follow to make things right, I, personally, have concluded that they are both corrupt. Blatantly corrupt. Just listen to the rhetoric about human rights from both – window dressing? Just propaganda? Or absolute lies?
The consequences are that neither government can claim to be democratic, because one of the bases of a democracy is the rule of the majority. See the latest poll entitled “The Vector Poll on Public Opinion in Ontario” – attached. Any honourable government would see the results and respond.
Consequences include the fact that both Ottawa and Toronto support a two-tier citizenship for Ontario, and also support the absolute waste of over $2 billion each year. That $2 billion doesn’t count the interest on that borrowed money nor the social cost to the disadvantaged – the homeless, the hungry, the disabled, etc., etc., – who do without because the government “can’t afford it.” Separate schools in Ontario are a social disgrace and an economic disaster.
Jacobsen: The Civil Rights in Public Education organization agrees with Article 26 of the International Convention on Civil and Political Rights, which “ensures individuals equal treatment and prohibits discrimination on grounds of religion” (Ibid.; General Assembly of the United Nations, 1966).
How do documents, such as the convention or other ones representative of international law, impact Canadian law and the Canadian Constitution status regarding the publicly-funded separate school system – especially alongside the Convention and its Article 26?
Patterson: International law, in my limited experience with it, does not seem to have any impact on Canadian law, and when it seems obvious to others that it should, it appears that the Supreme Court just ignores it.
When international law is mentioned in a case, it seems to me, that a mention by the Court is only when that law agrees with the Court’s decision. International covenants are binding on countries that accede to their terms, but federal politicians will say it is not binding whenever the government finds itself in conflict with its policy, so the terms are ignored. If the Supreme Court in the Bill 30 case considered the terms of the ICCPR, it would have to do a lot of squirming.
Jacobsen: Thank you for the opportunity and your time, Renton.
CRIPE. (2017). Why One School System?. Retrieved from http://www.cripeweb.org/about-us/why-one-school-system/.
General Assembly of the United Nations. (1966, December 19). International Convention on Civil and Political Rights. Retrieved from https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf.