Monday, 3 September 2012

Constitutional Change and the Extinguishing of Denominational 'Rights'

So many contemporary debates end up mired in the past. Indeed, the present and past seem so often to meld, ignoring present realities and distorting the realities of the past. The ongoing debate in Ontario over the future of the the separate Catholic system is case in point. For many non-Catholics, a separate taxpayer-funded religiously based system of education is an affront on multiple levels. It is a clear violation of principles of fairness and equality. To many Catholics the issue is one exercising a centuries-old right under the Constitution.

As Ontario increasingly looks to ways to reduce its massive budget deficit, those in favour of looking for a rationale to put an end to the Catholic system look to a financial argument to frame an argument in terms that the public at large and, importantly, a government lacking in funds can understand. This argument rests on the straightforward premise that duplicate systems means duplicate systems of administration and waste. A single, secular system - at least in English education - would cut overhead and allocate more scarce dollars into classrooms and, ultimately, directly to students. This argument is, of course, vulnerable to overstatement. Similar arguments were made during the Harris years in which municipal amalgamation promised greater efficiencies  better service and lower costs. These expectations exceeded post-amalgamation realities for many communities.

There are other pressing reasons for scrapping the Catholic system. On purely normative grounds the existence of a separate system of entitlements for a fraction of the population based solely on historical contingency is abhorrent. It violates basic principles of equality and, as the United Nations has pointed out, is inherently discriminatory. Additionally, it has also been forcefully noted that such a system amounts to little more than taxpayer funded discrimination given the Catholic system's abhorrent of its queer students.

There is another issue, however, that receives far too little attention. The official Catholic response to the McGuinty Government's equality provisions, particular those related to anti-bullying provisions for gay and lesbian students, has largely been defiance. Catholic education, they argue, should be decided by the Church, and not by government. This is particularly problematic as it directly challenges the sovereignty as defined in constitutional law of the provinces to administer education. This challenge should not be met passively as it undermines basic principles of governance, the rule of law and democracy. No other group could expect to act so defiantly without consequence.

The Catholic rejection official policy attempts to reinterpret a very specific entitlement and create something expansive. It is worth noting that the judiciary has rejected such an expansive reading, restricting entitlement to existing privileges. Given the limited scope of public education prior to 1867, this is an extremely proscribed privilege. As it is set out in the Constitution Act, 1982 (as it existed in the British North America Act, 1867):

 In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions:
  • (1) 
    Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union

Again, this is a very particular statement with a limited impact. What it certainly does not do is transfer any authority over the content or conduct or education out of the hands of the sole constitutional authority, that is, the provinces. What is does maintain is that a privilege to conduct education separately, with educational teachings supplementing but not supplanting the established curriculum. Defenders of the separate system far overstate the scope of latitude afforded to them by virtue of this section. In the end, so long as basic and existing privileges are maintained, the province has every right to legislate as it deems necessary.

Two facts are worth remembering. In 1860s Canada, the predominant division was not solely a divide over religion - that is, between Protestants and Catholics - but one manifest on a dual axis which incorporated language and race. As such, it was extremely difficult, if not impossible, to separate English from Protestant and French from Catholic. The cleavage was, thus, English-Protestant versus French Roman Catholic. Extending denominational rights, as such, was not solely about protecting a religious cleavage, but protecting ethnic minorities who, by and large, overlapped with a single religious system. Protecting religion was, in essence, a secondary effect, the result of protecting the privileges of ethno-linguistic minorities. The vitriol between members of the Assembly were pronounced. Members made little secret of their mistrust ill will and, in many cases, open contempt.

Second, the denominational clause is, as the Supreme Court rightly put it, "the product of a historical compromise crucial to Confederation". It was, put bluntly, a means to ensure that mutual distrust and antagonisms could be put aside in the interests of union. It is worth quoting George Brown at length on the subject:
 I am further in favour of this scheme because it will bring to an end the sectional discord between Upper and Lower Canada. It sweeps away the boundary line between the provinces so far as regards matters common to the whole people—it places all on an equal level—and the members of the federal legislature will meet at last as citizens of a common country. The questions that used to excite the most hostile feelings among us have been taken away from the general legislature, and placed under the control of the local bodies. No man need hereafter be debarred from success in public life because his views, how-ever popular in his own section, are unpopular in the other, for he will not have to deal with sectional questions ; and the temptation to the government of the day to make capital out of local prejudices will be greatly lessened, if not altogether at an end. What has rendered promi­nent public men in one section utterly unpopular in the other in past years ? Has it been our views on trade and commerce—immigration—land settle­ment—the canal system—the tariff—or any other of the great questions of national interest? No; it was from our views as to the applying of public money to local purposes—the allotment of public lands to local purposes—the building of local roads, bridges, and landing-piers with public funds—the chartering of ecclesiastical institutions—the granting of public money for sectarian purposes—the interference with our school system—and simi­lar matters, that the hot feuds between Upper and Lower Canada have chiefly arisen, and caused our public men, the more faithful they were to the opinions and wishes of one section, to be the more unpopular in the other. A most happy day will it be for Canada when this bill goes into effect, and all these subjects of discord are swept from the discussion of our legislature.
This passage is particularly telling given Brown's own feelings on the subject. In debates in the Legislative Assembly he makes plain that he "opposed and continue to oppose the system of sectarian education, so far as the public chest is concerned", preferring instead common schooling. Brown, however, is wise enough to see that a sectarian system is useful to both sides by placing education in local hands and ensuring that both sides - Catholics in Ontario, Protestants in Quebec - receive some degree of protection.

Enshrining Catholic education in this denominational clause was the product of political expediency first and foremost. Secondly, it took into account very real anti-Catholic prejudices in Ontario at the time. The Catholic minority in 1867 was, indeed, a vulnerable minority, often disposed and deeply mistrusted. In 1867 and argument could easily be made for such protections.

For Catholics, Ontario is no longer the bastion of intolerance that marked the old society of Upper Canada. By 1982 attitudes toward Catholics had changed radically. Claims, as such, of modern persecution are widely spurious. Indeed, the advent of the Charter essentially renders s.93 superfluous. The rights of Catholics are enshrined clearly and widely accepted. Moreover, many Catholic school boards are using historical injustices - relying on past claims of persecution - to commit injustices in the present, namely against gay and lesbian students. If education in the present were allotted on the basis of an 1867 compromise, we would likely be faced with separate Islamic and Scientology school boards.

The adoption of the Charter in 1982 has worked to lessen the claims of Catholics to special treatment. As the Supreme Court made clear in 1996, denominational schooling is not a fundamental freedom. Had denominational schooling been such an important 'right', the framers would have shifted s93 into the new charter. This would have immediately elevated its status as, for instance, s.35 elevated the claims of Canada's Aboriginal Peoples. Additionally, this would have subjected changes to the status quo to a far more rigorous amending process in the form of the "7+50" formula rather than the much simpler bilateral amendment process (province plus Parliament).

This debate also speaks to a larger dynamic of the Canadian Constitution which, perhaps due to its nuance, goes unnoticed. Canada's Constitution is dynamic. While as a text is may be uninspiring - Alan Cairns called the BNA Act a "document of monumental dullness" - as a process it is continuously in motion. It is fluid and, as the JCPC famously noted, it is a "living tree". Proponents for the continuance of denominational schooling typically see the Constitution is a static document, a mere catalogue of powers and responsibilities. This is at a fundamental level a misreading of Constitutional processes. It denies the heavily conventional nature of the constitution and the role that political practice plays in shaping outcome.

One example is striking. In the process of patriation, the modern framers kept the British North America Act, 1867 intact, yet simultaneously repealed a host of acts no longer deemed to be relevant or in force for one reason or another. One section which was not repealed (obviously) was s93 pertaining to denominational education. Additionally, sections pertaining disallowance and reservation remained in the document despite being dead constitutional leaders by virtue of convention for two decades. The point is that inclusion within the Constitution itself is no guarantee of permanence. Moreover, if Constitutions were to be protected from change they would not include amending formulas. Nothing can be enshrined permanently.

While the existence of religious rights in the Charter makes the necessity of special protections redundant, there are other factors which work to undermine the salience of denominational schools. As noted above, s93 represented a political bargain designed equally as much for expediency as it was for genuine concern about the free practice of Catholicism in Quebec. The bargain required the reciprocal agreement between the two dominant provinces - Upper and Lower Canada - to respect the rights of their respective minority religio-linguistic populations. Part of that bargain has since been broken.

The bilateral amendment between Quebec and the federal Parliament in 1997 would, by any other metric of a what a compact means, invalidate the initial agreement rendering s93 null and void. Constitutions being legal contracts, but not in a tort or private contract sense, cannot simply be rendered of no force and effect without full amendment. In essence, Ontario is holding firm to its part of a bargain which no longer exists nor has any reason to. It could, with relative ease, find a simple majority in the Ontario Legislature to pass an amendment to which the federal government could not object.

Finally, a brief word must be said about the reality of French language education in Ontario. No doubt many supporters of denominational schools will point to these as a reason for the continuance of the existing system. This, however, rests on a false equivalence. First, unlike Catholic education entitlements in Ontario, education based on linguistic lines is firmly entrenched within the body of the Charter itself. This symbolically and legally elevates it so long as no other section directly contradicts it (none do). Secondly, this right applies across the country, regardless of postal code. Third, the Charter's focus on linguistically based education acknowledges the reality that the basic cleavage dividing Canadians is no longer ethno-religious, but linguistic. With the Quiet Revolution and the emergence of Quebec nationalism, language supplanted religion.
To claim that, in the present context, Catholic education privileges are akin to linguistic rights is far off base.

Part of the reality of the constitutional politics in Canada is that change occurs not only through the alteration of the written text, but through convention and practice. It is a fluid process which takes context and present circumstances into account. Nothing can be emblematic of this than the persistence of entrenched powers of disallowance and reservation, powers which are unlikely to be used again. Indeed, after only thirty years in existence, s33 - the notwithstanding clause - has essentially become a dead letter, having gone unused in almost twenty years. The fact that Catholics in Ontario continue to enjoy additional benefits results from practice and force of habit coupled with the indifference of politicians. It is not a status quo immune to being overturned.

That inclusion of an entrenched bill of rights in the form of the Charter renders any claim requiring special protection for a Catholic minority to special protection mute. The anti-Catholic bigotry of Upper Canada is an historic relic. Section 93 is equally antiquated, particularly in an era where equality rights are no firmly entrenched in the Constitution. There are numerous arguments for abolition. Indeed, only one side in the debate really has a leg to stand on. Simply pointing to the existence of s93 is not an argument justifying its continued existence nor a legitimate grounds for allowing bigotry to dictate curriculum. Existence is not an adequate grounds for persistence. Beyond these facile historical arguments, Catholics need to make the case why they still require a separate system. They cannot.

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