Section 29 of the Canadian Charter of Rights and Freedoms

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Section 29 of the Canadian Charter of Rights and Freedoms is the section of Charter that most specifically addresses rights regarding denominational schools and separate schools. 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 educational rights under section 23 of the Charter.

The Canadian Charter of Rights and Freedoms, in Canada often simply the Charter, is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982. The Charter guarantees certain political rights to Canadian citizens and civil rights of everyone in Canada from the policies and actions of all areas and levels of the government. It is designed to unify Canadians around a set of principles that embody those rights. The Charter was signed into law by Queen Elizabeth II of Canada on April 17, 1982, along with the rest of the Act.

In Canada, a separate school is a type of school that has constitutional status in three provinces and statutory status in three territories. In these Canadian jurisdictions, a separate school is one operated by a civil authority—a separate school board—with a mandate enshrined in the Canadian Constitution or in federal statutes. In these six jurisdictions a civil electorate, composed of the members of the minority faith, elects separate school trustees according to the province's or territory's local authorities election legislation. These trustees are legally accountable to their electorate and to the provincial or territorial government. No church has a constitutional, legal, or proprietary interest in a separate school.

Freedom of religion freedom practicing 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. It also includes the freedom to change one's religion or beliefs.

Contents

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The section reads:

Purpose

The Constitution of 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 Beverley McLachlin once referred to this as an early form of freedom of religion in Canada. [1]

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. Canada is one of the oldest constitutional democracies in the world. The constitution outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada.

Chief Justice of Canada presiding judge of the Supreme Court of Canada

The Chief Justice of Canada is the presiding judge of the nine-member Supreme Court of Canada, the highest judicial body in Canada. As such, the chief justice is the highest-ranking judge of the Canadian court system. The Supreme Court Act grants plenary power to the Governor General to appoint—with the advice of the Prime Minister—a chief justice, who serves until they resign, die, are removed from office for cause, or attain the age of 75 years. By tradition, a new chief justice is chosen from among the Court's incumbent puisne justices.

Beverley McLachlin 17th Chief Justice of Canada

Beverley Marian McLachlin, CStJ is a Canadian jurist and author who served as the 17th Chief Justice of Canada from 2000 to 2017, the first woman to hold that position and the longest serving Chief Justice in Canadian history. In her role as Chief Justice, she also simultaneously served as a Deputy of the Governor General of Canada.

Section 93 of the Constitution Act, 1867 awards jurisdiction over education to the provincial governments, with a few exceptions. Catholics have denominational school rights in Ontario. Both Catholics and Protestants had these rights in Quebec, until abrogated by the Constitution Amendment, 1997 (Québec) . 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. [2]

<i>Constitution Act, 1867</i> UK legislation that created Canada

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. The British North America Acts, including this Act, were renamed in 1982 with the patriation of the Constitution ; however, it is still known by its original name in United Kingdom records. Amendments were also made at this time: section 92A was added, giving provinces greater control over non-renewable natural resources.

Ontario Province of Canada

Ontario is one of the 13 provinces and territories of Canada and is located in east-central Canada. It is Canada's most populous province accounting for 38.3 percent of the country's population, and is the second-largest province in total area. Ontario is fourth-largest in total area when the territories of the Northwest Territories and Nunavut are included. It is home to the nation's capital city, Ottawa, and the nation's most populous city, Toronto, which is also Ontario's provincial capital.

Quebec Province of Canada

Quebec is one of the thirteen provinces and territories of Canada. It is bordered to the west by the province of Ontario and the bodies of water James Bay and Hudson Bay; to the north by Hudson Strait and Ungava Bay; to the east by the Gulf of Saint Lawrence and the province of Newfoundland and Labrador; and to the south by the province of New Brunswick and the U.S. states of Maine, New Hampshire, Vermont, and New York. It also shares maritime borders with Nunavut, Prince Edward Island, and Nova Scotia. Quebec is Canada's largest province by area and its second-largest administrative division; only the territory of Nunavut is larger. It is historically and politically considered to be part of Central Canada.

As noted in the Supreme Court case ''Reference re Bill 30, An Act to Amend the Education Act (Ont.)'' [1987] 1 SCR 1148 (SCC), this clarification is really the only function of section 29. Section 29 does not itself shield the rights of denominational schools from the Charter, since the rights are themselves a part of the Constitution and thus cannot be unconstitutional or subject to Charter review. [3] This line of thinking was confirmed by the Supreme Court in Gosselin (Tutor of) v. Quebec (Attorney General) (2005).

Interpretation

In the case Adler v. Ontario (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.

Canadian Confederation process by which the British colonies of Canada, Nova Scotia, and New Brunswick were united into one Dominion of Canada on July 1, 1867

Canadian Confederation was the process by which the British colonies of Canada, Nova Scotia, and New Brunswick were united into one Dominion of Canada on July 1, 1867. Upon confederation, the old province of Canada was divided into Ontario and Quebec; along with Nova Scotia and New Brunswick, the new federation thus comprised four provinces. Over the years since Confederation, Canada has seen numerous territorial changes and expansions, resulting in the current union of ten provinces and three territories.

In Mahe v. Alberta , the Court found that minority language rights of French Canadians 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 Romance language

French is a Romance language of the Indo-European family. It descended from the Vulgar Latin of the Roman Empire, as did all Romance languages. French evolved from Gallo-Romance, the spoken Latin in Gaul, and more specifically in Northern Gaul. Its closest relatives are the other langues d'oïl—languages historically spoken in northern France and in southern Belgium, which French (Francien) has largely supplanted. French was also influenced by native Celtic languages of Northern Roman Gaul like Gallia Belgica and by the (Germanic) Frankish language of the post-Roman Frankish invaders. Today, owing to France's past overseas expansion, there are numerous French-based creole languages, most notably Haitian Creole. A French-speaking person or nation may be referred to as Francophone in both English and French.

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Freedom of religion is a constitutionally protected right in Canada, allowing believers the freedom to assemble and worship without limitation or interference, but it was not always so.

The Preamble to the Constitution Act, 1867 provides:

References

  1. ↑ Beverley McLachlin, "Freedom of Religion and the Rule of Law: A Canadian Perspective," in Recognizing Religion in a Secular Society: Essays in Pluralism, Religion, and Public Policy. Ed. Douglas Farrow. McGill-Queen's University Press, 2004, pages 17-18.
  2. ↑ Dyck, Rand. Canadian Politics: Critical Approaches. Third ed. (Scarborough, Ontario: Nelson Thomson Learning, 2000), p. 443.
  3. ↑ Reference re Bill 30, An Act to Amend the Education Act (Ont.), [1987] 1 SCR 1148 (SCC), at paras. 85-86.
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