As Canadians, we don’t appreciate the moral genius of our Constitution enough.

This is obvious every time there is an attack on Catholic separate schools and school boards in Canada. The arguments have the grating predictability of rusty clockwork: funding a certain religious system violates the separation of church and State; it is unfair to fund a single religious system; it’s a waste of money etc. 

Why does Section 93 of the Constitution Act protect “any Right or Privilege with respect to Denominational Schools”? Opponents usually claim it was little more than a calculated bit of political pragmatism. According to this account, the French in predominantly English areas were anxious about their status about minorities and feared that Anglos would try to squash their culture. In order to reassure them into agreeing to join the new nation, the Fathers of Confederation promised to ensure their schools would get government funding and their culture and language would have protection against hostile English-speaking majorities.  

It follows, therefore, that as French Canadians are in large part no longer Catholic today (Quebec has abolished its own Catholic school system), the presence of this protection in our Constitution is a clumsy anachronism, a cynical political concession that has long outlived whatever strategic usefulness it may have once had.

It is no surprise that a country this ignorant of its history, and this dismissive and lacking in pride in its Constitution, is constantly in the grips of an identity crisis. But this kind of bad historicizing about Canada’s culture, history, and Constitution has real-world consequences for our schools and our students, as the current controversy over the Theodore case in Saskatchewan demonstrates. There, on the basis of the idea that separate schools were only ever meant to educate Catholic students (an odd reading of Section 17 of the Saskatchewan Act), Justice Donald Layh of the Queen’s Bench has declared that non-Catholic students are ineligible to receive public funding to attend Catholic schools. 

This will be a huge blow to Catholic schools in Saskatchewan, and will have implications for Alberta and Ontario. It would send a Constitutional and financial shockwave across the country’s education.

The record about this needs to be set straight, and now. The fact is that the authors of these Constitutional provisions would have seen all such modern proposals as an open attack on religious liberty, and would have mourned that more of their descendants wouldn’t have immediately recognized it.

Section 93, protecting publicly funded “Separate or Dissentient” schools, reflected the unique Canadian genius, which includes a rejection of American individualism and a more communitarian vision of religious liberty. In this regard, the personal history of its chief author, Thomas D’Arcy McGee, is of key importance if we want to understand why it was written.

McGee, a Catholic from Ireland, had originally come to Boston, expecting to find a more peaceful society than the one he had left behind, torn apart as it was by religious violence. America had a First Amendment protection for religious liberty: here, he was sure, there would be no more room for religious bigotry and hatred.

What he found left him surprised and disappointed. Despite its “melting pot,” which purported to burn off all the cultural distinctives and make all its citizens co-equal American citizens regardless of creed, McGee encountered plenty of bloodstained No-Popery and Know-Nothing-ism.

To his further surprise, when he went to Canada, he discovered that, even though it was a country governed by openly Protestant Orangemen, there was more genuine social harmony and cohesion between them and the Catholic elements of society than he had seen in the States. The reason for that was a precursor to the multiculturalism of today: The Protestants and Catholics acknowledged the blunt fact of their religious differences and found ways to co-exist. Thus, as a result of the 1774 Quebec Act, the Catholic Church in Lower Canada had certain privileges, and consequently, French Catholics were willing to pledge loyalty to a monarch who was also Supreme Governor of the Church of England.  

All of this openly breached the sacrosanct American principle of “separation of church and State.” Yet it led to genuine religious liberty and religious co-existence. (Indeed, much as the Catholics and Protestants may have distrusted each other, they were willing to unite and form a nation over their shared fear of disappearing into that American melting pot to the South.) 

McGee became a convert to the communitarian Canadian vision of political order, and, as a Member of Parliament, campaigned for the passage of Upper Canada’s Scott Act of 1863. This, along with the earlier Taché Act of 1855 (based on a draft bill written by the Catholic bishops), guaranteed that Catholic citizens had a right to fully publicly-funded schools which they could run. 

The Scott and Taché Acts were passed in response to the project of Superintendent of Schools and former Methodist minister Egerton Ryerson, who first imposed the “common” or “mixed” schools on Upper Canada. His vision for these schools was for them to be doctrinally neutrally and non-sectarian but to teach a generic Christian morality. This would assimilate all students into the same shared cultural values. (He had the same goal in mind when he wrote a report proposing the idea of residential schools.)

To Ryerson’s chagrin, the Catholic community announced it could not send its children to these schools. Their faith and their conscience held that all subjects must be taught with reference to God: the tenets of Catholicism needed to permeate all parts of the schools. (This remains a binding part of Catholic teaching.)

Bishop Charbonnel of Toronto informed Ryerson that Catholic parents “ask not to be compelled to send their children to houses of education against which they have conscientious objections.” Moreover, Charbonnel demanded that the State recognize the Church’s “right, so sacred and inalienable,” granted by Jesus to the Apostles right before His Ascension, to evangelize the world through teaching (“the mission of instruction"). This wasn’t just about parents’ right to Catholic education for their children.It was also about the Church’s right to evangelize the world. 

Ryerson grudgingly allowed for Catholic schools, but they were only partly funded by the government. Teacher salaries, the cost of textbooks, etc. had to be paid for out of the pockets of Catholic parents who wanted these schools—parents who additionally had to pay taxes to maintain public schools. Ryerson did not hesitate to announce that he was hoping this would force these schools to wither out and die. “I believe the fewer of these Separate Schools the better,” he announced.

There were at least two offenses here. One was in forcing Catholics to financially support a school system their consciences opposed. The other was the prohibitive cost of having to pay for the maintenance Catholic schools when their resources were already being sapped by unjust taxation. It is not much good to say that Catholics are “free” to have their own schools when unjust laws make this a financial impossibility for them.

McGee took to the House with a petition full of thousands of Irish names demanding more just school laws. Education, he insisted, was a religious liberty issue, for it “is a religious question. It concerns the mind, the spirit, the immortal soul, as well as the perishable body...The Catholics— the petitioners — assert in the most solemn manner that they cannot in conscience divorce religious from secular instruction in schools which they support. Are you to be judges for them as to what their consciences ought to determine in this matter?” 

No, this would not be a “religious liberty” issue in an American context. Ryerson, as well as later opponents of separate schools, would openly and proudly espouse American culture as their model, something we might be more cautious of today. But McGee recognized that a just society that was authentically dedicated to religious liberty would ensure that Catholics had these educational rights.

In words with a prophetic ring, McGee went on to warn that imposing a single secular education system was the policy of totalitarianisms like the “scrap-iron” empire of Prussia, and that removing choice in education would overthrow “the moral magistracy of parents”.

The Scott Act was passed, and the Irish-born Catholic McGee, along with the Scottish-born Protestant Alexander Tilloch Galt, went on to draft Section 93 to protect the rights of that legislation. The article’s provenance should definitively refute any claim that this was a compromise between “English and French” rather than between “Catholic and Protestant.” 

But using questionable methods of legal interpretation, the Judicial Committee of the Privy Council still allowed Catholic separate schools to be closed in Manitoba and New Brunswick, using the argument that they were not protected by explicit legislation at the time those provinces entered Confederation. Parents who wanted their children to attend Catholic schools would have to pay for it themselves alongside public school taxation. In New Brunswick, many Catholics refused to pay this tax, leading to riots.

To avoid this happening in the new Prairie provinces, Section 17 of the 1905 Alberta and Saskatchewan Acts unambiguously protected “any right or privilege with respect to separate schools”. But if these schools cannot be shuttered, other means have been found to weaken them, and thus to weaken religious liberty. The Theodore decision from the Queen’s Bench is a partial throwback to the Ryerson model: non-Catholic parents who want their children to receive Catholic “dissentient” schooling must pay for it out of pocket, while still being taxed for the “mixed” or “common” schools.

This has gone to the Court of Appeals, which, at the moment, has reserved a ruling. Catholic teachers and students everywhere in Canada wait with bated breath to know what their future will be.

In the meantime, citizens need to learn why our Constitution is written the way it is, and why it matters. And we need to be ready to let our politicians and government know that we know, and that they should, too.

When the preamble to the Charter says that Canada was founded upon principles that recognize “the supremacy of God,” it is probably alluding to principles like this. When Section 29 of the Charter affirmed that separate school rights remained intact, it is not contradicting Section 2’s endorsement of religious liberty. It is strengthening it.

Convivium means living together. We welcome your voice to the conversation. Do you know someone who would enjoy this article? Send it to them now. Do you have a response to something we've published? Let us know!