In Canada, separate school refers to a particular type of school that has constitutional status in three provinces (Ontario, Alberta and Saskatchewan) and statutory status in three territories (Northwest Territories, Yukon and Nunavut). 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 (for the three provinces) or in federal statutes (for the three territories). 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. Consequently, a separate school is not a parochial or private school, or a charter school.
The constitutionally provided mandate of a separate school jurisdiction and of a separate school is to provide education in a school setting that the separate school board considers reflective of Roman Catholic (or, rarely, Protestant) theology, doctrine, and practices. This mandate can manifest itself in the Program of Studies and the curriculum, exercises and practices, and staffing. The limits of this mandate are determined by the application of the Canadian Charter of Rights and Freedoms, and judicial decisions.
The different experience in Ontario as compared to Alberta and Saskatchewan is principally the result of the same constitutional provisions having effect on settlement at different stages in Canadian history.
The Constitution of Canada does not establish separate school education as a natural right, or an unconditional right.
Only Protestants or Roman Catholics, whichever is the minority faith population compared to the other in a community, can consider the establishment of separate school education. The separate school establishment right is not available to citizens of any other faith (such as Jews, or Mormons, or Hindus, or Muslims). In addition, the minority faith must establish that they wish to leave the public school system and create a separate school system.
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The right to separate schools is provided by the Constitution of Canada in the three provinces of Ontario, Alberta and Saskatchewan, and by federal statute in the three territories, the Northwest Territories, Yukon and Nunavut.
The Constitution Act, 1867, provides that education is a matter of exclusive provincial jurisdiction, subject to the requirement that provincial laws relating to education must respect the rights to denominational and separate schools held by religious minorities prior to Confederation. The relevant provision for Ontario is s. 93(1) of the Constitution Act, 1867 as originally enacted.[1] For Alberta and Saskatchewan, the relevant provision is s. 93(1), as amended by the Alberta Act[2] and the Saskatchewan Act,[3] respectively.
Section 93 of the Constitution Act, 1867 only applies to provinces, not territories. Instead, the right to separate schools is protected in the three territories by the federal Acts of Parliament which establish those three territories. The Northwest Territories Act,[4] the Yukon Act[5] and the Nunavut Act[6] all provide that the territorial legislatures can legislate with respect to education, provided they respect the right of religious minorities (whether Protestant or Roman Catholic) to establish separate schools.
School boards funded by the province consist of 29 English Catholic and 8 French Catholic boards, as well as 35 non-denominational public school boards (31 English public, 4 French public). There is (also?) one Protestant separate school jurisdiction in Ontario, the Burkevale Protestant Separate School, operated by the Penetanguishene Protestant Separate School Board. In Ontario, this determination was largely made throughout the province by the time of Confederation.
The public school system in the province was historically Protestant but was gradually transformed into a secular public system. Prayer in public schools was discontinued in the early 1980s.
Since the 19th century, funding for the Roman Catholic separate school system was provided up to Grade 10 under the British North America (BNA) Act. In 1984 the government of Premier William Davis extended full funding to include the last three (Grades 11–13 (OAC)) years of Roman Catholic secondary schools after having rejected that proposal fifteen years earlier. The first funded academic year occurred in 1985–86, as grade 11, and one grade was added in each of the next two years.
The right to have a publicly-funded separate denominational school system continues to be guaranteed by Section 93 of the 1982 Constitution Act to Roman Catholics in Ontario.[7]
A province-wide newspaper survey conducted between 1997 and 1999 in 45 dailies indicated that 79% of 7551 respondents in Ontario favoured a single public school system, but no widely supported movement to amend the Constitution Act, 1867 has developed.
The issue later came up in the Ontario general election, 2007; however no changes to the law have been made as of May 2011.
In Alberta and Saskatchewan, the extent of separate school education is more limited, and Protestant separate schools are slightly more present. For example, in Alberta, about 40% of the land area of the province is included in separate school jurisdictions and there are two Protestant Separate School Districts, in the City of St. Albert (St. Albert Protestant Separate School District) and in the Town of St. Paul (Glen Avon Protestant Separate School District). One anomaly of the system is that the town of Morinville, Alberta has only a public Catholic high school (part of the Greater St. Albert Catholic Regional Division), and no secular or Protestant high schools of any kind.[8][9]
In Alberta and Saskatchewan, there continues to be large areas of the province where separate school education has never been established. In these two provinces, there is a clear and well-known process for determining the wishes of the members of the minority faith.
In Alberta, for example, the geographic basis for separate school establishment is the underlying public school district. At any time, three or more residents, either Protestant or Roman Catholic, who believe that they are members of the minority faith locally, can initiate the process. A census must be conducted to confirm that they are, in fact, the minority faith locally. When the census confirms minority status, a meeting must be widely advertised. The purpose of meeting is to provide a venue at which all of the local members of the minority faith can debate the pros and cons of leaving the public school jurisdiction and creating a separate school district. At the end of the meeting, a vote may be held on the question of establishment.
If the majority of the minority vote in favour of establishment, the establishment becomes a fact. If the majority of the minority vote against establishment, it does not proceed. The process is civil, democratic, and binding on the minority of the minority. A decision at the meeting against establishment precludes a number of the minority faith who may have favoured establishment from continuing for themselves. (At the same time, any decision against establishment has no term: proponents can begin almost immediately to organize a subsequent effort.)
In Alberta, wherever a separate school system exists, individuals who are of the minority faith that established the separate school system must be residents, electors, and ratepayers of the separate school system (the Schmidt decision). There is no way by which they could opt to be supporters of the public school system except by leaving the minority faith. In Saskatchewan and Ontario, members of the minority faith may choose to be supporters of the public school system, notwithstanding their faith.
This system of government for education, characterized by public school jurisdictions with (more or less) corresponding separate school jurisdictions, can be traced to the Battle of the Plains of Abraham and the Treaty of Paris, 1763.
Retention of separate school boards with public funding was a major issue of contention in the negotiations that led to Canadian confederation, chiefly as a result of ethnic and religious tension between the (largely French-speaking) Roman Catholic population in Canada and the Protestant majority. The issue was a subject of debate at the 1864 Quebec Conference and was finally resolved at the London Conference of 1866 with a proposal to preserve the separate school systems in Quebec and Ontario. The way in which this agreement was written into the British North America Act, 1867 was to the effect that the condition of education in each colony (or territory) at the time it entered Confederation would be continued thereafter.
Consequently, there is no and never was separate school education in British Columbia, New Brunswick, Nova Scotia, or Prince Edward Island.
In the Quebec education system there were separate Protestant and Catholic school boards until 1998 when they were replaced with linguistically based secular school systems.
Newfoundland and Labrador, both historically and currently, provide another interesting variant. At the time that colony entered Confederation (1949), there were no public schools as the term is usually understood. The schools of that colony were all organized on a confessional basis with separate denominational schools for Roman Catholics, Seventh-day Adventists, Salvationists, Pentecostals, and an integrated stream, schooling the children of many members of so-called "mainstream" Protestant denominations. All these schools received grants from the provincial government, but locally the government ranged from parochial (owned and operated directly by a Church) to ownership and operation by a not-for-profit society. This system of confessional schools was abolished by constitutional amendment following a referendum in 1997 and a single multidenominational Christian system was introduced to replace the previous streams. The constitutional amendment that created the current public school system also provided assurance that certain expressions of faith could continue to be manifested in the local public school itself, depending upon the sentiment of the local community. In public schools today, morning prayer and afternoon grace are not still performed daily. Religious Education is graded, along with other curricula on report cards three times annually. The system is multidenominational within Christianity, and four major religions are studied in grade 4-6 (Three of which are Hinduism, Islam and Judaism). There is only one private secular school in all of Newfoundland and Labrador, located in St. John's. The remainder of public schools throughout the province are Christian focused in their Religious Education. Another semi private nonsecular school exists in Churchill Falls.
The question of separate schools has been most controversial in Ontario and Manitoba. In the former, the issue of separate schools aggravated tensions between anglophones and francophones, both Protestant and Catholic.[10] The ending of public support for separate schools in the latter province in the 1890s prompted a national crisis known as the Manitoba Schools Question, and led to Pope Leo XIII's papal encyclical Affari Vos.
Separate school rights have often been criticized as contrary to the spirit of official multiculturalism, primarily, but not exclusively, because only adherents of the Protestant or Roman Catholic faith have these constitutional rights and only in some provinces and territories. In addition, where separate school systems exist, employees or prospective employees who are of the minority faith have more employment opportunities. (All other things being equal, a member of the minority faith can be employed by either the public board or by the separate board, while anyone else can be excluded from employment by the separate system.) On November 5, 1999 the United Nations Human Rights Committee condemned Canada and Ontario for having violated the equality provisions (Article 26) of the International Covenant on Civil and Political Rights. The Committee restated its concerns on November 2, 2005, when it published its Concluding Observations regarding Canada's fifth periodic report under the Covenant. The Committee observed that Canada had failed to "adopt steps in order to eliminate discrimination on the basis of religion in the funding of schools in Ontario."