Sunday, April 21, 2013

Chapter 3: Implications for 21st century Canadian public education policy making --Revising Section 93 of the Constitution of Canada

3d


Revising Section 93 of the Constitution of Canada
   Section 93 of the Constitution of Canada does three important things. 1) Section 93 decentralizes public education policy in Canada. 2) Under Section 93, education for the Yukon and Northwest Territories is not accounted for. A commissioner in Ottawa makes decisions covering territorial issues including education. 3) Section 93 protects Protestant and Catholic denominational schools existing at the time of confederation or as established by the legislature of the province.
   Section 93 decentralizes education in Canada – education decisions are made at the provincial legislature for each province. It is the case that a national commission on education making recommendations toward focusing certain aspects of public education at the national level in Canada would require ratification by all the provinces and territories of Canada. Quebec is already outside the Constitution of Canada on the matter of distinct culture and language, and perhaps adjustments to section 93 could alter this situation. The proposal in place for a national picture recognizes French language education as a separate jurisdiction. Quebec itself now divides its school system along the lines of language. Quebec negotiated with the federal government for these changes in 1995 and there is a link to the legal document on my website canadianeducationalpolicystudies.ca. Quebec is the model for Canada in terms of religion and language. Newfoundland, denominational in its structure until 1997 also shifted control to the level of the province and greater secularism. (fn1)
   The second point about Section 93 is that the Territories are not protected to their education in a key section of Canadian Constitutional legislation. On the other hand, the Canadian Territories have been establishing control over their education for many years now. Education and rights to direct it is also an aspect of various land claims agreements. There are two types of policy to consider, and these are policies that overlap and influence each other. There are ‘territorial acts’ and territorial ‘agreements’ and/or ‘land claims’. The Nunavut Act protects public education, and the Nunavut Agreement protects the Inuit to their culture and language, and this protection by its mandate extends to education. The problem with Section 93 is not so much that the Canadian Territories are not treated equally with the provinces in this constitution section, but rather that Section 93 fosters a basic disrespect and ignorance concerning the Canadian Territories that exists at top provincial scholarly levels. It promotes ignorance in academics and this is significant because scholarly writings cannot be proactive when constrained by outdated bureaucratic and constitutional imperatives. As an example, we have Ronald Manzer’s book “Public Schools and Political Ideas: Canadian Educational Policy in Historical Perspective” defining what is “Canadian” about public education. Manzer writes as recently as 1994, that the territories are dismissible.
   In 1867, education in the Northwest Territories and Yukon was denominational, guided by missionaries. The Northwest Territories covered a vast area of Canada including Northern Ontario, Quebec, as well as Alberta and Saskatchewan until 1905. Section 93 doesn’t represent 20th century conditions, and certainly won’t represent 21st century requirements. It represents 19th century conditions.
   The third point concerns the matter of denominational protection to minority Protestants in Quebec and minority Catholics in Ontario and the other six provinces at the time of confederation, eight provinces by 1905, ten by 1949, with Newfoundland whose provincial system was denominational until 1997. In order to propose to centralize Canadian public education policy for the 21st century the matter of protections to Catholics and Protestants must be reviewed. The matter of denominational schools would not be made redundant, but ideally would be moved to provincial, regional, district or local levels from the national level. Historically, taxes were collected and identified as Roman Catholic or Protestant taxes and these were passed along to the denominational schools accordingly.  This type of taxation is no longer applied, and schools, regardless of their religious affiliation, are funded by the province. (fn2) Certainly the job of identifying denominational schools and protecting them, where necessary, should be moved to the country, district, municipal or local level. Denominational schools would be identified by their historical longevity. This is the case as it exists now. Catholic schools are ‘public’ in municipal jurisdictions. Students attend if they live within the school district. What is protected to the Catholic school is display of religious icons, morning prayers and Catholic religion classes. These would be protected by the province or district on the basis of historical precedence. That is, desired status could/would be maintained. What would change and should change is the existence of Separate School Boards. One school board for a division or area would integrate representatives to attend to the requirements of the differing schools existing within the region. This would permit other religious schools to also receive provincial funding where they meet requirements. Regional or local jurisdictions would respect the religious history and students would attend as practiced or endorsed and/or required in the locality. At the national level, Section 93 should protect the heritage languages of French and English as fundamental. English as a minority language would be protected to minority schools in Quebec, and French as a minority language protected to schools in Ontario and other provinces. First Nations/Inuit/Metis education would also be protected to language and culture in section 93. Three distinct education systems would be designated as protected, English language schools, French language schools and First Nations/Inuit/Metis schools. Certain aspects of education policy would move to the national level where other aspects would devolve to county, district or local levels. Education policy that moves to the national level would outline Canadian values and philosophy. An overarching Canadian school act template could be designed and would be appended by the provinces and territories to meet specific and unique territorial or provincial policy needs.
   There is comment in the 1913 commission report that in 1867 when the Constitution of Canada was created with its specific designation of control over education to the provinces that the need for "state" (i.e. federal) involvement in the matter of vocational and technical training was not envisioned -- the 1867 definition of Canadian public education in the constitution had ostensibly limited future possibilities covering provision for vocational and technical education and training. This occurred because the constitution was constructed under an assumption that education was about the 3 R's and nothing broader. And then later, according to the Parent Report (CanEdPolDoc1963Quebec), the definition of Canadian public education administration in the 1867 constitution was effectively redundant before it was written. The inclusion into the 1867 of specific protection to Protestant and Roman Catholic education was a consequence of rather irrational concern by Upper Canada Protestants that the interests of Protestants in Lower Canada would not be protected. Reading between the lines, the inclusion of the protection was enacted because Protestant English speakers were able to exercise their domination as a consequence of their majority position in the Canadian federation as it existed at the time of confederation. Only in Quebec were the English speaking Protestants a minority, but they had a lot of political power and wanted to keep it and it was underwritten by their educational system. According to the Parent Report, the interests of the Protestants and Roman Catholics who were mainly centred in the two main cities of Quebec City and Montreal were defended in a previous Act written in 1843 and that in passing the additional protection in the constitution, the historical development of two systems provincially was inevitable as a consequence. The possibility of advancing to a sophisticated educational system particularly in Quebec given the constraints imposed by the constitution has created a complicated system that is creating conditions where French Quebec's ability to meet 20th century demand for skills and knowledge is undermined. What Canada is encumbered with in public education at this time in the 21st century is the historical legislative consequence of narrow thinking, fear and prejudice. The current situation could also be said to be a consequence of lack of attention to protections available in legislation (a kind of incompetence) as well as a lack of consideration for future implications of the legislation.  As a consequence, Canadians in the 21st century have a Catholic "minority" in Canadian public education policy faculties that is over-represented and exercising substantial analytical power over provincial public education policy analysis. It is an influence that is outdated and redundant and riding on the coattails of Section 93. This situation is preventing significant progress in public education policy analysis and development in Canada as well as limiting the possibilities that should be available to religions other than the Catholic religion. A Canadian concern should exist around the situation where Muslims, for example, rejecting provincial public systems as too liberal, are running private schools in mosques around the country with no oversight by the state into what makes up their curriculum. All the strides made within the public system towards equality and tolerance in the public and separate schools are undermined by the limitations imposed on other religious schools that are excluded by the terms of the Section 93, this section itself a historical product of paranoia, prejudice and ignorance. The possibility that religious schools could receive funding in exchange for some review of their system and some limitations concerning discriminatory and radical teachings, would agree with the liberal approaches to public education Canadians tended towards during public education growth during the 20th century. 
   The Parent Report states:
As soon as it became evident that the two provinces of Canada were about to enter a wider confederation, the Protestants, aware that they would become a minority in a Lower Canada separated from Upper Canada, sought to perpetuate the autonomy of their schools and the identity of the school system they had gradually built up.  The French Roman Catholic clergy and many laymen were deeply concerned to save for the Church its educational function.  The aspirations of both groups worked together to intensify the confessional aspects of the system and to resist every effort by the State to assume effective control over education.  Indeed the dissatisfaction and fears of the Protestants were in large measure responsible for the insertion in the British North America Act of provisions intended to protect the established rights of religious minorities. CanEdPolDoc1963QuebecEntire1, p. 12

The British North American Act has two major consequences for the educational system of the Province and for that of the rest of Canada.  First, Section 93 gave the province exclusive jurisdiction in educational matters. In practice this merely confirmed the existing situation, since after 1843 Upper and Lower Canada had passed wholly independent legislation for the development of their individual rights and privileges recognized by existing law with regard to confessional schools.  In addition it provided a right of appeal for Roman Catholic and Protestant minorities.  Thus this Act crystallized the juridical [sic] status which the religious minorities had acquired at that time, at once determining and limiting their rights.  Jurisprudence regarding confessional schools and the rights of religious minorities were based upon these provisions and upon the then existing laws of Lower Canada. [add footnote] CanEdPolDoc1963QuebecEntire1, p. 12

In its division of powers between the federal authority and the provinces, the Canadian Constitution of 1867 conferred on the legislature of each province the exclusive right to enact laws on education, but with certain reservations intended to guarantee respect for the rights to and privileges of confessional schools.  As far as the Province of Quebec is concerned, the present force of these limitations may be summed up by saying that the educational laws of Quebec must, under pain of invalidity, respect the rights and privileges which the laws of Lower Canada in 1867 granted to Roman Catholics and Protestants for confessional public schools.  This statement must be understood in the light of the fact that the laws of Lower Canada, while creating confessional schools for the Roman Catholic and the Protestant residents of the cities of Montreal and Quebec, did not elsewhere acknowledge the right of Roman Catholics or Protestants to their confessional schools, except when one group or the other constituted a religious minority in a school district.  It must be remembered that only in 1869 did the law set up distinctions of a confessional kind in the central administrative structure of education in Quebec.  It should be added that the provision of the British North America Act intended to protect certain privileges of Roman Catholic and Protestant minorities by means of an appeal to the federal authority is now generally considered to be a dead letter.  When, in 1867, Lower Canada became the Province of Quebec, it had an education act of its own, largely based on the principle of local autonomy and respect for recognized religious minorities.  In the main, it is the text of Chapter 15 of the 1861 Revised Statutes of Lower Canada, which one finds in the “Act respecting the Department of Education” in Chapter 59 of the Revised Statutes of the Province of Quebec of 1941. CanEdPolDoc1963QuebecEntire1, p. 17

   Changes to Section 93 would need to be ratified by the provinces and territories of Canada. But no ratification would begin without a thorough review of the currently decentralized Canadian system. Closing this section is Section 93 of the Constitution of Canada after repatriation of the constitution in 1982 as indicated. (fn3)
Section 93
   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: (2) All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen’s Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen’s Protestant and Roman Catholic Subjects in Quebec: (3) Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege or the Protestant or Roman Catholic Minority of the Queen’s Subjects in relation to Education: (4) In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in the Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section.(50)
Fn1 See website canadiana.org. They write: “After scandals involving denominational schools [link] in Newfoundland, public opinion in that province began to turn toward changing the Constitution, allowing the provincial government to take control of education. Previously, most schools were administered by religious denominations … The amending formula of the Constitution Act, 1982 allowed for changes to the Constitution based on a vote in a provincial legislature if the change would affect only the province itself. A referendum was held on the issue in 1995. The vote was in favour of a change in the constitution, and in 1997 the government of Newfoundland gained authority over all schools in the province.”
Fn2 This is the case in Ontario, existing since the time of Premier Harris, 1998, where the provincial government took funding of education to the provincial level and shifted social assistance to the municipal level, swapping the relationships.
Fn3 laws.justice.gc.ca

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