1 SEPARATE SCHOOL LA\-V i: THE JHtaHK PROVIMCL:'- 'Mr: ».j!U^ «vw^it4*«w^ . M. Wi-:^'' : Digitized by the Internet Archive in 2007 with funding from IVIicrosoft Corporation http://www.archive.org/details/evolutionofseparOOweirrich EVOLUTION OF THE SEPARATE SCHOOL LAW IN THE PRAIRIE PROVINCES GEORGE M. WEIR, M.A. \^ 1cSee Western Law Reports, Vol. 29, at pages 221 and 399; also Reports of the Supreme Court of Canada, Vol. 50, page 589 et seq. 83 The case was heard before Mr. Justice Brown, before the Supreme Court of Saskatchewan en banc, and before the Supreme Court of Canada. Two questions were at issue: (1) the vaHdity of section 93 (a), and (2) whether the separate school board had the right to receive a portion of the taxes in question. The import of the judicial decisions was, in brief, as follows. With respect to the validity of section 93 (a), the trial judge and the Supreme Court of Saskatchewan unanimously decided that this section was intra vires of the provin- cial legislature. Two judges of the Supreme Court of Canada (Fitzpatrick C. J., and Anglin, J.) also came to the same conclusion; two judges^ (Davies and Duff, J. J.) expressed no opinion on this question; while one judge (Idington J.) held that 93 (a) was ultra vires. In regard to the second question at issue, the Supreme Court of Saskatchewan (Newlands J. dissenting) decided in the affirmative. Two judges of the Supreme Court of Canada (Fitz- patrick C. J. and Anglin J.) also decided in the affirmative, while three judges (Davies, Duff and Idington, J. J., the latter of whom held 93 (a) ultra vires) decided in the negative. The judgment of the Supreme Court of Sas- katchewan, with respect to the apportionment of the taxes in question, was accordingly re- versed. It should be remembered, however, that section 93 (b) of the amendments, while on the statute book, was not applicable to the case at bar. iThe import of the decision handed down by the Supreme Court of Canada undoubtedly branded section 93 (a) as de- fecHve, although only one justice specifically held the section to be ultra vires. 84 For an adequate understanding of the legal points involved it will be necessary to follow the main thread of the argument before the various courts. (a) The learned trial judge, Brown, (judg- ment dated May 16, 1914) admitted that sec- tion 93 (a) would tend to operate prejudicially against the public school. Mixed companies especially, for reasons already stated\ were not apt to give the notice under section 93; and whereas, formerly, if no such notice were given, all the taxes of the company were available for public school purposes, now, under section 93 (a), a portion of the taxes of these companies must be handed over to the separate school. For this reason, however, it did not follow that section 93 (a) was ultra vires; section 17 of the Saskatchewan Act did not mean, it was alleged, ''that no legislation shall be enacted in the interest of separate schools which pre- judicially aflfects the public school or the public school supporter; it means, rather, that no legislation shall be passed which shall in any way curtail the rights or privileges which any class of persons have to or in separate schools. In other words, it is separate school protective legislation, affording protection for, but not protection against, separate schools.'* With regard to the significance of the words, ''failing to give a notice,'* in section 93 (a), the opinion of the trial judge practically coincided with the judgment of the majority of the Supreme Court en banc stated below. (b) Supreme Court of Saskatchewan (July 15, 1914). »See page 63. 85 Mr. Justice Lamont gave the judgment of the majority of the court. ''A right or privilege/' reads the judgment, 'Vith respect to separate schools is some special right or claim belonging to, or immunity, benefit, or advantage enjoyed by a person or class of persons with reference to separate schools, over and above the rights enjoyed at common law or under statutory enactments by the inhabitants of the province at large. // is some private right or privilege as opposed to the rights possessed by the community. It follows, therefore, that the only classes of persons who can have rights or privileges with respect to separate schools are those who, at the date of the passing of the Saskatchewan Act had the right, under the ordinances, of establishing separate schools j that is the minority in any school district. The majority in a district under the ordinances had no rights with respect to separate schools, because the school of the majority, whether Protestant or Roman Catho- lic, in any district is always the Public School.'' In this connection it will be observed that the expressions ''classes of persons" and ''minority" are used as if practically equivalent in meaning. With respect to the second point at issue, the learned judge did not agree with the inter- pretation that the words of section 93 (a) "in the event of any company failing to give the notice in section 93" referred to "only sucIl companies as under section 93 could give the notice." The wording of the section was admittedly defective ("omitted" being suggested as a better term); nevertheless, con- sidering the language used and the defect in 86 section 93 which 93 (a) was intended to remedy, the natural inference was that the legislature contemplated giving the separate school the right to serve notice on ''each and every com- pany who failed to give a notice/' It is important to bear in mind the words of section 93 (a) i. e. ''failing to give a notice,'' since it was largely on the interpretation of this phrase that the appeal case before the Supreme Court of Canada turned. In this respect the finding of Mr. Justice Newlands (Supreme Court of Saskatchewan) was up- held. The above words, according to the learned judge, ''could only refer to such com- panies as could give such a notice and failed to do so, that is companies, some of whose shareholders were of the religious faith of the separate school. These words cannot, in my opinion, be applied to a company that could not give notice under that section. No such company could be said to have failed to give notice '* The word "fail" primarily involves the idea of duty; hence, to speak of companies that could not give valid notice as "failing to give a notice*' would scarcely be a consistent use of language. (c) The Supreme Court of Canada covered much of the ground traversed by the lower court, hence only a few of the more significant passages from the finding of their lordships are noted. Mr. Justice Davies contended that, while section 93 (a) was somewhat crudely drawn, its real meaning was clear, and the words "any company failing to give a notice as pro- 87 vided in section 93/' necessarily had reference "to such companies only as possessed the knowledge necessary to enable them to give the notice requiring the proportional division of their taxes and yet failed to give it. It could not have reference to companies in which none of the shareholders were of the 'same religious faith' as that of the separate school seeking the division of the taxes.'' Hence it could not have been intended ''that companies not coming within section 93 at all, and not having the knowledge requisite to give the notice, should have their taxes diverted from the public to the separate school as a penalty for not giving a notice they could not legally give." In this connection it might be asked how companies — which the writer will attempt to prove are a "class of persons" — could be penalized unless they enjoyed some rights or privileges "with respect to separate schools." With reference to the term "failing" used in section 93 (a), Mr. Justice Anglin pointed out that this was not "the word most apt to express the intention of the legislature," since it sug- gests the idea of omitting to discharge an obli- gation. However, in the learned judge's opinion, the expression 'Jailing to give'' might be inter- preted to mean ''not giving''; hence there was alleged to be no reason for holding that section 93 (a) did not apply to all companies. The significance attached to the word "failing" throughout the argument is apparent from Mr. Justice Anglin's closing sentences: "Since the fact that no duty or obligation is imposed by section 93 on any company precludes our treating the word "failing" as used in section 88 93 (a) in what is, perhaps, its primary sense, viz., neglecting or omitting to discharge an obligation, I see no reason why we should not give to it a secondary meaning with which it is frequently employed, especially when, by so doing, we can effectuate the apparent purpose of the legislature/* In view of the fact that a prominent clergy- man in Saskatchewan charged the government with having ''manipulated"^ the amendments after the decision of the courts was handed down, the fate of the expression ''failing to give a notice'' will be more fully investigated. The validity of section 93 (a) seems Qpen to question. Mr. Justice Lamont's interpretation of a "right or privilege with respect to separate schools" was acquiesced in by a majority of the learned judges who expressed an opinion on this point, and therefore must carry con- siderable weight. The opinion of a higher authority. Lord Halsbury, (Brophy v. Attorney- General of Manitoba s 1895, A. C, 202, above) is scarcely in accord with such an interpretation, however, and hence there is room for doubt as to whether the ruling of the Canadian courts would be sustained if a test case were brought before the privy council. As already stated. Lord Halsbury pointed out that the words "class of persons," as used in ss. (1), section 22 of the Manitoba Act, and "minority" in ss. (2) of the same section (corresponding to ss. (1), sec. 17 of the Saskatchewan Act, iThe charge did not specify wherein the alleged "manipula- tion" consisted. See the Regina Leader of January 13, 1916. 'The Brophy Case was a stated case, but this fact does not detract from the validity of the opinion expressed. 80 and ss. (3), sec. 93 of the B. N. A. Act, respec- tively), were not identical in meaning, nor intended to be so. According to his opinion, ''any class of persons'' may include ''any class of the majority,'' who might conceivably be a majority^ of the majority or even a majority of the community! Might not companies be a n ''class of persons'' in this sense? In any event, the application of the expression "class of persons," according to this interpretation, could not be limited to the Protestant or Roman Catholic minority in a school district. In reference to Mr. Justice Lamont's opinion (quoted in part above) the following significant sentence should be read in close connection with the context: — "It follows, therefore, that the only classes of persons who can have rights or privileges with respect to separate schools are those who, at the date of the passing of the Saskatchewan Act, had the right, under the ordinances, of establishing separate schools, that is the minority in any school district." Here the words "classes of persons" and "minority" are regarded as practically co-extensive in meaning. The expression, "under the ordin- ances," adds a shade of meaning, but when the case of companies is considered it is doubtful if even this saving grace will remain; in any case, there would appear to be a direct conflict of opinion between the learned judge and Lord Halsbury. iThe point is that "any class of persons" is not restricted to a religious minority. The writer does not contend that Lord Halsbury's obiter dictum that "any class of the majority is clearly within the purview of the first subsection" could be stretched to mean that the majority itself (as ordinarily inderstood) may go to law to prevent the minority over-riding it! 90 The question arises as to which of the above two classes, if either, companies belong. Clearly companies could not be a religious minority. They have no religious convictions, no children to educate, nor could they possess any right of ''establishing separate schools,'' a right which, according to the learned judge last quoted, is characteristic of the ''minority.'' Companies, however, following the definition of a "person" given in both the Imperial and Dominion Interpretation Acts (Dom. Sec. 34, ss. 20, R. S. C, 1906, C. 1; Imp. 52 and 53 V., C. 63, S. 19, respectively, according to which a com- pany is a "person"), must come under the purview of "any class of persons," designated in ss. (1), sec. 17 of the Saskatchewan Act. Thus, according to the above section, the rights or privileges (if any) companies may enjoy "with respect to separate schools" are rights of a "class of persons" protected from in- vasion. A further question emerges at this point as to what is the nature of a "right or privilege with respect to separate schools," and whether Mr. Justice Lamont's interpretation is suffi- ciently comprehensive to cover the require- ments of the case. A company being a person, and companies a "class of persons,"^ what could be said of their rights or privileges in this respect? Fitzpatrick, C. J. (Supreme Court iHence only "companies," not "a company," could enjoy the right alleged; mixed companies, for instance, would, accord- ing to the above interpretation, be a "class of persons." The writer does not mean to contend that every class of persons must have some right re separate schools, nor does he hold that "a right with reference to" is necessarily equal to "a right against." All the circumstances affecting the case at issue must be taken into consideration. 91 of Canada), in giving judgment in the Regina Case, pointed out that ''the minority in a school district comprises a class of persons who enjoy some benefit, immunity, or advantage with reference to private schools'' not enjoyed by other residents of the district, etc an opinion coinciding with that of Lamont, J., of the lower court. Furthermore, the Chief Justice maintained that a company ''has not and cannot have any rights with respect to education and nothing done in the distribution of the school taxes levied on its property can be held to be a prejudicial afifection of its right with respect to separate schools/' Authorita- tive as the source may be, this opinion cannot be accepted without question. If companies are a "class of persons," what peculiarity is there about their constitution which would debar them from the protection of ss. (1), sec. 17 of the Saskatchewan Act? The fact that they differ from the individuals of whom they are composed would make them none the less a "class of persons" within the meaning of this section. Reverting to Mr. Justice Lamont's opinion: the word "privilege," from its derivation, connotes something of a peculiar or private character which is essentially limited to a sec- tion of the community. The definition of * "right," however, as meaning the right, under the ordinances, "of establishing separate schools" appears altogether too narrow. If companies are a "class of persons," a supposition which seems very reasonable, and, furthermore, if companies possessed any "right" under the ordinances (in the writer's opinion section 82 93 re assessments did confer a right on com- panies) such a ''right'' could not have been that of ''estabHshing separate schools/' The ab- surdity of such a statement is apparent on the surface. Moreover, according to Lord Hals- bury 's view, a ''class of persons" may include "any class of the majority," who might even be a majority of the community,^ and it is quite inconceivable that section 17 of the Saskatchewan Act ever contemplated that a majority of the community should have the right "of establishing separate schools." Hence the learned judge's interpretation of the ex- pression "right with respect to separate schools", is open to serious question, and there would appear to be a fair show of reason — having regard to Lord Halsbury's opinion — for extend- ing the meaning of this term to include the right, which many companies undoubtedly possessed under section 93 of the ordinances, of deter- mining whether or not any portion of their taxes should be devoted to the support of the separate school. Such an option would appear to be "a right .... with respect to separate schools." The trial judge, Mr. Jus- tice Brown, said in reference to ss. (1), sec. 17 of the Saskatchewan Act "it is separate school protective legislation," a view which is clearly inconsistent with the opinion stated in the Brophy Case. Furthermore, Mr. Jus- tice Idington (Supreme Court of Canada) held that the phrase "any class of persons" (ss. (1), sec. 17, Saskatchewan Act) may be sufficiently broad to include public school as well as separate school supporters. >Such a contingency is very remote but not impossible. 93 We are now in a position to examine more closely the validity of section 93 (a). There is good ground for argument that under the pro- visions of section 93 of the ordinances those companies, for instance, whose shareholders were partly Protestants and partly Roman Catholics, possessed a 'Vight or privilege with respect to separate schools/' Such companies, if they so desired, by giving notice to that effect could direct that a portion of their taxes was to be applied to separate school purposes; or, if their desire were to support only the public school, they might refrain from giving such notice, in which case their taxes were available only for public school purposes. Section 93 (a) undoubtedly imposed a restriction on these companies, and the question arises: Were the rights of a ''class of persons'' thereby prejudicially affected? The issue thus resolves itself into one of prejudicial effect; and if it can be established that section 93 (a) did prejudicially affect the rights or privileges of these companies ''with respect to separate schools," and, moreover, if the argument is sound that such companies are a "class of persons," it therefore follows, according to ss. (1), sec. 17 of the Saskatchewan Act,^ that section 93 (a) is ultra vires of the provincial legislature. As already stated, the companies contem- plated by the law are of three classes, only one of which, however, need be considered in the argument, i. e. mixed companies, or those composed partly of Protestant and partly of iThe expression "class of persons" is used in this subsection as in subsection (1), section 93, of the B. N. A. Act. 94 Roman Catholic shareholders. Prior to 1913 it was optional with such companies, under section 93 of the ordinances, as to whether any portion of their taxes was to be applied to separate school purposes. By giving proper notice to that effect a company could direct that a certain * portion of its taxes was to be devoted to the separate school, and such notice was given only with respect to separate school assessments. Were notice not given, all the property of these companies was assessable for public school purposes only. Section 93 (a) of the amendments of January, 1913 (being section 43, cap. 25, R. S. S., 1915, with a verbal alteration) withdrew the above option and infringed on the discretion of these companies. Since 1913 the law provides no machinery whereby mixed companies can secure the payment of their taxes for exclusively public school purposes. If the company^ gives notice, such notice must be according to section 93, whereby a portion of its taxes is devoted to separate school purposes; if no notice is given by the company, then section 93 (a) of the amendment applies, whereby a certain portion (if the separate school serves the notice specified in 93 (a) ), is devoted to separate school purposes. The basis of distribution of the taxes under the above two sections varies somewhat, but the principle is the same; since 1913 a portion of the taxes of any mixed company must be devotied to separate school purposes (if the separate school exercises its powers under 93 (a) ), and this was not the case prior to 1913. lAny **mixed" company. 95 In withdrawing the above option, which the companies in question might for good reasons desire to exercise, there would appear to be little doubt that a right or privilege of such companies ''with respect to separate schools'' was prejudicially affected; moreover, (if the argument is sound that companies fall within the purview of ''class of persons'') the conclusion appears irresistible that a "right or privilege with respect to separate schools," enjoyed under the ordinances by a "class of persons" at the union, has been prejudicially affected by section 93 (a) of the amending legislation, which, accordingly, is ultra vires of the pro- vincial legislature. Certain verbal changes were made in the school law after the Supreme Court of Canada had given its decision. The chief amendments to the school law passed in January and Decem- ber, 1913, are designated as follows: — section 3 of cap. 35, which was incorporated in section 45, cap. 25, R. S. S. 1915; and sec- tions 93 (a) and 93 (b) which were incorporated as sections 43 and 44, respectively, cap. 25, R. S. S., 1915. A few minor verbal changes and one significant alteration of the wording of the original amendments are found in the consolidated statutes for 1915. The expres- sion "may notify" (section 93 (b) ) becomes "shall notify" (Section 44, cap. 25, 1915). In section 3, cap. 35, 1913, the word "here- after" appears in the phrase "shall hereafter be assessable," from which the inference might reasonably be drawn that a change in the law was contemplated and, therefore, that the 96 amendment was not merely declaratory.^ In the corresponding section 45 of the R. S. S. 1915, the word ''hereafter*' is omitted. These changes may have been made from the view- point of literary form; in any event, it would require a stretch of the imagination to detect any ulterior purpose on the part of the legis- lature in making them. One verbal alteration, however, is deserving of careful scrutiny. It will be remembered that in section 93 (a) of the amendments the words, 'Jailing to give a notice'' are found; and in this connection the importance attached to the meaning of the word 'failing,'' when the Regina Case was being argued before the Supreme Courts of Saskatchewan and Canada, need not be further considered. The corresponding section of the statute (section 43, cap. 25, R. S. S. 1915) contains the substitution, ''in the event of any company not giving the notice.'' To maintain that the change made was in the nature of a coincidence or calculated to improve the literary form of the section would be a most extravagant assumption. There would appear, on the contrary, to be some ground for concluding that the wording was designedly changed to meet certain of the objections of the courts.^ In reply to a charge that the lEx-Premier Scott contended that this amendment was only declaratory of the existing state of the law. See page 66. ^It might be argued that the verbal alteration was im- material, since the defect in section 93 (a) was remedied by subsection (5), section 93 (b). This position is open to question. There would appear to be ground for the contention that, if section 93 (a) in its original form was defective, section 93 (b), being supplementary and subsidiary to 93 (a) rather than an independent enactment, would also be equally void. By chang- ing the words, "failing to give a notice," the validity of the legis- 97 government had ''manipulated" the amend- ments subsequent to the finding of the courts, ex-Premier Scott declared (Regina Leader, Jan- uary 13th, 1916,) ''the last amendment to the assessment law was made in December, 1913," i. e. 93 (b) already referred to. One thing, at least, is certain: A significant change was made in the wording of section 93 (a), and this change was necessarily made after December, 1913. That the legislature was competent to make whatever verbal alterations it desired is not open to question; but it is also clear that the late Scott Government must accept full responsibility for the wording of the last revised statutes. Whether the handful of opposition members objected to, concurred in, or were ignorant of the verbal alteration is quite irrelevant so far as the responsibility of the late Scott Government is concerned. lation was placed beyond all doubt. Moreover, it will be remem- bered that section 93 (a) was passed in January, 1913, and sec- tion 93 (b) in December, 1913. Apparently, however, the party or parties responsible did not consider section 93 (b) sufficient to remedy the defect in 93 (a), as is evidenced by the fact that the change in the wording of section 93 (a) (i. e., "failing to give a notice" changed to "not giving the notice") first appears in the consolidated statutes of 1915. The writer has been unable to find any public record, in the nature of an amendment sanctioned by the legislature, authorising this change. 98 CHAPTER VI . The Separate School Situation in Alberta. Practically all that has been written in the previous chapter regarding the conduct and administration of separate schools in Saskat- chewan holds equally true with reference to the separate school system of Alberta. Only a few lines of divergence between the school laws of the two provinces are discernible. Prior to September 1st, 1905, when the au- tonomy acts were passed, all public and separate schools in the area (the North West Territories) now constituting the two provinces were sub- ject to the same school ordinances (chapters 29 and 30, 1901) and departmental regulations. And since 1905 the educational policies adopted by Saskatchewan and Alberta have been as nearly identical, with probably one important exception mentioned below, as local conditions appeared to warrant. Section 17 of the Al- berta Act is identical with the corresponding section of the Saskatchewan Act, and thus the sister provinces set out upon their provincial careers subject to the same federal heritage ''with respect to separate schools.*' Subsequent to the passage of the Alberta Act Hon A. C. Rutherford (Liberal) of Edmon- ton was called on to form an administration, while Mr. R. B. Bennett, Calgary, was chosen leader of the Conservative forces. In the en- suing electoral campaign the arguments already discussed in connection with Saskatchewan 99 issues formed the chief stock in trade. By the Liberals the terms of the Alberta Act were defended on the ground of their alleged splendid liberality. The political stability of the pro- vince and the development of its resources could not be secured, it was maintained, until racial and religious agitation was allayed and the policy of promoting litigation for political ends was given its quietus by an overwhelming vote of the electorate. The leader of the conserva- tive opposition was also accused of being the rep- resentative of the C. P. R. monopoly^ and the subservient advocate of corporate interests. The conservatives, on the other hand, ener- getically attacked section 17 of the Autonomy Act and demanded that the province should be given ^ complete control over its educational system from the beginning. If the party were elected to office a test case to determine the validity of section 17 was promised. The conservative candidate in Edmonton was re- ported to have gone even so far as to propose the abolition of separate schools; nevertheless, although this constituency was strongly Pro- testant, he was defeated by a majority of 693, the largest majority obtained by any candidate in the Province. Separate school privileges to the limited extent sanctioned by the terri- torial ordinances, and affirmed by section 17 of the Alberta Act, were enthusiastically en- dorsed by the electorate as preferable to an alleged policy of litigation which, it was asserted, had nothing to offer but a legacy of racial and sectarian rancour. iMr. Bennett was C. P. R. counsel in Calgary. 100 Only six separate schools existed an- 'Mi^e^r^.a in 1905 (there are ten now^) ; hence the situation in the province was not considered serious. In the fall of 1905 there were five^ separate schools in Saskatchewan, three Roman Catholic and two Protestant (there are seventeen separ- ate schools now), out of a total of approximately 850 districts for the Province. It will be remembered that the law of both Saskatchewan and Alberta provides that a public school district must first be organized before a corres- ponding separate school can be established and that the boundaries of the two districts shall be co-terminous. The following words of Hon. J. A. Calder, minister of education for Saskatchewan, were perhaps equally applic- able to conditions in Alberta. * 'There are scores, yes, probably hundreds, of such (namely, public school) districts,'* said Mr. Calder in the fall of 1905, ''in which the majority of ratepayers are Roman Catholics.''^ Yet, it was asserted, no attempt had been made in these cases to establish separate schools. The result of the elections held November 9th, 1905, meant an overwhelming victory for the Rutherford Government. Only two conservatives were elected in the twenty-five constituencies of the province, while Mr. Ben- nett, leader of the opposition, was defeated in Calgary by a margin of twenty-nine votes. Premier Rutherford also expressed the opinion that the Liberal party had secured seventy iSee Chapter VII, pages 114 and 115. 'Canadian Annual Review, 1905. 'Canadian Annual Review, 1905. 101 per cent, of the total vote cast throughout the province. From 1905 to 1910 no important separate school legislation was passed in Alberta. In 1910, however, the legislature adopted certain amendments to the school assessment law per- taining to the distribution of the taxes of corporations between separate and public schools, respectively,^ and these amendments were copied by the legislature of Saskatchewan in January, 1913. The litigation arising from this action on the part of the Saskatchewan legislature has already been discussed, and it is obvious that the decision of the Supreme Court of Canada would be applicable in Al- berta should the amendments of 1910 be con- tested. The contentious words, ''in the event of any company failing to give a notice .,'' have not been changed by the Alberta legislature (as was perhaps somewhat irregularly done in Saskatchewan)^ in order to bring the subsection containing them into stricter conformity with the finding of the Su- preme Court. Corporations in Alberta must, therefore, be considered legally to possess the same option with regard to the division of their taxes as they enjoyed prior to 1910. In one other respect, perhaps, the legislature of Saskatchewan has manifested a more radical disposition in the matter of drawing a dis- iSee subsections (5) and (6), section 9, cap. 105, office consolidation of the N. W. T. Ordinances in force in Alberta, 1915. 2N0 change has been made at the time of writing; nor has a clause equivalent to subsection (5), section 93 (b) (already referred to in connection with the Saskatchewan legislation) been inserted in the Alberta law to overcome the defect in the words "failing to give a notice." 102 tinct line of demarcation between the two classes of school supporters than has been evinced by the legislature of the sister province. As already stated, the amendment to section 45 of the school law in Saskatchewan, passed in January, 1913, removed any alleged option on the part of the individual ratepayer to sup- port either the public or separate school. No such amendment was passed in Alberta nor did the attorney-general of the latter province concur in the interpretation given to section 45 by the Scott Government. The amend- ment in question was repealed in February, 1916, and section 45 now reads the same in both provinces. By a recent decision of the Local Government Board and Supreme Court of Saskatchewan, nevertheless, the religious faith of the ratepayer determines the destina- tion of his taxes, whereas, in Alberta, ''perfect freedom of choice'*^ to support either school prevails. Such an anomalous state of affairs is, fortunately, to last only for a comparatively brief period of time. As soon as final judgment has been rendered in the case now pending in Saskatchewan^ a precedent will be available from which uniformity of opinion as to the legal import of section 45, when applied in either province, must result. It might be incidentally remarked before closing this brief survey that, from more than one viewpoint, the legislature of Saskatchewan displayed considerable wisdom in repealing the contentious amendment to section 45. ^See Chap. IV, page 65, correspondence between Rev. A. A. Graham and Hon. J. R. Boyle. '^See McCarthy v. City of Regina, page 70. 103 The validity of this amendment was never open to question, and while it remained on the statute book there would have been little possibility of obtaining an authoritative de- cision on the import of the original section. Furthermore, certain influential leaders of the community as well as the attorney-general of the sister province had taken issue with ex-Premier Scott's contention that the amendment in question was merely declaratory of the existing state of the law. If, therefore, chaos and discord were to be removed, only the course adopted could prove effective: namely, reference to the courts of a case involving section 45 in its original form. But, as a result of the decision ultimately rendered, the Roman Catho- lic minority in Saskatchewan may have valid ground on which to appeal for remedial legisla- tion. This point will be briefly discussed in the following pages. 104 CHAPTER VII. Incidental Problems and a Comparative Survey. The present chapter will be mainly devoted to a comparative survey of certain outstanding features governing the western school systems and to the consideration of several incidental questions suggested by the discussion in the previous pages. From the viewpoint of assessment and taxa- tion the school law of Saskatchewan is largely the converse of that existing in Manitoba. In the latter province all ratepayers, irrespec- tive of religious affiliations, are obliged to sup- port the national or public school; and since 1890 no separate school system has been known to the law. Private or denominational schools may be maintained by any section of the com- munity at its own expense, but the support of such schools does not relieve any ratepayer of his obligation to support the national school. . In Saskatchewan, on the other hand, all rate-^ payers of the faith represented by the minority school are (according to the decision of the Local Government Board and of the Supreme Court of Saskatchewan) obliged by law to sup- port such school, and,, in so doing, they are not liable to assessment for public school purposes. In Alberta the ratepayer presum- ably has the option of supporting either the public or separate school; with respect to 105 company taxation, however, the law is intended to be substantially the same as in Saskatchewan. Anomalous as the statement may appear, it is nevertheless true that, subject to the con- ditions mentioned below, religious teaching may be conducted in the public schools of Manitoba to the same extent as in the separate schools of Saskatchewan. In both provinces such teaching is limited to the last half hour of the school day. In Manitoba either a resolution passed by a majority of the trustees or a petition signed by the parents or guardians of at least ten or twenty-five children, as the case may be, attending school in rural and town districts respectively, is sufficient authority to warrant religious teaching during the period prescribed. Furthermore, as already stated, when the average attendance of Roman Catholic pupils is forty or upwards in town and city dis- tricts, or twenty-five or more in the case of rural and village schools, the trustees shall, on petition of the parents or guardians of such number of Roman Catholic children, , employ at least one duly qualified Roman Catholic teacher; and a reciprocal provision applies with respect to the employment of a non-Roman Catholic teacher. No separation of pupils by religious denominations is permitted during the time devoted to ''secular school work,'' nor may religious instruction be given to any pupils unless the parents or guardians so desire. (Sections 249 to 257, Cap. 165, R. S. M. 1913). In Saskatchewan, on the other hand, reli- gious instruction in the school of any district, public or separate, is limited to the last half 106 hour of the day. During this period such instruction may be given as the trustees direct, but only to those children whose parents or guardians ofifer no objection. (Sections 178 and 179, Cap. 23, R. S. S. 1915). In Alberta the same law applies to religious instruction in schools as in Saskatchewan. Reverting to that perennial source of agita- tion, th^ dual language question: in the case of those schools that come under government control and inspection the law in Alberta and Saskatchewan reads, in part, as follows: ''all schools shall be taught in the English language, but it shall be permissible for the board of any district to cause a primary course to be taught in the French language.'' (Sec. 177, Cap. 23, R. S. S., 1915). In Manitoba alone of the three prairie provinces was the bi-lingual system legally authorized. According to the statutes (Sec. 258, Cap. 165, R. S. M., 19,13): "when ten of the pupils in any school speak the French language, or any language other than English, as their native language, the teaching of such pupils shall be conducted in French, or such other language, and English, upon the bi- lingual system.''^ 'See Chapter III, for repeal of this clause. "Some years ago the school distftct of St. Francois de Salle, St. Norbert, was a French bi-lingual school. The Ruthenians began to settle in the district, and as soon as they had a majority at the annual meeting they secured control of the school board. They wanted to employ a Ruthenian bi-lingual teacher instead of a French bi-lingual teacher, and they had the necessary num- ber of children, having some 40 or 50 of school age. The French still had some 15 children attending the school, and the two factions came to an agreement to build a two-roomed school, one room being operated as a French bi-lingual school, and the other as a Ruthenian bi-lingual school. A year or so later 107 Considerable light is thrown on the moral claim of the French language to recognition in the North West Territories by the debates in the House of Commons, February, 1890. By Dominion legislation passed in 1878 the Territorial ordinances were to be printed in French and English which, accordingly, were both recognized as official. In 1890 Mr. Dalton McCarthy introduced a bill in the federal house, the effect of which would have been to make English the sole official language in the Terri- tories. Speaking to this bill Sir John A. Macdonald used, in part, the following words: ''I believe that it (the suppression of the French) would be impossible if it were tried, and it would be foolish and wicked if it were possible .... Why, Mr. Speaker, if there is one act of oppression more than an- other which would come home to a man's breast, it is that he should be deprived of the consolation of hearing and speaking and read- ing the language that his mother taught him. It is cruel. It is seething the kid in its mother's milk." Mr. Laurier, speaking to the same bill, February 18th, 1890, struck a tone character- istic of his utterances on the recent Lapointe resolution : the French room was closed." From the speech of Hon. R. S. Thornton, Minister of Education for Manitoba, in the legis- lature, January 12th, 1916. As section 258 was mandatory, the words ''shall be con- ducted" being used, the department of education was impotent in such cases. Mr. Thornton also stated that on June 30th, 1915, there were 2,727 school departments in operation in Mani- toba with a total enrolment of 100,963 pupils; of this number, 421 were bi-lingual schools (French, German, Ruthenian and Polish) with a total enrolment of 16,720, or, approximately one-sixth of the total school population of the province. 108 ''Any policy which appeals to a class, to a creed, to a race, or which does not appeal to the better instincts to be found in all classes, in all creeds, and in all races, is stamped with the stamp of inferiority/' In each of the an- tagonistic elements there was, said the speaker, ''the common spark of patriotism,'' and to this alone must any true policy appeal. "It is imperative for us French Canadians to learn English," continued Mr. Laurier, "but if I were to give any advice to my Anglo- Canadian friends, it would be that they would do well to learn French too." Similar opinions were expressed in eloquent terms by Mr. N. F. Davin, Sir Richard Cart- wright and others, while Sir John Thompson brought the debate to a close by moving the following amendment which was carried by a vote of 149 to 50: "That the legislative assembly of the North West Territories should receive from the parliament of Canada power to regu- late, after the next general elections of the assembly, the proceedings of the assembly and the manner of recording and publishing such proceedings." The final solution of the language question is set forth in Appendix III. The competence of the provincial legislature to restrict the teaching of language in publicly supported schools to English alone is scarcely open to question. On the basis of the historic past the argument is frequently advanced that French is entitled to exceptional recogni- tion over other non-English languages, and thus the question resolves itself into one of equity and public policy. From a legal view- point it wpuld appear an untenable assumption 109 to maintain that the teaching of French, or of any other non-Enghsh language, is a ''right or privilege with respect to separate schools/' Some ground for this contention would doubt- less exist if it could be established that French, for instance, is essential and fundamental to religious instruction; but on this basis as strong a case could probably be made out for Latin. In the case referred to. City of Winnipeg v. Barrett (1892, A. C. 445), Mr. Justice Patterson of the Supreme Court of Canada used the fol- lowing words in giving judgment: ''There is no general prohibition which shall afifect deno- minational schools. The prohibition relates only to the rights and privileges of classes of persons and to legislation which injuriously affects such rights." Hence, as already quoted, it would be competent for a provincial legisla- ture to pass legislation regulating many sub- jects, e. g. "compulsory attendance of scholars, the sanitary condition of school houses, the imposition and collection of rates .... and sundry other matters which may be dealt with without interfering with the denominational characteristics of the school,'' (See also ex parte Renaud, 1 Pugsley (N. B. R.) 273.) That the "denominational characteristics'' of a school are dependent on, or inseparable from, the use of any particular non-English language is surely an assumption involving a wide stretch of the imagination.^ iThe Privy Council decision re the validity of regulation 17 (Ottawa Separate School Board and others v. the Ontario Department of Education) has been recently given. This decision, which settles the question for Ontario (and presum- ably for the other provinces where separate schools exist), is to the effect that the teaching of French is not a "right or privilege" attached to denominational instruction. 110 Another question has frequently been asked: Is it not within the power of the Saskatchewan legislature to abolish the separate school system as Manitoba practically did in 1890? The two cases, however, are not analogous. In 1890 Manitoba repealed a statute passed by the province itself subsequent to the union arid, in doing so, no Dominion statute was infringed on. According to the decision of the privy council (Barrett Case above), the Public Schools Act, in providing for a system of national schools, did not preclude the establish- ment of denominational schools. The fact that the minority ratepayer would be saddled with an additional financial burden was not sufficient to invalidate the Act; had the Mani- toba legislature prohibited the establishment of denominational schools, for instance, such legislation would have been null and void on the ground of repugnancy to the Manitoba Act of 1870, a Dominion statute. In Sas- katchewan, on the other hand, separate schools existed both by law and practice in 1905, the date of the union, and this system was con- firmed by section 17 of. the Saskatchewan Act. Hence any act of the provincial legislature abolishing separate schools, as established by the ordinances, would be nugatory and the same is true with respect to the Dominion govern- ment. There is little doubt that, under the authority of the B. N. A. Act, 1871, the federal parliament was competent, when providing constitutions for the two western provinces, to deal as it saw fit with the subject of education ; but such power could be exercised only ''at the time of such establishment'' (section 2, B. N. A. Ill Act, 1871) i. e. in 1905. With the passing of the Saskatchewan Act, however, the Dominion ParHament exhausted its jurisdiction, and sec- tion 17 is now a ''fait accompH/' Unless, and until, section 93 of the B. N. A. Act, 1867, is amended by the Imperial Parliament separate schools must be a fixture in Saskatchewan. Two questions are suggested by the foregoing discussion: in the first place, may there be a ''minority within a minority'' whose rights or privileges "with respect to separate schools'' or "in relation to education" may be prejudi- cially affected by the act of a provincial legis- lature? For instance, in the case of a public school district wherein a separate school also exists, a certain section of the minority rate- payers might object to supporting the separate school and demand to be rated as public school supporters. A state of facts very similar to this is what gave rise to the Vonda case. Assum- ing that the option of supporting either school existed prior to January, 1913, would the position be tenable that the rights of a "minority within a minority" were prejudicially affected by the amendment to section 45 respecting the individual taxpayer? A section of the minority ratepayers could scarcely be classed as "the Protestant or Roman Catholic minor- ity" [B. N. A. Act, sec. 93, subsec. (3)], hence such a dissentient group would presumably come under the purview of "any class of per- sons,"^ [Sask. Act, se€. 17, subsec. (1)], and, if so, the above argument relative to the taxa- tion of companies would apply. iThat scattered dissentients might be considered a ''class of persons" would seem a somewhat strained interpretation. 112 Again, what means of redress, if any, might be open to a religious minority in the event of the amendments of 1913 (assuming the same are intra vires) being repealed by the act of a Saskatchewan legislature (as has been done in the case of the amendment to section 45) and with what probable results? For such an eventuality the Manitoba precedent affords an excellent parallel. A separate school system, established by the provincial legislature after the union and conferring certain privileges on the minority ratepayer, was virtually re- voked by the Public Schools Act of 1890, also a provincial statute. As already stated, the outcome of the matter on reference to the privy council was the decision that the pro- vincial legislature was legally competent to pass the Public Schools Act, from which, nevertheless, an appeal lay to the governor- general-in-council for remedial legislation. And only the ''effluxion of time'* prevented the Tupper Government from enforcing its remedial orders. In Saskatchewan the question raised is identical with the Manitoba School issue, since the provincial government has revoked the amending legislation^ (assuming the same to be more than declaratory and also to be intra vires) and reverted, in part, to the order of things prior to 1913. Only as a last resort would the Dominion Government interfere, but it is conceivable that the last resort might be considered the only one. Furthermore, separate schools existed ''by law .... at the union'' (1905) » in the area which became »The amendment to section 45 only. «The question relative to the date of the union is discussed in Chapter IV. 113 the Province of Saskatchewan, and thus sub- section (3), section 93, B. N. A. Act, 1867, would be clearly applicable to the case stated. It is undoubtedly true that the privileges of a Protestant or Roman Catholic minority " in relation to education" may be indefinitely enlarged by the provincial legislature, if, in so doing, the provisions of subsection (1), section 17 of the Saskatchewan Act (safe- guarding the rights of ''any class of persons'* etc.) are not infringed on; but it is quite another matter for the legislature to revoke such privi- leges when once legally granted. Up to the present time the number of separate schools established in Saskatchewan and Al- berta has not exceeded more than about one- half of one per cent, of the total number of schools in these provinces. In January, 1916, there were in Saskatchewan, 14 Roman Catholic separate school districts (using 17 school houses) and 3 Protestant separate school districts out of a total of 3,703 districts for the province. The number of private schools,^ i. e. those not under departmental jurisdiction and not re- ceiving government aid, has not been de- finitely ascertained by the writer, but it is considerable. In Alberta the separate school situation is analogous to that in Saskatchewan. On January first, 1915, there were 9 Roman Catholic separate schools in the province con- taining 71 departments with a total enrolment of 2,950 pupils. One Protestant separate school has recently been established for which, however, no returns were available. Approximately 50 ^Premier Martin announced in the House in February, 1917, that the number of private schools in Saskatchewan is fifty-three (53). lU private and parochial institutions, less than half of which prepare candidates for the de- partmental examinations, are also found in Alberta. In Manitoba no separate schools are recognized by law, but, as already stated, a large number of private and parochial schools are in operation in this Province. Before concluding this chapter reference should be made to certain Anglo-French Cana- dian relations in general, which reflect on an enlarged scale the racial and religious condi- tions prevailing in the Prairie Provinces. The first decennial census of Canada was taken in 1871, when the population stood at 3,689,257. The figures for Quebec and On- tario were 1,191,516 and 1,620,851 respectively; in ^ other words, Quebec comprised about 33 per cent, and Ontario 44 per cent, of the total population of the Dominion. The census of 1911 placed the population of Canada at 7,206,643, of whom 2,054,890, or about 28 per cent, were French, and 3,896,985 or nearly 54 per cent, were British (English, Scotch, Irish and Welsh). The British in Ontario numbered 1,927,099 of a total population of 2,523,274 and 316,103 in Quebec of a total population of 2,003,232; the French, on the other hand, numbered 1,605,339 of the population of Quebec and 202,442 of the population of Ontario. In 1911 there were 2,833,041 Roman Catholics in the Dominion while the five leading Protestant denominations numbered 3,850,763. Fourteen smaller sects and 32,490 unspecified made up the remainder. The ratio of Pro- testants to Roman Catholics in Quebec was roughly 1 to 7, the figures being 250,000 and 116 1,725,000 in round numbers; while in Ontario the ratio was reversed, the Protestants out- numbering the Roman Catholics by 4 to 1, with the figures in round numbers at 2,000,000 and 485,000 respectively. It is also worthy of remark that practically four out of every ten Canadians of all nationalities are Roman Catholics. Several conclusions obviously follow from the above data. With the Roman Catholics ar- dently championing religious instruction in schools, the separate school factor in our national life appears to be a comparatively permanent one. Also the Protestant minority in Quebec, who promise to remain the religious minority to the end of time, will presumably continue to demand the protection afforded by separate schools ; and since there should be no discrimina- tion in this respect against religious minorities in other provinces (to the extent that separate school privileges were protected ''by law in the province at the union'*), the significance of the Quebec influence is at once apparent. The problem is further complicated by the fact that Quebec seems willing to allow the Protest- ant minority in that province to do largely as it pleases in the matter of language and re- ligious instruction in schools, and then expects that similar indulgence should be granted to Roman Catholic minorities in other provinces. The recent Ottawa school embroglio partly illustrates the point. This view of the question, however, apparently overlooks two important considerations: the minority is entitled only to such rights and privileges ''with respect to separate schools'' as it enjoyed "by law in the 116 province at the union/' If the Quebec legis- lature, for instance, enlarges the separate school privileges of the Protestant minority in that province, it does not follow that the Roman Catholic minority of Ontario is entitled, legally or morally, to a similar extension of privileges. Secondly, bi-lingualism does not appear to be a legal phase of the distinctly separate school question, and, if this is the case, Ontario or any other province is unfettered by the B. N. A. Act in regulating language instruction so long as the denominational characteristics of separate schools are not thereby prejudiced. Theore- tically, it may be true that Quebec can exercise similar powers with respect to English,^ but it would scarcely venture on so absurd and fatuous a course as to impose restrictions on the leading language of the Dominion. It is also obvious from the above statistics that, owing chiefly to the effects of immigration, the British have made more rapid strides in increase of population than have the French. The relative increases, however, are not so disproportionate as Lord Durham appears to have anticipated, and there is no indication that the French will abandon ''their vain hopes of nationality.'* The British Empire has been developed on the principle of mutual trust- fulness; each racial division has, wherever possible, been encouraged to work out its own destiny in its own way. And Quebec is probab- ly th^ most truly Canadian of all the provinces of the Dominion. Already it has made, and iSo far as the writer has been able to ascertain, the English minority in Quebec have always received just and liberal treatment at the hands of the majority. 117 is making, a unique contribution to our Anglo- Saxon civilization. Brilliant statesmen and brilliant writers are numbered among its sons. But Quebec has added to our national life in an indirect and probably more important way: it has insisted on minority rights and been unwilling to yield to the majority. If, indeed, *'the essence of freedom is found in the treat- ment of minorities,*' Quebec has indirectly played the part of liberator. ''Quebec has had to be listened to,'' said an eminent Canadian, ''and the rest of the Dominion has learned the lesson of toleration." The query arises: Has this indulgence never been overdone, and has it always proved to be in the best interests of Quebec itself? And yet before the time of Lord Elgin's arrival in Canada the French had probably experienced sufficient political disabilities to compensate for any concessions granted since. The aim of the present thesis has been to give a somewhat critical account of the develop- ment and import of separate school legislation in Manitoba, Saskatchewan, and Alberta. That this treatment of the subject is far from perfect the writer readily admits. He has, however, endeavoured to adopt an impartial viewpoint in the discussion of the constitutional problems involved and acknowledges that the pitfalls of erroneous judgment and faulty induction have been numerous and, for him, unavoidable. While, in the writer's opinion, the separate school laws of the Prairie Provinces are, like every product of human ingenuity, not above criticism, he has no reason nor desire to impugn the good intentions of the different legislatures 118 in passing them. If the great problems of racial fusion are to be satisfactorily solved in the West, there can be no place for personal animosities, religious prejudice, nor yet for bitter contro- versy. Not until the leaders in thought and public life in Western Canada are actuated by a spirit of tolerance and good will towards all classes and creeds can there be any hope of the Ipanner agricultural provinces of the Dominion rising to the level of their potential greatness. 119 APPENDIX I. Sir John Thompson, March 6th, 1893, Hansard, p. 1794- Re Disallowance of the Manitoba Public Schools Act of 1890. "Why should we (the Dominion Government), by the exercise of the strong hand of disallowance, destroy a provincial statute on the ground that it was null and void, and thus invoke an immediate conflict with the provincial legislature upon a subject and for a reason which could be dealt with by a tribunal in which the people of the province would have confidence, when they might not have confidence in the executive of the country, actuated, as it might appear to be, by political motives or religious sympathy?" Sir J. Thompson took the ground that, if the courts decided the Act was "intra vires," it should not be disallowed, but the question of remedial legislation and redress might then be considered; whereas, if the Act were declared by the provincial tribunal to be "ultra vires" it would not need to be disallowed. Sir W. Laurier, March 8th, 1893; Hansard, p. 1982. Re Refer- ence by the Dominion Government of the Manitoba School Question to the Supreme Court of Canada. "I say that the reference to the Supreme Court under such circumstances is most dangerous, because, if the Supreme Court should decide that the Government have the power to interfere with the legislation of Manitoba, and the Government should not obey the legal mandate which they themselves had sought, there would be a powerful and a rightful agitation in some parts of the country against the Government." * « 4( Re Remedial Legislation — Manitoba School Question. Mr. W. Laurier, July 15th, 1895, accused the Government of a record of "unfulfilled promises, a record of broken engage- ments, a record of decisions adopted and abandoned, a record of conflicting determinations and of retrograde modifications." He diagnosed the Government's case as an affection resulting from "some cerebral malformation which, as soon as they have taken any course upon any question, crowds upon their atten- tion all the objections against that course, and impels them to undo that which they have done. Looking at their course it would seem that their nights and their days are haunted by the demon of doubt and vacillation." Their policy was alleged to be "bullying in language and weak and meek in execution." And again on March 3rd, 1896, the leader of the opposition spoke as follows: "The argument seems to be overwhelming, that, if this bill were to become law, while it would afford no protection whatever to the suffering minority in Manitoba, it 121 would be a most violent wrench of the principles upon which our constitution is based." ^^V Richard Cartwright on March 11th, 1896, struck a like note: "The best thing they (the Government) can offer to us is that if we pass this bill ... we will be opening an era of fighting and wrangling, and arguing, not only *de die in diem' but *in saecula saeculorum'." Mr. Foster accused the leader of the opposition with inca- pacity, carelessness, and cowardice in not committing himself and the liberal party to a definite policy and assisting the Government in the alleged crisis, which, as Laurier maintained, was shaking confederation to its foundation and disintegrating the country. Mr. Laurier announced his policy in 1893 to the following effect which he again proclaimed in 1895: the **question which was to be solved was not a question of law but simply a question of facts (i.e., were the schools in Manitoba Protestant); facts to be ascertained in order to lay down the law." Furthermore, if the facts showed that the grievances of the minority were valid and the schools were Protestant, sufficient grounds for interference existed. The Government, he alleged, saw fit to ignore his advice, and hence he was justified in waiting to see what policy it had to offer. * * * Re N. W. T. Ordinance of 1892. In Hansard, April 26th, 1894, p. 2042, the Government's reasons for not disallowing the N.W.T. Ordinance of 1892 are set forth in a speech by Sir John Thompson. Various petitions had been received by the Government, praying that the Ordinance be disallowed on the ground that actual grievances existed as a result of this legislation. Ap- prehension was likewise expressed in regard to the inviolability of minority school rights in the future. Especially was objec- tion taken to the compulsory professional training of teachers and to the prescribed texts ^ to be used in separate schools. On investigation by the Dominion Government it was found that a positive disagreement as to the facts of the case existed, and, in the face of such contradictory evidence as was offered, disallowance was deemed inexpedient. The Federal Government requested the legislature of the Territories to re-examine the whole subject with a view to inquiring both into the complaints that grievances actually existed and into the allied complaints that grievances might arise owing to the absence of security as to the nature of sub- sequent legislation. (1) The ordinance of 1892 caused no immediate change in the prescribed texts. A circular issued by the secretary of the council of public instruction, Septem- ber 30th, 1893, contained the following: "In school districts, where French is the vernacular, the school trustees may, upon obtaining the consent of an inspector in writing, use the Ontario series of bi-lingual readers, part I, II, and the second reader, instead of the Dominion series or the Ontario readers. In all standards above the second the Ontario readers are prescribed after 1st of January, 1894." 122 The question of disallowance is clearly set forth by Sir John Thompson: ''disallowance takes place from the moment of its ' being proclaimed . . to the legislature, and, therefore, it follows that what has been done under the disallowed act in the meantime remains in full force and vigour. If . . . the ordinance disallowed has been void as being ultra vires, of course every- thing is null and void from the beginning. . . . It is said that while disallowance could not have nullified the regulations which existed before, it would have restored to the Separate Schools control by the Catholic section of the Board of Educa- tion and that the Catholics would, therefore, have been able to get redress against any regulations which were objectionable." Sir John Thompson also pointed out that the jurisdiction of the Dominion Government for redressing grievances in the Territories was not the same as obtained with respect to the provinces, that is, limited to one year. The Federal Government could, on the other hand, from day to day or from year to year remove any substantial hardships imposed by the Ter- ritorial legislature. Hence there was no need for immediate disallowance, more particularly as the evidence was so con- flicting. Furthermore, the case was not on a par with the issues of the Manitoba School Question, and hence, it was alleged, should not be submitted to the courts. The question was simply one of fact, not of law, i.e., were Separate Schools actually swept away by the Ordinance of 1892? On this phase of the question the leader of the opposition (Mr. Laurier) expressed agreement with the Government. The following extract is typical of the opinion expressed by the opponents of the Ordinance in question, who maintained that it was the duty of the Government to resort to disallowance. Mr. Tarte (quoting the Hon. T. C. Casgrain) used the following words: — "No one had the right to deprive the Catholics of the North West Territories of their Separate Schools. The Hon. Mr. Haultain . . . understood that pretty well. That is why he went in a roundabout way. He overhauled all the Ordinances relating to schools; and while the new Ordinance re-affirms the rights of Catholics to Separate Schools, it makes these dependent on such conditions that they are virtually suppressed. So that Mr. Haultain has done indirectly what he could not do directly." Re Alberta and Saskatchewan Acts — 1905. Extracts from Hansard Debates. Mr. W. Scott.— March 31st, 1905. Hansard, p. 3614. "I want to say, speaking as a Protestant, not as a member of the minority, that in view of the history of this matter I would be ashamed of myself as a Protestant and ashamed of the Protestant majority, if we would wish now, merely because 123 we^have the power, to deny the very thing which we as Protes- tants stood out for when a Protestant minority was affected." It was rather expected by the Federal Parliament of 1875, according to Mr. Scott, that the minority in the North West Territories would be Protestant. Sir Wilfrid Laurier.— March 15th, 1905, Hansard, p. 2506. "Mr. Haultain took the ground that section 93 of the British North America Act applied mechanically to those provinces. The ground we (the cabinet) took was that section 93 of the British North America Act did not apply mechanically, but that it should be made to apply in the legislation we offered to the House, subject only to such modifications as the circum- stances of the new provinces would warrant." Hon. R. L. Borden.— Msivch 22nd, 1905, Hansard, p. 2975. "The very basis of confederation, contemplating the in- clusion of all British North America, provided for Separate Schools in Ontario and Quebec only. But no restrictions on provincial powers were contemplated in the Northwest. None were mentioned in the Quebec resolutions. . . . Why then should they (the people of the Territories) not receive the same rights which were conferred upon the people of Nova Scotia, New Brunswick, and Prince Edward Island, and which are now enjoyed by them?" On June 28th, 1905, Mr. Borden spoke as follows (Hansard, p. 8292): "I believe that the application of section 93 of the British North America Act will leave the new provinces the right to deal with the question of education. I have said already that this is a question about which honourable gentlemen in this House have differed and that I do not claim to be infallible." Mr. Borden moved in amendment (July 5th, 1905, Hansard, p. 8804) that part of section 16 of the bill before the house be struck out and the following inserted: "that the provisions of section 93 of the British North America Act, 1867, shall apply to the said province in so far as the same are applicable under the terms thereof." * * * Re Applicability of section 93 of the B.N. A. Act to the new pro- vinces. July 5th, 1905, Hansard, p. 8810. Mr. Fitzpatrick, speaking in the House on the subject of education, as governed by the Saskatchewan Act and the Federal jurisdiction to insert section 17 in the Act, made the following statements: "My honourable friend (Mr.^ Borden) says, however, that these Territories are not provinces and consequently this section (section 93, B.N. A. Act) does not in terms apply to the new provinces. Conceivably that is true. There is a doubt in my mind as to whether or not these Ter- ritories, not being provinces, come within the wording of section 93; and in the technical meaning of the term, the minority might not have those rights and privileges which they enjoy under the School Ordinance. That is the letter of the law, but what is the spirit?" 124 Mr. Borden interrupted as follows: — "If we had power under the Act of 1871, to absolutely disregard section 93 of the British North America Act, then of course there is no further question. We cannot make a new section 93. If, on the other hand, we are bound to observe section 93, it does not seem to me that we can increase our power by passing any act restricting the powers of a Territorial legislature, and then, the following year, when creating a province, say: "there you have restric- tions operating upon the Territorial legislature and the Pro- vincial legislature must be governed thereby." Mr. Fitzpatrick replied: — "Proceeding on the assumption that we are dealing with these Territories, under the Act of 1871, as Manitoba was dealt with and British Columbia and Prince Edward Island and every province brought into the Dominion since confederation, we are applying to these new provinces the same principle we applied to those provinces. If these Territories were coming in as provinces, created previous to this time, there would fee no question as to the application of section 93, and all the rights and privileges guaranteed the minority under existing legislation would be continued; but because they do not come within the word 'province' my hon- ourable friend says: your door is barred and section 93 of the British North America Act does not apply. My answer is that when these Territories were brought into confederation, they were brought in under a compact entered into between the people of Canada and the Imperial authorities. We find in the petition to the Imperial authorities the following language: — 'That the welfare of the sparse and scattered population of British subjects of European origin, who inhabit these remote and unorganized territories, would be materially enhanced by the formation therein of political institutions bearing analogy, as far as the circumstances will admit, to those that exist in the several provinces of the Dominion." This petition was granted and, in the words of the Imperial order-in-council, as quoted by Mr. Fitzpatrick, ". . . from and after the 15th day of July, 1870, the said North West Territories shall be admitted into and become part of the Dominion of Canada upon the terms and conditions set forth in the first hereinbefore recited address." 125 APPENDIX II. (The writer is indebted to ex-Premier Scott for this Report.) Report of proceedings when delegation from Grand Orange Lodge of Saskatchewan waited upon Government, 11 a.m., Thursday, January 20th, 1916. Present. Hon. W. Scott Premier. Hon. J. A. Calder Minister of Railways and Highways. Hon. A. P. McNab Minister of Public Works. Mr. Isaac Dawson Deputy Grand Master. Mr. W. H. G. Armstrong. .Grand Organizer for Saskatchewan. Mr. M. L. G. Armstrong.. .Grand Master of Saskatchewan. Mr. Robert Dawson Worshipful Master. Mr. Armstrong, Sr. (Spokesman). — If you are ready to hear us Mr. Scott we will proceed with what we have to say and inform you as to why we are here and what we desire. Hon. W. Scott.— Yes. Mr. Armstrong. — We, as you already know, represent the Orange Association of Saskatchewan. We are an institution composed of both political parties. We are not a partisan institution by any means, although some people think we are; we do not seek to rob any class of citizens of their constitutional rights or their right to worship God according to the dictates of their conscience^ These were never the objects of our as- sociation and never will be. We exist as a matter of fact to protect all loyal subjects in the enjoyment of their constitutional rights, whether they are Roman Catholics or Protestants. We are deeply interested in the question of education, believ- ing as we do, that one national school system is the ideal system for this new country. We have always advocated that principle and, therefore, Ve think that this is an opportune time when the question of education, we understand, is to be gone into by the government. We think the time is now opportune to present our views and impress upon the Government as earnestly as possible, the measures which we think are in the interests of this new province, and necessary to settle this question once and for all. Now, we believe that Separate Schools are not in the best interests of this country. We say furthermore that the people of Saskatchewan have never had the privilege or right to say what system of schools they prefer or desire. The Northwest Territories were purchased from the Hudson's Bay Company, and became part of Canada in the year 1870. No schools at that time existed in the Territories, but in the year 1875, when we had 500 white people living in the Territories, the Federal Parliament passed an Act granting to the people of the North- 126 west Territories limited legislative powers. According to that statute, passed by a Parliament in which we had no represen- tation, we had to have a dual system of schools. I mention this to show that Separate Schools were not established by the sovereign will of the people of the Northwest Territories. It was contended by recognized constitutional lawyers in Par- liament that when autonomy was granted to the Territories, the people would be given the right to decide for themselves as to what system of education they would have. The late Dalton McCarthy in 1894, in the Federal Parliament intro- duced a resolution, conferring upon the Assembly of the North- west Territories the power to establish whatever system of schools they deemed in the best interests of the Territories, and also to abolish the dual language. Hon. David Mills, — I am not certain whether or not he was at a later date a Judge of the Supreme Court of Canada — (interruption — he was) — at all events recognized as a great constitutional lawyer, took the stand that when autonomy was granted to the Northwest Territories when new provinces were erected, the people should be given the right, under the constitution, to establish whatever system of schools they preferred. Sir John Thomson, then Chief Justice of Canada, took the same stand. Hon. Sir L. Davies who is now a Judge of the Supreme Court of Canada took similar ground. But in 1905 legislation was enacted, establishing two new provinces in the Territories, and because a system of Separate Schools existed in the Territories, estab- lished by virtue of a Federal Statute passed by a Parliament in which we had no representation, that system was made perpetual. Sub-section 1 of section 93 of the British North America Act provides that, "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." The Government interpreted this to mean that the system of schools which then existed in the Territories had to be per- petuated. Now I grant, and we all grant that if the province had been a sovereign-entity and if Separate Schools had been established by the sovereign will of the people inhabiting the Territories, as the British North America Act is meant to apply automatically to new provinces coming into the Union as well as those originally forming Confederation in 1867, I am free to admit that Separate Schools would be fastened upon the province for all time to come, but we were not a sovereign- entity at the time we came into the Union, and never had the right to decide for ourselves what our education should be. The Territories were given a limited power only by the Federal Parliament, and we had not the right to establish one national system of education, but, had to abide by conditions imposed in 1875 by the Federal Parliament. So long as we were in a territorial position, we were willing to submit to these conditions, 127 but as soon as we were created a province, we should have been given the same rights as other provinces to decide for ourselves what system of education we should have. It never was intended, in our opinion, by the framers of the British North America Act or by the Fathers of Confederation, or by the Imperial Parliament which passed the British North America Act, that because a system of education was established in the Territories by a delegated authority from the Parliament of Canada, in which the 500 inhabitants of the Territories had no voice, that that system should be forced upon us for ever, and that our rights as a province should be shackled and our Provincial Constitution be circumscribed as it was by the autonomy legislation of 1905. Clause 93 of the British North America Act referred to two of the provinces that came into the Federation in 1867, namely Ontario and Quebec, because they were the only provinces that had separate or minority schools. Separate Schools in these provinces were established by their own independent legislatures before the Union. Clause 93 only perpetuated rights established by the people themselves. But the people of the Territories never acted, because they had no authority to do so, and th.e minute we became a province we should have been given full authority to deal with the matter as seemed to us best. The question of the abolition of Separate Schools is a big one, and we do not ask the Government to bring that about im- mediately, we know it cannot be done in six months or in a year, but we think that at the first opportunity it should be referred to the people, and if the Government will make that a plank in their platform at the next general election we will guarantee that so far as we are concerned (although we are composed of both Liberals and Conservatives), we are united on this question and will support the party which does as we ask. I come in contact with people in all parts of the province, and I know that there is a tremendous feeling prevalent that one national system is the best for us. As a people we say the province has the right to abolish Separate Schools. We have the opinion of three eminent lawyers to the effect that the province has that right. Mr. Scott. — Would you let us have the opinion? It is in writing? Mr. Armstrong. — Yes, it is in writing and I have no personal objection and think the committee may favorably consider your request. Mr. Scott. — You see the immediate significance of a public statement that three eminent lawyers have given it as their opinion that the Province of Saskatchewan has the right legally and constitutionally to establish and maintain a national system of schools, that is to say, to abolish the Separate School system which exists — you see the significance of the statement. Mr. Armstrong. — Yes. 128 Mr. Scott. — I think the public should have the names of the lawyers and their opinion and the line of reasoning by which they arrive at that conclusion. Mr. Armstrong. — We have not discussed it in committee but I will take it up with them. Personally I would be willing to let you have a copy of the opinion. We think that when the war is over we will have a large foreign immigration to our shores and either we will have to lift these foreigners up to our level or they will drag us down to ^their level, and this is the time in our opinion to consider estab- lishing one system of national non-sectarian schools. We are willing to leave the decision to the people, and we agree that we will support any party. Liberal or Conservative, which makes this question a plank in their platform. Mr. Scott. — Before you deal with that I should like you to indicate more clearly the course which the provincial legislature should follow in doing what you suggest. Mr. Armstrong. — Well, I would suggest that either at the next provincial election the Government should make that a plank in their platform or — Mr. Scott (interrupting). — What should the plank say? Mr. Armstrong. — The abolition of Separate Schools. Mr. Scott. — That is a very indefinite expression. The real point is this, can the legislature do it without any precedent action? Mr. Armstrong. — We have the precedent in Manitoba. Mr. Scott. — I mean preparatory action. The three eminent lawyers have given their opinion that the legislature can abolish Separate Schools and establish National Schools and have it sustained in the Courts. Your suggestion is that the Govern- ment and the political party which supports the Government should go before the people with the plank of National Schools without any preparatory action to ascertain our powers in the matter? Mr. Armstrong. — Yes, that is our suggestion. To put it in short form, the suggestion is that the Saskatchewan Act, so far as it relates to education, and deprives us of our educa- tional rights, is ultra vires of the British North America Act. We think those amendments to the Educational Act and the School Assessment Act passed during the session of 1913 should be repealed. We see no reason why that should not be done as soon as possible and before an election takes place. We think any law which makes dogma and not volition the determining factor as to whether the individual should support a Public or Separate School is a bad law and contrary to all principles of British law and freedom. So far as I know Sask- atchewan is the only province in Canada which has a statute of that kind in operation. We do not know of any other province which compels citizens, because of their religion, to support a certain system of schools. Mr. Scott. — Certainly Alberta does. 129 Mr. Armstrong. — That is just with reference to the School Assessment Act. Mr. Scott. — It is clear enough, that is to say Roman Catholic or Protestant stock holders in companies belonging to the faith of the minority are required in Alberta to pay their taxes to the minority school. Mr. Armstrong. — I have not gone into that matter but have noticed a statement by the Minister of Education of Alberta that the Attorney-General of that province has given it as his opinion that citizens are free to support any school they like. Mr. Scott. — Speaking of the School Act, yes; but their Assess- ment Act unquestionably and beyond any dispute requires the taxes of company shareholders in districts where there is a minority school to be paid according to the shareholder's religious faith, that is, if it is a Protestant minority school all the taxes of Protestant shareholders in taxable companies are to go to the minority school. The Alberta law specifically requires this. It is a matter of fact, not one of opinion at all. Mr. Armstrong. — I was under the impression and was led to believe that there was such a law as regards companies, but as regards individual citizens they are given the liberty I think in the Province of Alberta to choose their own school. Mr. Scott. — I may say that I don't think so. We have received an expression of opinion froni the Minister of Educa- tion in Alberta and he purports to give the Attorney-General's opinion on the subject. What does that bind? Mr. Armstrong. — I made the assertion that it was so far as I knew. Mr. Scott. — So far as I know the situation in Alberta is just the same as it is here in relation to the School Act and it has always been the same. Mr. Armstrong — The law is not quite the same. They have passed no amendment to the School Act having the same object in view as the Saskatchewan amendments. Mr. Scott. — They have not been required to so far as I know, that is, no confusion arose between judgments of Assessment Revision Courts which has happened unfortunately in Sask- atchewan. Mr. Armstrong. — Granting, for the sake of argument, that what you say is correct. It is immaterial to us whether or not Alberta has a law on the statute books to that effect. Mr. Scott — You will understand again thoygh the significance on the minds of the people of a statement such as yours to the effect that "there is no province other than Saskatchewan," when there is the adjoining province of Alberta which does require it and passed the law two years before we did with regard to companies. Mr. Armstrong. — The law as it afi"ects citizens, individuals, has not been altered — you agree with that Mr. Premier? 130 Mr. Scott. — Yes, but I should not let you go on without saying that the law here has not been altered. Mr. Armstrong. — There is a difference of opinion there. Mr. Scott. — Speaking officially as Minister of Education, advised by the officials of the Department including the Super- intendent, also speaking as head of the Government, and making a statement of that kind, well to say the least, I submit that my statement is worthy of some attention. Mr. Armstrong. — Yes, but because the Province of Alberta has a law to that effect surely that is no reason why we should place ourselves in such unfavorable light before the world that by reason of his faith a man is bound to support a Separate School which he does not believe rn. I know there are English speaking Roman Catholics very much opposed to our dual system of schools and a compulsory law of that kind. We could have had a delegation of English speaking Roman Catholics come here with us to-day and present the same views as we are advocating now, but as it was arranged for this meeting to be for the Orange Association and as we are representing exclusively the Orange Association we didn't think it wise to act in conjunction with anybody else. We think then that these amendments should be repealed. We think further that the French language should be put on the same basis as any other foreign language in this province so far as its teaching in our schools is concerned. There is a prevalent idea I know that the French language has a standing in the province which no other foreign language has. We fail to discover anything in the constitution to that effect. If there is I should like to know it. Any superior standing it has must have been conferred by the legislature of the province. Then we say there should be a compulsory education law enacted. Of course we have one now but it is a dead letter. We don't want any drastic measures. We find children -are being brought up in this province who are receiving no education whatever — kept on farms and other places working, and are not receiving that education to fit them for the battle of life and then for future citizenship in this province, and something should be done to remedy this state of affairs. We think, also, that what is known as the Educational Council should be abolished altogether. We see no reason for its existence. If an Educational Council is absolutely neces- sary, however, then we think it should be free from all religious tests. We see no reason why two members out of five should be Roman Catholics. We think that is altogether out of pro- portion to the Roman Catholic population of the province. It is a bad policy to build up our institutions on a sectarian basis. But only 183^% of the population of the province is Roman Catholic; they are not even entitled to one member out of the five composing the Council. We say abolish it altogether, but if that is not expedient, then abolish all religious tests. A man's religious views surely cannot qualify him for this or any other position in the state. 131 Now I think that covers everything that we ask. Mr. Dawson. — (Reminded Mr. Armstrong of another matter with the remark "English in schools"). Mr. Armstrong. — Yes, I was nearly forgetting. We think English only should be taught in our schools and that it is in the best interests of this province to have every child on leaving school able to read, write and speak English. Mr. Calder. — There is no difference of view about that. Excuse me just a moment — (addressing Mr. Armstrong) do you go so far as to advocate that the provision in the law allow- ing a foreign language to be taught for half an hour should be taken out, or simply conduct the school in English up to when that half hour begins. Mr. Armstrong. — We contend that no foreign language should be taught in our primary schools at any time. We think something should be done also in regard to Private Schools. I don't know, we have not gone into the situation, but surely the Government of the province has some authority to compel these people to employ duly qualified teachers and to teach the English language in Private Schools. Compel them to get organized into school districts in order that children in the foreign settlements may have the same advantage as others with regard to a knowledge of the English language. It is estimated that there are 1,500 children attending schools in the province who never hear a word of English. Some take the stand that as we have invited these people here, and in some cases paid $5.00 a head to get them here, we would be doing them an injury by depriving them of the use of their own language.. We take the stand, however, that although we invited them to come, and we are glad to have them, we want to make good Canadian citizens of them. We are not dealing wih these people in a fair way if we do not see to it that they get an education in the English language. We did not ask them to come here to remain Germans, Austrians, Galicians, and so on, but to be Canadian, and get accustomed to our free institutions, learn our language, and become good British subjects. Doctor Black, speaking at a convention in this City last September mentioned that he met a young fellow, a Mennonite, I think, who said he was only a child when he came to the West and his parents didn't see the necessity of his learning English. "They were ignorant people and I cannot blame them" said he, "but I must blame the Government for not seeing to it that I received a knowledge of English, because I am handicapped as long as I live because of my imperfect knowledge of it." That is the way I think we should look at the matter. W^ithout taking up any more of your time, Mr. Premier, as I realize you are busy and have other matters of great import- ance to attend to, we believe these matters are very, very, important. We are not interested in the advancement of one political party more than another. We hold ourselves aloof 182 from both parties, but we are united on one thing, viz., the establishment of a purely national school system. We have succeeded in turning Governments out of office because they tampered with the national system of education existing in certain provinces. Mr. Scott. — Just on that point, as a matter of interest, not to argue the matter, would you mention the Governments you refer to? Mr. Armstrong. — I have no objection at all but as I have said I don't want what I say to be misconstrued into anything of a partisan character. The late Robin Government passed what is known as the Coldwell Amendments and after we had endeavored in vain to get them repealed the members of the Orange Association almost unanimously voted against that Government and their majority was reduced to such an extent that they resigned almost immediately afterwards. Mr. Scott. — I am not advancing this either by way of con- tention because there is a great deal of truth in what you say, but there was another tremendous consideration in Manitoba apart altogether from the educational question. Mr. Armstrong. — Yes, I am quite willing to concede that, but Mr. Roblin made the statement on the night of the election that he attributed his defeat to the Orange Association. Mr. Scott, — To that he attributed his narrow majority? Mr. Armstrong. — Yes. ' Mr. Scott. — Any other Government? Mr. Armstrong. — Tupper. Mr. Scott. — I would remind you that Tupper carried Manitoba and Ontario but was defeated by Quebec. Mr. Armstrong. — I would like to have that in black and white. I do not now dispute your word, but there is evidently a misunderstanding. The late Hon. N. Clark Wallace, Grand Master of the Orange Association then held the position of Comptroller of Customs in the Government of Sir Mackenzie Bowell, but resigned his office rather than sacrifice his principles on the educational question when the Govenment attempted to bring about the restoration of Separate Schools in Manitoba and he appealed to the Orangemen to do what they could to defeat the Government. He worked himself to defeat it, and it was defeated. Mr. Scott. — •! may be wrong. There was to the best of my recollection a very narrow majority in Ontario and a distinct majority in Manitoba for Tupper. If the result had depended upon the Protestant provinces of Manitoba and Ontario Tupper's policy would have been endorsed. It was Catholic Quebec that ; defeated the coercion policy. Mr. Armstrong. — I will look further into it. I cannot give the exact figures at present but do know that the Orange Associa- tion took a strong stand against the Governments of that day and we claim it was through their work that the Government was defeated. 133 We have always stood for this principle, the one school system. We don't care what party promises to bring about the adoption of that principle, we are prepared to support them. A non-sectarian Public School is what we advocate. Mr. Scott. — We have that in this province already. All our schools are non-sectarian schools with the privilege enjoyed of closing the school at 3.30, after which religion may be taught. That is a privilege which applies equally to Protestants as well as Roman Catholics, equally in Public as in Separate Schools. Mr. Armstrong. — Granting you that, but if you divide children because of their faith and .educate them in hostile camps, there are bound to be misunderstandings and suspicions between them as citizens in future years. The only way to make the people united and build up a homogeneous nation is to educate them altogether. W^e hear it said to-day by political leaders, that after the war is over, after the Irish Roman Catholics and Protestants have fought side by side on the battlefields of Europe, the questions which have divided them in the past will no longer exist. I grant there may be something in that but how much more strongly will that apply to children brought up and educated altogether at the same school? Mr. Scott. — This might be a fair question — If you were a resident of Belfast now, would you advocate laws and principles which you are advocating here this morning? Mr. Armstrong. — Yes. Mr. Scott. — You would find yourself in opposition to the Presbyterian Church there. They have demanded guarantees just in the same way as did the Quebec Protestant minority before 1867, and as a matter of fact when the guarantees were offered by Redmond these were refused and Belfast threatened rebellion before accepting Home Rule, because Home Rule meant a Catholic majority controlling the Government. Mr. Armstrong. — Conditions are altogether different there and it is hardly an analogy with the Province of Saskatchewan. Mr. Scott. — Anyway the stand of the Irish Protestant is •enlightening even if the conditions there and here are not identical. Mr. Armstrong. — The children of all nationalities should be educated together. Mr. Scott. — The minority in the North of Ireland would not agree to it. If left to be governed by the Catholic majority in Ireland they demanded a separate system. I Mr. Armstrong. — In the United States there is only one system. Mr. Scott. — That brings up a question I was going to ask you. How do you propose to safeguard against the dangers of the situation existing in the United States of America? The State there has lost control of an increasing number of children owing to the rigidity of their national school system. Rather more than one and a half million children, more Protestants 134 than Catholics, ^ are educated in parochial schools in which, so far as I know, there is no Government control. These Protestants are mainly Lutherans. How do you propose to safeguard against that here under the system you propose? Mr. Armstrong. — Is there no way of dealing with the inspec- tion of Private Schools, qualifying of teachers and so on? Mr. Scott. — Our law already provides for this, that it leaves the parent punishable if he does not abide by the truancy feature of the law and send his children to the Public School unless his child is receiving an efficient education at home or elsewhere. I may say to you (to give an inkling of the fact that it is not a simple question), in one instance the parent of Mennonite children was taken before Court three times, con- victed, and fined under our law, but it did not change his ways. We might take all the Mennonites (speaking generally) to Court and convict them day after day but it would not change their conduct at all. Would you proceed further and put them in jail? That would not change their conduct. They have religious convictions about the matter. Further than that they will come to the legislature and submit a document which was given to them by the Government of Canada guaranteeing full liberty should they come to Canada, both in matters of religion and education. That certainly complicates the situa- tion as regards Mennonites, and the Mennonite problem in regard to parochial schools is the only serious problem. We have some parochial schools in Roman Catholic districts, but I have reason to believe that the English taught in all Roman Catholic private schools is efficient. At Muenster where most of these schools are, English is as well taught as in the Public Schools. The children going to these schools are children of American-German parentage. The parents speak English very well and their children are taught it. There is no serious problem with them. More serious is the Lutheran condition, as with them they don't run the school regularly the year round. The school starts say this month and runs for several weeks, and it disorganizes and dismantles the Public School by taking away its children but not permanently. Public School Boards in a few cases have found the Lutheran School troublesome on this account. Our law is substantially the same as Alberta's in the matter of truancy, but they have gone further in administration, and in that direction I think we may wisely follow Alberta's lead. I cannot speak so con- fidently with regard to the Lutheran Schools as of the Roman Catholic Parochial Schools. The Mennonite problem is one of exceeding great difficulty on account of the facts stated. Mr. Calder. — The Province of Alberta has within recent years passed a separate Truancy Act and the new Act provides administration machinery which we have not. This is a matter for us to consider. It provides means by which they can secure better administration and I think while we are dealing 1. For an authoritative statement of the parochial school situation in the United States, see Appendix V. 135 with the general question of education the law may be amended and we will then try to secure better attendance at schools. Mr. Armstrong. — Glad to hear that. I have endeavored to put the views of the Orange Association of the province before you in as frank a way as possible. We do not want to use any harsh measures, make threats, enter politics, but we are deeply interested in the question of educa- tion. Holding the views we do we say it is more important than many other questions which take up time. We think the national or Public School system ought to be considered, and is as much a Government institution as the Post Office. We believe all citizens should be compelled to support the Public School system. If they want Private Schools of their own let them do as in the tJnited States of America. They have the Public School system which must be supported and that is the system we are advocating. I thank you on behalf of the committee present and on behalf of the Orange Association for granting us the privilege of presenting to you our views. We do not ask that all these things be done at once, immediately, but we doask that gradu- ally the system of national schools should be established and the abolition of Separate Schools be brought about eventually. I thank you for listening to me. * 4e « Hon. Walter Scott — I am sure that I speak for my colleagues when I say that I appreciate very much the exceedingly clear and also moderate way in which you have made the representa- tions on behalf of the Orange Order. Quite a number of the things which you have contended I am in thorough agreement with. At present I am not disposed to enter into discussion about Separate Schools because I am so thoroughly convinced that the province has not the power to abolish the Separate School sys- tem. I will be interested in examining the legal opinions which you have, and something which you said later on, /indicates to me the line of the opinion which is this: that in 1905 the Canadian Parliament did not have full authority in granting our constitution, that is to say that their authority was limited by the scope of the British North America Act of 1867. I am not a lawyer, but I have listened to a good deal of legal discussion on the point and I am of the opinion that the contention has not a single leg to stand on. The contention is that the Canadian Parliament was bound to follow strictly the line of the British North America Act and did not have the right to make any variation. In 1870 Parliament granted the constitution of Manitoba and it did make variations and particularly made a variation on this very subject. Mr. Armstrong. — Pardon me. Was that Act not validated afterwards by the Imperial Parliament? Mr. Scott. — Yes, and the validating Act went further and gave full authority to the Canadian Parliament to do again in the case of any future new provinces what was done in the case of Manitoba. So I think the contention falls down im- 136 mediately. The Canadian Parliament in 1870 thought that possibly their power was limited and that they had exceeded it in the case of Manitoba, and to make quite certain went back to the Imperial Parliament to have their work validated. The Imperial Parliament therefore passed a Validating Act, which is referred to as the British North America Act 1871, isn't it? Besides declaring valid the Manitoba Act, this British North America Act 1871 goes on and gives the Canadian Parliament complete and absolute power to legislate for future new provinces. To illustrate. Parliament in 1905 had legal power to fix it that all Saskatchewan schools forever should be con- trolled by Ottawa. No doubt at all about it. There is no limitation now upon the power of Parliament in making a constitution for new provinces. Don't you think your con- tention falls down? Mr. Armstrong. — I don't see it that way. Mr. Scott. — Let me grant for the moment that the contention is good, it does not help the case. (Here Mr. Scott cited section 93 of the British North America Act.) He said — "If section 17 of the Saskatchewan Act is found invalid owing to Parliament possessing no power to pass it, then certainly section 93 British North America Act takes its place. What then? Would Saskatchewan have a free hand as regards Separate Schools? I think not. I think section 93 would turn out to impose the sectarian school, the clerically-controlled school, that we did have in accordance with the 1875 Northwest Territories Act from 1884 to 1891. It is indisputable that under that 1875 Act Roman Catholics here did enjoy the right to separate, to set up the Separate School and also to control it. The 1875 Act would be necessarily and certainly held to be superior to the Haultain School Ordinances, and it would be the minority rights and privileges as defined in the 1875 Northwest Territories Act instead of the Haultain School Ordinances which section 93 would fix upon Saskatchewan. Mr. Armstrong. — We take the stand that it was in 1870, when the Territories were purchased, that the union took place, and not when the provinces were erected in territory already a part of Canada. Mr. Scott. — That argument is exceedingly doubtful. I think there is one chance in a thousand of its holding good. If it did not hold good, we should have thrown away the substance in grasping after the shadow, we should have lost our non- sectarian school and would have got instead a full-fledged clerically-controlled sectarian school, as Ontario has it. To risk what we have on this slim chance of getting absolute freedom looLs to me too much like taking a desperate gambler's chance, because if we lost on the chance we should lose the large measure of freedom which section 17 (Saskatchewan Act) gives us, that is, the power to absolutely control the conduct of the Separate School. If section 17 be abrogated and if then the effect of section 93 were being determined by the Privy Council, the Privy Council 137 in examining your contention that the minority under it pos- sessed only such rights as existed in 1870 (which were nil) would naturally look to see what the statesmen had had in their minds. The words "by law in the province at the union" might mean "by law in the uninhabited prairies in 1870 when the Northwest Territory and Rupert's Land were acquired by Canada" (when no law existed) — I say the words might be held to carry the meaning of your contention, but I think it is only a one in a thousand chance I think the 999 chances are that the words "by law in the province at the union" would be held to mean rather "by law in force in the area at its union as a province in the confederation of provinces" and when the Privy Council looked at the recorded minds of the statesmen they would find that Lord Carnarvon, mover of the British North America Bill at Westminster, in 1867, announced clearly and definitely that the curious Separate School policy in the Bill (section 93) was intended to apply upon future provinces as w^ll as upon the provinces then being united. Then the Privy Council would find nearly all the Canadian statesmen dealing in 1870 with Manitoba, a part of the same territory as Saskatchewan, declaring explicitly and emphatically that such Separate School rights as existed "in practice" as well as law, should be guaranteed, showing that it was not alone in the provinces that as free agents united in 1867 where section 93 was to apply. Then the Privy Council would find the same Canadian statesmen, the Fathers of Confederation who made the compact and thus knew what it was intended to mean, dealing in 1875 with another part of the new area, and passing the Northwest Territories Act. They would find Sir John Macdonald saying or voting that the new Territories must have Separate Schools, and that Alexander MacKenzie, Edward Blake, George Brown (the latter as strong an enemy of Separate Schools as ever lived) and others declaring and voting that in accordance with the Confederation agreement Separate Schools must be imposed in the new territory, and they would find that the Northwest Territories Act was passed in harmony with what all these statesmen said. Blake said that he voted then for Separate Schools because it was urgent that conditions should be plainly fixed at the outset so that immigrants would know what laws they should have to live under before they moved. The Privy Council would find that every single Canadian statesman in 1875, those voting against as well as those voting for Separate Schools in the Northwest Territories, believed that they were deciding the matter for all time, and that the Separate School rights created then in the Territories would continue under the Canadian Union scheme for all time to come. I am very clear in my mind that Saskatchewan is saved from the sectarian school by the fact that in 1891 or 1892 the people of the Territories by and through their Legislative Assembly made a new school law to their own liking and largely regardless of the Northwest Territories Act of 1875, by the fact that for fourteen years this system of Separate but non-sectarian Schools 138 operated satisfactorily, and by the fact that according to the views of the majority in Parliament in 1905 the spirit of the Confederation Act would be met by safeguarding only the rights and privileges in this non-sectarian system, because for fourteen years this system had been the onjy separate system existing in fact and practice in the area. Your contention is too slim to be risked. I think it would be in the last degree unwise, if not positively criminal, to risk losing the very good thing we enjoy for that extremely narrow and unlikely chance of full freedom, with the chances 999 to one that we should instead lose our freedom and have to submit to sectarian schools. I think Parliament had complete authority in 1905. If I am wrong it would be unfortunate for our freedom, because if I am wrong then section 93 is our education constitution, and there is no question in my mind but section 93 would impose sectarian schools. I am convinced that the Saskatchewan Legislature has no power to abolish the Separate School system which we have, and until that conviction is changed you will agree that it is useless for me to enter on a discussion of the Separate School itself. I have colleagues who perhaps agree with you about national schools and that it would be far better that no separation should exist, and I do not say that I disagree, but this is not 'the point. You agree with this, if we are bound and cannot do away with the Separate School system except by consent of the Imperial Parliament, it is usefess for you and me to discuss it. Mr. Armstrong. — Why not take steps to find that out? Mr. Scott. — How would you find it out? / Mr. Armstrong. — Refer it to the Courts. Mr. Scott — In 1906 we did all that we could as a province towards steps to have a case stated and how far did we get? Show me the method of going to the Privy Council, and, whilst not speaking for the Governmenjr, I will seriously consider it if you will indicate the method. You recollect the decision of our House in 1906 on the resolution of Mr. Sutherland of Saskatoon. Mr. Calder. — The matter came up in the House on several occasions. Back in the 1905 elections the chief argument was that we should contest the case and have it taken to the Privy Council. Now as you can understand during the sessions that followed that was the main point which arose out of the election. We were repeatedly asked in the House — "How are you going to get this case to the Privy Council?" So far as my recollection goes no practical method has ever been suggested how it can be done. Mr. Scott. — 'We cannot send a stated case beyond our own Courts. In reality it is almost impossible to get our own Court, notwithstanding the law, to decide a stated case. The Courts do not like abstract questions; they have said so repeat- 139 ediy. We tried it in the Saskatchewan and Western Land Co. case, but did not get a decision. Mr. Calder. — We have a statute to enable us to submit to our Supreme Court any question of interpretation of the law - but we cannot go beyond that. We have no power to require the Supreme Court of Canada or the Privy Council to consider any question as to the interpretation of the law. Mr. Armstrong. — Did not the Privy Council in the case of Barrett v. City of Winnipeg decide that the minority in the Province of Manitoba had no right to Separate Schools either by law or practice? Mr. Scott. — That decision in effect was that there were no Separate School rights either by law or in practice ' when Manitoba was made a province. That is as I view it — until it is established that the hands of this province are free to abolish Separate Schools, it is useless for us to discuss their abolition. But there are matters which you have presented, say the Truancy Law, that will be considered and I think it may well be dealt with in the general educational enquiry now under way. The present law can be strengthened, I think; at all events, our administrative methods and machinery can be strengthened so as to procure better attendance in our schools. On the language question there is not very much difference between us. Our law already practically requires English to be exclusively taught until 3.00 p.m., leaving a one * hour permission for other languages. I am not prepared to say that the Government would be willing to do away with that privilege It has stood for a long time, it existed in the old order of things, and the question will require some consideration. I put in one sentence yesterday in speaking in the debate on the address, a point which I intended our people to look at by referring to the situation in South Africa. I mentioned the wonderful things done by the people fighting for us there who until a few years ago were fighting against us. If the British authorities had hewed to the line in South Africa as some want to do here in dealing with the non-English, do you think for a minute that the situation would have been such that Botha could have done what he has done in this terrible crisis ? I think it shows the advantage of not always hewing to the line but of dealing generously. With regard to parochial schools that is a serious matter for consideration and already has had some discussion. My mind is open with regard to it. At present, I merely say this, that while inspection of parochial schools of an indirect character exists in other provinces (in Alberta only of an indirect character under the Truancy Act and simply to ascertain whether the child who is not in the Public School is receiving efficient edu- cation) I do not think there is any constitutional limitation on us with regard to parochial schools. We have power to prohibit all parochial schools and have nothing but Public and Separate Schools. It is a matter of policy whether it should be done. 1. This statement of the case is misleading. 140 We have the right to say to the Presbyterian or Methodist Colleges "close up." Should we adopt such a policy? My daughter at the present time is going to a school in Montreal. What would you think of a law which said to me, "Bring your daughter back and place her in the State school here." The State may say to me, "you have no right to send her to Montreal;" we have a university in Saskatoon, where of course a different class of instruction is given from that given in Montreal where she is. You see the point. The State may in its policy go too far and we should, I think, be guided by what other countries have found it advisable to do. If there is any country which believes in the single system of national schools it is the United States of America. Why have they not closed parochial schools? Their system is based on democratic principles — the principle that my interest depends upon my neighbour being educated, trained, etc., so that he can vote intelligently on the questions of Government under which I live, and in the United States of America they say, therefore, that the State should control the education of every child. And what is the outcome of their rigid non-sectarian system? Does it achieve the object? No, you know that some one and a half million children do not go to the State school at all. The Lutherans teach education and religion as they choose in parochial schools. So do Roman Catholics in the United States of America. These are things we have to give consideration to. It is a matter for very careful consideration. In reality except with regard to the Mennonites it is a question that has not been forced upon my attention or upon the attention of the Department of Educa- tion until very recently. The Mennonite question, like the Doukhobor question, has received the attention of the Department for a number of years, and we have been trying to find some persuasive method by which to get the Mennonites to see things differently and come under the Public School system. I doubt if the Mennonite problem will be best settled by any application of coercive methods. Mr. Calder. — Just one moment if I may be allowed to inter- vene, there is only one sect among the Mennonites opposed to the Public School; the great majority are in favor. The minority you can punish as you like and they will stand pat, so you can see the difficulties of the problem. So far as the Doukhobors are concerned, there was only the one class under the control of Peter Veregin who opposed the Public Schools, and a large number of his followers have gone to British Columbia. The officials there are having the same problems which arise from purely religious convictions and the difficulty is to know how to deal with them. There are though only two religious sects who stand out very strongly against the Public Schools. Mr. McNah (addressing Mr. Armstrong). — You know the districts where the Mennonites are — between Warman and Hague. Once you get past Hague they have Public Schools, and there are also some round Rosthern. 141 Mr. Scott. — I think I have said all that I wish to say now. These are matters which we are considering very earnestly and we are glad to have your representations which will doubtless be an aid to us in our consideration. The only question on which I cannot at present, at least in some measure, agree with you is the constitutional position of the province in relation to Separate Schools. It so happens that I have just completed another letter to Mr. MacKinnon and will read you the paragraphs bearing on this point. (Here Mr. Scott read various paragraphs of his letter to Mr. MacKinnon which was made public January 22nd). 142 APPENDIX III. Extracts from the ''Saskatoon Daily Star,'' May 8th and 11th, 1916. (1). SASKATCHEWAN SCHOOLS. The French Language. Before coming to a consideration of the use of the French language in the schools, it is necessary to consider in its more general aspect of the use of French as a privileged language in the debates of the Legislative Assembly, its use in the printing of the legislative journals, its employment in the Saskatchewan Gazette and its status before the Courts. To understand its use in Saskatchewan it is necessary to briefly refer to its position in the Dominion at large. The Quebec Act sought to satisfy the French in Canada by safeguarding to them the free use of their religion and the maintenance of their customs. It did not, as such,- make French an official language of Quebec. The Act of Union of 1840 definitely prescribed that the proceedings and reports of the Legislative Council and of the Legislative Assembly should be in the English language only. Translations might be made in French but no such documents were to be kept among the records or have the force of an original record. This provision, demanding the exclusive use of English was repealed in 1848 and the law which now governs the Dominion status of French is section 133 of the Confedera- tion Act of 1867. This provides for the use of both the English and French languages in the Houses of Parliament of Canada, in the Legislature of Quebec, the Courts of Quebec and in any Court of Canada. Turning to the situation in Western Canada we see that the Manitoba Act of 1870 provided for the use of both English and French as official languages in Manitoba and this continued to be the case from 1870 until 1890 when the French language was abandoned in the proceedings of the Manitoba Legislature and an Act was placed on the statute book of Manitoba, which still stands, in which English is definitely named as the official lan- guage of the province. Turning to the Northwest Territories, the charter of the province is really the Act of 1875. This Act made no reference whatever to the languages to be used. The Dominion Par- liament, however, took up the question and in 1880 introduced certain legislation which set forth the following: — "Either the English or the French language may be used by any person in the debates of the Council or Legislative Assembly of the Northwest Territories and the proceedings before the Courts; and both these languages shall be used in the records and journals of the said Council or Assembly; and all 143 ordinances made under this Act shall be printed in both these languages." In 1890 the Canadian House of Commons declared it expedient and proper that the Legislative Assembly of the Northwest Territories should have, after the next general election of the Assembly, the right to decide for itself the question of the continued use of French, and in 1891 the Dominion Parliament enacted the following legislation: — "Either the English or* the French language may be used by any person in the debates of the Legislative Assembly of the Territories and in the proceedings before the Courts and both these languages shall be used in the records and journals of such Assembly, and all ordinances made under this act shall be printed in both those languages; provided, however, that after the next general election of the Legislative Assembly, such Assembly may by ordinance or otherwise regulate its proceedings and the manner of recording and publishing the same; and the regulations as made shall be embodied in a proclamation which shall be forthwith made and published by the Lieutenant- Governor in conformity with the law and thereafter shall have full force and effect." What occurred then in the Territories? Ever since December 8th, 1883, the Northwest Territories had been published in French as well as in English and the Gazette continued to be so published until August 15th, 1895. On January 19th, 1892, Sir Frederick (at that time Mr.) Haultain took up the question of the publication of the journals of the House and in the records of the first session of the second Legislative Assembly, it is recorded in the journal (Northwest Territories 1891-2, p. 110). "Moved by Mr. Haultain, seconded by Mr. Tweed: — . "That it is desirable that the proceedings of the Legislative Assembly shall be recorded and published hereafter in the English language only. "And the question being proposed it was moved in amendment by Mr. Prince, seconded by Mr. Mitchell: — "That whereas in the election districts of North Qu'Appelle, South Qu'Appelle, Moose Jaw, Red Deer, Edmonton, St. Albert, Battleford, Prince Albert, Cumberland, Mitchell and Batoche there is a large population of French-speaking Cana- dians, "And whereas the French language has been recognized as an official language in the Northwest Territories in considera- tion of the services rendered to this country by the first Cana- dian voyageurs and missionaries who evangelized, civilized and settled there at the cost of many lives, "And whereas the French speaking population is increasing every day and in the interests of the cause of immigration in the Northwest Territories no act should be done tending to make it appear that the people of the Northwest Territories are lacking in justice, liberality or political tact in regard to the national interest of every Canadian; 144 "Therefore, be it resolved that it is not in the public interests that any change be made in the system of public printing in the Northwest Territories as far as the use of the French language as an official language is concerned." No journals can be found in any department of the legislature or in the Provincial Library, that were ever published in French but it may have been the case that they were translated and perhaps sent to Quebec for printing. In any case neither the Gazette nor the journals are now published in that language and French has no official status in debates in the legislature, or for the Gazette, or for the journals or in any Provincial Court that is not accorded to any other non-English language. English is, as a matter of fact, the official language of the province although there does not exist as in the case of Manitoba a precise statute so defining it and there is no ground in the historial past or in the present condition of the province for making any other language than English the official language of the province. (2). Turning now to the status of French in schools the legal aspect of the question is indicated in the following edu- cational clauses: — In the Ordinances of the Northwest Territories of 1887, section 83 reads: — "All schools shall be taught and instruction given in the following branches, viz: reading, writing, orthography, arith- metic, geography, grammar, history of England and Canada, English literature; and such other studies as may be deemed necessary, may be authorized by the trustees of the district. Instruction shall be given during the entire school course in manners and morals and the laws of health and attention shall be given to such physical exercises for the* pupils as may be conducive to health and vigor of body as well as mind and to the ventilation and temperature of school rooms." In the Ordinance of 1888 two small but by no means un- important changes were made to the above quoted provision. Section 82 of the Ordinances, Northwest Territories, 1888, omits the words "and such other studies as may be deemed necessary may be authorized by the trustees of the district." In ad- dition to this the following sub-section is added: — "It shall be incumbent on the trustees of all schools, organ- ized under this Ordinance, to cause a primary course of English to be taught." The next change takes place in the Ordinances of 1892, when section 83 reads as follows: — "All schools shall be taught in the English language and instruction may be given in the following branches, viz: reading, writing, orthography, arithmetic, geography, grammar, history of Britain and Canada, French and English literature in accord- ance with the program of studies prescribed by the Council of Public Instruction. Due attention shall be given during the 145 entire school course to manners and morals, and the laws of health and to such physical exercises as may be conducive to health and vigor of body as well as of mind and to the ventilation and temperature of school rooms. "It shall be permissible for the trustees of any school to cause a primary course to be taught in the French language." In the Ordinances of 1896, section 106 reads as follows: — "All schools shall be taught in the English language but it shall be permissible for the trustees of any school to cause a primary course to be taught in the French language." It will be seen from the above extracts from the Ordinances that when the educational system of the Territories was estab- lished, considerable latitude was allowed the trustees of a district in shaping the course of study, but that in the first Ordinances English literature was made a compulsory subject for all. In 1888, it was made compulsory that in all schools there should be taught a primary course in the English language. That is to say that the teaching of English was compulsory in the primary courses. In the year 1892, at the conclusion of the famous struggle for Home Rule or equal rights, a re-organization of the educa- tional department took place. A Superintendent of Education was appointed and the uniform inspection of schools was instituted. The language question takes on a new form. All schools must be taught in the English language, but instruction may be given in a number of branches in which are included English and French literatures, and to these is added a section which has since become stereotyped, namely: — "It shall be permissible for the trustees of any school to cause a primary course to be taught in the French language." As Dr. Oliver indicated in his paper on "The Public Schools in the non-English Speaking Communities," the Ordinances of 1892 and 1901 together with the regulations of the Department of Education have been the determining factors in the situation. The relative sections of the Ordinance of 1901 are as follows: — (1). "All schools shall be taught in the English language, but it shall be permissible for the board of any district to cause a primary grade to be taught in the French language. (2). "The board of any district may subject to the regulations of the Department employ one or more competent persons to give instruction in any language other than English in the school of the district to all pupils whose parents or guardians have signified a willingness that they should receive the same, but such course of instruction shall not supersede or in any way interfere with the instruction by the teacher in charge of the school as required by the regulations of the Department and this Ordinance. (37). "The board shall have power to raise such sums of money as may be necessary to pay the salaries of such instruc- tors, and all costs, charges and expenses of such course of in- 146 struction shall be collected by the board by a special rate to be imposed upon the parents or guardians of such pupils as take advantage of the same." I understand that the Attorney- General's department has ruled that the instruction in French provided for by this Ordinance is not subject to the regulations of the Department of Education. The status of French in our Public Schools may be summed up as follows: — (1). "There is no historical past for French in Saskatchewan, and there were no educational rights of the French to conserve in 1870. (2). "In 1888 it was made compulsory to teach a primary course in English in the schools. (3). "Not until 1892 did the question of French teaching arise and then it is provided that 'all schools shall be taught in the English language' . . . but it is permissible to allow a primary course to be taught in French. (4). "That the French language occupies a privileged position as compared with other non-English languages is entirely due to legislative enactment both of the Territories and of the province, and that its continuance in this position remains entirely with the Legislative Assembly. (5). "The Saskatchewan Act of 1905 placed no restriction on the competence of the Legislature in dealing with the language question." 147 APPENDIX IV. Vondo, Sask., Sept. 15th, 1911. The Town of Vonda Appeal from Court of Revision. "The grounds taken in this appeal are very broad indeed, they are to the effect that the various parties assessed being by religion Roman Catholics must of necessity be supporters of the Separate School. "Mr. Mundie for the appellant admitted that there was no direct legislation on the point, but he relied on section 279 of the Town Act which is as follows: — " 'If any person named in the said Roll thinks that he or any other person has been assessed too low or too high, or that his name or the name of any other person has been wrongly inserted in, or omitted from the Roll or that any person who should be assessed as a Public School supporter has been assessed as a Separate School supporter or vice versa, he may within the time limited, etc. . . .' "I cannot bring my mind to the conclusion that this section has any such result. It gives a right of appeal, and one of the grounds that may be taken is that set forth in the latter part of the section, but by section 293, sub-section (4) 'the assessor shall accept the statement of any ratepayer, or a statement made on behalf of any ratepayer by his written authority that he is a supporter of Public Schools or Separate Schools as the case may be, and such statement shall be prima facie evidence for entering opposite the name of such person, the letters PSS or SSS, etc. . . .' "Now this section appears to me to contemplate that the option of supporting either school rests with the ratepayer, and the latter part of the section I first quoted appears to me to have reference to the latter portion of the section, that is if no statement has been made by the ratepayer and the assessor assesses him to the Separate School, he may make the provisions of section 279 to show that he is a supporter of the Public Schools or vice versa. "It would have been the easiest thing in the world had the legislature intended it to make a provision that Roman Catholics should be assessed to the Separate Schools and Protestants to the Public Schools or vice versa. It could have been expressed in a few words and I think were I to give effect to the appellant's contention I should be simply legislating, and legislating in a most drastic manner; I can conceive numberless reasons why the ratepayer should be entitled to choose the support of his school quite independently of ~ iy religious connection, distance, teaching and so on. ]48 "The use of the word 'Supporter' in the section confirms me in my opinion . . . the appeal will be dismissed with costs." 14th Sept., 1911, (Judge McLorg.) Moosomin, Jan. 25th, 1913. A. H. Ball Esq., Deputy Minister of Education, Regina. Dear Sir:— In reply to your telephone enquiry re my refusal to place a man on the assessment roll of the Roman Catholic Separate School District at Lemberg, I report the facts as follows: — "A year ago last summer a man named Farley, who had come up that year from his home near Brighton, Ont., appealed to me from the decision of the Court of Revision refusing his application to be designated a Separate School supporter instead of a Public School supporter as he had been, if I remember rightly, for some years prior to that date, although during the former period he had been a non-resident. Through some misunderstanding of the parties themselves, no counsel appeared for either of them and I went on without counsel. "The facts as given by Farley himself were that his mother was a Methodist, that his father did not belong to any church but if he went anywhere he went to the Methodist church. He said he believed, or his mother had told him, that he himself (Farley) had never been baptized and in Ontario be belonged to no church. After coming to Lemberg Farley got to know the parish priest very well, who had visited him while he was laid up with a broken arm. I think this priest's house was either on a part of Farley's farm or at any rate in very close proximity to Farley's dwelling place. Farley said he contributed to the support of the Catholic church and gave no support to any other church. He did not say how much this was. He was not prepared to swear that he was a Roman Catholic or that hi& parents were. Under these circumstances and facts I refused to have him changed from a Public School supporter to a Separate School supporter. My reasons for so holding were given at the time, (I gave no written judgment), and were based on my interpretation of sections 42 and 43 of the School Act and also sections 88 to 94 of the School Assessment Act and sub-section (4) of section 293 of the Municipal Act. Section 42 says that the petition for a Separate School district shall be signed by three resident ratepayers of the religious faith indicated in the name of the proposed district. Then> they must be Roman Catholics. Then section 43 fixes the qualifications of those qualified to vote for or against the Separate School to be ratepayers of the same religious faith, namely, there, Roman Catholics. I held that these words 'same religious 149 faith* meant bona fide members of the Roman Catholic church, i.e., members of that church by the usual method of confir- mation and performance of religious duties, or children of Roman Catholic parents, or as a former Protestant they had been properly received and adopted by the Roman Catholic church as a member of their church according to their rites which among other things, in Farley's case, would require baptism and an attendance on mass and confession. None of these things Farley had done, nor was he prepared to do them, and I held that he was not a bona fide member of the Roman Catholic church, would have had no right to petition or vote for a Separate School and therefore was not entitled to be placed on the list of Separate School supporters at that time. I told him that if he became a member (bona fide) of the Roman Catholic church I would place him on the Separate School list, but not till then. He appealed again last year but was no nearer being a Roman Catholic then than the year before. - "When this Lemberg case was being heard last, Mr. Farley was present and spoke to Hector McDonald about the matter. 'Well,' Hector said, 'did you go to confession and take com- munion last Easter?' Farley said, 'No.' 'Well,' he said, 'you are no Catholic' Farley's whole ground for the appeal was that he made occasional contributions to the Roman Catholic funds. If I had agreed to this qualification, every Protestant would have contributed a quarter (25c.) to the Roman Catholic funds and become a Separate School sup- porter to get out of the rather heavy Public School rates of that place." Yours truly, (Sgd.) A. Gray Farrell. 150 DECISION OF THE SUPREME COURT OF SASKAT- CHEWAN EN BANC IN THE BARTZ CASE. Judgment of Chief Justice. Following is the judgment (in part) of Chief Justice Sir Frederick Haultain in the Bartz case. The judgment of the Chief Justice is concurred in by Hon. Mr. Justice Brown, Hon. Mr. Justice Elwood and Hon. Mr. Justice McKay: — "The first question to be considered is whether the provisions of the several acts above cited leave it optional with a rate- payer of the same religious faith as the minority of ratepayers establishing a Separate School to support that school or not. "It was argued on behalf of the appellant that seoiion 39 of the School Act does not give a majority of the minority in any district the power to compel the minority to support a Separate School. The foundation of the right to separate, he says, is conscientious objection or religious scruple, and the individual conscience must be the final arbiter. "It was also argued that 'the ratepayer establishing such Separate School' mentioned in section 39 means the ratepayers voting for the erection of the Separate School district under section 41, and do not include the ratepayers voting against it. "We are fortunately not left to decide this point on the bare language of section 39. The various provisions of the City Act, the School Act and the School Assessment Act as amended by section 11 of chapter 25 of the Statutes of 1915, relating to assessment and taxation for school purposes, all, in my opinion, point conclusively to an intention of the legislature to establish majority rule within a minority, either Protestant or Roman Catholic, establishing a Separate School. Sections 41, 44 and 45 of the School Assessment Act, and sections 390, 394 and 409 (4) of the City Act all seem to me to impose an unqualified liability to taxation for Separate School purposes upon every ratepayer in the municipality who is of the same religious faith as the ratepayer who established such Separate School. Section 394 of the City Act gives a right to appeal to the Court of Revision to any ratepayer 'who thinks that any person who should be assessed as a Public School supporter has been assessed as a Separate School supporter or vice versa.' Section 409 (4) of the same Act provides that the assessor 'shall accept the statement of any ratepayer or a statement made on behalf of any ratepayer by his written authority that he is a supporter of Public Schools or of Separate Schools as the case may be, and such statement shall be sufficient prima facie evidence for entering opposite the name of such person on the assessment roll the letters PSS or SSS, as the case may be, and in the absence of any such statement the assessor shall make such entries in accordance with his belief.' 151 "Section 394 first appeared on our statute book in its present form in the City Act of 1908, the right of appeal with regard to assessment for school purposes being then given specifically for the first time. That statute also provided for the first time for a column in the assessment roll to indicate whether a ratepayer was a Public or Separate School supporter, and sub- section (4) of section 409 of the present (1915) City Act was first enacted as sub-section (4) of section 301 of the City Act of 1908. Whatever argument might have been founded on the school and municipal legislation prior to 1908, it seems to me to be quite clear that the legislation of that year, as re-enacted in 1915, and of 1915, made the support of a Separate School incumbent upon every ratepayer belonging to the minority on whose behalf the Separate School was established. "I, therefore, concur with the decision of the Local Govern- ment Board on this point. **The next point raised by the appellant is stated in his notice of appeal as follows: — " 'Further, and in the alternative, if, in the opinion of this honorable Court, the said judgment (i.e., the judgment of the Local Government Board) is a correct interpretation of such statutes, and such statutes are within the competence of the Saskatchewan Legislature under the provisions of 'The Sask- atchewan Act,' being 4-5, Edward VII., chapter 42, and par- ticularly section 17 thereof, then it is submitted that such last mentioned Act, insofar as it purports to give to the Legislature of the Province of Saskatchewan jurisdiction to enact legislation depriving any ratepayer whose lands are situated within a Public School district within which a Separate School has been established of the right to support- with his taxes such Public School regardless of what his religious faith may be, or, insofar as it purports to place it beyond the competence of the Sask- atchewan Legislature to enact laws requiring all ratepayers to be taxed for the support of the Public School, is beyond the competence of the Parliament of the Dominion of Canada under the provisions of the Imperial Statutes and Order-in- Council by which that portion of the Dominion of Canada, now comprising the Province of Saskatchewan, was admitted into and became a part of the Dominion of Canada on July ,15th, 1870; namely, the British North America Act, 1867, 30 Victoria, chapter 3, Rupert's Land Act, 1867, 31-32 Victoria, chapter 105, and the Imperial Order-in-Council passed in pursuance thereof, and dated the 23rd day of June, 1870, ad- mitting Rupert's Land and the Northwest Territory into the union; or under the provisions of the British North America Act, 1871.' "The question whether the statutes under consideration are within the competence of the Saskatchewan Legislature under section 17 of the Saskatchewan Act (45 Edward VII, chapter 42) was not argued. "Section 17 enacts that section 93 of the British North America Act, 1867, shall apply to the province with certain modifications. (Section 17 is here inserted). 152 "As the point was not pressed, it will be necessary for me to do little more than to express the opinion that nothing in any of the provincial statutes under consideration prejudicially affects any right or privilege with respect to Separate Schools which any class of persons had at the date of the passing of the Sask- atchewan Act, the 20th July, 1905, under the terms of the Ordinances mentioned therein. The School Ordinance, No. 29, of 1901, sections 41-45, is identical in language with sections 39, 40, 41, 42 and 44 of the School Act of 1915, with the exception that sub-section (2) of section 45 of the School Ordinance is taken out of the School Act and re-enacted in the School Assess- ment Act (section 45, sub-section (2) ). "The sources of the rights or privileges with respect to Separate Schools in Saskatchewan are the Ordinances above mentioned, and the class of persons to which such rights or privileges are reserved is the minority of the ratepayers, whether Protestant or Roman Catholic, within any Public School district. The right or privilege is to establisli a Separate School and to be liable only to taxation in respect thereof. The right to pay taxes to the Public School instead of to the Separate School is not a right or privilege reserved to the minority. Even if that right existed on the 20th July, 1905, the taking of it away by later provincial legislation is not an invasion of any of the rights or privileges reserved by the Saskatchewan Act. It might have been a right enjoyed at the time by individual members of the minority, but they are not a class of persons within the meaning of the Saskatchewan Act or section 93 of the British North America Act, 1867. (Board of Trustees of the Roman Catholic Separate Schools of the City of Ottawa v. Machell (1916) 33 L.T. 37.) "The further question raised under this branch of the case is that section 17 of the Saskatchewan Act is beyond the powers of the Parliament of Canada. "This raises an interesting question as to the power of Par- liament under the British North America Act, 1871, to establish a province with more restricted or different powers from those granted to a province under the original Act of 1867. As Mr. Justice Clement in the last edition of his work on the Canadian Constitution says, this is perhaps a debatable question so far as the restrictive clauses in the Alberta and Saskatchewan Acts are concerned. But, in my opinion, it is not necessary for us to consider this question, because if the appellant's contention is correct, he has no basis upon which to found any objection to the legislation now under review. "What right or privilege with regard to denominational schools did any class of persons have by law in the area included in this province on the 15th July, 1870? At that date there was no law or regulation or ordinance relating to education in force in the Northwest Territories. There were, therefore, no rights or privileges with respect to denominational schools existing by law at the union which could be prejudicially affected by subsequent provincial legislation. On this assumption 153 then, the province started out with an absolutely free hand with regard to education, and the legislation under review is clearly within its powers and cannot be attacked in the Courts under sub-section (1) of section 93. "This conclusion seems to be supported by the opinion expressed by the Judicial Committee of the Privy Council in the City of Winnipeg v. Barrett (1892, A.C. 445). "In the Manitoba Act (33 Victoria, chapter 3, Canada) the following sub-section was substituted for sub-section (1) of section 93 of the British North America Act, 1867: — " '(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 or practice in the province at the union.' "The decision turned upon the words 'or practice,* which do not occur in the British North America Act, 1867, or in the Saskatchewan Act, but in the course of their judgment their Lordships said, at page 453: — " 'What then was the state of things when Manitoba was admitted to the union? On this point there is no dispute. It is agreed that there was no law or regulation or ordinance with respect to education in force at the time. There were, therefore, no rights or privileges with respect to denominational schools existing by law.' "As I have already pointed out, there was a similar 'state of things' in this portion of the Dominion on the 15th July, 1870. "The appellant, then, is forced into one or other of two positions. If he relies on the British North America Act, 1867, lie is confronted with the provincial legislation of 1908 and 1915, which is clearly within the powers of the provincial legislature, and under which a system of Separate Schools has been estalDlished by the legislature of the province. If he relies on the Saskatchewan Act, he is confronted with the same legislation, which, in my opinion, deliberately adopts the system of Separate Schools and Separate School rights which was imposed upon the province by the Saskatchewan Act. In either case, what has been deliberately given cannot be taken away; at least, if it is taken away, the remedial action of the Governor-General-in-Council and the Parliament of Canada may be invoked by a Protestant or Roman Catholic minority whose rights or privileges under the Provincial Statutes of 1915 have been affected. "If the Saskatchewan Act is within the powers of Parliament, a recourse to the Courts will also be open to any class of persons whose right or privilege with respect to Separate Schools as provided for in section 1 may be prejudicially affected. "For the reasons above stated, I think that the appeal should be dismissed with costs. "Given at Regina this 6th day of January, 1917." 154 APPENDIX V. PRIVATE AND PAROCHIAL SCHOOLS IN THE UNITED STATES. The following statement is compiled from the Report of the Commissioner of Education for the year 1913. 1912 1913 Catholic Population 15,015,569 15,154,158 Pupils in Private and Parochial Schools. 1,333,786 1,360,761 Number of Private and Parochial Schools 5,119 5,256 On page 349 of the Report appears the following sentence: "Parochial Schools are found in all of the dioceses of the United States, varying in number according to the extent and condition of the Catholic population. In the larger dioceses they have been increasing every year. From 3,812 in 1900 the system expanded to 4,972 in 1910, an increase of 30 per cent. There has been also a proportionate increase in the number of pupils enrolled. From 1900 to 1910, while the Catholic population increased 35 per cent., there was an increase of 40 per cent, in the number of pupils in Parochial Schools." The Report also emphasizes the fact that these schools are inefficient in a number of respects, more especially with reference to an undesirable lack of uniformity both in curriculum and grading. At the Catholic Educational Association held in Pittsburgh, 1912, and again in New Orleans, 1913, reforms were under consideration with a view to effecting such a reorganiza- tion of the Roman Catholic Parochial Schools as would place the system on a satisfactory basis. The statement of the case with reference to Jewish Schools is found on page 377 of the Report. The last year for which returns were available was 1908. Since 1908, however, it is stated that there has been a steady increase in the Jewish population of the United States. The total estimated Jewish population in 1908 was 1,800,000, of whom 360,000 were the estimated number of Jewish school children. The following sentence indicates the seriousness of the situation from a parochial viewpoint: "The total number of children, then, who in 1908 received Jewish religious instruc- tion amounted altogether to about 100,000; so that fully about 260,000, among them probably 170,000 girls, were left without any religious instruction whatsoever." With reference to Lutheran Parochial Schools the following sentence (page 406) sums up the situation: "The grand total for the Lutheran Church in the United States in 5,883 schools, 3,758 teachers, and 272,914 pupils." The total approximate number of Lutheran children (ranging from infancy to the age 156 of 14 or 15 years when they leave the Parochial Schools) was 1,216,023; so that about 22.44 per cent, of the total number of Lutheran children of school age are found in church schools. In the year 1912-13, the total enrolment of pupils in schools operated by the Mormon Church was 6,292. Perhaps it is not an unfair inference to draw from the above statistics that the total number of children attending Parochial Schools in the United States is in the neighbourhood of 2,000,000, of whom approximately 75 per cent, are found in Roman Catholic schools. 156 UNIVERSITY OF CALIFORNIA LIBRARY BERKELEY Return to desk from which borrowed. This book is DUE on the last date stamped below. f^EC'D LD JAN25'65-lM LD 21-100m-9,'48XB399sl6)476 365888 UNIVERSITY OF CALIFORNIA LIBRARY