CASE AND COMMENT
CHABOT v. LES COMMISSAIRES D’ECOLES DE
LA MORANDIERE
DENOMINATIONAL SCHOOLS-Education Act -NATURAL
PROTECTION FOR RELIGIOUS FREEDOM –
LAW -AS
CASE AND STATUTE LAW
A….
-AS
A PROTECTION FOR RELIGIOUS FREEDOM.
Canadian courts in recent years have been increasingly concerned with the
nature and extent of certain fundamental rights, and the protection, if any,
afforded them by our Constitution. The determination of these rights, both in
public and private law, has raised great constitutional questions; questions
which our Constitution does not expressly answer. The result has been that
the most liberal decisions of our Supreme Court respecting the existence of
these rights, have been substantially weakened by a lack of precision concerning
the exact nature of the protection afforded them. The Supreme Court has suc-
ceeded in creating an atmosphere which our judges can breathe, but no judicial
condensation has taken place to leave solid precedents upon which they can
rely. Hence, in attempting to give life to the idea of religious liberty, our Courts
can easily arrive at the effect, but cannot always ascertain the cause.
The decision’
in this case is illustrative of this phenomena. The Court of
Appeal has rendered a judgment in terms consistent with the most liberal
traditions of our century; yet, it cannot be said that this decision has resolved
these issues, for there was no unanimity among the judges of the Court as to
the nature and extent of these constitutional safeguards.
The Court also examined numerous provisions of the Quebec Education Act
which raise interesting questions as to the practicability and desirability of the
educational system in Quebec.
The relevant facts which gave rise to the litigation are as follows:
The Appellant was a member of the Witnesses of Jehovah. As there was no
Protestant dissentient school in the district in which he lived, his two children
were in attendance at the Respondent’s school. Since the majority of the in-
habitants of La ‘Morandi~re were Roman Catholics, the course of study was
authorized and controlled by the Roman Catholic Committee of the Council
of Education.
The Appellant informed the teacher that he did not wish his children to
participate in the religious exercises and devotions which formed part of the curri-
culum. For some time his wishes were complied with, until the Respondents
‘Chabot v. Les Conimissaires d’Ecoles de La Morandiire, [1957] Q.B. 707.
No. 2]J
CASE AND COMMENT
determined that all children, including the Appellants, were to follow the entire
course of study as prescribed by the Roman Catholic Committee. The failure
of the Appellant’s children to comply with these regulations resulted in their
expulsion from the school. Further negotiations did not result in a satisfactory
settlement. The Appellant maintained that he would not permit his children
to submit to religious instruction, while the Respondents contended that such
participation was necessary if the children were readmitted. Hence the Appel-
lant instituted an action to obtain a writ of mandamus compelling the Res-
pondents to admit his children, yet exempting them from participation in the
religious aspects of the curriculum. He also attacked the validity of certain
provisions of the Education Act and of the Regulations of the Roman Catholic
Committee which appeared to oblige his children to submit to such religious
teaching.
The following issues confronted the seven judges sitting in appeal:
1. Did Appellant’s children as non-Roman Catholics have the right to
attend the Respondent’s school?
2. If possessed of such right, were they obliged to submit to the religious
instruction ?
3. Are any provisions of the Education Act ultra vires?
4. Are the Regulations of the Roman Catholic Commnittee ultra vires?
The Court easily disposed of the first question, all judges answering affirma-
tively, but the opinion of Rinfret, J. raises interesting questions as to the nature
of that right and to the denomination, if any, of the school in question.
PART I
DENOMINATIONAL SCHOOLS
The respondents contended in part that the school in question was denomi-
national and that the children were free to attend if they took part in the reli-
gious aspects of the curriculum. Rinfret, J. argued this point in his dissent and
pointed out that changes have been made in the Education Act since the famous
dictum of Lord Cave in the Hirsch2 case, and as a consequence, the character of
the original common school has been extensively altered.
“De ces changements, il semble bien que la LEgislation a voulu instaurer dans la
province un syst6me different de celui qui existait en 1861 et de celui qu’a consi-
dir6 le Conseil priv6 dans l’affaire Hirsch et qu’elle a, sans pour cela copier et
tous points le syst~me qui pr~valait en 1861 dans les cites de Montreal et de Quebec,
mais s’inspirant des remarques de lord Cave, 6tabli un systrne d’6coles confes-
sionnelles, tant pour celles sous l’autorit6 des commissaires, que pour celles des
syndics, tant pour les 6coles de la majorit6 que pour les 6coles dissidentes.”3
In the Hirsch case the Privy Council decided that a common school con-
trolled by school commissioners could not be termed a denominational school.
2Hirsch v. School Commissioners of Montreal, [1928] A.C. 200, at 209.
3P. 751.
McGILL LA W JOURNAL
[Vol. 4
On the other hand, employing the following criteria, their Lordships determined
that a Protestant dissentient school was a denominational school:
1. It is founded by a body of Protestants and is maintained by their
contributions and managed by trustees appointed by them;
2. Its religious books are selected by the Protestant ministers;
3. Its teachers are chosen by those trustees after examination by a Pro-
testant Board of examiners;
4. Admission to the school is confined (except by favor) to the children
of Protestant parents. 4
If these same criteria are applied to a school governed by school Commis-
sioners, it would appear that in most cases all may be applicable except number
four. The application of the first criterion is dependent upon the religious com-
positions of inhabitants in a particular school district. However, in most cases in
the rural districts of Quebec, the school is established and controlled by Roman
Catholics. Therefore, the most important criterion seems to have been, “Can
anyone attend such a school ?”
Despite this distinction made in the rural areas, the Privy Council went on
to point out:
“It
is true that in the two cities (Montreal and Quebec) a school belonging to
either Board might be attended by children of a faith different from that repre-
sented by Board; but it appears to their Lordships that the provisions for the
management and control of the schools by persons of a particular religious persua-
sion set upon them a denominational stamp which could not be effaced by the at-
tendance of a certain number of children of a divergent faith.”5
The conclusion to be drawn is that the Privy Council regarded the city
school as denominational, and the rural school managed by school Commis-
sioners as undenominational, because the establishment and control of the
former arises from law, whereas the latter owes its identical position to a fact
situation.
This difference exposed by their Lordships is legally sound, but how realistic
is the distinction which they drew between a dissentient and a common (ma-
jority) school in the rural areas, namely: all have a right to attend the school
controlled by Commissioners, whereas only dissentients have a right to attend
the school controlled by trustees.
The opinion expressed by their Lordships has subsequently been acceptcd by
the courts, yet the reasoning which led them to such a conclusion is difficult to
follow.
“This reservation 6 though not clearly stated in the Act, appears to be deducible from
its terms; and if there be any doubt upon the point, it is removed by paragraph
2 of section 93 of the B.N.A. Act, which extends to dissentient schools in Quebec,
all the powers and privileges by law conferred on the Roman Catholic schools of
Upper Canada including the provisions of the Upper Canada Act of 1863. ‘1
4Hirsch case, .upra, p. 209.
6 lbid, p. 212.
6That only dissentients have a right to attend the school controlled by trustees.
71bid, p. 208.
No. 2 ]
CASE AND COMMENT
The Privy Council made reference to the pertinent Upper Canada Legisla-
tion, but apparently did not examine that legislation carefully to see if such a
reservation did in fact exist.
Section 12 of the Act,8 cited by the Privy Council, contemplates the attend-
ance at Roman Catholic Separate Schools, of children who are not Roman
Catholics.
… no children attending such school shall be included in the return hereafter
required to be made to the Chief Superintendant of Education, unless they are
Roman Catholics.”9
This suggestion of the attendance of children of a different religious persua-
sion in itself is of no significance unless it can be proved that such children had
a right to attend. Hence it becomes necessary to ascertain what powers, privi-
leges and duties were by law conferred and imposed upon the separate schools
and separate school trustees respecting the attendance of children of a different
faith.
Section 7 of the same Act states that:
“The Trustees of Separate Schools forming a body corporate under this Act…
shall have all the powers in respect of Separate Schools, that Trustees of Common
Schools have and possess under the provisions of the Act relating to Common
Schools.”
Section 27 (16) of the Act relating to Common Schools enacts as follows:
“It shall be the duty of the Trustees of each school section, and they are hereby
empowered:
To permit all residents in such section between the ages of five and twenty-one
years, to attend the school … but such permission shall not extend to the children
of persons in whose behalf a separate school has been established, according to the
Act rsepecting the establishment of separate schools.”‘ 0
It will be noticed that the Trustees are “hereby empowered”
to carry out
duties and it is therefore reasonable that these duties, with the corresponding
powers, were transferred to the Trustees of Roman Catholic Schools as envi-
saged in section 7 of the Separate Schools Act. Consequently, it would seem
that the separate school Trustees could restrict admission to children of the
Roman Catholic faith where a common school had been established in the dis-
trict. Similarly, if there was no common school, they appear to have been obliged
to admit all students. By section 93 sub-section 2 of the B.N.A. Act, these
in
powers, privileges and duties were extended
Quebec.
to all dissentient schools
In the Hirsch case Lord Cave was of the opinion that a child of a faith, other
than that of the dissentient minority, could attend the dissentient school with
the permission of the Trustees; yet, by applying the Ontario provisions it would
seem that: firstly, a dissentient school in Quebec would only be open to dis-
sentient children, and no other children could attend, even by leave, if a school
826 Vic., c. 5.
OThroughout the comment, all italics within quotations are those of the authors.
1022 Vic., c. 64, s. 27 (16).
A1cGILL LAW JOURNAL
[Vol. 4
was being managed by Commissioners in the same district. Secondly, if only a
the Trustees of such school
dissentient school were in operation in a district,”
would be obligated to admit all students. Do these two propositions represent a
fair interpretation of the effect of section 93 (2) of the B.N.A. Act?
Section 93 (2) has undergone no judicial exposition that sheds light upon
the question, and on its face it admits of two different interpretations.
(a.) The purpose of section 93 (2) was to extend all such powers, privi-
leges and duties to the dissentient schools in Quebec, but not to the prejudice
of any rights or privileges already existing by law in that Province, and
any rights or privileges existing after such extension were to enjoy the
protection from Provincial legislation afforded by section 93 (1).
(b.) The purpose of section 93 (2) was to extend all such powers,
privileges and duties to the dissentient schools in Quebec, even to the preju-
dice of any rights or privileges then enjoyed by such schools, and any rights
or privileges existing after such extension were to enjoy the protection from
Provincial legislation afforded by section 93 (1).12
If the latter interpretation is adopted, there can be little doubt as to the validi-
ty of the two propositions asserted above. If the former interpretation is adopted,
it is necessary to turn to the provisions of the Quebec Education Act to see if
the reservation suggested by the Privy Council does in fact exist.
With all due respect to the opinion of their Lordships, such a reservation
does not appear to be deducible from the terms of the Act ;13 to the contrary,
many sections imply that anyone has a right to attend either type of school.
Section 97 of the Education Act provides as follows:
“Any child may attend the primary complementary school, or, as the case may be,
the intermediate or high school in his municipality . . .”
1ISuch a situation can arise through a change in the religious composition of a
district.
12Section 93, B.N.A. Act:
“In and for each Province the Legislature may exclusively make Laws in relation
to Education, subject and according to the following Provisions:
(1) Nothing in any such Law shall prejudicially affect any Right or Privilege with
respect to Denominational Schools which any Class of Persons have by Law in
the Province at the Union:
(2) All the Powers, Privileges, and Duties at the Union by Law conferred and
imposed in Upper Canada on the Separate .Schools and school Trustees of the
Queen’s Roman Catholic subjects shall be and the same are hereby extended
to the Dissentient Schools of the Queen’s Protestant and Roman Catholic
Subjects in Quebec.”
‘ 3The Privy Council were examining the provisions of the consolidating statute
(24 Vic. c. 15) which was in force at Union. Since no legislation has been
of 1861
passed since the Union altering the character of-the common or dissentient schools, it is
practicable for the purpose of this discussion to examine the provisions of the present
Education Act (R.S.Q. 1941 c. 59).
No. 2]
CASE AND COMMENT
Section 2 (12) provides:
“.. The words primary complementary school mean every school of one or the
other grades whose course of studies is determined by the Catholic Committee of
the Council of Education…”
“… . the words “intermediate school” mean every school of one or the other of such
grades whose course of studies is determined by the Protestant Committee of the
Council of Education. The words “high school” mean every school of such grade
whose course of studies is determined by the Catholic or Protestant Committee of
the Council of Education.”
Since the curriculum of the dissentient school is included in those determined
by the Protestant or Catholic Committee,1 4 it follows that any child, regardless
of religious belief, can attend anyone of the schools mentioned in section 97
although such school might be a dissentient school controlled by Trustees.
From section 96 one can deduce further evidence of this right, for it enacts
that:
“Children domiciled in a district, in which there is a school in operation, may not
attend the school in another district in the municipality, unless with special per-
mission of the school commissioners or trustees as the case may be…”
Assuming that in a particular district the only school in operation is a dis-
sentient school, a child professing a faith other than that of the dissentients can
attend the school in another district only by obtaining special permission of the
Trustees. Surely it can be inferred that he has a right to attend the dissentient
school in the district.
Despite the decision of the Hirsch case and the prevalent opinion of our
courts,15 there seems to be sufficient evidence to assert the following propo-
sitions :
(i) A child of any religious persuasion may attend the school of the
majority under the control of school commissioners. (The truth of this
statement has not been contested by our Courts, and the Court had no
difficulty in upholding it in the case under consideration).
(ii) A child of any religious persuasion may attend a dissentient school
if there is no school in the district controlled by school commissioners. (As
demonstrated, the right to attend is clearly deducible from the Education
Act, and the qualification is a result of the Upper Canada legislation ex-
tended to Quebec by section 93 (2) of the B.N.A. Act. Furthermore, this
qualification is to be introduced no matter which interpretation one adopts
of that section, for it confers an additional right upon the dissentient school,
namely: the right to exclude, in certain circumstances, children of a
different religious persuasion.)
It is therefore possible to conclude that the distinction made by the Privy
Council between the dissentient and majority school in the rural area leaves
room for doubt, and if either or both be termed denominational it is not because
of the right to admit or exclude pupils of another religious belief.
14Section 221 (3).
15Les Syndics d’Ecoles Dissidents de St. Romuald v. Shannon, [1930] S.C.R. 599.
McGILL LAW JOURNAL
[Vol. 4
Rinfret, J. in his dissenting judgement refers to several sections of the Educa-
tion Act which seem to have a denominational implication.’0 In fact, there seems
to be a good deal of evidence in the Act, in further support of his view, that
a school run by school commissioners is of a denominational character.
Section 30 provides:
“Each committee shall approve the text books, maps, globes, models or other
articles for use in the schools of its religious belief and when it sees fit may with-
draw such approval.’
It would appear from the wording of this section that a school managed by
commissioners under the control of the Catholic Committee can properly be
called a Roman Catholic school. In addition, section 47 enacts that:
“Any public school established in town or country may be visited by the persons
hereinafter mentioned, as often as they deem necessary; but each such person shall
visit only the schools of his own religious belief.”
A public school may be established and controlled by school commissioners
or trustees3 Thus, a Protestant minority attending a school run by commis-
sioners is not entitled to receive Protestant visitors. This restriction indicates
that a denominational or confessional nature is ascribed to the school.
However, the right to attend and the obligation to take part in the religious
training of a school, even if it be denominational, are unrelated problems. In-
deed, this excursion into the nature of the public school in Quebec has little
bearing on the case under consideration, but it has opened avenues of uncer-
tainty and raises questions that have never been satisfactorily answered by the
Courts. It is submitted that no matter what view is adopted as to the religious
nature of the school itself, it is still necessary to determine whether or not the
school authorities have the right to impose religious training on children of a
religious persuasion different from that of the majority. This issue was of most
importance in the judgement rendered by the Court of Queen’s Bench.
THE EDUCATION AcT
Recognizing that the principle of “religious freedom” exists in our law, each
of the concurring judges was of the opinion that the Education Act is not to be
interpreted as abrogating that right. Differences of opinion arose as to the vali-
dity of the regulations of the Roman Catholic Committee, Owen, Hyde and
Martineau, J. J. dissenting on this issue, holding, in the words of Owen J. that:
“In clear and unambiguous terms the regulations provide that all children and all
schools subject to the regulations must follow the complete program of instruction
including religious exercises and training.”‘ 8
With respect to the opinion of the rest of the Court, such an interpretation
does not seem unfair. However, to declare that the Education Act does not
permit such subordinate legislation deserves greater consideration.
16Per Rinfret, J., p. 750.
‘TR.S.Q. (1941). c. 59, s. 2 (12).
18Per Owen, J., p. 741.
No. 2]
CASE AND COMMENT
The Education Act imposes a duty on the school boards whether they be
controlled by commissioners or trustees.
“To take the steps necessary to have the course of study authorized by the Roman
Catholic or Protestant Committee, as the case may be, followed in each school.”19
Section 29 of the Act bestows upon the Roman Catholic or Protestant Com-
mittee, as the case may be, the power to make regulations with the approval
of the Lieutenant-Governor in Council,
“for the organization, administration and discipline of public schools.”
Under the authority of this section the Catholic Committee prescribed the
regulations that required all pupils in attendance at the school to participate in
the religious exercises and training. A dilemma arose when the learned judges
attempted to reconcile the regulations of the Catholic Committee with the fol-
lowing provision of the compulsory education legislation introduced in 1943:20
“Every child must attend school every day, in each year, on which the public
schools are open in accordance with the regulations made by the proper authority,
from the beginning of the school year following the day on which he attains the
age of six years until the end of the school year in which he attains the age of
fourteen years.”
In the opinion of the Court, the introduction of this legislation made the
attendance of the Chabot children at the school in question compulsory, yet the
Act does not stipulate that they shall be exempt from religious training and
exercises. There are, however, several sections of the Act, some of which are
relied upon by the Court, from which it might be inferred that the right to free-
dom of religion is respected.
Section 588 enacts that:
“The children of persons professing the Jewish religion shall have the same right
to be educated in the public schools of the Province as Protestant children, and
shall be treated in the same manner as Protestants for all school purposes.
No pupil of the Jewish religion shall, however, be compelled to read or study any
religious or devotional books or to take part in any religious exercises or devotions,
to which the father or in his default the mother or tutor or person having the care
or maintenance of such pupil shall object.”
This section cannot be made the basis of any convincing argument for a
general exemption from religious training, for its terms are not free from ambi-
guity. It implies that the express exemption granted to Jewish children does not
extend to Protestant children, and although one might assume that it refers only
to schools controlled by Protestant commissioners or trustees, this is not clearly
spelled out.
The last sentence of section 221 (4) was regarded as indicative that the
regulations could only apply to children of the Catholic faith.
“The rector or priest in charge of a Roman Catholic church shall have the right to
choose the books relating to religion and morality, for the use of the pupils of his
19R.S.Q. (1941), c. 59, s 221 (3).
201943, S.Q., c. 13, s. 290a et seq.
McGILL LAW JOURNAL
[Vol. 4
religious belief, and the Protestant Committee shall have the same powers as
respects Protestant schools.”
An argument can be made that such books may be prescribed for Catholic
children and not for the school as a whole. This is, however, inconsistent with
the power given to the Protestant Committee since it prescribes books for the
school rather than for the individual pupils. Interpreted literally, the section con-
fers more rights on Roman Catholics than on Protestants for the Roman Catho-
lic rector or priest could prescribe the defined books to be used by children of
his faith attending a Protestant school, whereas the Protestant Committee could
not prescribe such books for the need of Protestant children attending a Roman
Catholic school. Such a construction does not conform to the spirit of the legis-
lation, and moreover, the section is not sufficiently clear or forceful to be held
out as establishing a general principle of religious freedom.
The intention of the Legislature is better evidenced by section 290 v, intro-
duced in 1943 as part of the compulsory school attendance legislation:
“No proceedings shall be taken by reason of the absence of a child from school on
a day regarded as a holiday by the church or religious congregation to which he
belongs.”
This provision can only be interpreted as an express recognition of religious
freedom, but, it must be remembered that the provisions regarding Jewish chil-
dren and the latter respecting religious holidays are both additions to the original
Education Act.21 The Act must be read as a whole, and it is very difficult to
reconcile the latter provisions with the rest of the Act. It is submitted that these
are exceptional provisions rather than examples of the spirit underlying the
legislation.
It seems evident that there were, and still are, basic differences
in the
approach of the Roman Catholic and the Protestant to the education of youth.
If not, there would be little point in establishing separate committees to regulate
the respective systems. There is a fusion of education and religion in the Roman
Catholic school that is not as evident in that of the Protestant. Abb6 Desrosiers
has written:
“Above all, French Canadian Quebec remains faithful in matters of education to
the teaching of the church. Religious neutrality is repugnant to her traditions and
beliefs and she has never allowed herself to be deceived by fair words about educa-
tional necessity that so often conceal, in other countries, the boldest attacks upon
religious teaching in the schools.” 22
Even Rinfret, J. in his dissent, looked with approval to regulation 9 of the
Protestant Committee which provides that:
“Religious instruction shall be given in all public schools as laid down in the
Course of Study and Handbook for Teachers. No pupil in any public school,
however, shall be required to read or study in or from any religious book or to
join in any exercise of devotion or religion when it is objected to in writing by his
parent or guardian”
=Section 290v and section 588.
22Canada and its Provinces, VoL 16, p. 441.
No. 2]
CASE AND COMMENT
When commenting on this regulation, Rinfret J. stated:
“… je n’ai pas i me substituer au Comit6 catholique pour 6tablir ce r~glement; il
a, sans doute, de bonnes raisons pour ne pas r’adopter, tout comme le Comit6 pro-
testant avait d’excellentes raisons pour 6dicter son r~glement. 23
In this statement Rinfret, J. appears to recognize that different rationale
underlies each of the two educational systems in Quebec. The Protestants, ap-
parently, do not regard religious training as an essential ingredient in a child’s
formal education, whereas the Roman Catholics consider religious training and
education inseparable. Further support of this view is found in the following
extracts taken from an affidavit of His Grace the Archbishop of St. Boniface,
used in the case Barrett v. City of Winnipeg.2 4
“In education, the Roman Catholic Church attaches very great importance to the
spiritual culture of the child, and regards all education unaccompanied by instruction
in its religious aspect, as possibly detrimental and not beneficial to children. With
this regard the church requires that all teachers of children shall not only be mem-
bers of the church, but shall be thoroughly imbued with its principles and faith;
shall recognize its spiritual authority and conform to its directions. It also requires
that such books be used in the schools with regard to certain subjects, as shall
combine religious instruction with those subjects; and this applies peculiarly to all
history and philosophy.”
His Grace, the Archbishop goes on to point out the difference between Pro-
testant and Catholic education:
“The main and fundamental difference between Protestants and Catholics, with
reference to education is, that while many Protestants would like education to be
of a more distinctly religious character then that provided for by the said Act,25 yet
they are content with that which is so provided for and have no conscientious
scruples against such a system. The Catholics on the other hand insist, and have
always insisted, upon education being thoroughly permeated with religion and
religious aspects, that causes and effects in science, history, philosophy and aught
else should be constantly attributed to the Deity, and not taught merely as causes
and effects.”
These extracts provide an appreciation of the difference that must also underlie
the two systems in Quebec, and account for the introduction of regulation 9 of
the Protestant Committee which conflicts with no “conscientious scruples” of
the Protestants.
Does this judgment of the Court render regulation 9 unnecessary? It must be
construed as having effect, for the Education Act was interpreted as not con-
ferring the power upon the Roman Catholic Committee to impose its religious
training upon pupils of another faith. However, since, the Roman Catholic
Committee has the undisputed power to authorize and regulate the course of
study in schools under its jurisdiction, where can be found a provision of law
to prevent the Committee from prescribing a curriculum that has in its entirety
a religious connotaticn?
23Per Rinfret, J., p. 766.
24[1891] Manitoba Reports, p .273 at p. 276 et seq.
25An Act establishing a non-denominational public school system, 53 Vic., c. 38 (M).
McGILL LAW JOURNAL
[Vol. 4
If children are obliged to attend such a school, as the Court has adjuged them
to be, they would have no choice but to participate in a religious curriculum,
which, it is submitted, the Committee in question has the power to prescribe,
for it, and it alone, has the authority to determine what the content of education
is. However, the Court, in order to uphold the validity of the Education Act
adopted the following interpretation:
“Consid6rant qu’il ressort des principales dispositions de la Loi de l’instruction
publique que le regime scolaire 6tabli par cette loi vise a respecter la croyance res-
pective des catholiques romains et des protestants et le droit primordial des parents
en mati~re de l’6ducation religieuse; que cette loi ne contient aucune disposition qui
doive
tre interpr~te de mani~re a obliger les enfants ayant le droit de frequenter
l’cole des commissaires et dont les parents professent une religion autre que celle
de la majorit6, de suivre une instruction religieuse ou de participer i des exercices
religieux auxquels leurs parents s’opposent.” 26
The desirability of this interpretation cannot be questioned; its practicability
is open to doubt.
It is not difficult to perceive the line that is drawn between religious and
secular education in the Protestant school, but as the writing of the Archbishop
of St. Boniface indicated, this same line of division in the Roman Catholic school
is obscure, if not invisible. For example, what is the nature of a religious book
that a child is to be exempted from reading, and what criteria is one to employ
in distinguishing it from a history book imbued with religious principles? If the
parents oppose the use of such texts are their children to be exempted from
participating in these aspects of the curriculum? If so, it would appear that the
Education Act does not provide a workable solution for our multi-religious
Province, since children could be deprived of a large portion of essential
education.
Unfortunately there seems to be little consultation between the Roman Catho-
lic and Protestant Committees. The Education Act 27 provides that:
“School questions affecting the joint interests of Roman Catholics and Protestants
shall be under the jurisdiction of the Council of Education, and shall be decided
by it.”
Pratte, J. suggested that because of this section, the Council of Education
constituted the proper authority to which the case in issue should have been
referred.28 No doubt the Council of Education which is representative of both
Committees, could resolve such issues as the one under consideration and thus
avoid the necessity of the parties involved resorting to the Courts of Justice.
However, as stated in the Report of the Protestant Education Survey Com-
mittee of 1938, the Council of Education has no more than a statutory existence.
“School questions affecting the joint interest of Roman Catholics and Protestants
are placed by the Education Act of the Province under the jurisdiction of the
26P. 710.
27Section 22.
28Per Pratte, J., p. 719.
No. 2]
CASE AND COMMENT
Council of Education … The fact that the Council has not met during the past forty
years suggests that questions calling for joint consideration rarely arise.”29
Indeed, it is unfortunate that the Council of Education has not fulfilled its
purpose as envisaged by the legislators. If it were to be given a functional
existence, such disputes might be solved by means acceptable to both parties.
A satisfactory educational system requires co-operation and understanding
between the administration, local school authorities, teachers and parents, and
it is inconceivable that this necessary harmony can be attained by enforced co-
operation on the strength of a mandamus.
PART II
1;.has been said that the legal historian of the future will mark “as more than
a passing aberration the mid-twentieth century interest in natural law doctrine.”
The decision in this case well illustrates this claim.
THE ROLE OF NATURAL LAW IN THE DECISION
Five of the seven judges in the case expressly relied upon natural law in order
(3) of the
to determine the legal effect which was to be given to s. 221
Education Act.
This section provides:
“It shall be the duty of school boards (i.e. commissioners or trustees)
3. To take the measures necessary to have the course of study authorized by
the Roman Catholic or Protestant Committee, as the case may be, followed in
each school.”
This section of the Education Act was deemed by the court to be susceptible
of two meanings. Firstly, it can mean that it is the duty of such commissioners
to see that the total curricuhtm (i.e. secular and religious courses) authorized
by the Roman Catholic Committee is followed by all the pupils in the school.
Alternatively it can mean that it is the duty of such commissioners to see that
the total secular curriculum authorized by the Roman Catholic Committee is
followed by all the pupils in the school, and that the religious curriculum and
exercises are only followed by the Roman Catholic children in the school.
It was in attempting to give legal effect to this section of the statute, the
words of which admitted of two possible meanings that the five judges relied
upon the doctrine of natural law. This doctrine was not, however, uniformly
applied by all the judges who invoked it.
Two different applications, at least, are immediately evident in the decision.
These are found in the judgments of Casey and Hyde, J. J.
The view of Casey, J. is the more forceful of the two views. To the learned
judge, positive law is valid only so far as it corresponds to the natural law.
2-Report of the Quebec Protestant Education Survey Committee, 1938, p. 9. (The
Council has not met since the publishing of this Report).
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[Vol. 4
The right to practice one’s religion and the right to control the education of
one’s children are to Casey, J. rights which “find their source in natural law,
those rules of action that evoke the notion of a justice which human authority
expresses, or ought to express, but does not make a justice which human au-
thority may fail to express, and must pay the penalty for failing to express by
the diminution, or even the forfeiture, of its power to command…
At page 722 he propounds what appears to be the strongest statement about
natural law to be found in the decision of any Canadian court. He states:
“On this point there can be no doubt for if these rights find their source in positive
law, they can be taken away. But if, as they do, they find the existence in the very
nature of man, then they cannot be taken away and they must prevail should they
conflict with the provisions of positive law.”
A less extreme view of natural law is that expressed by Hyde, J.A’ The
learned judge appears to postulate a dualism of positive and natural lav, but
he does not find in this dualism the inevitable superiority of natural law.
At p. 724 he states:
“To say, however, that children of faith other than Roman Catholic, who, be it
remembered, may be attending such schools not only of right, but as a duty, must
follow the religious part of the program laid down for Roman Catholics, is to
force upon them the teaching of the Roman Catholic Church and oblige them to
go through forms of worship in accordance with that faith. It requires no text ot
law to demonstrate that this cannot be so.”
But, Hyde, J. is not prepared to go as far as Casey, J. in the event of a
conflict between positive and natural law. At page 725 he states:
“The power given to the Roman Catholic Committee to determine the course of
studies in the schools under its jurisdiction cannot be construed to override this
basic principle of natural law. It would require very specific provisions in the Act
to that effect to justify any such interpretation and then, of course, the constitu-
tionality of such provisions would be a matter for consideration.”
The views of Casey and Hyde, J. J. bear some analysis. Both judges are
persuaded by natural law that s. 221 (3) of the Education Act was not intended
by the Quebec Legislature to abrogate the religious rights of a Witness of
Jehovah. But natural law persuades each of them for different reasons. This is
because the existence of natural law forms part of the minor premise in a syllo-
gism, the major premise of which is different for each judge.
Casey, J. appears to begin with the following premise: If these are two pos-
sible meanings which can be given to the words of a statute, one of which would
render the statute ultra vires and one of which would render it intra vires, that
meaning most consistent with its validity should be given legal effect by the
court.3 2 Such a rule of construction was enunciated in the Supreme Court of
Canada in 1918:33
30p. 722.
S1Martineau, J. concurring.
52Such a rule of construction is nowhere expressly stated in the judgment of Casey, J.
The writer has taken the liberty of deducing this from the fact the learned judge has
placed on interpretation upon s. 221 (3) of the Education Act which as he states, makes
it unnecessary for him to declare that section ultra vires.
33Gauthier v. The King, 40 D.L.R. 353, at 365, per Anglin, J.
No. 2]
CASE AND COMMENT
“An interpretation that would render it ultra vires should, of course, be placed
upon a statute only if unavoidable.”
Since to him an interpretation contrary to natural law would render the
statute invalid, Casey, J. gave to the statute a meaning consistent with its valid-
ity. The remarks of the learned judge concerning the supremacy of natural law
are therefore, obiter dicta, because he was not dealing with a provision of
positive law which conflicted with a provision of natural law. They do, how-
ever, provide an important argument for considering a statute ultra vires.
Casey, J. does not cite any authority to justify the overriding supremacy of
natural law in a Quebec court. Of course, once one accepts the existence of
such law, the citation of any authority would be quite meaningless because the
acceptance or rejection of its supremacy it not something to which the decision
of any court could lend weight. It is more than a question of precedents; rather
it is a question of precedence. 34
Hyde, J. appears to begin with a premise quite different from that of Cosey,
J. It may be stated as follows: Whenever the language of the Legislature admits
of two constructions and, if construed in one way, would lead to obvious in-
justice, then the Court should give to the statute the meaning which is the more
consistent with the liberty of the individual3 5 There is high judicial authority to
support such a rule of construction. 0
Since an interpretation contrary to natural law would render the statute
unjust, Hyde, J. concluded that s. 221 (3) of the Education Act did not intend
to abrogate religious liberties.
The other judgments which rely upon natural law are not as clear in the
application which they make of that doctrine. Whether it is invoked because
it would render the statute ultra ires, or merely unjust, is something which is
not clearly spelled out. Nevertheless, it is propounded with some vigour.
Thus, Taschereau, J. states at p. 730:
l6-
“Il serait d’ailleurs contraire au droit naturel, ainsi qu’aux principes les plus
mentaires de nos institutions d6mocratiques qu’un p6re ne puisse exercer le droit,
ni remplir son obligation de faire instruire ses enfants, sans renoncer i sa foi
religieuse. (Loi de l’instruction publique, art. 290 a).”
And Pratte, J. states at p. 717:
34The powerful language concerning natural law in Casey’s J. decision must, of
course, be read subject to his statement at p. 720 that “while in principle no one should
be coerced into the practice of a religion.., this immunity disappears if what he does
or omits is harmful or opposed to the common good or in direct violation of the equal
rights of others.”
35Such a rule of construction is nowhere expressly stated in the judgment of Hyde, J.
but it appears to the-premise from which he has reasoned.
36Smith v. G. W, Ry Co. (1877), 3 A.C. 165; Rothes v. Kirkcandy Comthissioners
(1882), 7 A.C. 702; Hill v. East and West India Dock Co., 9 A.C. 456; Railton v.
Wood, 15 A.C. 363.
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“Ainsi donc, si l’on s’en tient au droit naturel, le premier de tous les droits, il faut
conclure que les enfants qui fr~quentent une 6cole ne doivent pas 6tre tenus de
suivre un enseignement religieux auquel leur p6re s’oppose.”37
The learned judge, it is interesting to note, derives some assistance from the
writings of Saint Thomas:
“Pater est principium et generationis et educationis et discipline, et omnium quae
(Sinnma theologica, 11-11, question 102,
ad perfectionem humanx vita pertinent.”
art. 1).38
Although Taschereau and Pratte, J. J. both refuse to give an interpretation
to s. 221 (3) which would be contrary to natural law, there is nothing in their
judgments which warrants the conclusion that they would declare the section
ultra vires if such an interpretation were unavoidable.
Owen, J. does not rely upon natural law to support the existence of religious
freedom in Canada. At p. 736 he states:
“Religious freedom or freedom of worship is a right which is recognized and pro-
tected in Canada. There are differences of opinion as to the nature of this right,
whether it is a civil right or a political or public right, but its existence is con-
sistently admitted by our Courts.
The principle of religious freedom has also been recognized by statute.”
Thus, he does not attempt to describe the source of religious freedom in
Canada. Nor does he determine whether it is a right which is inviolable. But,
there are implications in his judgment which suggest that a provincial statute, or
a regulation under a provincial statute, which purports to violate religious
freedom would be ultra
ires.
371n view of his remarks in Saumur v. City of Quebec, 104 C.C.C. 106, at pp. 110-111,
it does not appear that Pratte, J. would support the overriding supremacy of natural
law. In that case he stated: “In the long factum which he presented to the Court in
support of his contentions the appellant reviewed the battles which have been fought to
provide men the freedom of expression which they enjoy today, a review which is ac-
companied by many extracts from the writings of those who made themselves champions
of this liberty. All that might be appropriate before a body seized of the political side
of the issue, but there is nothing there that could assist in the solution of the problem
before us, since it is purely a legal question… The truth here as in Great Britain, is
that, contrary to what is in the United States, the people have not abrogated the power
to legislate on the matter and that the area in which the liberties we know can be
exercised is susceptible of being narrowed by competent legislative authority.”
38The fact that he bases his reasoning upon the writings of Saint Thomas does not,
it is submitted, necessarily force Pratte, J. to accept the overriding supremacy of na-
tural law. Apparently, the only place where Saint Thomas would permit actual disobe-
dience of a positive law is when it is contrary to the Divine law and therefore unjust
because beyond the scope of human power. (Sinina Theologica, 1-11, q. 96, art. 4)
Otherwise he would appear to advocate toleration of the law until it be changed, in
(q. 96, art. 4), notwithstanding the fact that the law may be
order to avoid scandal
tyrannical, (q. 92, art. 1, ad 4; 96, art 4), unjust (q. 94, art. 6, and 3; 93, art. 3, ad. 2),
or beyond the powers of the lawgiver (q. 96, art. 4). (The translation used is the First
Complete American Edition in 3 volumes, 1547, literally translated by the Fathers of the
English Dominican Province).
No. 2 ]
CASE AND COMMENT
At p. 739 he states:
“In my opinion, the Education Act when properly construed does not infringe the
provisions of the British North America Act, nor violate the right of freedom of
religion and is intra vires.”
And at p. 741, referring to the regulations of the Roman Catholic Committee,
he states :
“… the said regulations are invalid as being in excess of the authority granted to
the Roman Catholic Committee by the Education Act and as violating the right
of religious freedom.”
The right of religious freedom cannot, however, on the strength of his
judgment be said to rest upon natural law. All of the other judges, with the
exception of Rinfret, J. do attribute this right to natural law. Nevertheless
Casey, J. is the only member of the Court who expressly declares the over-
riding supremacy of natural law.
NATURAL LAW AS A PROTECTION FOR RELIGIOUS FREEDOM
The judgment of Casey, J. is this Province’s most vigorous and determined
judicial pronouncement concerning the protection which the subject may expect
from the actions of a tyrannical Legislature. Its boldness and courage will be a
source of great confidence in a time when increasing governmental activity has
produced cries of concern. But, its very power raises questions of great consti-
tiutional significance. If, as the distinguished judge argued, there are rights
which find their existence in the very nature of man and “cannot be taken
away,” one is prompted to consider whether all that we have been taught con-
cerning the sovereignty of Parliament has not been exaggerated. It is a fear of
the potential exercise of this sovereign power which has led many Canadians
to urge the adoption of a Bill of Rights. The judgment of Casey, J. suggests
that this fear is unwarranted as the legislative supremacy of our Parliament
and Legislature is, he claims, already limited by natural law. The continued
development of this line of judicial activity would ultimately result in an un-
written Bill of Rights as binding as any legislative enactment. Such can only be
the case however, if our Courts are prepared to abandon the traditional methods
of statutory interpretation, including the notion that Dominion and Province
are each, within their own sphere, sovereign and supreme.8 9
391t is interesting to note that W. Glen How, the appellant’s lawyer did not raise the
natural law argument in his factum. Had he done so, he would have probably been met
with his own words written in the Canadian Bar Review in 1948: “There is nothing to
prevent any legislature, municipal council, magistrate or other public authority from
denying fundamental freedoms whether willingly or unwillingly.” (The case for a Bill
of Rights, (1948) 26 Can. Bar Rev. 759, at 794).
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[Vol. 4
The sovereign character of the provincial legislatures was firmly established
in Hodge v. The Queen.40 This is not an unlimited sovereignty however. It is
not only within the spheres of jurisdiction assigned to them under the B.N.A.
Act, and with some exceptions expressly stated in the B.N.A. Act, that our
provincial Legislatures are supreme. 41 Thus, Earl Loreburn stated in the
Supreme Court Reference Case, at p. 581:42
“Now, there can be no doubt that under this organic instrument (the B.N.A. Act)
the powers distributed between the Dominion on the one hand and the provinces
on the other hand cover the whole area of self-government within the whole area
of Canada. It would be subversive of the entire scheme and policy of the Act ‘to
assume that any point of internal self-government was witheld from Canada.”
And at p. 583 he stated:
“It is true that from time to time the Courts of this and of other countries whether
under the British flag or not, have to consider and set aside, as void, transactions
upon the ground that they are against public policy. But no such doctrine can apply
to an Act of Parliament. It is applicable only to the transactions of individuals. It
cannot be too strongly put that with the wisdom or expediency or policy of an Act,
lawfully passed, no Court has a word to say.”43
Just how far the principle of parliamentary sovereignty has enabled a pro-
vincial Legislature to legalize racial discrimination, for example, is seen in the
Privy Council decision which upheld the validity of a Brtish Columbia statute
which provided that “no Japanese whether naturalized or not, shall be entitled
to vote.”‘ 44 The Committee stated at p. 155:
“The question which their Lordships have to determine is which of these two views
is the right one, and in determining that question the policy or impolicy of such an
enactment as that which excludes a particular race from the franchise is not a
topic which their Lordships are entitled to consider.”
It is true that the right to vote is not as “fundamental” as the right to religious
freedom, but the deprivation of either one of these rights does equal violence to
the dignity of the individual. In terms of human worth it is difficult to justify
the importance of one over the other.
409 A.C. 117. See also R. v. Burrah (1878), 3 A.C. 889; Powell v. Apollo Candle
Company (1885), 10 A.C. 282; Banter v. Ah Way (1909), 8 C.L.R. 626; Engineers’
Case, 28 C.L.R. 129.
“1Some implied prohibitions seem to have arisen as well. Thus, the provinces appear
to have no power to bind the Crown in right of Canada, (Gauthier v. the King (1918),
56 S.C.R. 176, at pp. 182, 194); nor are the provinces competent to delegate any part
of their legislative power to the Dominion (A.G. for N.S. v. A.G. for Canada, [1951]
S.C.R. 31).
l.G. for Ont. v. A.G. for Canada, [1912] A.C. 571.
43It is well-established that the existence of legislative power is not to be denied by
the possibility of its abuse. See Bank of Toronto v. Lambe (1887), 12 A.C. 575 at 586,
587; A.G. for Can. v. A.G. for Ont., Que. and N.S., [1898] A.C. 700 at 713; Union
Colliery Co. of B.C. Ltd., v. Bryden, [1899] A.C. 580 at 584; Cooperative Committee
on Japanese Canadians v. A.G. for Can., [1947] A.C. 87, at 102.
44Cunningham and A.G. for B.C. v. Tomey Hamma and A.G. for the Dorn. of Can.,
[1903] A.C. 151.
No. 21
CASE AND COMMENT
As regards matters of education, (these formed the issue in the Chabot case),
the Privy Council has clearly expressed its inability to deal with rights other
than those created by positive law. In Roman Catholic Seperate School Trustees
for Tiny v. The King45 Lord Haldane stated:
“Their Lordships are of opinion that where the head of the executive-in-council in
Canada is satisfied that injustice has been done by taking away a right or privilege
which is other than a legal one from the Protestant or Roman Catholic minority
in relation to education, he may interfere. The step is one from mere legality to
administrative propriety, a totally different matter.”
Sections 91-95 of the B.N.A. Act distribute all subjects of legislation be-
tween the provinces and the Dominion. In assigning legislative power to one or
to the other it does not appear to have been made a statutory condition that the
exercise of such power shall be, in the opinion of a court of law, just. In so far
as they possess legislative jurisdiction the discretion committed to the provincial
Legislatures would appear to be unfettered. The judgment of Casey, J. how-
ever, seriously challenges this proposition.
It is with the greatest respect that we prefer the judgment of Rinfret, J. on
this point. At p. 746 he states:
“La seule limite a l’autorit6 de la l6gislature des provinces en matire d’&lucation
est celle contenue a l’art. 93 de 1’A.A.B.N.
Hors ces limites qui sont assez restreintes, m~me si importantes, l’autorit6 provin-
ciale a, sur la question’ d’Education, juridiction absolue et souveraine.” ‘
This is more in conformity with the weight of the jurisprudence as repre-
sented by Lord Watson in Union Colliery Company of B.C. Limited v.
Bryden:46
“It is the proper function of a court of law to determine what are the limits of the
jurisdiction committed to them (Provinces and Dominion), but when that point has
been settled, courts of law have no right whatever to inquire whether their juris-
diction has been exercised wisely or not.”
RECENT CASE LAW AS A PROTECTION FOR RELIGIOUS FREEDOM
The judgment of Owen, J. suggests the possibility that in recent years we
may have acquired a common law Bill of Rights. “Religious freedom or freedom
of worship,” he states,47 “is a right which is recognized and protected in
Canada. There are differences of opinion as to the nature of this right, whether
it is a civil right or a political or public right, but its existence is consistently
admitted by our Courts.” The learned judge footnoted these remarks with a
reference to three recent Supreme Court decisions: Saumur v. City of Quebec,48
Birks v. City of Montreal49 and Chaput v. Romain.50
45[1928] A.C. 363, at 370.
46[1899] A.C. 581, at 585.
47[1957] Q.B., at p. 736.
48[1953] 2 S.C.R. 299. This case is also relied upon by Casey J. at p. 720.
49[1955] S.C.R. 799.
50[1955]S.C.R. 834. This case is also relied upon by Hyde J. at p. 724.
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Owen, J. does not expressly state that the right to religious freedom will be
given absolute protection by our Courts. To have said so would have been to go
beyond the necessities of the case because he was primarily concerned with the
meaning of s. 221 (3) of the Education Act and not with its validity. But, he
did state that religious freedom is protected in Canada, and it is the nature of
this protection which bears examination.
There is very little in the three Supreme Court cases to support the proposi-
tion that religious freedom is beyond the reach of provincial and Dominion legis-
lative enactment. There are statements in these cases which might suggest this,
but there are also others which expressly assert the contrary.
In Chaput v. Romain,51 Taschereau, J. (with Kerwin, C. J. and Estey, J.
concurring) states:
“In our country there is no state religion.52 All religions are on an equal footing,
and Catholics as well as Protestants, Jews and other adherents to various religious
denominations, enjoy the most complete liberty of thought. The conscience of each
is a personal matter and the concern of nobody else. It would be distressing to think
that a majority might impose its religious views upon a minority, and it would also
be a shocking error to believe that one serves his country or his religion by denying
in one Province, to a minority the same rights which one rightly claims for one-
self in another Province.”
Despite the power of his words, Taschereau, J. does not expressly declare
that religious rights cannot be abrogated. He finds it distressing that a majority
might impose its religious views upon a minority, but does not dispute its
ability to do so.
In Birks v. City of Montreal,53 Taschereau, J. concurred with Fauteux, J.
who stated at p. 335:
“Sur ce point qu’il est d’abord essentiel de diterminer pour pouvoir d6cider en-
suite sous quel paragraphe des articles 91 ou 92 de l’Acte de l’Ani&ique Britannique
du Nord se classe la loi incrimin~e.”
This is the traditional approach to statutory interpretation which presupposes
that either s. 91 or s. 92 enables the passing of a law.
The judgment of Rand, J. in the Saumur case 54 also contains a statement
concerning religious liberty. He stated:
“Strictly speaking, civil rights arise from positive law; but freedom of speech, reli-
gion and the inviolability of the person, are original freedoms which are at once
the necessary attributes and modes of self-expression of human beings and the
primary conditions of their community of life within a legal order. It
is in the
circumscription of these liberties by the creation of civil rights in persons who may
51[19561 I D.L.R. 241, at 245.
52It is perhaps well to insert the remark of Edwin W. Patterson that the conception
of natural law as divine reason “has no place in the political or legal process of a
modern democratic-representative state, at least not in one which is not committed to a
particular established religion.” See Edwin W. Patterson, A Pragmatist looks at natural
law and natural rights, Natural Law and Natural Rights, Southern Methodist Uni-
versity Press, Dallas, 1955, p. 54.
53[1955] 5 D.L.R. 321.
54[1953] 4 D.L.R. 641, at 670.
No. 2]
CASE AND COMMENT
be injured by their exercise, and by the sanctions of public law, that the positive
law operates. What we realize is the residue inside the periphery… there is no
prior or antecedent restraint placed upon them;…”
Again, although we find here a great statement concerning fundamental
liberties, no absolute protection is afforded them as would be by a Bill of
Rights. Rand, J. expressly recognizes that these rights can be circumscribed by
positive law. The issue for him is, whether the Dominion or the Provinces have
the jurisdiction to so circumscribe, 55 but he does not appear to doubt that
either one or the other has this power.
In point of fact the Saumur case contains some very strong statements up-
holding the ability of either the Dominion or the Province to abrogate religious
liberties. Thus, Kerwin, J. stated at p. 665:
“While it is true that, as recited in the preamble of the B.N.A. Act, the three
provinces expressed a desire to be federally united with a constitution similar in
principle to that of the United Kingdom, a complete division of legislative powers
being effected by the Act, I assume.., that provincial Legislatures are willing and
able to deal with matters of importance and substance that are within their legis-
lative jurisdiction.”
Here Kerwin, J. recognized that the most fundamental principle of the
United Kingdom Constitution is the Sovereignty of Parliament.
Cartwright, J. at p. 274 (Fauteux, J. concurring) stated:
“Under the B.N.A. Act the whole range of legislative power is committed either
to Parliament or to the provincial Legislatures and competence to deal with any
subject-matter must exist in one or other of such bodies. There are thus no rights
possessed by the citizens of Canada which cannot be modified by either Parliament
or the Legislature…”
And Estey, J. referring to religious freedom, stated at p. 698:
“It must be assumed, therefore that it was intended that ligislation would come
within the provisions of the B.N.A. Act and be competently enacted either by the
Parliament of Canada or* the provincial Legislature as therein provided.”
STATUTE LAW AS A PROTECTION FOR RELIGIOUS FREEDOM
The possibility that religious liberty may be protected by statute law was
also raised in the Chabot case. The Quebec Freedom of Worship Act (R.S.Q.
1941, c. 307, act 2) was relied upon by the appellant, but the Court did not
choose to rest its decision upon this Act. It was felt that the Freedom of Wor-
ship Act merely “recognized” the existing principle of religious freedom. In any
event, if the source of religious freedom in Quebec flowed from this statute
alone, no permanent protection would be provided since the statute could be
repealed at any time.
A pre-Confederation statute (1852 (Can), 14-15 Vict. c. 175) which gua-
ranteed religious freedom in Canada was also invoked by the appellant. Again,
the Court looked upon this as no more than the recognition of an existing prin-
55In the Birks Case, [1955] 5 D.L.R. 321, at 324, Rand, J. again implied that it was
a question of jurisdiction rather than absolute prohibition which prevented the provinces
from abrogating religious liberties. He concluded that legislation in relation to religion
is beyond provincial authority to enact.
McGILL LAW JOURNAL
[Vol. 4
ciple, and did not rest its decision upon it. But, there is a strong possibility that
this statute may afford an absolute protection for religious freedom against
provincial legislation.
The statute of 1852 was carried on after Confederation by s. 129 the B.V.A.
Act. If religious freedom is deemed to be a matter not within the jurisdiction
of a provincial Legislature, then the statute of 1852 is subject to be repealed
only by the Dominion Parliament. The question of who has legislative authority
over religious freedom is something which our Courts have yet to determine.
In the Saumur Case56 four judges of the Supreme Couit held that religious
freedom was a matter reserved to the Dominion ;57 three held that it was within
the provincial domain;58 and two felt that they would decide when the issue
arose.59 Thus, a majority of the Supreme Court has not yet determined the
question.
CONCLUSION
The decision in the Chabot case, taken as a whole, cannot be said to have
given religious freedom absolute protection against any and all infringements.
To demand this of a court is to ask the court to act like a Legislature. The deci-
sion in the Chabot case is however the decision of a liberal Bench which has
invoked the full power of judicial discretion in order to secure the liberty of the
individual. But it must be remembered that the opportunity for such a decision
was presented to the Court by the fact that s. 221 (3) of the Education Act
admitted of two possible interpretations. The Court seized this opportunity to
leave the individual unmuzzled. What the outcome would have been had the
statute been explicit in its meaning is only a subject for speculation.
The unsettled state of religious freedom in Canada still remains to trouble
our courts. This is well-illustrated
in a judgment of the British Columbia
Appeal Court which was rendered two months after the decision in the Chabot
case.60
The appellant in this case was a Doukhabour who objected, on religious
grounds, to his child attending a public school. Sec 157. (1) of the Public
School Act required ll children to attend public school. The Appellant claimed
that this section was ultra vires because it infringed the religious freedom of
the Doukhobours. (The Doukhobours object to public schools because it is
claimed they interpret history so as to glorify, justify and tolerate intentional
taking of human and animal life; expose their children to materialistic influences
and ideals; and separate secular matters from spiritual matters in education.
56[1953] 4 D.L.R. 641.
57Ibid, Rand, Kellock, Estey, Locke, J.J. at pp. 670, 689, 699, and 715 respectively.
5HIbid. Rinfret C. J. Taschereau., J., Kerwin J. at pp. 656 and 664 respectively.
5 9Ibid, Cartwright and Fauteux, J.J. at p. 724.
6OPerepolkin et ux v. Superintendent of Child Welfare (1958), 23 W.W.R. 592.
