McGILL LAW JOURNAL
[Vol. 2
PERRON v. SCHOOL TRUSTEES OF THE SCHOOL
MUNICIPALITY OF ROUYNt
CONSTITUTIONAL LAW –
EDUCATION –
JEHOVAH’S WITNESSES
DISSENTIENT SCHOOLS –
SEC. 93 B.N.A. Act.
This case involves the educational rights of Jehovah’s Witnesses in the rural
areas of.this province. The plaintiff, a resident of Rouyn, Que., left the Roman
Catholic faith and chose to become a Witness of Jehovah. In so doing, he no
longer wished his children to attend the common school, controlled by Roman
Catholics, who form a majority of the population in this municipality. When
the Trustees of the Protestant dissentient school refused to admit plaintiff’s
children, a writ of mandamus was taken to compel the Trustees to admit them.
After a review of the various statutes and judicial decisions regarding the
rights of dissentients, the court concluded that the Trustees could validly
refuse admission because plaintiff belongs to a religious denomination which
differs from the Protestant denomination. If plaintiff were to send his children
to a public school in Rouyn, the Superior Court ruled that he must send them
to the common school in that municipality.
The Education Act,’ which regulates public education in Quebec, does not
specifically answer the problem presented to the court, viz. whether the
Protestant dissentient schools could validly refuse admission to members of
Jehovah’s Witnesses. Reference must be made: 1) to the B.N.A. Act, which
protects the educational rights of certain classes of person; 2) to the educa-
tional system as it existed by law at Confederation, since the B.N.A. Act
preserves certain rights which existed at that time; and 3) to judicial decisions
which interpret the appropriate sections of the B.N.A. Act and define the
rights of the classes of persons whose rights are protected.
In any examination of education in Quebec, one should bear in mind that,
since 1841, the legislators have accepted the fact that the province is composed
mainly of Roman Catholics and Protestants and have divided the educational
system accordingly.2
tCase unreported. This decision of the Shperior Court was overruled by a judgment
of the Court of Queen’s Bench, handed down just prior to going to press.
‘(1941) R.S.Q. c.59.
2Pinsler v. Protestant Board of School Commissioners (1903), 23 S.C.R. at pp. 376-7.
To illustrate this, we can cite, from among many examples, the fact that there is a
Superintendent of Education who must be either a Roman Catholic or Protestant since
he is, ex officio, a member of the committee of his religious belief on the Council of
Education, which is divided into a Roman Catholic and Protestant committee, each
looking after matters which affect their interests. No specific provision is made in the
act of 1861 for other religious denominations, although the legislature, according to the
B.N.A. Act, is not precluded from instituting schools for other religious denominations.
CASE AND COMMENT
At Confederation, the existing educational organization was governed
largely by the Act of 1861. 3 That Act divided provincial education into two
systems; one for the rural areas and another for the cities of Montreal and
Quebec.
In the rural areas, it was provided that in each municipality there was to
be at least one common school, managed by school commissioners elected by
all the landholders and householders, other than the dissentient inhabitants,
of the municipality.4
The Act of 1861 also stated that a number of persons professing a religious
belief different from that of the majority could signify their dissent to the
commissioners of the common schools and establish their own dissentient
school. Therefore, if the Roman Catholics formed a majority in a particular
municipality, the minority dissentient school would be Protestant, and vice
versa. This is also the meaning given to “religious majority” and “religious
minority” by the Education Act.6
In the cities of Montreal and Quebec, there were no such schools as “com-
mon” or “dissentient”. The schools in these urban areas were not divided
into “majority” and “minority” but into “Roman Catholic” and “Protestant”,7
with each denomination having its own regulatory Board of School Com-
missioners. We will see that different legal results ensue in the case of urban
schools when children of other religious faiths seek admission to them.
This educational system, which existed by law in 1867, has remained
virtually intact, due largely to the provisions of the B.N.A. Act.
Section 93 of the B.N.A. Act has been called the “Educational Bill of
Rights” ;8 for, without it, educational matters would be at the complete mercy
of provincial legislatures. As it now stands, although the province is given
exclusive jurisdiction over matters relating to education, yet certain legal
rights which existed in 1867 are made permanent and irrevocable (unless the
B.N.A. Act itself is amended). It will be our aim to ascertain what these rights
were and to whom they applied, in order to find out if the defendants can
validly exclude plaintiff’s children from their school.
Section 93 of the B.N.A. Act reads, in part:
“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.”
3(1861) Consolidated Statutes of Lower Canada, c.15.
4Ibid, s.27.
GIbid, s.55.
0(1941) R.S.Q. c.59, s.2, subs. 25; also (1869), 32 Vict. 16, s.38.
7(1861) Consolidated Statutes of Lower Canada c.15, ss.128-130.
sWeir, The Separate School Question in Canada, c.3.
McGILL LAW JOURNAL
[Vol. 2
It should be noted that while the province may make laws in relation to
education, the rights which it cannot prejudicially affect by law are only those
with respect to denominational schools.9
The “class of persons” to which this subsection refers is a class which must
be determined according to its religious beliefs and not otherwise. This was
pointed out in the case of Ottawa Separate School Trustees v. Mackell,10
where the Privy Council held valid a provincial law prescribing the language
(English) in which children attending any school in the province were to be
taught. The right to the use of another language (French) was not a right
with respect to denominational schools which a class of persons (the Roman
Catholics) had by law at the Union. The English-speaking Roman Catholics
were not affected by the law and did not oppose it. To divide the Roman
Catholic denomination along a racial or linguistic line perhaps creates a class of
persons held together by a common race or language, but certainly not a class
of persons enjoying the protection of S.93(1).
If a provincial law transgresses this subsection, the remedy is to have the
law declared ultra vires by the courts3′
Section 93(2) extends to the Roman Catholic and Protestant dissentient
groups in Quebec the same rights which the Roman Catholic Separate schools
enjoyed by law in Ontario at Confederation.
This subsection was necessary to safeguard the rights of the Protestant
dissentient schools in Quebec. Until 1867, such schools had not a sufficiently
permanent basis in law. The statutes which permitted their establishment 12
only refer to “persons professing a religious faith different from that of the
majority” and do not give specific rights to the Protestant dissentient schools
as such.
By determining which of the schools existing at Confederation have the
protection of S.93 of the B. N.A. Act, or, to be more precise, which of the
“class of persons” controlling these schools had such protection, we can
ascertain the rights of the Protestant dissentient schools and justify the con-
clusions arrived at by the trial judge.
The schools in the cities of Montreal and Quebec, being denominational
schools, enjoy the protection of the B.N.A. Act. However, in 1867, these
schools could be attended by children of any faith. It was only in their man-
9S.93(3) would cover the situation where either a Roman Catholic or Protestant
minority felt that a law affected its rights in relation to education. In such a case, even
if the law were intra vires the provincial legislature, an appeal would lie to the Governor-
General in Council, after which, remedial legislation could be passed by the Parliament
of Canada for the execution of any decision of the Governor-General in Council. (S.93,
subs. 4).
:10[1917] A.C. 62.
nTo be distinguished from S.93(3)
(note 9 supra), where the provincial law need
not be ultra vires. Of course, the “class of persons” involved is not precluded from em-
ploying S.93(3), which is more of an administrative than a legal remedy.
124-5 Vict. c.18, s.11; (1861) Consolidated Statutes of Lower Canada, s.55.
No. I1]
CASE AND COMMEVT
agement and control that they had special rights and privileges.’3 If plaintiff
were seeking admission to a Protestant school in the cities of Montreal or
Quebec, he could not be refused such admission.
The common schools in the rural areas are not formed by a class of persons
professing one religious belief. They are non-denominational, in law, and have
not the protection of S.93. As stated in Hirsch v. Protestant School Comnis-
sioners of Montreal:
“Such a common school, if in a single district, is under the management of com-
missioners appointed by the whole body of landholders and householders
in the
district without regard to their religious faith; and even in a district where a
minority has established its own separate school, the electors who remain need not be
all of the same religious persuasion.”14
This remains the case even though members of one religious denomination
will in fact form a majority in a community and control the common school
or schools in their municipality. It was precisely this type of school to which
plaintiff no longer wished to send his children after he had abjured the Roman
Catholic faith. This, however, does not, in law, change the fundamental
characteristics of such a school, viz. a common school for all the inhabitants
of a particular district, regardless of religious belief.
Unlike the common schools, the dissentients, founded and maintained by
a body of persons professing one religious belief’ 5 and managed by their elected
representatives, are denominational schools enjoying the protection of S.93.
Moreover, according to S.93 (-2), the Protestant (and Roman Catholic) dis-
sentient schools enjoy the same rights which the Roman Catholic separate
schools had in Ontario in 1867. One of these rights is found in the Roman
Catholic Separate School Act of 186326 Section 12 of that act states:
“The Trustees of ‘Separate Schools’ may allow children from other School Sections,
whose parents, or lawful guardians, are Roman Catholics, to be received into any
Separate School under their management, at the request of such parents, or guardians;
and no children attending such School shall be included in the Return17 required to
be made to the Chief Superintendent of Education, unless they are Roman Catholics.”
Applying this section to the Protestant dissentient schools, we can state that
such schools need not admit any children who are not of the Protestant faith.
Therefore, the Roman Catholics and Protestants are each a class of persons
which had rights in 1867 with respect to denominational schools; rights
which continue to exist today according to the terms of the B..N.A. Act. For
the purpose of this case we can also say that the Protestant dissentient schools
13Hirsch v. Protestant School Commissioners of Montreal [1928] 1 D.L.R. 1041.
14Ibid, at p. 1047.
15 The section of the act which permits their establishment states, inter alia, (s.55)
“When in any municipality, the regulations and arrangements, made by the School
Commissioners for the conduct of any School, are not agreeable to any number whatever
of the inhabitants professing a religious faith different from that of the majority of the
inhabitants of such Municipality .. .
1629 Vict. c.5.
17The “Return” is a list made by the Trustees of the names of the children attending
the separate schools.
McGILL LAW JOURNAL
[Vol, 2
have the protection of sections 93(1) and 93(2), which preserve, inter alia,
the right to exclude, from their schools, children of other religious faiths.
Any person, or group of persons, who claims the same rights as are enjoyed
by the Protestants must prove that he qualifies as a member of that denomin-
ation. The statement enunciated in Harding v. Mayville remains true today.
The learned judge, in that case, stated:
.
.
to
” .
aver and prove all those exceptional matters, taking him out of the general rule.”1 3
it lies on the plaintiff claiming exemption as a separatist (dissentient)
In attempting to qualify as a Protestant, the plaintiff alleged, firstly:
“Jehovah’s Witnesses are an organized religious denomination with their own
beliefs, practices and modes of worship all of which are sufficient to bring them
within the meaning of the Statute.”
The Statute referred to is the Public Education Act,’ which is essentially
the same as the Act of 1861 and in which certain religious denominations are
given special rights. Before plaintiff can proceed to show that he belongs to
one of these privileged denominations (for example the Protestants), he must
first of all show that the Witnesses are a denomination. The defendants had
denied this.
Although they claim to be against all religions, the Jehovah’s Witnesses,
with their own Christian creed and interpretation of the Scriptures, must be
regarded as a religious denomination. In the Saumur case,20 it was held that
the Witnesses came within the terms of the Freedom of Worship Act 2′ and
were entitled to the “free exercise and enjoyment [of their] religious Profes-
sion and Worship.” Mr. Justice Bertrand, in the Queen’s Bench decision
stated :22
“This separateness of organization, beliefs and practices and aloofness from part-
icipation in the affairs of any other religious organization plus the fact that there
is a distinctive name (denomination) provides all the essentials required to establish,
as a matter of law, that there is a religious denomination.”
However, the mere fact that the Jehovah’s Witnesses are a religious de-
nomination does not, when taken alone, give them constitutional guarantees
and the right to attend the Protestant dissentient schools in the Province.
Plaintiff must show that the Witnesses are a religious denomination or “class
of persons” which has the protection of S.93, i.e. that as a “class of persons”
they fall within the category of either “Roman Catholic” or “Protestant”.
Secondly, the plaintiff stated:
“The term ‘Protestant Denomination’ within the meaning of the Education Act
includes all Christian groups which are not Roman Catholics; this includes Jehovah’s
Witnesses even though they disagree with other Protestant denominations.”
This contention is clearly inadmissible according to the various statutes
relating to education, and their interpretation by the courts. The Education
1821 U.C.C.P. at p. 511.
19(1941) R.S.Q. c.59.
20[1953] 2 S.G.R. 299.
21(1941) R.S.Q. c.307.
22104 C.C.C. 106.
No. 1]
CASE AND COMMENT
Act does not define the terms “Protestant Denomination” and “dissentients.”
It speaks only of persons professing “a religious faith different from that of the
majority.” Moreover, the Privy Council, in the Hirsch case,23 had decided
that in view of the rights and privileges existing at Confederation and
preserved by the B.N.A. Act, the Protestant dissentient schools could not be
forced, by law, to admit children of a different religious faith. The court had
to pass judgment on the validity of a provincial statute which purported to
treat Jews as Protestants for school purposes. Such a statute was invalid be-
cause it would enable the Jews to claim a share in the establishment and
management of Protestant schools and would thus prejudicially affect a right
which the class of persons known as Protestants had by law at the Union;
that is, the management and control of their own schools. In his allegation,
plaintiff attempts to distinguish the Hirsch case by limiting non-Catholic
groups to Christian sects. However, the terms of the Privy Council ruling
do not admit of such a distinction. It was stated :24
“It may be added that, in their Lordship’s opinion, the contention …
that the word
‘Protestant’ in the statutes must be construed as meaning non-Catholic and so as
including Jews, is quite untenable; and also that the Protestant community, although
divided for some purposes into different denominations is itself a denomination and
capable of being regarded as a ‘class of persons’ within the meaning of S.93 of the
Act of 1867.”
It is clear that various religious denominations, even though they be Christ-
ian, cannot get together to form a “class of persons” within the meaning of the
B.N.A. Act. The learned trial judge pointed out the inequitable situation
which would result from such an interpretation:
“Ainsi, si la th~orie du demandeur 6tait accept~e, les dissidents seraient tenus d’ac-
cepter tous les groupements qui se d6clarent non-catholiques et former ainsi une
agglom6ration de toute croyance qui pourrait rclamer des r~gles de son choix ou
des exceptions particuli~res dans l’ducation des diverses categories d’enfants.”
To permit this would defeat the whole purpose of the statutes which
established the dissentient schools and which preserved their rights against
possible encroachment by provincial legislatures. It would also be quite point-
less to allow the establishment of such schools and afterwards force them to
accept all non-Catholic children. The Act of 1861 and the provisions with
respect to education in the B.N.A. Act were not aimed primarily at giving
rights to anti-Catholic religious sects.25 They had a more positive aspect than
that. The legislators were concerned with the securing of rights for the
Protestant minority population at that time in Quebec. Following the Privy
2311928] 1 D.L.R. 1041.
24Ibid, at p. 1050.
25This was the gist of Sir John Simon’s argument before the Privy Council –
that
“Protestant” within the meaning of the act of 1861, meant “against Roman Catholics”.
This was rejected by the Privy Council. Pp. 9 ff. of the Transcript of the argument in
the Privy Council in the Hirsch case.
McGILL LAW JO URNAL
[Vol. 2
Council decision in the Hirsch case, another Supreme Court ruling affirmed
that “the dissentients themselves must be of a common religious faith.120
Plaintiff’s third allegation is, perhaps, the most contentious one. It reads:
“Plaintiff and his children are members of a dissentient denomination; they have
fulfilled all the requisite formalities and are entitled to attend the dissentient school.
a) Plaintiff has chosen to become one of Jehovah’s Witnesses and to leave his
former religious affiliation; he has a right to do this both for himself and for his
children. Accordingly the family is no longer Roman Catholic but Protestant.”
Since plaintiff professes a faith different from that of the majority, it may be
said that he is a member of a dissentient group; perhaps he did fulfill all the
formalities regarding the notice of dissent as required by sections 99 to 103
of the Education Act; moreover, no one questions his right to leave his
former religious affiliation and become one of Jehovah’s Witnesses; but
does this make the plaintiff a Protestant with the right to attend the Protestant
dissentient schools? Does the mere fact that a person no longer wishes to
remain Roman Catholic make such a person Protestant? The Superior Court
is of the opinion that it does not.
What criteria can the courts use in determining that the Witnesses are not
a Protestant denomination? The defendants deny that they are a religious
denomination. However, non-recognition by local officials is not proof of the
non-religious character of the Jehovah’s Witnesses.
The writings of the Witnesses are quoted by the trial judge showing that
they attack both the Roman Catholics and Protestants and disassociate them-
selves from both these groups. The question cannot be decided by mere refer-
ence to such writings. The Witnesses attack all religion per se and to adopt
only their opinions could lead to the conclusion that they are not a religious
denomination at all. However, these writings, coupled with judicial decisions
in which the Witnesses were involved, will afford us guidance in determining
the religious character of this sect.
With regard to the writings of the Witnesses, it is interesting and inform-
ative to note the technique used by the courts in coming to the conclusions
a) that the Witnesses are a religious denomination, and b) that they differ
from both the Roman Catholic and Protestant denominations. In the former,
the courts defined “religious denomination” and were able to place the
Witnesses within the terms of such a definition, even though their writings
preach against all religions. No such process was possible in the latter,
where the Witnesses not only fail to identify themselves as Protestants, but
also attack that denomination.27
26Les syndics d’coles dissidents de St. Rornuald v. Shannon [1930] S.C.R. 599 at
p. 601.
27A quotation, from one of the official tracts of the Witnesses, shows the nature of such
criticism: “Today, Protestantism is dead. It no longer protests against the traffic of
Rome. Protestant pastors, as well as rabbis, follow the directives of the Catholic Church,
and orientate their activities in the same direction. They all practice the religion of which
the Devil is the author.” Enemies, P. 187 of the French language edition.
CASE AND COMMENT
In two very important cases, affecting the rights of the Witnesses and their
freedom to preach their religion, not one single judge treated the Witnesses
as Protestants. On the contrary, those who expressed an opinion on the matter
stated that the Witnesses differ from both the Roman Catholic and Protestant
faiths. In Boucher v. The King, Mr. Justice Rand, speaking of a member of
Jehovah’s Witnesses, stated :28
“The conduct of the accused appears to have been unexceptionable; so far as dis-
closed, he is an exemplary citizen who is at least sympathetic to doctrines of the
Christian religion which are, evidently, different from either the Protestant or the
Roman Catholic versions.”
In the Saumur case, Mr. Justice Bertrand, in the Queen’s Bench decision29
had this to say about the religious character of the Witnesses:
“I believe also that the said Witnesses practice a Christian religion, although
different from Catholicism and Protestantism.”
According to the strict letter of the law, the Superior Court seems to be
justified in holding that the defendants can refuse admission to plaintiff’s
children, since he is a member of a sect which differs from the Protestant
denomination. The Hirsch case30 recognized that the Protestants were a
distinct “class of persons” and not merely all those who disapproved of the
Catholic religion. Our own Queen’s Bench and Supreme Court justices
classify the Witnesses as different from both the Roman Catholic and Pro-
testant religions. As Lord Buckmaster pointed out :31 “the word ‘Protestant’
must have a special meaning, having regard to the meaning of the [Educa-
tion] ‘Act.” If other new sects continue to emerge, and if they attack both the
Roman Catholic and Protestant religions, are the courts to regard them as
Protestants merely because they are a Christian sect? To do so would reduce
greatly, and might even render ineffectual, the protection afforded by the
B.N.A. Act to the “class of persons” known as “Protestants”.
JOHN CIAccIA*
2896 C.C.C. 48 at p. 74.
20104 C.C.C. 106 at p. 140.
30[1928] 1 D.L.R. 1041.
SIP. 44 of the Transcript of the argument in the Privy Council in the Hirsch Case.
* Third Year Student.
