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of Canada number about 41 per cent of the whole people. They, too, are spread throughout all its nine provinces. In only one province-Quebec-are they the majority. There their strength is overwhelming. In the other eight provinces, Catholics are the minority. Like you we have racial and religious difficulties. Our population has been drawn from many sources, and we are confronted, especially in the West, by a problem of assimilation not unlike your own. In Eastern Canada, conditions are not dissimilar to those which obtain in older countries; in the newer portions of the West, the struggle of life is more strenuous. The pioneer finds little time to devote to primary, and none to give to higher, or even to secondary education. You will therefore readily appreciate that the subject of Catholic education in Canada embraces a wide field—a field which it would be difficult, if not impossible, to cover to-night. Perhaps for this reason, perhaps because those responsible for this evening's program thought that as a lawyer I would be more at home in that branch of the subject, I have been asked to speak to you not upon Catholic education in Canada generally and at large, but upon Catholic education in Canada in its relation to the civil authority.
Let me premise by explaining that, as a member of a court which in the past has been, and in the future may be, called upon to deal with questions affecting the constitutional rights of minorities in educational matters, I must ask you to excuse me if I refrain from discussing problems which may present themselves for future adjudication, and also from expressing any opinion. upon the attitude and the conduct of political parties in recent years upon various phases of those questions. I shall confine my remarks to a résumé of the development of the conditions in regard to Catholic education which now obtain in each of the Provinces, of the course which our legislation has taken, and of the difficulties which our Catholic people have encountered. inerely glancing at the legal and political struggles through which they have passed. I fear I must to some extent enter into details which may not be of transcending interest; I shall endeavor not to do so at greater length than is necessary to present my subject clearly and intelligibly. My object shall be to make plain to you what has been in the past, and what is to-day, the attitude
of the civil authority in each of the Provinces of the Dominion of Canada towards Catholic education.
Under the Constitution of the United States, the legislative powers of the Federal Congress are defined. The residuum of
. legislative jurisdiction remains vested in the state legislatures. In this residuum is included the control of education, which is therefore with you purely a domestic matter in each State of the Union. In Canada, under the Imperial British North America Act of 1869, defined subjects of legislation are assigned, some to the Federal Parliament and others to the provincial legislatures, but the residuum of legislative jurisdiction is conferred upon the Dominion Parliament. Where, as sometimes happens, the subjects of dominion and provincial legislative authority overlap, a provincial legislature may pass valid legislation if it finds the field unoccupied. But here the federal jurisdiction is paramount, and a statute of the Dominion Parliament, whenever enacted, prevails over and supersedes provincial legislation in pari materia. This distribution of legislative powers, effected by sections 91 and 92 of the British North America Act, was intended to be exhaustive, except upon one subject—that of educationwhich was deemed so important and so delicate that it was separately and specially dealt with in the 93d section. This section reads as follows:
"93. In and for each province the Legislature may exclusively make laws in relation to education, subject and according to the following provisions :
“(1) Nothing in any such law shall prejudicially affect any right or privilege with respect to denominational schools which any class of persons have by law in the province at the Union.
“(2) All the powers, privileges, and duties at the Union by law conferred and imposed in Upper Canada on the separate schools and school trustees of the Queen's Roman Catholic subjects shall be and the same are hereby extended to the dissentient schools of the Queen's Protestant and Roman Catholic subjects in Quebec.
"(3) Where in any province a system of separate or dissentient schools exists by law at the Union or is thereafter established by the Legislature of the province, an appeal shall lie to the Governor-General in Council from any act
or decision of any provincial authority affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects in relation to education.
"(4) In case any such provincial law, as from time to time seems to the Governor-General in Council requisite for the due execution of the provisions of this section, is not made, or in case any decision of the Governor-General in Council on any appeal under this section is not duly executed by the proper provincial authority in that behalf, then and in every such case, and as far only as the circumstances of each case require, the Parliament of Canada may make remedial laws for the due execution of the provisions of this section and of any decision of the Governor-General in Council under this section."
This legislation has furnished material for several bitter contests, waged now in the courts, now before the Governor-General in Council, now upon the floors of Parliament, and at least once carried to the electoral hustings—contests which aroused prejudice and hard feeling not only in the provinces immediately concerned but throughout the Dominion. As a result the meaning of some of the provisions of section 93 has become better understood by Canadian lawyers and public men, and Catholics, whose interests have suffered in New Brunswick, Prince Edward Island and Manitoba are—except in Ontario—perhaps less confident than formerly of the efficacy of statutory protection of their educational rights and privileges. It would be temerity indeed to predict that the difficulties in the construction and application of section 93 are at an end, or that the days of trouble and of conflict in regard to denominational education are forever past in Canada. While we hope much from the decrease in bigotry and religious animosity which is apparent, and from the improvement in feeling between Catholics and Protestants throughout Canada, the attacks upon our school rights have been too recent and too determined to permit of our forgetting them; we realize that there is still much jealousy of the privileges we enjoy, and that our vigilance must be unceasing.
You will not have failed to observe, as I read section 93, that legislative jurisdiction in regard to education is conferred primarily upon the provinces. But this jurisdiction is restricted and qualified. By clause 1, any right or privilege with respect to denominational schools which any class of persons had by law in a province at the Union is safeguarded. The crucial words in this clause are the words "by law.” Owing to the use in the next clause of the descriptive words "separate" and "dissentient," there has been some discussion of the meaning of the word “denominational” in clause 1. But whether it would or would not include schools which are merely Protestant-as distinguished from Anglican, Methodist or Presbyterian-its application to schools essentially Catholic scarcely admits of serious controversy.
The meaning of the second clause has not yet been submitted to tlie courts, but it seems too clear for question. It ensures to the Protestant minority of Quebec for their dissentient schools all powers and privileges enjoyed by the Catholic minority in Ontario in regard to their separate schools at the time of the Union. The reason for the insertion of this provision I shall explain later.
By the third clause, a right of appeal is given to the minority in any province-Catholic or Protestant-against any act or decision of any provincial authority affecting any of its rights or privileges in relation to education. The appeal is to the GovernorGeneral in Council, i. e., to the ministry or cabinet of the daythe Executive Government of Canada. This appeal lies only if a system of separate or dissentient schools existed by law in the province at the Union, or if the legislature of the province las since the Union established such a system. The cognate provision of the Manitoba Act was much discussed in the second Manitoba School case, to which I shall have occasion again to refer.
By the fourth clause a very limited legislative jurisdiction is conferred on the Dominion Parliament. It is enabled by "reniedial legislation” to give to a minority redress to which, under clause 3, the Dominion Executive has found it entitled, should the Province decline to legislate in accordance with its decision. This provision was also discussed in the Manitoba case. Moreover, should the Dominion Executive at any time find and declare that any provincial legislature has failed to carry out any provision of section 93, Parliament is enabled to legislate in order to afford relief. A very obvious application of this power would be to a case in which the Province of Quebec had not accorded, under clause 2, to the Protestant minority some right enjoyed at the time of Confederation by the Ontario Catholics in regard to their separate schools. To the honor of French Catholic Quebec, there has never been any occasion to invoke Dominion interference for the protection of the rights of the Protestant minority under this provision. To what other cases or in what other circumstances clause 4 would be applicable has not yet been determined. The scheme of this subsection requires that legislative action by the Dominion Parliament shall in every case be preceded by and based upon a judicial finding or declaration by the Governor-General in Council that circumstances exist which justify and call for the intervention of the Federal Parliament in what is primarily a subject within provincial legislative jurisdiction.
Your knowledge of the jealousy with which federal interference with state rights is regarded in your own country will enable you to understand with what circumspection our Dominion authorities must exercise the supervisory and remedial powers entrusted to them for the protection of the educational rights of religious minorities. When to the jealousy with which federal interference with so-called provincial rights is viewed, you add the fact that provincial action in educational matters, which is the occasion of federal aid being sought, invariably arouses sectarian animosity and bitterness, which spreads from the Province immediately concerned to the Dominion at large, you will appreciate that a situation of grave difficulty and great delicacy is the result. Although the Dominion Executive is itself essentially a political body, it is usually composed of largeminded patriotic men, and it is capable, when called upon to deal judicially with such grave and momentous questions, of rising above mere party politics and of putting aside considerations of party advantage in order to render justice to those who seek it. But when such a situation must be dealt with by a House of Commons composed of 215 members, elected from all parts of