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Un des symboles suivants apparaltra sur la dernidre image de cheque microfiche, selon le cas: le symbole —^ signifie "A SUIVRE", le symbole V signifie "FIN". Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent dtre filmds A des taux de reduction diffArents. Lorsque le document est trop grand pour Atre reproduit en un seul clichA, il est filmA A partir de Tangle supArieur gauche, de gauche k droite, et de haut en bas, en prenant le nombre d'images nAcessaire. Les diagrammes suivants illustrent la mAthode. 1 2 3 32X 1 2 3 4 5 6 z\11- |M1 ■vh O^HK Canadian Magazine. VOL. I. iMi^K^oia:, 1893. No. 1. THE MANITOBA PUBLIC SCHOOL LAW. BY D'aLTON m'CARTHY, Q.C, M.P. Public intere.st is centred more on the fate of the School Law of Mani- toba and rm the novel and unexam- pled proceedings that are now pending before the Privy Council at Ottawa, with a view, if it be possible, to tind a reasonable pretext to overtuin the de- cision of the Judicial Committee of the Privy Council which affirmed that the Act was constitutional, than per- haps on any other matter now engag- ing attention, the necessity of tariff amendment po.ssibly only excepted. The proceedings referred to are, in themselves, and quite irrespective of the deep interest which for one cause or another is felt by a great majority of Canadians in the fate of the meas- ure, sufficient to excite attention and even to create alarm. For here we have an Act of a Provincial Legisla- ture which has been passed with the approval of a great majority of the people interested — the inhabitants of Manitoba — after it had run the gaunt- let of the law courts of the Dominion and of the highest legal tribunal of the Empire, assailed by a procedure unknown to the law and before un- heard of. This extraordinary attack is made before a body composed of politicians — the Dominion Cabinet — who, whatever be their qualifications in other respects, are not, it is safe to say, conspicuous for that impartiality and freedom from bias respecting a matter of great political importance, which we are accustomed to associate as an indispensable attribute of those who wear the ermine and administer justice in the name of the Sovereign. It is not proposed to discuss the merits or the demerits of the Public School Act of the Prairie Province, as to which the minds o^ most thinking people of the Dominion are already made up. But rather is it intended to direct attention to the last function which the Privy Council of Canada has assumed the right to take part in — to examine by what authority a new and hitherto unknown legal tribunal has unexpectedly manifested itself — and to consider, with all the gravity and earnestness that such an enquiry demands, whether the r61e that the Privy Council is now engaged in play- ing is permitted by the Manitoba Constitution, the British North Amer- ica Act, or by any other law known to the British constitutional system. It will be remembered that the legality or constitutionality of the Act was impugned on this ground, that although, generally speaking, the Legislature of the Province is en- dowed with power "exclusively" to " make laws in relation to education," it had violated the limitation imposed on its general authority in that by the Public School Act the right or privileges witii respect to denomina- PROVI:\o,AL ARCHIv'cS OF B. C. rUh: CANADIAN MACAZINIi tionai schools which the Roman Cath- olics " had by practice " (it was not contended that any class of persons had any right or privilege " by law ") in the Province at the time of the Union, had been prejudicially affect- ed. After protracted litigation in which, in the name of one Bariett, the Dominion, on behalf of the Roman Catholic minority of the Province, claimed that the Provincial law was ultra vires — this proceeding having in the courts of this Province terminated adversely to that contention, to be decided in the Supreme Court of Can- ada in the opposite way — was finally solved, so far as the power of the Legis- lature is concerned, by the judgment pronounced on the appeal to the Judi- cial Committee in July last, b}' Lord Macnaghton. This distinguished jurist on behalf of the Council, expressed not only the decision that the Public School Act was within the power of the Legislature to enact, but went on, having been invited thereto by the line of argument adopted by the counsel on behalf of the Dominion, to express the opinion of the Committee, " that if the views of the Respondents (the Roman Catholic minority as repre- sented by the Dominion) " were to prevail, it would be extremely diffi- cult for the Provincial Legislature, which has been entrusted with the exclusive power of making laws re- lating to education, to provide for '-he educational wants of the more sparse- ly inhabited districts of a country al- most as large as Great Britain, and that the powers of the Legislature, which on the face of the Act a|)poar so large, would be limited to the useful but somewhat humble office of making regulations for the sanitary contlition of school-houses, imposing rates for the sup])ort of denominational schools, enforcing the compulsory attendrnce of scholars, and matters of that sort." This authoritative judgment ought, one would have thought, as indeed most Canadians did think, to have ended the controversy that had now raged, exciting much embittered feel- ing in the Province and great interest throughout the Dominion, for a ])eriod of nearly two years, in wliich the somewhat unfortunate, not to say un- seemly, exhibition was presented of the Dominion Government assailing the constitutionality of a provincial Act, as to which the Government, as such, had no ground of complaint. But it seems that the end was not yet; for, unhappily for the peace of the Dominion, Sir John Thompson, made a report to the Council, which was approved, ostensibly to show why the Public School Act should not be vetoed by the Governor-General, but as some supposed to jtostpone for a sea- son the unpleasant duty of denying the petition of the Roman Catholic Epis- copacy of the Dominion of Canada (including the Cardinal and Bishop Cameron of Antigonish), who prayed " His Excellency in Council to afford remedy to the provincial legislation . . . and that in the most effica- cious way. " In this report the Mirister of Justice said, amongst other things, that " it became appar- ent at the outset that these ques- tions, namely, whether the School Act did prejudicially affect any right or privilege which the Roman Cath- olics had by law or practice at the Union, re(|uired the decision of the judicial tribunal, more especially as an investigation of facts was neces- sary to their determination ; " and went on to say, " If the legal contro- versy should result in the decision of the Court of Queen's Bench " (which had been in favor of the Province) " being sustained, the time will come for your Excellency to consider the petitions which have been presented by and on behalf of the Roman (Cath- olics of Manitoba for redress under sub-sections 2 and 3 of section 22 of the Manitoba Act, etc., etc." The decision of the Queen's Bench of the Province has been upheld, and the event, therefore, has happened, which, as Sir John Thompson advised .1 THE MANITOBA PUBLIC SCHOOL LA IV. His Kxcellency, would require that the })etitions which had been pre- sented should be "considered;" and the Minister fu'^her explained his meaning by adding that " Those sub- sections contain in effect tlie provis- ions which have been made as to all the Provinces, and are obviously those under which the Constitution intended that the Government of the Dominion should prevail, if it should at any time become necessary that the Federal powers should be resorted to for the protection of a Protestant or Roman Catholic minority against any act or decision of the Province or of any provincial authority affect- ing any right or privilege of any such minority in relation to education." The parties interested in having the provincial legislation annulled were not slow to take adviintage of the loop-hole which the Minister of Jus- tice had suggested, based, it must be said, on a construction of the Mani- toba Act unique and unprecedented ; for to no one before had it ever oc- curred in relation to the kindred sub- ject of the New Brunswick School Law on the analogous legislation which was in force respecting the four old provinces, that the question in- volved in the consideration of the policy of the School Law of a Pro- vince was subject to review by or be- fore the Dominion Cabinet. Accord- ingly petitions were presented, em- anating from a body or "organization," as the report of the sub-committee styles it, called " The National Con- gress " (" National," it is presumed, as representing the French nationality sentiment), aiid from tlie Archbishop of St. Boniface, complaining of the two Acts of the Province respecting education, |)assed in 1890, the con- stitutionality of which had been up- held; and both petitions prayed for redress under sub-sections 2 and 3 of section 22 of the Manitoba Act to the Governor-General in Council. So far, it will be observed, the only law under which redress was thouirht of, or the authority of which was in- voked, was the Manitoba Act, which contains in itself a complete code re- specting education, di tiering in many respects from the cognate provisions of the British North America Act, which, accordingly, have always beer, thought to be inapplicable to the Pro- vince of Manitoba. But in the month of November last, a further and supplemental petition was presented, emanating from tha same "national congress" whose pres- ident, it seems, is the Mayor of St. Bon- face and the Archbishop of the same place, and repeating the charges made in the preceding memorials, they claim that the Acts in question violate the })rovisions of the British North America Act as well as the Manitoba Act in this, that the system of separ- ate schools which had been established in the first session of its Legislature, had fjiven rights to the Roman Catho- lies wliich the province could not subsequently disregard. The difference between the enact- ment as to the provincial legislative powers between the Act confederating the four original provinces and the Act constituting the Province of Mani- toba, which, of course, is a Canadian Act, consists in this,thatin the former it is provided that not only when there is a system of separate schools at the time of the union, but also where one " is thereafter established by the legislature of the province, that an appeal shall lie" from an act or decision of any provin- cial authority affecting any such right to the Governor -General -in -Council. There is no such provision in the Manitoba Act, and it is hardly open to sei-ious question that the sub-sec- tion (3) of section 93 of the British North America Act, in which the pro- vision is found, does not apply to Manitoba, which, as has already been stated, has a set of clauses on tlie sub- ject ot education specifically providing for the new province. In this paper it is not proposed to "consider" the questions which have ir>34;»3 run CANADIAN MAGAZINE. been argued, firstly, before the Sub- committee of the Privy Council, and which resulted in the report given to the public on the oth January last in the cliief CJoveriiment organ; and which were again re-stated and re-en- forced ex pa,\to on behalf of the " Na- tional Congress " and the Archbishop of St. Boniface, on the ■22nd January, before the Privy Council (all the mem- Vjers being ])resent), but not, be it observed, before " the Governor-Gen- eral-in-Council" The Government of Manitoba, who, it is said, had been notified of the proceedings, declined to appear and repudiated the jurisdic- tion of tliis new tribunal. Much may have to be said on this subject, but for the present it is to the pretence that has been set up liy the Government of Sir John Thompson that in this mat- ter the Government are to act judi- cially, not politically, that needs the careful attention of the Canadian pub- lic. That there may be no mistake on this head, it is pi-oper to quote the report of the sub-Committee, which has been approved by Council, atid on which the subsequent j)roceedings have been based. "The application comes before Your Excellency," says the report, " in a manner differing from other applications which are ordinarily n)ade under the constitution to Your Excellency in Council. In the opinion of the subcommittee the application is not to be dealt with at present as a matter of political char- acter or involving political action on the part of Youi' Excellency's advisers. It is to be dealt with by Your Excellen- cy in Council regardless of the person- al views which ^'ourExcellency'sadv's- ers may hold with regard to denomin- ational schools, and without the politi- cal action of any of the members of Your Excellency's council being con- sidered as pledged by the fact of the appeal being entertained and heard. If the contention of the petitioners be correct that such an appeal can be en- tertained, the enquiry will be rather of a judi^-ial than, of a political character. The sub-Couimittee have so treated it in hearing counsel, and in permitting their only meeting to bo open to the public." There is no mistaking this language; no misinterpreting its meaning. The Government are declining the duty of advising His Excelkxicy, who is the Executive under our system of govern- ment, as to whether he should or should not interfere with the Mani- toba School Act. It is "not to be dealt with at present as a matter of political character or involving politi- cal action on the part of Y'our Excel- lency's advisers" is the express lan- guage of this report. On the contrary, it is to be an enquiry which "will be rather of a judicial than of a political character." This is a departure so new in our constitutional pi-oceedings that it has hardly yet been fully appreciated. That, so far, if not designed, it has served a useful " political " purpose, although the enquiry is to be judicial, cannot be gainsayed. For whenever the awkward Manitoba School (pies- tion came up it was quietly laid at rest by the apparently unassailable statement given by the Minister of the Crown, who up to this time was always supposed to be a responsible Minister, bound to justify every act, nay, every word officially uttered by the Governor-General, thiit he had no opinion on the subject, or, if he had, it would be improper for him to gi^e ut- terance to it. For was he not one of the Council, if not of the sub-Commit- tee who was to determine whether the act should be interfered with — whether a remedial order should be made directing the Province of Mani- toba to undo its work on the subject of education, and was he not acting "judiciall}^ " and not in a " political " capacity as Minister ? And so at the nomination at the bye-election in Soulanges where the Hon. Mr. Ouimet graphically pictured his unhappy position in the face of an TUB MAIUTOHA PUBLIC SCHOOL LAW. ■ excited electorate as that of one " walking on razors, " he sheltered himself under the sacred character which he tilled as that of a juderly have, an opinion. For was not he the Minister to hear the question of the " aj)peal " argued as one of the sub-Committee ami afterwards as one of the Council 1 And when at the din- ner given in Toronto by the Board of Trade, at which the Premier himself referred to the subject, his language was as follows : — " For the Govern- ment the guide shall be, as fai as 1 am able to judge, the constitution of this country by which we propose to be guid(!d and which we propose to obey from beginning to end." It is evident, as has already been remarked, that this d(jctiine, whether so designed or not, was worthy of the most crafty of political experts. It would indeed reflect no discredit on a Richelieu or a Machiavelli and it re- vives the best days of the Schoolmen. For it enabled the Minister of Public Works to perform the somewhat haz- ardous feat of "walking on razors" without injury; and the Minister of the Interior to bamboozle the honest yeoman of Selkirk ; and it uH'orded the Premier the opportunity of figuring in the role of all othei's the most congen- ial, that of an oracle iiubued with mysterious power, controlled and guid- e:cellency's advisers, mj>y hold with regard to de- nominational .schools." And .so thewell- .settled |)ractice and theory of respon- sible (lovernmont is overturned. Let there be no evasion, no hairsplitting in this all important r.iatter on which depends in no small degree the peace and welfare of the Dominion. Mani- toba has had scant comtesy and but little ccmsideration at the hands of the Government ot Canada. Her Railway Legislation was vetoed so persistently that her people were driven to the verge of rebellion. The.se acts, if un- wise and har.sh, were at least within the lines of the constitution. But the attack now launched again.st her ex- clusive rii>ht to manajje her education- al .system is fraught with perilous con- sequences to the Dominion ; and for the initial steps that the (Government at Ottawa have taken to accomplish that end it should be held to strict ac- count, or Parliament will lamentably fail in its duty ; and the pretence that Cabinet acts as a judicial tribunal and not as political adviser.s of the Crown should meet with the contempt and condemnation it invites at the hands of the Representatives of the people. ^i-S^c^3^^ s*;i \