Bill #4 opens a Pandora’s box

Bill #4, is a very problematic solution to a very simple problem.  Morinville will get secular public school education.  This is long past due, and Sturgeon School Division is the appropriate provider.

With Bill #4 the Redford government is acknowledging that Greater St. Albert Catholic Regional Division has been acting unconstitutionally for the past 18 months.  The Redford government is saying, “at a time of our choosing (forget the parents and students), this will not continue.”

But the fact is, the Redford government has sacrificed the interested parents and their children, for more than 15 months, in order to create a distraction.

Morinville could have had genuinely public school education at any time, by simple Ministerial Order transferring jurisdiction for Morinville from the Greater St. Albert public school jurisdiction to Sturgeon School Division.

The Redford government has strung this issue out, not in order to solve the “Morinville problem”, but in order to play a constitutional shell game in the City of St. Albert.

With the introduction of Bill #4 the Redford government has taken the first transparent  step toward unilaterally disestablishing the only operating Protestant separate school jurisdiction in Alberta.  For all practical purposes, the rights of Protestants to establish separate school education in any local community will be completely extinguished when Bill #4 is given Royal Assent, since there are no Protestant separate school regions in Alberta and the proposed new Education Act only allows separate school establishment in the context of a corresponding separate school region.

Individual members or informal groups of the Protestant faith may regret this development, but the church courts themselves are apparently accepting, either because they have no interest in Protestant separate school education or because they accept the argument that all separate school education in Alberta should be Roman Catholic.

There is a good case to be made that the Bill is unconstitutional, for two reasons.

The School Ordinance of 1901 is the constitutional foundation of separate school education in Alberta.  It does not make provision for using changing demographics to justify disestablishing separate school education.  The current School Act does make provision for separate school electors to conduct a plebiscite and decide to disestablish their own jurisdiction, but the Redford government was certainly not prepared to leave their chosen solution to the uncertain outcome of a plebiscite among Protestant school supporters.  (Perhaps citizen democracy is a good thing in theory, but not in practice.)

Since the proposed new Education Act provides only one means of establishing a separate school district, and that process relies upon a so-called separate school region, and since there are no Protestant separate school regions in Alberta, and can’t be when St. Albert Protestant separate school district is dissolved, Bill #4 eliminates forever the possibility of Protestants being able to establish a separate school district anywhere in Alberta.

The fact remains, the legislation, once Assented to, will be operative — and presumed to be constitutional unless and until it is challenged in court, which is costly, time consuming, and requiring of courage.  As a Minister told a small group about a decade ago — “I’m the Minister of Education.  I can do whatever I want until the Courts say no.  Don’t hold your breath.”

On the one hand, the Bill is another unfortunate exercise in government, by a Party that makes decisions in secret, acts unilaterally, and moves in haste to forestall debate.

The Redford government is ending Protestant separate school education in Alberta without asking the Protestant electors of St. Albert what they think of the move — because the Redford government knows best.  The Redford government brought this forward in secret because it does not want informed public debate until after the fact (in the hope that discouraged Albertans will turn their attention to other matters).

Most likely, the Redford government will make sure that this Bill is passed within a week.

The Bill is an elaborately constructed ruse that sacrificed parents and students for 18 months so that the government could “deliver” to a different constituency in a different place.  The Bill is likely unconstitutional, because it disregards the effected minority and because it extinguishes any prospect for Protestant separate school education anywhere in Alberta in the future.  The Bill is another example of the Redford government proceeding in secret, acting unilaterally, and without regard for effected citizens, and acting in haste to forestall public debate.

On the other hand, with Bill #4 the Redford government reminds us of section 51 of the 1901 School Ordinance (“The Lieutenant Governor in Council may by order notice of which shall be published in the official gazette declare that on and after a day therein to be named any district shall be disorganized and thereupon the same and the board thereof shall cease to have or enjoy any of the rights, powers and privileges vested in such corporations by this Ordinance…”)

 

The Redford government is asserting its constitutional right to disestablish any school board, including any separate school board, unilaterally  — including all separate school jurisdictions in the province.  The operative provisions of the Bill do not set out any objective criteria for dissolution.  Particularly, the electors of the separate school district do not have to demonstrate support for dissolution, by a plebiscite or any other means.

For those who favor the separation of Church and State, and the end of separate school education, the precedent will be very helpful.

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4 Responses to “Bill #4 opens a Pandora’s box”

  1. Alan Says:

    Very interesting perspective on Bill #4. Unfortunately, the 1901 School Ordinance is not the constitutional foundation of education in Alberta, instead, its the British North America Act. It is the BNA Act which defines the nature of the terms “public” and “separate” for the purposes of education, and these terms refer to provincial populations as whole. “Public” is taken to mean the religion of the provincial majority, while “separate” the minority. Your reading of the 1901 School Ordinance, in light of the BNA Act, appears to be asking for a minority within a minority. A Protestant separate school division in Alberta is just a public school division.

    • dkingofalberta Says:

      The School Ordinance is indeed the constitutional foundation for separate school education in Alberta. The Constitution Act, 1867 simply provides that each province, as it enters Confederation, is to have its system of education “frozen” as it relates to separate school education. The Constitution Act, 1867 speaks to separate school education in Ontario and Quebec, and is silent on the question of separate school education in New Brunsnwick and Nova Scotia, because they didn’t have separate school education and it wasn’t being imposed on them. When Alberta became a province in 1905 the system of separate school education that was constitutionalized was the system in place at the time — the system that was legislated by the School Ordinance of 1901. That is why separate school education in Alberta is different than in Ontario. When B.C. and other provinces joined Confederation, post-1867 they were not obliged to adopt the Ontario/Quebec model. In Alberta, the faith minority is determined locally, not provincially. By the way, the same is true in Ontario, which has one operating Protestant separate school jurisdiction, Penetanguishene.

  2. Gord Waldie Says:

    THe historical reality is that PSSD #6 (the district in which I was educated and where my mother was a 2 term trustee) has acted, in practice, as the Public School District in St. Albert for most of its history. The Public Catholic District has acted as a Separate District since before it got expanded to cover a wider area. This situation is, after all, a historical anomaly.

    I also know that there has been a time when a discussion was helped about reversing the Public/Separate designations of the Boards (back when the public district was St. Albert only and as part of a funding/property tax issue) but an agreement was made to maintain the historic anomaly. In hindsight reversing the designations may have been the right choice., because it then would have matched the reality of who was being served.

    • dkingofalberta Says:

      Gord, you are correct that the day-to-day reality is that St. Albert Protestant looks quite like a public school district. But the reality is that it is not. Is the distinction meaningful? I would argue “yes”. If so, why”

      The Supreme Court of Canada has ruled that public school jurisdictions have no constitutional protection against any action by the provincial government. The provincial government could decide to abolish public school jurisdictions and run then centrally (like Alberta Health Services). The government could decide to eliminate locally elected public school jurisdictions and replace elected representatives of the local community with appointed representatives of the provincial community (like the former health region boards). The provincial government could regionalize school divisions so that they become very large — and people in one part of the region might be unfamiliar with the goals and aspirations of people in another part of the region. Like most boards in the province, St. Albert wants to maintain a local jurisdiction, and locally elected trustees, and they don’t want St. Albert to become part of a larger jurisdiction (like Edmonton, for example).

      The same Supreme Court of Canada has said that separate school jurisdictions have some constitutional protection against unilateral action by the provincial government. Exactly how much protection, and of what, is unknown until a real case is tested, but there seems to be fairly widespread agreement that separate school jurisdictions have a constitutional right to exist locally, a constitutional right to elect trustees, and a constitutional right to tax for revenue that is independent of the provincial government.

      St. Albert Protestant would like to maintain those rights for their electors. That actually seems quite sensible to me. The question is then, if only one jurisdiction in St. Albert can enjoy separate school rights, what is the justification for taking them away from Protestants in order to give them to Roman Catholics?

      There is one more wrinkle. In combination with the proposed new Education Act, the effect of eliminating the St. Albert Protestant Separate School District will be to eliminate entirely the possibility of there ever being a Protestant separate school jurisdiction anywhere in Alberta. The Education Act requires that expansion take place within what is called a separate school region. There are no Protestant separate school regions in Alberta; the provincial government declined to create any back in 2002 – 2003. The government could say it has changed its mind and is ready to create Protestant separate school regions. Then they face the problem that the Education Act requires a region to have an operating separate school jurisdiction within its boundaries. When St. Albert Protestant is done away with, there won’t be a single operating Protestant separate school jurisdiction in Alberta, so there won’t be an anchor for a Protestant separate school region, so a future establishment will be impossible.

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