EXCERPTS FROM LEGAL OPINIONS

QUESTION 1: Would the proposed Term permit the establishment of a single school system where all children, regardless of their religious affiliation, attend the same schools?

Crosbie Yes. The Term will provide the legislature with the authority, which it does not now have, to establish such a system.

Binnie Term 17 would permit the legislature to establish a single school system where all children, regardless of their religious affiliation, attend the same schools. This may be contrasted with the current Term which provides for interdenominational and uni-denominational schools and a governance role for the denominations.

 

QUESTION 2: Would courses in religion be constitutionally guaranteed?

Crosbie Yes. Subsection (2) requires the legislature to provide for courses in religion. I note that these courses would not be specific to a religious denomination. Since the requirement is contained in Term 17, such courses are constitutionally guaranteed.

Binnie The proposed draft Term, if adopted, would not take religion out of the schools of the province. The new Term 17 contains a mandatory provision (shall provide) that guarantees that courses in religion must be taught in the schools.

However, the Term is equally clear that the courses in religion that are guaranteed will not be of a denominational nature. There is no guaranteed right to have courses in religion that would be directed at just one denomination.

 

QUESTION 3: Are religious observances constitutionally guaranteed?

Crosbie Yes. Subsection (3) of the Term guarantees that religious observances will be permitted in schools where requested by parents.

Binnie Subsection (3) of the proposed Term provides a constitutional guarantee that religious observances will be permitted in schools.

It is clear that it is the parents, rather than the Churches or the government, that will make the determination.

 

QUESTION 4: Would observances such as the Lord's prayer or a nativity scene be constitutionally guaranteed?

Crosbie Yes. Based on these definitions religious observances would include the Lord's prayer and a nativity scene.

Binnie The types of activity that the courts would find covered in the expression Areligious observances would, in my opinion, include such religious observances as the Lord's prayer and a Christmas nativity scene.

 

QUESTION 5: Would subsection (3) of the Term require a child to attend a religious observance where the child's parents objected?

Crosbie No. The constitutional guarantee says that religious observances will be permitted where requested by parents. Such language does not suggest that children would be required to attend if their parents objected.

Binnie Nothing in Term 17 would require the participation of a student whose parents wish to opt out.

 

QUESTION 6: Could a provision of the Charter or another part of the Constitution invalidate the rights set out in Term 17?

Crosbie No. The Supreme Court of Canada has stated that one constitutional provision cannot be used to invalidate a provision in another part of the Constitution. Term 17 is part of the Constitution of Canada.

In provinces where courts have ruled that religious observances such as the Lord's prayer cannot be held in the public schools, there is no constitutional protection comparable to that provided by Term 17.

Binnie Sections 2(a) and 15 of the Canadian Charter of Rights and Freedoms provide guarantees regarding religion. In some provinces, the courts have relied on these provisions to conclude that observances such as the Lord's prayer or nativity scenes cannot be held in public schools. You have asked for my opinion as to whether a similar challenge could succeed in Newfoundland and Labrador.

In my view such a challenge would fail. These other provinces do not have the equivalent of subsection (3) of the proposed Term 17, which will be as much part of the Constitution of the province as is the Charter itself. Subsection (3) expresses a very clear principle in relation to a very specific situation, i.e., religious observances shall be permitted in a school.

 

QUESTION 7: What effect does section 93 of the Constitution Act, 1867 have in Newfoundland?

Crosbie Section 93 does not apply in Newfoundland. Term 17, from its enactment in 1949, has stated clearly that the Term applies in lieu of section 93. This would continue under the proposed Term.

Binnie Section 93 of the Constitution Act, 1867 has no application in Newfoundland. The introductory language to Term 17, enacted in 1949 and continued in the 1995 amendment, makes it clear that section 93 does not apply in Newfoundland.

Similar language is contained in the proposed Term. In my view, section 93 would continue to be irrelevant in Newfoundland and Labrador if the proposed Term is adopted to replace the current Term.

 

QUESTION 8: Is there a right under the Term to hire or assign teachers on the basis of their religious affiliation?

Crosbie No. This power, which is contained in the current Term, would be eliminated.

Binnie The new Term does not expressly or by implication authorize the hiring or assignment of teachers based on their religion.

 

QUESTION 9: Is there any obligation under the Term for denominational representation on school boards?

Crosbie No. If the proposed Term 17 is enacted, the obligation, which is contained in the current Term, would be eliminated. All school trustees could be elected without reference to the individual's religious affiliation.

Binnie There is nothing in the proposed Term 17 that would require school board trustees to be elected on a denominational basis.