Maher v Town Council of Portland is a Canadian constitutional law court decision dealing with the constitutional guarantees for denominational schools set out in section 93 of the Constitution Act, 1867 Constitution Act, 1867, 30 & 31 Victoria, c. 3. (U.K.), R.S.C. 1985, App. II, No. 11, s. 93. (formerly the British North America Act, 1867). The issue was whether the Common Schools Act,Common Schools Act, S.N.B. 1871, c. 21. enacted by the Province of New Brunswick in 1871, infringed the guarantee of denominational schools set out in section 93(1).
The court case was part of the larger debate on public funding and the role of the churches in public affairs in New Brunswick. The litigation was triggered by the Legislature of New Brunswick passing the Common Schools Act, which explicitly provided that public schools were to be non-sectarian, open to all, and under the supervision of a provincial Board of Education. Some schools under the previous system had been under the effective control of particular religious denominations, in areas where the adherents of those denominations were in the majority. Opposition to the new school system came from the Roman Catholic Church and the Anglican Church.
The case was ultimately decided by the Judicial Committee of the Privy Council in Britain, at that time the court of last resort for Canada within the British Empire. The Judicial Committee held that the parish schools established under the previous law, the Parish Schools Act of 1858,Parish Schools Act, S.N.B. 1858 (21 Vict.), c. 9. were not denominational schools established by law, and were not within the protection of section 93(1). The new Common Schools Act therefore did not infringe any legal "right or privilege" possessed by anyone in New Brunswick at the time of Confederation and was constitutional. Maher v Town Council of Portland was the first case decided by the Judicial Committee under section 93 of the Constitution Act, 1867.
Development of the New Brunswick School System
Prior to Confederation, the school system in New Brunswick was governed by the Parish Schools Act of 1858,Parish Schools Act, S.N.B. 1858 (21 Vict.), c. 9. enacted by the government led by Premier Charles Fisher. That Act provided for schools to be set up on a voluntary basis in parishes, supported by voluntary financial contributions and tuition fees. Alternatively, the rate-payers in a parish could vote to impose local taxes in support of the parish school, in which case attendance at the school was free to all students. ("Parish" was the term used for one of the forms of local government at the time, rather than as a term of church organization.) As well, the Legislature appropriated a lump sum each year to support the parish schools. There was a Board of Education for the entire colony, composed of the colonial Cabinet, with overall supervision of the schools, but in practice the schools were under local control, often under the auspices of different churches and religious bodies.
The Parish Schools Act provided that the school libraries were not to contain any books hostile to the Christian religion, nor works of controversial theology. Teachers were to impress on the pupils "the principles of christianity, morality, and justice" as well as other moral and civil virtues, but in no case was a pupil to be required to read or study any religious book or participate in any act of devotion. Bible readings were permitted, on direction of the Board of Education, but only to pupils whose parents did not object.Parish Schools Act, S.N.B. 1858 (21 Vict.), c. 9, s. 8, para. 5.
The provincial Legislature enacted the Common Schools Act in 1871. George King, the provincial Attorney General, introduced the Bill in the Assembly and was responsible for its passage. The Assembly passed the Bill after strenuous political debate, including the adoption of a House amendment requiring that the schools be non-sectarian. The new Act carried forward much of the structure of the Parish Schools Act, but with some significant differences. The supervisory control of the provincial Board of Education was strengthened. School taxation was now made compulsory, not voluntary. Provincial funding was only to be provided to schools established under the Act.Common Schools Act, S.N.B. 1871, c. 21, s. 58(12) The schools were to be non-sectarian,Common Schools Act, S.N.B. 1871, c. 21, s. 60 and the Common Schools Act did not contain any provision authorising Bible readings.
Decision of the New Brunswick Supreme Court
Summary
There were two separate legal challenges to the new school system, brought in the New Brunswick Supreme Court: Ex parte MaherEx parte Maher, Supreme Court of New Brunswick, June 17, 1873 (unreported); reproduced in Maher v Town Council of Portland, UKPC 83, Record of Proceedings, p. 7. and Ex parte Renaud.Ex parte Renaud (1873), 1 N.B.R. 273 (N.B. S.C.). The Maher case was brought by Henry Maher, a Roman Catholic rate-payer in the town of Portland (now part of the City of Saint John), who challenged the school tax assessed by the town under the Common Schools Act. The Renaud case was brought by an individual named Renaud, and challenged a school tax assessed by the Parish of Richibucto, in the County of Kent.Ex parte Renaud, p. 273. In both cases, the plaintiffs applied for certiorari to quash the school taxes, on the basis that the Common Schools Act infringed the right of Roman Catholics to have denominational schools, under s. 93 of the Constitution Act, 1867.
The full Supreme Court of New Brunswick, consisting of five judges, heard both applications. The Court dismissed the constitutional challenges and upheld the constitutionality of the Common Schools Act. The reasons given by the Court in the two cases are identical. The majority decision was written in both cases by Chief Justice Ritchie (Justices Allen and Weldon concurring). Justice Fisher (having left politics and been appointed to the Court) and Justice Wetmore each wrote separate concurring decisions.
Majority reasons of Chief Justice Ritchie
Chief Justice Ritchie began by holding that the courts had the power to review the constitutionality of provincial statutes under the Constitution Act, 1867. He stated that this position had long been established in the New Brunswick courts, but he thought it necessary to state it expressly, since there had been some recent decisions in Quebec which questioned that principle. Chief Justice Ritchie referred to the Colonial Laws Validity Act 1865,Colonial Laws Validity Act 1865 (28 & 29 Vict. c. 63) s. 2. as well as the advisory decision of the judges of England with respect to the Clergy Reserves Act of the Province of Canada, as establishing that a colonial law had to comply with the terms of an Imperial statute which applied to the colony. On that basis, the laws of New Brunswick had to comply with the terms of the Constitution Act, 1867.Ex parte Maher, Record of Proceedings in Maher v Town Council of Portland, pp. 7-9.
Turning to the constitutional issue, Chief Justice Ritchie stated that to decide if the rights of the Roman Catholic minority were infringed by the Common Schools Act, it was necessary to determine what rights they had under the law immediately before Confederation, since s. 93 of the Constitution Act, 1867 protected whatever rights they possessed at that time. He noted that there clearly were some denominational schools, operated by churches and teaching the specific tenets of those churches beliefs. He referred to specific schools run by the Methodist, Anglican, Presbyterian and Roman Catholic churches. However, those schools were not affected by the Common Schools Act and therefore did not have to be considered in his decision. Rather, it was the schools established under the Parish Schools Act which had to be considered since they were established under the law immediately in force prior to Confederation, and were affected by the changes made by the Common Schools Act.Ex parte Maher, Record of Proceedings, Maher v Town Council of Portland, pp. 10-11.
Chief Justice Ritchie noted that the local school trustees were elected by the voters generally, and were under the supervision of the provincial Board of Education and the provincial Superintendent. Although the Parish Schools Act did provide that teachers were to inculcate the principles of Christianity, honesty and morality,Parish Schools Act, s. 8, para. 5. the Act also provided that in doing so, teachers were not to require a student to read any religious book or join in any act of devotion to which the student's parents objected.Parish Schools Act, s. 8, para. 4. Bible readings were permitted where authorised by local regulation, including the option of using the Douay version for Roman Catholic students, but without any additional note or comment by the teacher. By another section of the Parish Schools Act, contentious books relating to theology were not permitted in the school libraries.
One of the arguments advanced by the applicants was that even though the Act did not specifically confer control over the schools on any denomination, in practice the schools were under denominational control in those areas where a particular religious group formed the majority and thus could elect local trustees of their religious group. Those trustees in turn would allow teaching of their denomination's particular principles. The applicants argued that the schools were in fact denominational in nature, and therefore that right had to be protected. Chief Justice Ritchie rejected that argument, noting that any religious teachings were done without the authority of the Parish Schools Act, and may or may not have been with the sanction of the provincial Board of Education. That practice could not interfere with the right of all inhabitants under the Act to have a school free and independent of denominational connection.Ex parte Maher, Record of Proceedings in Maher v Town Council of Portland, p. 15.
Chief Justice Ritchie concluded that the Parish Schools Act created a general system of education for the benefit of all inhabitants of the Province, without reference to class or creed. The schools were public schools, not under the control of any denomination. No denomination had any particular rights in the schools and did not have the right to have their own religious doctrines taught in the schools. Rather, there was a general recognition of Christian precepts as part of the education of the students, without favouring any denomination in particular.Ex parte Maher, Record of Proceedings in Maher v Town Council of Portland, p. 16.
Concurring Reasons of Justice Fisher
Justice Fisher concurred in the majority's conclusion, but gave his own reasons. Prior to his appointment to the court, he had been a Father of Confederation and had participated in both the Quebec Conference and the London Conference which had produced the terms of Confederation and the text of the Constitution Act, 1867. He agreed with the majority that the Common Schools Act did not infringe s. 93 of the Constitution Act, 1867 and was constitutional. He began by noting that the purpose of s. 93 was to resolve a question that had caused serious difficulties in the former Province of Canada, prior to Confederation. Paragraphs 93(2) and (3) only applied to the provinces of Quebec and Ontario. The constitutionality of the Common Schools Act depended entirely on paragraph 93(1). It was not simply a right of privilege of the minority faith which triggers paragraph 93(1). It had to be a right or privilege, of the members of the minority faith, with respect to denominational schools, which they had at law at the time of Union, and which was prejudicially affected by a subsequent government action.Ex parte Maher, Record of Proceedings in Maher v Town Council of Portland, p. 23.