Case Study Reflection: "Education and Law"

 Case study 8

-Yes it is discrimination, but it is legal discrimination because it is in the constitution that the catholic school board shall be funded

Interpreting the Constitution

Activism V.S. Constructivism

Constructivism: Strict construction of a statute is that which refuses to expand the law by implications or equitable considerations, but confines its operation to cases which are clearly within the letter of the statute, as well as within its spirit or reason, but not so as to defeat the manifest purpose of the legislature

Constitution As A “Living Tree”

The “frozen concepts” reasoning runs contrary to one fo the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life…The promotion Of Charter rights and values enriches our society as a whole and the furtherance

BNA Act

Charter Of rights and Freedoms

-In basic terms the constitution is saying that Education is…

Section91-enumerates powers of federal gov’t including residual power

Section92-enumerates powers of provincial gov’t

Section93 –assigns responsibility for education to provinces subject to the following conditions

Denominational Charter

Section 93 (1)- Guarantees those denominational rights inexistence at the time of confederation or at the time of entry into confederation

Section 93 (2)

-Adler V. Ontario Supreme Court of Canada 1996

-Legal Constitutional Discrimination

- Extends to separate school rights of Catholics in Ontario to Protestants in Quebec

The Role of the Charter

Provides a normative framework for all public policy in Canada, including education. Charter values serve as the backdrop against which competing policies and actions are mediated. The actions and non-actions of officials must be weighed in light of various Charter rights and the “reasonable limits” on these rights that are acceptable in a “free and democratic society”

The Charter Section 29: Confirms that separate school rights under 93 (1) are constitutionally entrenched and immune from the other provisions of the Charter subject to the following:

1. The denominational aspects of education as well as those non-denominational aspects that are necessary to the delivery of the denominational aspects

2. Section 93 cannot be used to expand the rights of denominational schools beyond those that existed in 1867

3. Protected denominational schools are exempt from the Charter only where a 1867 right exists and goes to the core of its denominational character