What Is the Separate School Question

A setting forth of the essential facts in a century-old issue and of conflicting viewpoints

ARCHIE LAMPMAN September 15 1936

What Is the Separate School Question

A setting forth of the essential facts in a century-old issue and of conflicting viewpoints

ARCHIE LAMPMAN September 15 1936

What Is the Separate School Question


A setting forth of the essential facts in a century-old issue and of conflicting viewpoints


FEW ISSUES have concerned so many Canadians for so long a time as has the separate school question. At the moment, it is in Ontario that the debate is at its hottest.

Your seeker after truth may consult protagonists of either side and still be puzzled as to just what is the separate school question—not who is right or who is wrong.

My object is to set down the essential facts and outline the situation as it is today regarding a problem that has bedevilled Ontario’s educational system for nearly a century. When did this thing start? What started it? What seems to be the trouble? And what is going to happen? That is what everybody wants to know.

With the passing last spring of the amendment to the assessment Act by the Ontario Liberal Government, dealing with the apportioning of corporation taxes to the separate schools, the torch of this at times bitter controversy flared forth anew. And while Honorable Mitchell F. Hepburn, Premier of Ontario, unwaveringly declares “The measure is but justice; I stand or fall by my decision,” the Ontario Conservative party has just as unwaveringly denounced the new act as “ultra vires, unconstitutional and illegal,” and definitely taken repeal as its plank in the next provincial election campaign.

But to understand fully the situation at the moment we must first get right in our minds just what separate schools are, and the legislative background that leads up to their position as we see it today.

The Act of 1863

IT SHOULD be borne in mind, however, that the issue is not “Shall we, or shall we not, have separate schools?” Separate schools are here constitutionally, legally and inviolate. There may be argument about their desirability; about their legal right to exist there can be no argument. The main issue today is one of apportioning taxes whether corporations shall be compelled to declare what proportion of their taxes is to go to the support of separate schools, or shall it remain optional as in the past?

In the first place, what are separate schools? They are schools erected and maintained by a denominational minority under certain rights and privileges guaranteed by the British North America Act, 1867.

Although most separate schools in Ontario are Roman Catholic, they need not necessarily be so. As a matter of fact, there are some five Protestant separate schools in the province, situated where Protestants are in the minority in a Roman Catholic community.

In Quebec the separate schools of the Protestant minority are call«! “dissentient” schools, and the contention by some that the dissentient schools in Quebec are not as privileged as the separate schools of Ontario has tended to increase friction.

Nevertheless, it is a fact that in Quebec no Protestant dissentient schools had their existence sufficiently safeguarded “by law ” prior to the British North America Act, while in Ontario Roman Catholic schools have enjoyed a legal existence since 1843, when the first act to mention the term “separate” school was passed. As far back as 1841 an act was passed initiating the principles of separate schools.

Four only of the nine provinces of Canada have separate schools. Of these, Ontario has the largest separate school enrolment, and what is claimed by some to be the most efficient school system, both public and separate. Nearly 110,000, about one-sixth of its pupil population, attend the 761 separate schools.

Now for the background. The rights and privileges of the separate schools are based upon the Act of 1863, officially “An Act to Restore to Roman Catholics in Upper Canada Certain Rights in Respect to Separate Schools,” but vari-

ously known as "The Charter of the Separate Schools" and "The Finality Act.” In 1867 these rights and privileges were constitutionally confirmed, guaranteed and protected by the British North America Act.

The Act of 1863 was only arrived at after some twenty-two years of controversy and numerous Acts of Parliament.

The issue sprang into being in 18-11, on an attempt to force the Bible into the common schools asa textbook.

From then on the Act’s tempestuous history is dotted with repeals, amendments and appeals to the courts.

In the Act of 1863 it was felt that here was the solution to the difficulty.

In many quarters it was even considered a final settlement, prominent Roman Catholics of the time joining in that opinion. The general belief was that there would be no more trouble.

The Act gave the Roman Catholics the right to collect taxes from their own people for the support of separate schools, exempted them from payment of taxes to public schools, and gave them a share in provincial and municipal grants. The Confederation Fathers, with section 93 of the B.N.A. Act, placed the double seal on these rights and the Catholics felt that “by law-” they were safeguarded ad infinitum.

Even provincial governments could pass nothing “prejudicial” to the rights and privileges of the separate schools. If they did, provisions were made in the B.N.A. Act to take care of such eventualities. The meaning of this section guarding the rights of separate schools is clearly interpreted by the late Sir Wilfred Laurier (Hansard Debates) as follows:

“If the Legislature (provincial) establishes a system of separate schools, their legislative independence is inviolate; the (Dominion) Government will not have the right to interfere; but if afterwards the Legislature attempt to interfere with this creature of their own jxjwer, immediately their action becomes révisable by this Government and subject to interference.”

Added to this were remedial clauses providing rights of appeal to the Governor - General - in - Council. There seemed to be no suggestion in the wording of the Act that further “concessions” were prohibited, although this part is variously interpreted. Suffice to say that the Act of 1863, confirmed by the B.N.A. Act in 1867 and further confirmed by the subsequent act in 1886, remained practically unchanged in letter for seventy-three years.

However, in 1863, very few corporations, as known today, existed. Property was owned by individuals. It was the horse and buggy era. There were no skyscrapers, industrial

combines and public utilities. Those who framed the 1863 Act could hardly be expected to foresee this tremendous industrial growth of the future. Consequently there were no definite provisions made in the Act whereby posterity could be fully assured of diverting a fair share of the taxes from this new source toward the support of the separate schools, although the public schools were quite naturally and legally in on the ground floor.

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And tliat is where the argument starts. The large corporations are, of course, composed of both Protestant and Roman Catholic shareholders. The Liberal Government of Ontario claim, and backed up this claim by passing the amendment to j the Assessment Act, that corporations should be compelled by law to declare their sepa rate-school-supporter shareholders.

The Conservative opposition, on the other hand, declare it should remain optional,

! with the onus on the denominational minority. While, farther in the background, come the more radical opponents, who clamor not only for repeal of the 1936 Act but for every act of concession to separate schools since Confederation.

“May” Becomes “Shall”

THE: ATTITUDE of the Ontario Government is that the amendment to the Assessment Act of this year is but the modern interpretation and just application of the principles of the Act of 1863. To adjust what they thought was a faulty and unfair interpretation of the 1863 Act, they took “optional” clause 65 of the Ontario Separate School Act, made it compulsory by changing the word “may” to “shall” and passed it as an amendment to the Assessment Act.

The Conservative party later went into convention, chose a new leader in Honorable Earl Rowe, and let it be known that “repeal” was their platform. Both Mr. Rowe and Premier Mitchell F. Hepburn, in interviews with this writer which appear farther on in this article, have expressed their viewpoint.

Traditional backer of the Conservative ; party is the Orange Order, the accredited j opponent of the separate schools. Also variously affiliated with the opposition is a large majority of non-Orange Protestants, Anglican clergy, and those definitely against separate schools as a matter of principle.

That is the situation at the moment. But as the Ontario Separate School Act (clause 65) and the amendment to the Assessment Act are just now the two storm centres, it would be well to go into them in more detail. For as surely as the B.N.A. Act was thought at the time to preclude all possible future argument on the subject, so the Act of 1936 has just as surely flung it wide open again.

Clause 65 of the Ontario Separate School Act, which was taken out and rejuvenated in the Assessment Act amendment, provided a corporation “may” by “notice j given in pursuance of a resolution ol the directors” require a portion of its property and business to be rated and assessed for separate school purposes. That is what is now familiarly discussed as the “optional” clause.

It meant that taxes from mixed companies “might” be shared between Roman Catholics and Protestants on a proportionate basis, according to the relative amount of stock held by each faction. For instance, if one third of the share stock was held by Roman Catholics, then not more than one third of the assessment of the company would go to separate schools.

On the face of it, that seemed to be all j right. But according to the sponsors of j the Assessment Act amendment, that j little word “may” was the metaphorical i monkey-wrench in the cogs of harmony. In a court action in Regina between public and separate schools upon a similar issue, Mr. Justice Brown gave two chief reasons why mixed companies were not likely to give notice regarding the division of their assessments.

“In the first place.” he declared, "a company has no religious convictions to satisfy nor children to educate, and hence.

I while* not indifferent to the amount of i taxes, it would probably be so with respect

to the mode of their distribution; and in the second place, for business reasons a company would not be disposed to discriminate on a religious basis.”

In short, as the apportioning of taxes to separate schools was entirely optional, unless the directorate of a firm was preponderantly Roman Catholic, it is argued that few bothered about the clause at all and the whole tax went to the public schools.

Professor George M, Weir, head of the Department of Education, University of British Columbia and incidentally a member of the United Church, in his recent book, "The Separate School Question in Canada,” says;

“There is, indeed, a lurking suspicion in the minds of not a few impartial observers in Ontario that sectarian prejudice has been largely responsible for the continuance of a condition that deprives separate schools of a fair share of the taxes of corporations and public utilities. As a result of the actual working of section 65 (Ontario Separate School Act) it seems inevitable that the tax rate for separate schools, especially in the larger industrial areas, should be considerably higher than the rate for public schools. Moreover, from an educational standpoint, the former schools on the average are frequently alleged to be less efficient institutions.

“Under existing circumstances,” Professor Weir declares, “I would indeed be surprised if the separate schools of Ontario were as efficient as, in particular, the urban schools. The continuance of the present (this statement, of course, was made prior to the passing of the Assessment Act amendment) discriminatory condition in the allotment of public utility and corporation taxes would appear neither fair to separate schools nor in the public interests. The banner province of Canada can scarcely atford to condone a section of the law which, in its present form, appears a blemish in the provisions of an otherwise highly commendable separate schools act.”

Grounds for this “unfairness” alleged by Professor Weir have been more or less removed by the passing of the 1936 Act, which, however, deals only with corporations and companies and still leaves public utilities untouched. In respect to corporations and companies the changing of the word “may” in the repealed clause 65 in the Ontario Separate School Act to “shall” in the amendment to the Assessment Act, has made compulsory instead of optional the declaration by directorates of the pro¡xirtion of their taxes to be set aside for separate school purposes on the basis of Roman Catholic and Protestant shareholders.

Although greeted by cries of protest from some quarters that it was “robbing the public schools of their rightful taxes,” this “may” and “shall” business didn’t meet with as much criticism as did section 33b of the Assessment Act amendment, the repeal of which in particular and the whole Act in general is the announced objective of the Conservative opposition.

Opposition Arguments

THE CHIEF objection to this latter section seems to be that it is an innovation. For fifty years from the date of their last confirmation in 1886, the general letter of the acts pertaining to separate schools in Ontario had remained substantially the same. Clause 33b. however, established a new principle.

It deals with corporations‘having share capital of which more than one half of the shares issued are owned by an other corporation or corporations, the head office of which is not in Ontario. Also corporations, such as the C.P.R. and the Bell Telephone Co., which by reason of the large numbers

of their shareholders and their wide distribution in point of residence, are unable to ascertain which of their shareholders are separate school supporters, or the ratio which this number bears to the whole. In this case, so the section provides, taxes to public and separate schools are to be apportioned on the basis of municipal assessment.

It is the “municipal assessment” basis of apportioning taxes to separate schools that has brought down a storm of criticism upon the heads of the sponsors of the bill. Not only do its critics claim that it practically does away with the principle of “ownership,” the recognized fundamental basis of such tax distribution, but taxes apportioned in this way might be just as unfair to separate schools, in some cases, as to public schools in others.

That separate schools were to share in taxes allotted in this manner seemed to have a galvanic effect upon the opposers of the measure. When the contents of the bill became known during its first reading in the provincial House, a storm of criticism assailed it from all sides.

The Orange Order, proponents of the slogan “One Flag—One Language—One School,” and heavy artillery of the opposing hosts, issued a pamphlet from headquarters in which were laid out nine specific reasons why the Act should not be passed, concluding with the following summary :

“This is not the time to stir religious feeling or further divide the peoples of this province. Sentiment in Ontario is overwhelmingly opposed to separate schools in any shape or form, and no further changes whatever should be made to the Separate School Act, other than to repeal the amendments granted since Confederation and place the separate schools in the position which was definitely and finally agreed upon by the authorities of the Roman Catholic church and the Parliament of those days.”

There have been many terse phrases hurled at the sponsors of the amendment to the Assessment Act. One evening newspaper labelled it an “infamous betrayal of the public schools.”

L. J. Saunders, provincial organizer of the Orange Order for Ontario, declared in the press at the time that it was “the most iniquitous legislation ever passed by a Provincial Parliament.”

Another faction, despite what had just happened before their eyes, shouted: “It’s

illegal.......-Hepburn can’t do that!” There

was no mandate from the people, it was declared, and such a measure should have been placed before the people either by a general election or plebiscite.

In an interview with this writer, Honorable Earl Rowe, new leader of the Ontario Conservative party, present opposition in the Provincial Legislative Assembly, declared that not only was the amendment to the Assessment Act passed without a mandate from the people but also without even a report from the committee which had been appointed to investigate the educational system in the province.

“It is a clumsily drafted and unworkable piece of legislation,” lie said. “And now I feel sure it is unworkable, as Mr. Hepburn himself refuses to interpret it, leaving that to the municipal councils and a multiplicity of legal opinions.

“I don’t assume this to be a religious issue,” said Mr. Rowe. “And I have never discussed it as such. I’d rather look on it as a political move. It is always bad for a Government to pass religious legislation without first testing public opinion. No minority rights are secure in any denominational state if you don’t maintain the tolerance and the goodwill of the majority.”

Asked about the changing of “may” to “shall” in the new act, Mr. Rowe an-

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swered: “The fundamental principle of minority rights has always been the option of privilege or choice to divert certain taxes (or separate school purposes and not compulsion.” He said there was no argument about the right of the separate schools to their share in corporation taxes, but the onus had always been, and should still be, upon the denominational minority to declare ownership. The optional clause had been in the act untouched for fifty years.

In reference to 38b, the clause dealing with the corporations in which more than hall the shares are owned by other corporations whose head offices are not in Ontario, and whose taxes were to be apportioned on the basis of municipal assessment., Mr. Rowe said:

“Section 33b is possibly the most contentious in that the very basis of carrying into effect that right, has always been based on the necessity of establishing ownership. Here it doesn’t even need to establish ownership.”

For example, lie offered the possible case of a Roman Catholic firm whose head office might be anywhere outside the province. Because of a low municipal assessment of the separate schools in a certain area, they might get only a very small portion of the taxes. Similarly in cases of big Protestant firms it might be unfair to the public schools.

“The Act in no way helps rural separate schools, and doesn’t even help urban separate schools as much as anticipated,” says Mr. Rowe. ‘Tri some cases it is actually a disadvantage to them. It must be remembered that corporations affected are in turn only affected in urban centres.

“My opinion,” concluded the Conservative leader, “is that the Act should be repealed. The goodwill of the majority would thereby be restored, and thus more stable security given to the constitutional rights of the minority. The Act is of very little assistance to the separate school supporter, threatens to establish religious differences in some places, and can in no way add to the security of constitutional rights.”

Hepburn Explains His Stand

' I 'HE ONTARIO Liberal Government, on the other hand, seem little llustered by the critical outburst levelled at the child of their adoption. Honorable Mitchell F. Hepburn himself, discussing the subject with this writer, did not claim that his Assessment Act amendment was a final solution of the issue, but declared he considered it a just and equitable interpretation of the Act of 1863 in view of the growth of modern corporations.

“Seventy years ago,” said the Premier, “taxable property was owned by individuals. There were few, if any, corporations as known today. They didn’t; exist. All that has grown up since.

“For example, take the City of Windsor. Such has been the. growth of corporations there that today about half the taxable propert y is owned by corporations. Which means that, prior to the passing of the amendment to the Assessment Act, about half the taxable property of that city might be shut off from the separate schools because the allocation of these taxes was determined entirely by the directors of the corporations owning the property.

“Well, take this further situation, for example. A man owns a corner drug store, say. He is a Roman Catholic and a separate school supporter, so his taxes go to the support of the separate school. Now along come a chain store, a corporation. They take over his store. Possibly he remains as manager. But as his store is now in the hands of a corporation, the separate school may get none of his texes.

“Even now,” resumed the Premier, “there are two points upon which the new Act is still unfair to the separate schools. In the first place, there are no provisions made for the division of taxes paid by pub-

lie utilities. The separate schools are still shut out from that. Secondly, in the case of companies whose head offices are in Ontario, the taxes represented by stock held by other corporations are allocated to the public schools.”

He gave as illustration a corporation in which twenty per cent of the share capital was held by Protestants and twenty per cent by Roman Catholics and separate school supporters. This left sixty per cent or more than half the total number of shares, which in turn were split three ways among three other corporations, one of which is an all-Catholie concern holding, say, twenty per cent. In this case, although some forty per cent of the share capital is held by Roman Catholics and separate school supporters, the separate schools get only twenty per cent. The remainder is left to the public schools.

“The new Act is actually a benefit to the farmer,” the Premier claimed. “There are very few separate schools in purely rural Ontario, neither are there corporations whose taxes could be divided as between public and separate schools, so the farmer is not interested from that perspective. However, even although there are. generally speaking, neither separate schools nor corporations in rural Ontario, the farmer has been directly affected. As separate school grants were increased on the basis of need and public school grants decreased correspondingly, the farmer who contributed to the upkeep of his school section found that, inasmuch as provincial grants had been reduced, he had to payincreased direct taxation, and as the grants to separate schools in the urban centres were increased, the farmer found that his contribution to the provincial treasury was not being used entirely for building roads or giving him other necessary services, but rather was being disbursed in the urban centres,

“For several years the Minister of Education has had the power, in his own discretion, to distribute as between public and separate schools the special grants made for needy schools. In some cases he had to cut. the public school grants to make up to the separate schools what they didn’t get in taxes. The need for the granting of special assistance by the province was the inability of the local separate school supporter to maintain his own school. That provincial grant came largely out of the farmer’s pocket. The purpose of the amendment is to place the burden of supporting the separate school on the local community so that the farmers’ taxes will go where most needed.”

Asked if he thought the Conservative party would repeal the Act if they did get into power, the Premier said he doubted it. And his reason for saying so was that a similar measure had been brought in by a Saskatchewan Legislature, and when the Tories got in they did not repeal it but let it stand.

“In the matter of those two points you spoke of as being still unfair to the separate schools, are you contemplating more acts to set them right?”

“No -not for a while, anyway. I think this will take care of the situation for the present. We do think and hope that it will satisfy most parties—for the time being, at least.”

“What effect is all this going to have on the political outlook?” he was asked in conclusion.

“Politicians are no prophets,” smiled the Premier. “Henry thought he was going to get. in again. So did Bennett. If I say I’m going to get in again—well, you never can tell.”

English and Welsh System

CURIOUSLY enough, it seems that even those for whom the Act was framed are not quite satisfied. Members of the Toronto separate school board have commented on the Act as "an honest attempt to settle the separate school question. but their efforts have fallen short of the mark.”

Bishop R. J. Renison, of St. Paul's

Anglican Church, Toronto, referring to the bill, said that he was not unmindful that corporation money was a more extensive factor in Canadian life now than at Confederation, and that he was not averse to apportioning taxes on the shareholder ratio, nor to the changing of “may” to “shall.”

“But,” he warned, “if the Ontario Government goes too far in granting concessions to the Roman Catholics, there is grave danger that the whole question of separate schools will be revived and a religious war break out.”

As to the “reviving,” however, it would seem to be a fait accompli. Among the variety of points of view one encounters in the active area are that “the apportioning of taxes under section 33b should be based on school attendance, not municipal assessment” -“Separate schools should be maintained by voluntary contribution not compulsory taxation”—“there are no separate schools in the United States, so why should we have them?”

“The Roman Catholics are constantly wanting more and more,” declared Rev. Canon W. L. Baynes-Reed, of St. John’s Church, Norway, Toronto. “That’s just tine policy of Rome.”

“But what about the increased growth of corporations?”

“1 must admit that industrial times have changed since Confederation, but I’m not in favor of separate schools at all. The Assessment Act should not have been passed. I’m not in a position to say whether the Conservative party could repeal the Act or not if they got into power. I hardly think they could. They might, of course, modify it.

“What, we want is one system of schools - a national system like in the United States,” he said, “Over there Roman Catholic schools are voluntarily supported. If they are not satisfied with the national school, they have to pay to send their children to the other schools.

“If I’m not satisfied with the public school,” he concluded, “and want to send my boy to a private school, such as Upper Canada or Trinity College school. I have to pay for it. There is no reason why the Roman Catholics should not do the same.”

Strangely enough, nobody so far seems to have presented the English and Welsh systems of schools as an argument in this controversy. There, according to Henry Somerville, editor of the Catholic Register, Toronto, there are no separate schools as known here—and hence there is no schooltax problem harassing their legislators.

Generally speaking, England and Wales have two types of schools, technically known as the “provided” and “non-provided”—or more commonly called the “council” schools and the “voluntary” schools. There are no public school or separate school boards as known here, but both schools are managed by the municipal authorities.

Everybody pays the same school tax, which goes to the common fund. But here is the difference: The council schools,

which are non-denominational, are entirelysupported by public taxes; while the voluntary schools, although teachers’ salaries, management, etc., are paid by the public, are otherwise maintained (such as building

and repairs) by the various church bodies, ] of which the Church of England and the Roman Catholics are the largest.

“And how does the system seem to work?” Aír. Somerville was asked.

“Well, the Roman Catholics are not entirely satisfied with it,” he replied. “They are finding the cost, of building and ! repairs very large.”

“But it is the same for the Church of ! England, is it not?”

“Yes, but they don’t bother about keepj ing up repairs to the same extent as the j Roman Catholics,” was the answer, “bej cause the majority of the Church of Eng! land children attend the council schools.” I

A Big Question

HOWEVER, to get back to our own storm centre, the Ontario Liberal leader in a public address not long ago parried his accusers’ thrusts by declaring j that the Conservatives during their régime ! actually handed out more money to the j separate schools by what lie termed the “under-the-table” method. This, he asserted. was done by means of the clause, already mentioned by the Premier in his interview with this writer, empowering the Minister of Education to disperse i school grants at his own discretion instead of according to school attendance.

This cost the taxpayer a lot more money, it was claimed, and figures have | been produced to show how, under this system, grants to separate schools shot up, and grants to public schools shot down.

The political horizon just now seems fraught with trouble. Even dyed-in-thewool Grits have told this writer that the Hepburn Government would be defeated in the next election because of this piece of legislation.

But obviously. Honorable Mitchell F. Hepburn and his colleagues have taken the bit between their teeth, and, although the issue makes for dangerous skating, they have definitely let it be known that they will stand or fall by their decision.

Meantime there is much public speculaj t ion as to just what the Conservative party j would do about it should they get back , into power. Opinions of political observers are outstanding for their variety. Granted, the Conservatives are officially bound in a matter of policy to repeal the amendment to the Assessment Act. But will they?

Honorable Earl Rowe, Conservative leader, says they will. Honorable Mitchell F. Hepburn, Premier of Ontario, has j asserted publicly that the Act will never j be repealed. And in between come your oracles of varying magnitude. Some claim the Conservatives would not repeal the j Act in the face of public opinion, although it is hard to say just where the bulk of public opinion leans at the moment. And still others declare the Tories will only modify the Act by repealing the “offend| ing” section 33b. which, however, would in no way rob the Act of its real potency, despite the shouts of disapproval that heralded its incorporation in the Act.

Only one thing is fairly certain. And that is that the Separate School Question will be a heavy ixditical artillery target when the next Ontario election takes j place.