C. Michel Boucher
from Sessional Papers no. 20, 58 Victoria A. 1895, Manitoba School Case, pp. 13-15
At the Court at Osborne House, Isle of Wight,
The 2nd day of February, 1895
THE QUEEN'S MOST EXCELLENT MAJESTY.
Lord President, Lord Kensington,
Marquess of Ripon, Mr. Cecil Rhodes.
WHEREAS there was this day read at the Board a Report from the Judicial Committee of the Privy Council, dated the 29th January, 1895, in the words following, viz. :---
"Your Majesty having been pleased by Your General Order in Council of the 23rd November, 1893, to refer unto this Committee the matter of an Appeal from the Supreme Court of Canada, between Gerald F. Brophy, Noé Chevrier, Henry Napoléon Boire, Roger Goulet, Patrick O'Connor, Francis McPhillips, Frank J. Clark, Joseph Lecomte, Michael Hughes, Henry Brownrigg, Frank Brownrigg, Theophilus Tessier, L. Arthur Leveque, Edmond Trudel, Joseph Honoré Octavien Lambert, Jean Baptiste Poirier, George Couture, J. Ernest Cyr, François Jean David Dussault, Charles Edouard Masse, François Hardis, Joseph Buron, Louis Fournier, Phileas Trudeau, Edouard Guilbault, Romuald Guilbeault, Alphonse Phaneuf, W. Cleophas German, Edward R. Lloyd, Louis Laventure and Louis J. Collin, all of the province of Manitoba, in the Dominion of Canada, on behalf of themselves, and of all other persons forming the Roman Catholic minority of Her Majesty's subjects in the said province, appellants, and the Attorney General of Manitoba, respondents, and likewise the humble petition of the above named appellants, setting forth that this is an appeal from certain opinions pronounced by the Judges of the Supreme Court of Canada, on 20th February, 1894 : that the case in reference to which such opinions were rendered, was, on the 7th July, 1893, referred by the Governor General of Canada in Council to the Supreme Court of Canada for hearing and consideration, pursuant to the provisions of an Act intituled "An Act respecting the Supreme and Exchequer Courts" (Revised Statutes of Canada, Cap. 135) as amended by an Act of Canada, passed in 1891 (54-55 Vic. cap. 25) : that the questions involved in the case, and in this appeal turn upon the construction of certain sections of "The British North America Act, 1867" and of "The Manitoba Act 1870" and upon the effect of certain statutes of the province of Manitoba, in relation to education in that province ; that the following questions were by the said case submitted for the opinion of the Supreme Court :--- "'(1) Is the appeal referred to in the said Memorials and Petitions, and asserted thereby, such an appeal as is admissible by subsection 3, of section 93, of the British North America Act, 1867, or by subsection 2 of section 22 of the Manitoba Act, 33 Victoria (1870), Cap. 3, Canada '?
"'(2) Are the grounds set forth in the Petitions and Memorials such as may be the subject of
appeal under the authority of the subsections above referred to, or either of them ' ?
"'(3) Does the decision of the Judicial Committee of the Privy Council in the cases of Barrett vs.The City of Winnipeg, and Logan vs.The City of Winnipeg, dispose of or conclude the application for redress based on the contention that the rights of the Roman Catholic minority, which accrued to them after the Union under the statutes of the Province, have been interfered with by the two Statutes of 1890, complained of in the said Petitions and Memorials ' ?
"'(4) Does subsection 3 of section 93 of the British North America Act, 1867, apply to Manitoba ' ?
"'(5) Has His Excellency the Governor General in Council power to make the declarations or remedial orders which are asked for in the said Memorials and Petitions, assuming the material facts to be as stated therein, or has His Excellency the Governor General in Council any other jurisdiction in the premises ? '
"'(6) Did the Acts of Manitoba relating to education, passed prior to the Session of 1890, confer on or continue to the minority a 'right or privilege in relation to education ' within the meaning of subsection 2 of section 22 of the Manitoba Act, or establish a system of separate or dissentient schools within the meaning of subsection 3 of section 93 of the British North America Act, 1867,' if said section 93 be found to be applicable to Manitoba ; and if so, did the two Acts of 1890 complained of, or either of them, affect any right or privilege of the minority in such a manner that an appeal will lie thereunder to the Governor General in Council ? ' that Counsel for the Appellants and for other Roman Catholic subjects of Her Majesty in the province of Manitoba and Counsel for the province of Manitoba appeared to submit the case on behalf of Her Majesty's Crown : that the counsel for the province of Manitoba not desiring to be heard, the Supreme Court pursuant to section 4 of the Act of 1891, hereinbefore referred to, requested counsel to argue the case in the interest of the said province and counsel thereupon appeared and argued the case for the said province as did also counsel for the appellants and other Roman Catholics as aforesaid, but the Solicitor General for Canada did not desire to be heard : that the case came on for argument before five judges of the Supreme Court who on the 20th February, 1894, delivered their opinions thereon in the manner provided by the statute : that in the result the opinions of the judges of the Supreme Court showed a majority of three judges out of five for a negative answer to all the six questions submitted for the opinion of the Supreme Court : that the appellants feeling aggrieved by the said opinions presented a petition to Your Majesty in Council praying for special leave to appeal therefrom to Your Majesty in Council and by Your Majesty's Order in Council of the 27th of June, 1894, leave to appeal was granted accordingly upon the condition that the appellants should deposit the sum of £300 sterling in the registry of the Privy Council, as security for costs : that the said sum was deposited accordingly and humbly praying that Your Majesty in Council, will be pleased to take their said appeal into consideration and that the said opinions of the judges of the Supreme Court of Canada on the 20th February, 1894, may be reversed or varied or for other relief in the premises."
"The Lords of the committee in obedience to Your Majesty's said general order of reference, have taken the said humble petition and appeal into consideration, and having heard counsel for the parties on both sides, their lordships do this day agree humbly to report to Your Majesty as their opinion that the said questions hereinbefore set forth ought to be answered as follows :---
"(1) In answer to the first question :---That the appeal referred to in the said memorials and petitions, and asserted hereby is such an appeal as is admissible under subsection 2 of section 22 of the Manitoba Act, 33 Vict. (1870), c. 3, Canada.
"(2) In answer to the second question :---That grounds are set forth in the petitions and memorials, such as may be the subject of appeal under the authority of the sub-section of the Manitoba Act immediately above referred to.
"(3) In answer to the third question :---That the decision of the Judicial Committee of the Privy
Council in the cases of Barrett v. The City of Winnipeg, and Logan v. The City of Winnipeg does not dispose of,
or conclude, the application for redress based on the contention that the rights of the Roman Catholic minority, which accrued to them after the
Union under the Statutes of the Province, have been interfered with by the two Statutes of 1890 complained of in the said petitions and
"(4) In answer to the fourth question :---That subsection 3 of section 93 of the British North America Act, 1867, does not apply to Manitoba.
"(5) In answer to the fifth question :---That the Governor General in Council has jurisdiction and the appeal is well founded, but that the particular course to be pursued must be determined by the authorities to whom it has been committed by the Statute ; that the general character of the steps to be taken is sufficiently defined by subsection 3 of section 22 of the Manitoba Act, 1870.
"(6) In answer to the sixth question :---That the Acts of Manitoba relating to education passed prior to the session of 1890 did confer on the minority a right or privilege in relation to education within the meaning of subsection 2 of section 22 of the Manitoba Act, which alone applies ; that the two Acts of 1890 complained of did affect a right or privilege of the minority in such a manner that an appeal will lie thereunder to the Governor General in Council.
"And in case Your Majesty should be please to approve this report, then their Lordships do direct that the parties do bear their own costs of this appeal, and that the sum of £300 sterling so deposited by the appellants as aforesaid, be repaid to them."
Her Majesty having taken the said report into consideration, was pleased by and with the advice of Her Privy Council to approve thereof and to order as it is hereby ordered that the recommendations and directions therein contained be punctually observed, obeyed, and carried into effect in each and every particular. Whereof the Governor General of the Dominion of Canada for the time being, and all other persons whom it may concern are to take notice and govern themselves accordingly.
C. L. PEEL.