REMEDIAL ORDER IN COUNCIL du 19 mars, 1895

transcrit par
C. Michel Boucher


from Sessional Papers no. 20, 58 Victoria A. 1895, Manitoba School Case, pp. 17-25

REMEDIAL ORDER IN COUNCIL


833.
                                                                           At the Government House at Ottawa,
                                                                                                           Tuesday, the 19th day of March, 1895.

Present :

HIS EXCELLENCY THE GOVERNOR GENERAL IN COUNCIL.


      The Committee of the Privy Council have the honour to report that by the Act passed by the Parliament of Canada in the thirty-third year of Her Majesty's reign, chapter three, intituled :
      An Act to amend and continue the Act 32 and 33 Victoria, chapter 3, and to establish and provide for the Government of the Province of Manitoba (commonly called and hereinafter cited as the Manitoba Act") which Act was confirmed by "The British North America Act, 1871 " (34-35 Vic., cap. 28, Imp.) it is provided that :
      "In and for the Province of Manitoba the said Legislature of the province may exclusively make laws in relation to education, subject and according to the following provisions :
      1. " Nothing in any such law shall prejudicially affect any right or privilege with respect to denominational schools which any class of persons have by law or practice in the province at the Union.
      2. " An Appeal shall lie to the Governor General in Council from any Act or decision of the Legislature of the Province or of any provincial authority affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects in relation to education.
      3. " In case any such provincial law as from time to time seems to the Governor-General in Council requisite for the due execution of the provisions of this section is not duly executed by the proper provincial authority in that behalf, then and in every such case, and as far only as the circumstances of each case require the Parliament of Canada may make remedial laws for the due execution of the provisions of this section and of any decision of the Governor General in Council under this section."
      That by certain Acts of the Legislature of the Province of Manitoba passed after the Union, and by an Act passed by the said Legislature in the forty-fourth year of Her Majesty's reign, chapter four, which may be cited as "The Manitoba School Act" and by the Acts amending the same, the Roman Catholic minority of Her Majesty's subjects in Manitoba acquired the rights and privileges in relation to education thereby conferred upon them, including the right to build, maintain, equip, manage, conduct and support Roman Catholic schools in the manner provided by the said Statutes, the right to a proportionate share of any grant made out of public funds for the purpose of education, and the right of exemption of such members of the Roman Catholic Church as contribute to such Roman Catholic schools from all payments or contributions to the support of any other schools.
      That subsequently in the fifty-third year of Her Majesty's reign two statutes were passed by the Legislature of the Province of Manitoba relating to education, which Statutes came into force on the first day of May, 1890, and are intituled respectively " An Act respecting the Department of Education and An Act respecting Public Schools."
      That the Roman Catholic minority of Her Majesty's subjects in Manitoba considered that by the two statutes last mentioned the aforesaid rights and privileges were affected, and that such minority was thereby deprived of said right and privileges. That the said Roman Catholic Minority thereupon appealed from the said two Statutes


[p. 18]

last mentioned to the Governor General in Council and by a petition presented on the 26th day of November, 1892, after setting out the facts of the case, prayed as follows :---
      "That His Excellency the Governor General in Council might entertain the appeal and might consider the same and might make such provision and give such directions for the hearing and consideration of the said appeal as might be thought proper.
      2. "That it might be declared that the said Acts (53 Victoria, chapter 37 and 38) do prejudicially affect the rights and privileges with regard to denominational schools, which Roman Catholics had by law or practice in the province at the Union.
      3. "That it might be declared that the said last mentioned Acts do affect the rights and privileges of the Roman Catholic minority of the Queen's subjects in relation to education.
      4. "That it might be declared that to His Excellency the Governor General in Council, it seems requisite that the provisions of the Statutes in force in the Province of Manitoba, prior to the passage of the said Acts, should be re-enacted in so far at least as may be necessary to secure to the Roman Catholics in the said province the right to build, maintain, equip, manage, conduct and support these schools in the manner provided for by the said Statutes, to secure to them their proportionate share of any grant made out of the public funds for the purposes of education and to relieve such members of the Roman Catholic Church as contribute to such Roman Catholic schools from all payment or contribution to the support of any other schools, or that the said Act of 1890 should be so modified or amended as to affect such purposes.
      5. "And that such further or other declaration or order might be made as to His Ecxellency [sic] the Governor General in Council might, under the circumstances, seem proper, and that such directions might be given, provisions made and all things done in the premises for the purpose of affording relief to the said Roman Catholic minority in the said province as to His Excellency the Governor General in Council might seem meet."
      That the said petition was referred by the Governor General in Council to a sub-committee of Council. The sub-committee sat on the 26th day of November, 1892, when Mr. Ewart, Q.C., on behalf of the Roman Catholic minority, presented the said petition and stated reasons in support of the right of appeal. That the report of the sub-committee thereon was approved by Order of His Excellency in Council on the 29th day of December, 1892, and the 21st day of January, 1893, was then fixed as the day on which the parties concerned should be heard, with regard to the appeal. In the said report of the sub-committee, it is stated as follows :---
      As to the request which the petitioners make in the second paragraph of their prayer, viz. :---"That it may be declared that the said Acts (53 Vic., chapter 37 and 38) do prejudicially affect the rights and privileges with regard to denominational schools which the Roman Catholics had by law or practice in the province of Manitoba at the time of the union," the sub-committee are of the opinion that the judgment of the Judicial Committee of the Privy Council is conclusive as to the rights with regard to denominational schools which the Roman Catholics had at the time of the union, and as to the bearing thereon of the Statutes complained of, and Your Excellency is not, therefore, in the opinion of the sub-committee, properly called upon to hear an appeal based on these grounds. That judgment is as binding on Your Excellency as it is on any of the parties to the litigation, and, therefore, if redress is sought on account of the state of affairs existing in the Province at the time of union, it must be sought elsewhere and by other means than by way of appeal under the sections of the British North America Act and of the Manitoba Act, which are relied on by the petitioners as sustaining this appeal.
      The two Acts of 1890, which are complained of, must, according to the opinion of the sub-committee, be regarded as within the powers of the Legislature of Manitoba, but it remains to be considered whether the appeal should be entertained and heard as an appeal against Statutes which are alleged to have encroached on rights and privileges with regard to denominational schools which were acquired by any class of persons in Manitoba, not at the time of the union, but after the union.


[p. 19]

The sub-committee were addressed by counsel for the petitioners as to the right to have appeal heard, and from his argument, as well as from the documents, it would seem that the following are the grounds of the appeal.
      A complete system of separate and denominational schools, i.e., a system providing for public schools and for separate Catholic schools, was, it is alleged, established by Statute of Manitoba in 1871 and by a series of subsequent Acts. That system was in operation until the two Acts of 1890 (chapters 37 and 38) were passed.
      The 93rd section of the British North America Act, in conferring power on the provincial legislatures, exclusively, to make laws in relation to education, imposed on that power certain restrictions, one of which was (subsection 1) to preserve the right with respect to denominational schools which any class of persons had by law in the province at the union. As to this restriction it seems to impose a condition on the validity of any Act relating to education, and the sub-committee have already observed that no question, it seems to them, can arise, since the decision of the Judicial Committee of the Privy Council.
      The third subsection, however, is as follows :---
      "Where in any province a system of separate or dissentient schools exists by law at the union, or is thereafter established by the legislature of the province, an appeal shall lie to the Governor General in Council, from any Act or decision of any provincial authority, affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects in relation to education."
      The Manitoba Act passed in 1870, by which the Province of Manitoba was constituted, contains the following provisions, as regards that province :---
      By section 22 the power is conferred on the legislature, exclusively, to make laws in relation to education, but subject to the following restrictions :
      1. " Nothing in any such law shall prejudicially affect any right or privilege with respect to denominational schools which any class of persons have, by law or practice, in the province, at the union."
      This restriction, the sub-committee again observe, has been dealt with by the judgment of the Judicial Committee of the Privy Council.
      Then follows : ---
      2. " An appeal shall lie to the Governor General in Council from any Act or decision of the Legislature of the Province, or of any provincial authority, affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects in relation to education."
      It will be observed that the restriction contained in subsection 3 is not identical with the restriction of subsection 3 of the 93rd section of the British North America Act, and questions are suggested, in view of this difference, as to whether subsection 3, of section 93 of the British North America Act applies to Manitoba Act and if not whether subsection 2 of section 22 of the Manitoba Act is sufficient to sustain the case of the appellants ; or, in other words, whether in regard to Manitoba, the minority has the same protection against laws which the Legislature of the Province has power to pass as the minorities in other provinces have under the subsection before quoted from the British North America Act, as to separate or denominational schools established after the union.
      The argument presented by counsel on behalf of the petitioners was, that the present appeal comes before Your Excellency in Canada, not as a request to review the decision of the Judicial Committee of the Privy Council, but as a logical consequence and result of that decision, inasmuch as the remedy now sought is provided by the British North America Act, and the Manitoba Act, not as a remedy to the minority against statutes which interfere with the rights which the minority had at the time of the union, but as a remedy against statutes which interefere with rights acquired by the minority after the union. The remedy, therefore, which is sought, is against Acts which are intra vires of the Provincial Legislature. His argument is also that the appeal does not ask Your Excellency to interfere with any rights or powers of the Legislature of Manitoba, inasmuch as the power to legislate on the subject of education has only been conferred on that legislature with the distinct reservation that Your


[p. 20]

Excellency in Council shall have power to make remedial orders against any such legislation which infringes on rights acquired after the union by any Protestant or Roman Catholic minority in relation to separate or dissentient schools.
      Upon the various questions which arise on these petitions the sub-committee do not feel called upon to express an opinion, and so far as they are aware, no opinion has been expressed on any previous occasion in this case or any other of a like kind, by Your Excellency's Government or any other Government of Canada. Indeed, no application of a parallel character has been made since the establishment of the Dominion.
      The application comes before Your Excellency in a manner differing from applications which are ordinarily made, under the constitution, to Your Excellency-in-Council. In the opinion of the sub-committee, the application is not to be dealt with at present as a matter of a political character or involving political action on the part of Your Excellency's advisers. It is dealt with by Your Excellency-in-Council, regardless of the personal views which Your Excellency's advisers may hold with regard to denominational schools and without the political action of any of the members of Your Excellency's Council being considered as pledged by the fact of the appeal being entertained and heard. If the contention of the petitioners be correct, that such an appeal can be sustained, the inquiry will be rather of a judicial than a political character. The sub-committee have so treated it in hearing counsel, and in permitting their only meeting to be open to the public. It is apparent that several other questions will arise, in addition to those which were discussed by counsel at that meeting, and the sub-committee advise that a date be fixed, at which the petitioners, or their counsel, may be heard with regard to the appeal, according to the first request.
      The sub-committee think it is proper that the Government of Manitoba should have an opportunity to be represented at the hearing, and they further recommend, with that view, that if this report should be approved, a copy of any minute approving it, and of any minute fixing the date of the hearing with regard to the appeal, be forwarded, together with copies of all the petitions referred to, to His Honour the Lieutenant-Governor of Manitoba, for the information of His Honour's advisers.
      In the opinion of the sub-committee, the attention of any person who may attend on behalf of the petitioners, or on behalf of the Provincial Government, should be called to certain preliminary questions which seem to arise with regard to the appeal.
      Among the questions which the sub-committee regard as preliminary are the following :---
      (1.) Whether this appeal is such an appeal as is contemplated by subsection 3 of section 93 of the British North America Act, or by subsection 2 of section 22 of the Manitoba Act.
      (2.) Whether the grounds set forth in the petitions are such that they may be the subject of appeal under either of the sub-sections above referred to.
      (3.) Whether the decision of the Judicial Committee of the Privy Council in any way bears on the application for redress based on the contention that the rights of the Roman Catholic minority which accrued to them after the union have been interefered with by the two statutes of 1890 before referred to.
      (4.) Whether subsection 3 of section 93 of the British North America Act applies to Manitoba.
      (5.) Whether Your Excellency in Council has power to grant such orders as are asked for by the petitioner, assuming the material facts to be as stated in the petition.
      (6.) Whether the Acts of Manitoba, passed before the session of 1890, conferred on the minority "a right or privilege with respect to education," within the meaning of subsection 2 of section 22 of the Manitoba Act, or established "a system of separate or dissentient schools," within the meaning of subsection 3 of section 93 of the British North America Act, and if so, whether the two Acts of 1890, complained of, affect "the right or privilege" of the minority in such a manner as to warrant the present appeal.
      Other questions of a like character may be suggested at the hearing, and it may be desirable that arguments should be heard upon such preliminary points before any hearing shall take place on the merits of the appeal.


[p. 21]

      That such appeal accordingly came on for hearing before the Governor General in Council on the 21st day of January, 1893, in the presence of counsel for the Roman Catholic minority, the Province of Manitoba, though duly notified, not appearing and when after hearing what was alleged on behalf of the Roman Catholic minority, it was considered that certain questions of law arising upon the appeal should be referred to the Supreme Court of Canada for hearing and consideration pursuant to the Supreme and Exchequer Courts Act (Revised Statutes of Canada, chapter 135) as amended by the Act of 1891 (54-55 Victoria, cap. 25), and that the further hearing should be adjourned until the advice of the court had been obtained thereon.
      That pursuant to the Supreme Court and Exchequer Court Acts as so amended, the following questions were therefore referred to the Supreme Court of Canada by the Governor General in Council :---
      (1.) "Is the appeal referred to in the said memorials and petitions and asserted thereby, such a 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), chapter 3 of 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 case of Barrett vs. The City of Winnipeg, and Logan vs. The city [sic] 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, has been interfered with by the two Statutes of 1890, complained of in the said petitions and memorials.
      (4.) "Does the 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 priore 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 manner that an appeal will lie thereunder to the Governor General in Council ? "
      That upon the hearing of the said reference to the Supreme Court of Canada, counsel for the Roman Catholic minority of Her Majesty's subjects in the Province of Manitoba, and counsel for the Province of Manitoba appeared before the Supreme Court, as did also the Solicitor General for Canada, who 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, herinbefore 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 Roman Catholic minority as aforesaid. 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 Statutes : 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 Roman Catholic minority feeling aggrieved by the said opinion, presented a petition to Her Majesty in Council, praying for special leave to appeal therefrom to Her Majesty in Council and by Her Majesty's Order in Council of the 27th June, 1894, leave to appeal was granted accordingly.


[p. 22]

      That such appeal to Her Majesty in Council was duly perfected and was heard before the Judicial Committee of Her Majesty's Privy Council on 11th, 12th and 13th days of December, 1894, counsel being then heard both on behalf of the appellants and the Province of Manitoba, and on the 29th day of January following the Lords of the Judical [sic] Committee delivered judgment allowing the appeal and reversing the opinion of the Supreme Court of Canada, their Lordships stating that they were unable to see how the question as to whether a right or privilege which the Roman Catholic minority previously enjoyed had been affected by the legislation of 1890 could receive any but an affirmative answer and added :
      " Contrast the position of the Roman Catholics prior and subsequent to the Acts from which they appeal. Before these passed into law, there existed denominational schools of which the control and management were in the hands of the Roman Catholics who could select the books to be used and determine the character of the religious teachings. These schools received their proportionate share of the money contributed for school purposes out of the general taxation of the province, and the money raised for those purposes by local assessment was, so far as it fell upon the Catholics, applied only towards the support of Catholic schools. What is the position of the Roman Catholic minority under the Acts of 1890 ? Schools of their own denomination, conducted according to their views, will receive no aid from the State. They must depend entirely for their support upon the contributions of the Roman Catholic community, while the taxes out of which State aid is granted to the schools provided for by the statute fall alike on Catholics and Protestants. Moreover, while Catholic inhabitants remain liable to local assessment for school purposes, the proceeds of that assessment are no longer destined to any extent for the support of Catholic schools, but afford the means of maintaining schools which they regard as no more suitable for the education of Catholic children than if they were distinctly Protestant in their character.
      "In view of this comparison, it does not seem possible to say that the rights and privileges of the Roman Catholic minority in relation to education which existed prior to 1890 have not been affected."
      Their Lordships also stated :---
      "As a matter of fact the objection of Roman Catholics to schools such as alone receive State aid under the Act of 1890 is conscientious and deeply rooted. If this had not been so, if there had been a system of public education acceptable to Catholics and Protestants alike, the elaborate enactments which have been the subject of so much controversy and consideration would have been unnecessary. It is notorious that there were acute differences of opinion between Catholics and Protestants on the education question prior to 1870. This is recognized and emphasized in almost every line of those enactments. There is no doubt either what the points of difference were, and it is in the light of these that the 22nd section of "The Manitoba Act" of 1870, which was in truth a Parliamentary compact, must be read."
      And in conclusion their Lordships added :---
      "For the reasons which have been given, their Lordships are of the opinion that the 2nd subsection of 22 of "The Manitoba Act" is the governing enactment and that appeal to the Governor General in Council was admissible by virtue of that enactment, on the grounds set fo th [sic] in the memorials and petitions, inasmuch as the Acts of 1890 affected rights or privileges of the Roman Catholic minority in relation to education within the meaning of that subsection. The further question is submitted whether the Governor General in Council has power to make the declarations or remedial orders asked for in the memorials or petitions or has any other jurisdiction in the premises. Their Lordships have decided that the Governor General in Council has jurisdiction and that the appeal is well founded, but the particular course to be pursued must be determined by the authorities, to whom it has been committed by the statute. It is not for this tribunal to intimate the precise steps to be taken. Their general character is sufficiently defined by the 3rd subsection of section 22 of "The Manitoba Act".
      "It is certainly not essential that the statutes repealed by the Act of 1890 should be re enacted [sic] or that the precise provision of these statutes should again be made law. The system of education embodied in the Acts of 1890 no doubt commend itself to and


[p. 23]

adequately supplies the wants of the great majority of the inhabitants of the province. All legitimate ground of complaint would be removed if that system were supplemented by provisions which would remove the grievance upon which the appeal is founded and were modified so far as might be necessary to give effect to these provisions."
      The Lords of the Committee thereupon reported to Her Majesty 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 thereby is such an appeal as is admissible under sub-section 2 of section 22 of "The Manitoba Act," 33 Victoria (1870) Chapter 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" 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 vs. The City of Winnipeg and Logan vs. 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 memorials.
      4. "In answer to the 4th question : That subsection 3 of section 93 of 'The British North America Act 1867,' did not apply to Manitoba.
      5. "In answer to the 5th 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' of 1870.
      "In answer to the 6th 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 or 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 Her Majesty at the Court at Osborne House in the Isle of Wight, on the 2nd day of February, 1895, after taking the said report into consideration was pleased by and with the advice of Her Majesty's Privy Council to approve of the said report of the Lords of the Committee and to order that "the recommendation 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 required to take notice and govern themselves accordingly."
      That after the determination of the said questions by Her Majesty in Council as aforesaid the said appeal of the Roman Catholic minority of Her Majesty's subjects in Manitoba from the two Statutes of the Legislature of the Province of Manitoba hereinbefore mentioned came on for further hearing before Your Excellency in Council on the 26th day of February, and the 5th, 6th and 7th days of March, 1895, in the presence of Counsel both for the Roman Catholic minority of Her Majesty's subjects in the Province of Manitoba and for the said province and the committee having heard and considered what was alleged by Counsel on both sides as well as the judgment of their Lordships of the Judicial Committee of the Privy Council is of opinion that effect should be given to the said appeal and that the said appeal should be allowed in so far as it relates to rights acquired by the said Roman Catholic minority under legislation of the Province of Manitoba passed subsequently to the union of the Province with the Dominion of Canada.
      The Committee therefore recommend that the said appeal be allowed and that Your Excellency in Council do adjudge and decide that by the two Acts passed the Legislature of the Province of Manitoba on the 1st day of May 1890, intituled respectively "An Act respecting the Department of Education," and an Act [sic] respecting the Public Schools," the rights and privileges of the Roman Catholic minority of the said province


[p. 24]

in relation to education, prior to the 1st day of May, 1890, have been affected by depriving the Roman Cathalic [sic] minority of the following rights and privileges, which previous to and until the 1st day of May, 1890, such minority had, viz. :
      (a.) The right to build, maintain, equip, manage, conduct and support Roman Catholic schools in the manner provided for by the said Statutes, which were repealed by the two Acts of 1890, aforesaid.
      (b.) The right to share proportionately in any grant made out of the public funds for the purposes of education.
      (c.) The right of exemption of such Roman Catholics as contribute to Roman Catholic schools from all payment or contribution to the support of any other schools.
      And the Committee also recommend that Your Excellency in Council do further declare and decide that for the due execution of the provisions of section 22 of "The Manitoba Act," it seems requisite that the system of education embodied in the two Acts of 1890 aforesaid should be supplemented by a Provincial Act of Acts which would restore to the Roman Catholic minority the said rights and privileges of which such minority has been so deprived as aforesaid and which would modify the said Acts of 1890 so far, and so far only, as may be necessary to give effect to the provisions restoring the rights and privileges in paragraphs (a), (b) and (c) hereinbefore mentioned.
      The Committe [sic] desire to add that : Their Lordships of the Judicial Committee state in their judgment :---
      "Bearing in mind the circumstances which existed in 1870, it does not appear to Their Lordships an extravagant notion that in creating a legislature for the province with limited powers, it should have been thought expedient in case either Catholics or Protestants became preponderant, and rights which had come into existence under different circumstances were interfered with, to give the Dominion Parliament power to legislate upon matters of education so far as was necessary to protect the Protestant or Catholic minority as the case might be."
      In the opinion of the Committee "The Manitoba Act" as construed with regard to the present case by the Judicial Committee of Her Majesty's Privy Council, so clearly points to a duty devolving upon Your Excellency in Council that no course is open consistent with both the letter and the spirit of the constitution other than that recommended. To dismiss this appeal would be not only to deny to the Roman Catholic minority rights substantially guaranteed to them under the constitution of Canada, but in truth such a course might involve the declaration on the part of Your Excellency in Council that this provision of the constitution for the protection of the rights of certain of Her Majesty's subjects in Manitoba should not in any case be acted upon ; and further the Committee do not perceive upon what principle consistently with a declaration that effect is not to be given to this appeal, the Protestant or Roman Catholic minority in Quebec or Ontario could involve the corresponding provision of section 93 of "The British North America Act" in case of any Provincial Act or decision affecting their rights or privileges.
      If Your Excellency should see fit to approve of the foregoing recommendation, the Committee desire to state that it follows that refusal or neglect on the part of the Legislature of Manitoba to enact remedial legislation which Your Excellency in Council seems requisite will confer upon Parliament authority to pass such a law. In this connection it was urged by Counsel on behalf of the province that should Parliament legislate under these circumstances its enactment would be absolute and irrevocable so far as both Parliament and the Provincial Legislature are concerned.
      The Committee, without necessarily adopting this view, observe that section 22 of "The Manitoba Act" may admit of that construction. The Committee, therefore, recommend that the Provincial Legislature be requested to consider whether its action upon the decision of Your Excellency in Council should be permitted to be such as while refusing to redress a grievance which the highest court in the Empire has declared to exist, may compel Parliament to give the relief of which under the constitution of the Provincial Legislature is the proper and primary source, thereby according to this view, permanently divesting itself in a very large measure of its authority and so establishing in the province an educational system which no matter what changes may take place in


[p. 25]

the circumstances of the country or the views of the people, cannot be altered or repealed by any legislative body in Canada.
      The Committee, further and for reasons hereinbefore stated, recommend that if Your Excellency in Council should be pleased to approve this report, Your Excellency in Council do make an Order in the premises in the form and to the effect as set forth hereunto submitted, and that a certified copy of this Minute and of the said Order be transmitted to His Honour the Lieutenant-Governor of Manitoba for his information and that of his government and Provincial Legislature, also that a certified copy of this Minute and of the said Order be transmitted to Mr. Ewart, Q.C., of Winnipeg, as representing the Roman Catholic minority of Her Majesty's subjects in Manitoba.
      All of which is respectfully submitted for Your Excellency's approval.

                                                                          JOHN J. McGEE,
                                                                   Clerk of the Queen's Privy Council for Canada.