Section 29 – Denominational schools

Provision

29. Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution in respect of denominational, separate or dissentient schools.

Similar provisions

Other interpretive provisions of the Charter are found at sections 25-28 and 30-31.  See also section 93 of the Constitution Act, 1867 regarding denominational, separate and dissentient schools.

Purpose

Section 29 makes the denominational school rights and privileges granted under section 93 of the Constitution Act, 1867 immune from review under the Charter. Section 29 is for greater certainty only, as this effect is already produced by section 93 itself (Reference re Bill 30, An Act to Amend the Education Act (Ont.) [1987] 1 S.C.R. 1148).

Analysis

The denominational, dissentient and separate school rights or privileges protected under section 93 of the Constitution Act, 1867 are the product of an historical compromise crucial to Confederation and form a comprehensive code immune from Charter review. It was never intended that the Charter could be used to invalidate other provisions of the Constitution, and section 29 of the Charter is present only for greater certainty (Adler v. Ontario [1996] 3 S.C.R. 609; Ontario Home Builders’ Association v. York Regional Board of Education, [1996] 2 S.C.R. 929; Reference re Bill 30, supra). Section 29 has no application if, further to the terms of section 93 of the Constitution Act, 1867, a province had no publicly-funded denominational schools at the time of its entry into Canada (Trinity Western University v. Law Society of British Columbia, 2016 BCCA 423, reversed on other grounds, [2018] 2 S.C.R. 293). In Saskatchewan v. Good Spirit School Division No. 204, 2020 SKCA 34, the Saskatchewan Court of Appeal referred to section 29 of the Charter in finding that providing public funds for non-Catholic students to attend Catholic schools did not violate other provisions of the Charter. The Court of Appeal adopted the argument that section 29 reflected a constitutional directive that separate school rights continue to exist and are not subject to alleged changes in social attitudes about these rights. An application for leave to appeal this decision to the Supreme Court has been filed.

See also the discussion under section 2(a).