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PART I —STATEMENT OF FACTS

1. Two Issues. This case involves two issues of fundamental importance:

(a) constitutional status of local government (“reasonable autonomy”), and

(b) equality of Alberta public and separate schools (“equality”).

They arise from 1994 Alberta legislation (amendments to the School Act (Tab 14) by the Amendment Act (Tab 15), and Government Organization Act (Tab 16)) that the Government has acknowledged “constituted a major restructuring of the education system.” (Brief on Motion to Strike, para. 7)

2. Reasonable Autonomy. The Public Schools contend that the legislation deprives school boards of so much decision-making authority and independent access to funding that it violates constitutional guarantees, both legal and conventional, of “reasonable autonomy” for school boards and other municipal institutions. Such guarantees are implicit in s. 92(8), s. 93, and the Preamble of the Constitution Act, 1867 (Tab 4), as well as in the Constitution of Canada generally. The reasonable autonomy issue is crucial to local democracy everywhere in Canada. In several parts of the country recent measures seriously threaten local government at a point in history when the population explosion and globalization are conspiring to make the senior orders of government less and less accessible to Canadians.

3. Equality. The equality issue is of vital importance to educational governance in both Alberta and Saskatchewan, which have common constitutional roots. It arises from legislation which allows only separate schools to continue raising revenue through local taxation. The Public Schools say that this unequal treatment violates two constitutional guarantees:

(a) s. 17(2) of the Alberta Act (Tab 3), which stipulates: “there shall be no discrimination against schools of any class” in “the appropriation by the Legislature or distribution by the Government ... of any moneys for the support of schools...”; and

(b) a guarantee implicit in s. 17(1) of the Alberta Act that public and separate schools shall enjoy “mirror equality” in respect of their rights and privileges.

4. Impugned Legislation: (i) Reasonable Autonomy. The challenged legislation severely curtails school board autonomy in four fundamental respects:

(a) Selection and Control of Senior Staff.

· Superintendents, previously responsible solely to their boards, are now also responsible directly to the Minister (School Act, s. 94(5) (Tab 14)); and their appointment is subject to the Minister’s approval (School Act, s. 94(1) and 94.1 (Tab 14)) under more onerous conditions than previously.

· Principals, previously answerable only to their superintendents and boards, are now also responsible directly to the Minister for Ministerial standards and requirements (School Act, s. 15(c. 1) and s. 17(9)(b) (Tab 14)).

(b) Creation and Management of Educational Programs. School Board decision-making has been severely constrained by subjecting boards to Ministerial standards, orders, approvals, appeals and regulations (School Act, ss. 28(4), 28(6), 44, 155(6) (Tab 14); and by providing for Ministerial delegation of authority to any person (Government Organization Act, s. 9 (Tab 16).

(c) Local Tax Requisition, historically available to all school boards, has been taken away from public boards (School Act, s. 157.1 (Tab 14)), except for inconsequential Special Plebiscite levies (School Act, s. 181.1 (Tab 14)).

(d) Spending Restrictions, imposed by a scheme of block funding embodied in the Framework for Funding School Boards in the 1995-96 School Year (“Funding Framework”) (T.E. 32, R.B. 808), have largely removed the ability of school boards to decide how the funds they receive in lieu of taxes shall be spent.

5. Impugned Legislation: (ii) Equality. The legislation discriminates against public schools in the following ways:

(a) Public schools may not opt-out of the prohibition on local tax requisition (School Act, s. 157.1(8) (Tab 14)), as separate schools are permitted to do (School Act, s. 157.1(2) (Tab 14)).

(b) Funding Framework spending restrictions are imposed on public school boards under s. 159.1(1) of the School Act (Tab 14), which cannot be constitutionally applied to the local tax revenues of opted-out separate schools, giving the latter greater spending autonomy than public schools.

(c) Potential discrimination through Government discretion. Differential school tax assessment rates may be established for different boards (School Act, s. 158(1), (Tab 14)); and differential access to Ministerial grants may be granted to different boards (School Act, s. 26.1(2) and s. 26.1(3) (Tab 14)).

6. Pre-trial Rulings included orders by Veit J. dismissing a Government motion to strike the Public Schools’ initial Originating Notice (R.B. 54); and directing that the claim proceed by Statement of Claim (R.B. 32), consolidated with a related action by the A.S.B.A. et al. (R.B. 47).

7. Trial Court. After a six-week trial, Smith J. upheld the Public Schools’ “mirror equality” claim. He dismissed the claims of reasonable autonomy and discrimination under s. 17(2) of the Alberta Act, did not address the question of convention, and made almost no findings of fact. (R.B. 1032)

8. The Alberta Court of Appeal dismissed the Public Schools’ appeal with respect to reasonable autonomy and discrimination under s. 17(2) of the Alberta Act, and allowed the Government’s cross-appeal with respect to “mirror equality.” (C.A. Reasons, R.B. 1085). Although the Court was unanimous in result, the reasons of Russell and Picard JJ.A. differed sharply in some respects from those of Berger J.A.

9. All Court of Appeal judges rejected the autonomy argument on the grounds that:

· The Constitution does not in their view entrench “municipal institutions” or restrict provincial powers over school boards (paras. 48 and 59, R.B. 1100 and 1103);

· School boards are not “municipal institutions” in their opinion (para. 48, R.B. 1100); and

· They did not think the evidence established that school boards historically exercised “reasonable autonomy” (paras. 52-55, R.B. 1101-1102).

They rejected the “mirror equality” argument because the protections of s. 17(1) of the Alberta Act apply, in their view, to separate schools only (paras. 115 and 124, R.B. 1119 and 1122).

10. Where Russell and Picard JJ.A. differed with Berger J.A. was as to the claim that the legislation “discriminates” against public schools, contrary to 17(2) of the Alberta Act, by denying them the same access separate schools have to local tax requisition. Berger J.A. held that the constitutional rights of separate school supporters would be violated if they could not opt for tax requisition (paras. 152, 175, 182, R.B. 1132, 1138, 1142); but that permitting them to do so is not “discrimination” against public schools because it is not discriminatory to subject a “measure of universal application” to “constitutionally based exemptions” (para. 186, R.B. 1143), and “If public school board electors are unhappy, their remedy is at the ballot box” (para. 187, R.B. 1143). Russell and Picard JJ.A. declined to decide whether separate schools had a constitutional right to opt out (para. 88, R.B. 1111). They nevertheless found that refusing that right to public schools does not constitute “discrimination” under s. 17(2) (para. 98, R.B. 1114).

PART II — POINTS IN ISSUE

11. The Points in Issue are as expressed in the Notice of Constitutional Questions (Appendix “A” and R.B. 1), and in paragraphs 1 to 3 above.

PART III — ARGUMENT

A. REASONABLE AUTONOMY

(i) General

12. Importance. Municipal institutions are at a crossroads. Democratic government in Canada has always operated, de facto, at three levels: federal, provincial and municipal. Although only the federal and provincial orders of government are fully-autonomous partners in the Canadian federal union, de jure, Canadians and the British before them have always placed heavy responsibility for the governance of matters close to home on locally-elected “municipal institutions”. While those municipal institutions have always been supervised in Canada by the provincial order of government, until recently they enjoyed a degree of relative freedom — “reasonable autonomy” or “semi-autonomy” — that permitted democracy to function effectively at the local level.

13. The “reasonable autonomy” of municipal institutions is now threatened. As the affidavit of John Sewell (R.B. 8) shows, provincial governments are implementing measures that seriously undermine the authority, and impair the relative freedom of action, that historically characterized Canada’s third level of democratic government. This is not just a problem for school boards in Alberta; it affects municipal institutions throughout Canada. Issues of reasonable autonomy affecting Ontario school boards were dealt with by the Ontario Court of Appeal, Ontario English Catholic Teachers’ Association v. Ontario, [1999] 172 D.L.R. (4th) 193 (Ont. C.A.) (Tab 39), and in the “Toronto Megacity case”, East York (Borough) v. Ontario (1997) 153 D.L.R. (4th) 299 (Ont. C.A.) (Tab 29). Although this Court declined leave to appeal in the latter case, it has granted leave in the former case.

14. Only this Court can say whether “reasonable autonomy” is a quality that school boards and other “municipal institutions” constitutionally possess. So long as the unstated understandings and organizing principles that animate the Constitution are tacitly respected, there is little need for judicial involvement. But when a principle that is fundamental to some is denied, questioned, or narrowly construed by others, the courts must clarify the situation. This Court has done so in relation to such principles as judicial independence, legislative privileges, fiduciary obligations to Aboriginal peoples, full faith and credit, the “implied bill of rights”, secession and the rule of law. Tacit understandings and political suasion are no longer sufficient to guarantee effective democracy at the local level. Provincial governments are acting upon assumptions about the constitutional role of municipal institutions that are fundamentally at odds with the principles many Canadians believe to be basic. A decision is required.

15. The Principle of Subsidiarity. The notion of reasonable autonomy is rooted in a long-standing principle of governance called "subsidiarity". It embodies the very simple, but important, idea that governance should occur at the lowest level having the requisite knowledge, authority and skill to deal with matters effectively. Subsidiarity underlies federalism, and it was in play, long before federalism was invented, in the relationship between local and national governments in the U.K. and elsewhere; as well as in the ancient principles of feudalism from which those models evolved. Simple necessity may have dictated that in pioneer societies governance typically began at the local level; but the reason strong local governments persisted after central authorities asserted their authority was plain common-sense: local matters are best dealt with locally. See P.W. Hogg, Constitutional Law of Canada, 3d ed., looseleaf, (Toronto: Carswell, 1992) 5.1(g); “Subsidiarity and the Division of Powers in Canada,” (1993) 3 N.J.C.L. 341. (Tabs 58 and 66)

16. The application of subsidiarity to educational governance is explained in an influential American book: Coons, Clune and Sugarman, Private Wealth and Public Education, (Cambridge, MA: Harvard University Press, 1970) p. 14-19 (Tab 56). The authors' thesis is that the greatest effectiveness in education results when educational decisions — including economic decisions — are made as close as possible to where they will be implemented. A recent book by Stephen B. Lawton, an authority on educational finance, applies these ideas to Canada: Financing Canadian Education, (Toronto: Canadian Education Association, 1996) (Tab 59). Professor Lawton comes down firmly in favour of effective local control within a framework of central supervision and collaboration that he calls “symbiotic.” (p. 19) Some of his observations about the philosophical and economic foundations of "semi-autonomous school boards with their own taxing powers" are worth quoting:

"It is well to remind ourselves why, in the first place, local school boards came into being, and to ask whether or not a justification exists for their continued existence. If the answer to the latter question is in the negative, and current trends continue, then educational finance will continue to lose much of its distinctiveness, which arose from the tradition of local, semi-autonomous school boards with their own taxing powers.” (p. 6)

After examining various reasons for the “semi-autonomous” role of school boards, he continues:

“Underlying all these reasons is the simple belief that the local community — not the province or nation — is the central unit in society outside of the family and that significant control of education ought to remain at that level.

. . .

There is, as well, a more utilitarian argument supporting decentralized education and social services. According to the principle of "subsidiarity," there is a natural geographic area in which the primary beneficiaries of a service live and over which the service can be provided most efficiently and effectively....” (p. 7-8)

17. Outline. In brief outline, the Public Schools’ submissions as to autonomy are:

(a) The Constitution of Canada includes many implicit norms, both legal and conventional. These are rooted in Canada’s history and pre-history, as well as in the unwritten organizing principles of the Constitution.

(b) Section 92(8) (“municipal institutions”), s. 93 (“education”), and the Preamble of the Constitution Act, 1867 (Tab 4), when read in the light of history and of the organizing principle of “democracy,” incorporate an implicit legal guarantee of reasonable autonomy for school boards and other key municipal institutions.

(c) In the alternative, reasonable local government autonomy is at least guaranteed by constitutional convention.

18. It is submitted that the rejection of these arguments by the courts below was mistaken, even on the basis of the authorities then available. It is now irreconcilable with this Court’s unanimous reasons in Reference re Secession of Quebec (“Secession Reference”), [1998] 2 S.C.R. 217, (Tab 51) .

(ii) Legal Guarantee of Reasonable Autonomy

19. Constitution Includes Implicit Legal Norms. This proposition needs no elaboration: Re Resolution to Amend the Constitution of Canada (“Patriation Reference”) [1981] 1 S.C.R. 753, at 876-78 (Tab 46); Reference Re Remuneration of Judges (“Provincial Judges Reference”) [1997] 3 S.C.R. 3, para. 92 (Tab 50); Secession Reference, para. 32 (Tab 51); P.W. Hogg, Constitutional Law of Canada (3rd, Looseleaf) # 1.4 (Tab 58).

20. Implicit Norms Often Derive from Interpretation of Explicit Provisions. The process by which courts find unwritten legal norms to be implicit in the Constitution is frequently an interpretive process: a determination that certain powers, immunities or characteristics are implicit in such expressions as "Parliament", "Legislature" and "superior court”, when read in light of British history incorporated by the Preamble of the Constitution Act, 1867. An example is this Court’s decision in Provincial Judges’ Reference at paras. 83-109, (Tab 50) where Lamer C.J.C. stated for a majority that:

“By implication, the jurisdiction of the provinces over ‘courts’, as that term is used in s. 92(14) ..., contains within it an implied limitation that the independence of those courts cannot be undermined.” (para. 108)

That interpretation resulted from the fact that “judicial independence is at root an unwritten constitutional principle in the sense that it is exterior to the particular sections of the Constitution Acts.” ( para. 83, emphasis in original). It is an “organizing principle” of the Constitution. (paras. 96, 104, 107)

21. Lamer C.J.C. also reviewed several other decisions which relied on British experience, introduced through the Preamble, (“the grand entrance hall to the castle of the Constitution”; para. 109) to import various implicit “organizing principles” into Canada’s Constitution. In New Brunswick Broadcasting Co. v. Nova Scotia [1993] 1 S.C.R. 319 at 376-89 (Tab 37), for example, this Court relied on the Preamble and British historical experience to recognize the inherent privilege of “legislatures.” Other implicit “organizing principles” mentioned by Lamer C.J.C. were: full faith and credit; paramountcy; rule of law; parliamentary government; political expression; implied bill of rights; and judicial independence. (paras. 80-105)

22. That interpretive approach — to import implicit legal norms into the Constitution by construing its explicit terms in the light of history and context — extends far beyond the cases mentioned by Lamer C.J.C. Scores of fundamental constitutional principles, familiar to every lawyer and judge, but having no express embodiment in constitutional text, were established that way. Some of the more noteworthy are: the "dual aspect" rule (Hodge v. The Queen (1883), 9 A.C. 117, at 131 (P.C.) (Tab 34)); the "pith and substance" principle (Union Colliery Co. v. Bryden, [1899] A.C. 580, at 587 (P.C.) (Tab 55)); the "severability" principle (Attorney-General of Alberta v. Attorney-General of Canada, [1947] A.C. 503, at 518-19 (P.C.) (Tab 21)); the "national dimensions" concept (Attorney General of Ontario v. Attorney-General of Canada, et al., [1896] A.C. 348, at 361 (P.C.) (Tab 22)); federal jurisdiction over trade marks, wireless communications, atomic energy and aviation (MacDonald v. Vapor Canada Ltd., [1977] 2 S.C.R. 134 (Tab 35)); (Radio Reference [1932] A.C. 304 (P.C.) (Tab 44)); (Ontario Hydro v. Ontario [1993] 3 S.C.R. 327 (Tab 41)); the "national emergency" doctrine (Fort Frances Pulp and Power v. Manitoba Free Press, [1923] A.C. 695, at 703-5 (P.C.) (Tab 31)); provincial jurisdiction over health (Schneider v. The Queen, [1982] 2 S.C.R. 112 (Tab 52)); the Crown's "fiduciary obligation" to Aboriginal peoples (Guerin v. The Queen, [1984] 2 S.C.R. 335 (Tab 32)); federal/provincial “balance” (Attorney-General of Ontario v. Attorney-General of Canada, [1896] A.C. 348 at 361 (P.C.) (Tab 22)); (Re Anti-Inflation Act, [1976] 2 S.C.R. 373 (Tab 45)); and the “rule of law” (Manitoba Language Reference, [1985] 1 S.C.R. 721, at 747-50 (Tab 36)).

23. This approach was resoundingly re-affirmed by this Court’s unanimous decision in the Secession Reference (Tab 51). While the facts were very different from those of the present dispute, it is submitted that the decision is highly relevant for two reasons:

(a) It emphasizes that “unwritten organizing principles” are so “foundational” a part of the Constitution’s “inner architecture” or “lifeblood” that “it would be impossible to conceive of our constitutional structure without them.” (paras. 49-51)

(b) It confirms that one of those “foundational” principles is democracy, which it describes as a “fundamental predicate of our system of governance” (para. 69), that “has always informed the design of our constitutional structure, and continues to act as an essential interpretive consideration to this day.” (para. 62) It identifies “the promotion of self government” as the most important substantive goal of democracy; and it affirms that “faith in social and political institutions which enhance the participation of individuals and groups in society” is “inherent in the notion of democracy.” (para. 64)

Both aspects of the decision support, in ways to be examined more fully below, the reasonable autonomy of school boards and other “municipal institutions.”

24. Democratic Interpretations of “Municipal Institutions” and “Education”. The Public Schools submit that, to borrow words from Lamer C.J.C. in the Provincial Judges Reference (para. 20 above), “By implication, the jurisdiction of the provinces over” ‘municipal institutions’ and ‘education’, as those terms are used in s. 92(8) and s. 93, contain within them “an implied limitation that” the reasonable autonomy of educational and other municipal institutions “cannot be undermined.” Reasonable autonomy resides in the very phrases “municipal institutions” and “education.”

25. When the term “municipal institutions” was adopted between 1864 and 1867, it referred to organs of local governance to which substantial local democratic participation was vital. School boards are “municipal institutions” (T.E. 1: A. Sancton, Expert Report, paras. 3-4, R.B. 585); T.T.: A. Artibise, pp. 191-193, R.B. 148-150); but even if they were not, local arrangements for democratic school governance would be implicit in the word “education” in s. 93. Complex systems of education, typified by a high degree of local control through local elections, and financed by local taxation, existed in British North America by 1867. When the Fathers of Confederation spoke of “education” in s. 93 of the Constitution Act, 1867, and in s. 17 of the Alberta Act, 1905, they had in mind this model of educational structures, marked, like municipal institutions generally, by a reasonable level of local autonomy.

26. The Public Schools do not deny that school boards and other municipal institutions are creatures of, and are legally subordinate to, the provincial order of government. Both Courts below relied on authorities to that effect (C.A. Reasons, paras. 46 and 48, R.B. 1099, 1100). It is submitted, however, that those authorities are beside the point. The Public Schools simply say that provincial legislatures must respect constitutional constraints when exercising their undoubted authority over “municipal institutions” and “education”. Just as they must observe Charter restrictions when dealing with all matters under their jurisdiction, legislatures must also observe restrictions implicit in the “foundational” principle of “democracy.” Those restrictions include local governments’ “reasonable autonomy,” which an expert witness for the Government acknowledged to be “a fairly standard expression in the field.” (T.T.: D. Siegel, p. 736, line 6, R.B. 276)

27. ¨Historical Evidence. This position finds strong support in the voluminous historical evidence adduced at trial, and summarized in the Public Schools’ Court of Appeal factum (Tab 71). The roots go deep. When William the Conqueror introduced Norman feudalism to Britain in 1066, he superimposed it on existing local government structures in the hands of regional barons, and the new system embodied what we would now call the “subsidiarity” principle, by retaining and augmenting local authority over local matters. When King John attempted to impose too much central control, the barons confronted him at Runymede in 1215, and forced a restoration of the balance through Magna Carta, 1215, (Tab 27) which referred explicitly to the rights of cities and other local communities. As John E. Bebout quotes in An Ancient Partnership: Local Government, Magna Carta and the National Interest, 1966 (T.E. 2, p. 22, R.B. 636).

“From the earliest times it has seemed to the English part of the natural order of things that local communities should have a substantial responsibility for order and for the good conduct of their affairs, under the general eye of the central government.”

28. The democratization of local government in Britain began with the Municipal Corporations Act, (1835) 5 & 6 Wm., c. 76 (Tab 2), which provided for direct election of council members, public meetings, public accounts, and financing through local taxation. The jurisdiction of municipal government was defined, and a degree of supervisory control by central government was authorized. That legislation inspired colonial legislation, including Upper Canada’s Municipal Corporations Act (the “Baldwin Act” (1866) 29-30 Vict., c. 51 (Tab 9), which improved upon the British model, and set the pattern for municipal government in Canada for many years to come. (T.E. 1:. A. Sancton, Expert Report, paras. 9-13, R.B. 588-592; T.T.: A. Sancton, pp. 35, 1. 12 to 70, l. 19, R.B. 90-125). Historian C.R.W. Biggar observed that: “Never had the principle of local self-government been more fully carried out than in the Act of 1849....” (as cited in T.E.: A. Sancton, Expert Report, para. 12, R.B. 590)

29. Legislation for the governance of schools in Upper Canada preceded general municipal legislation by several decades. Historians R.D. Gidney and W.P.J. Millar point out in Inventing Secondary Education; The Rights of the High School in Nineteenth Century Ontario, (1990), (T.E. 69, p. 31, R.B. 835, 842), that the first statutes regulating Grammar schools and Common Schools were enacted in 1807 and 1816 respectively. That legislation established a legal framework for local school governance, as well as for certain government grants-in-aid. Although there were ongoing efforts thereafter to expand the degree of central regulation and supervision, the system continued to be marked by a high overall degree of autonomy on the part of local school boards:

“To a large extent ... it was local values and interests which defined the real, as opposed to the formal, powers of the Department in respect to both its regulatory and leadership roles. Throughout the period, the Department repeatedly raised the minimum requirements for a variety of school affairs. But revisions tended to be introduced only when newspaper opinion, inspectors, trustees, and departmental correspondence generally made it clear that a broad (though not necessarily all-inclusive) consensus had been reached. Even then, such standards tended to be set at minimum levels — that is, at levels which most school boards had already attained or could attain with ease.” (T.E. 7: D.A. Lawr and R.D. Gidney, “Who Ran the Schools? Local Influence on Education Policy in Nineteenth Century Ontario,” (1980) 67 Ontario History #2, p. 3-13, at 10, R.B. 642, 651)

This conclusion is also supported by Robert M. Stamp’s book, The Schools of Ontario, 1876-1976 (Toronto: University of Toronto Press, 1982) at 22-25, Tab 63, which refers to:

“two important realities of late nineteenth-century Ontario education: first, that local conditions determined the extent to which provincial goals might be realised; and, second, that local authorities decided whether conditions in their area warranted program change.”

30. The semi-autonomy exercised by local government in Upper Canada at Confederation was subsequently extended to the area that later became Alberta. The Expert Report of Dr. Alan Artibise states:

“40. The ‘natural order’ of democratic local self-government established in Manitoba in 1871 was quickly extended to the North-West Territories ... Parliament provided a territorial government for the vast region of the North-West Territories. The provisions for governance included at the outset local institutions as fundamental elements of the new territories.

41. Indeed, as early as 1867, a Minute of the Privy Council noted that it was ‘essential to provide for the speedy organization of Municipal and Local Governments therein.’ Similarly, in 1869, a joint council of both French and English speaking representatives of the Red River Settlement included in their ‘List of Rights’ mention of local institutions. Furthermore, in subsequent and complex discussions, the Prime Minister recognized municipal institutions and the elective principle even before other matters were settled. In other words, powers were granted ‘to establish municipal self-government immediately.’ And, in later years, when restrictions on municipal and school district organization were proposed, they resulted in ‘discontent’ and the restrictions were dropped.

42. The North-West Territories Act of 1875 included ordinances for establishing municipalities with full power of taxation. And in the Debates in Parliament, Prime Minister Mackenzie stated that ‘there was an absolute necessity for the establishment ... of schools and of some municipal system....’

43. Then, after observing that “the evolution of our democratic tradition can be traced back to the Magna Carta, 1215 (Tab 1), and before” (para. 63), the Court examined the “substantive goals” served by democracy, “most importantly, the promotion of self-government” (para. 64). As to self-government, it reiterated its statement in Oakes that “principles essential to a free and democratic society” include “faith in social and political institutions which enhance the participation of individuals and groups in society” (para. 64), and added “the consent of the governed is a value that is basic to our understanding of a free and democratic society.” (para. 67) The Court’s discussion of the purposes served by democracy concluded with a rejection of monolithic decision-making:

“Finally, we highlight that a functioning democracy requires a continuous process of discussion.... [T]he need to build majorities necessitates compromise, negotiation, and deliberation. No one has a monopoly on truth, and our system is predicated on the faith that in the marketplace of ideas, the best solutions to public problems will rise to the top.” (para. 68)


44. Unilateralism was also rejected in the Court’s discussion of constitutionalism:

“...[A] constitution may provide for a division of political power that allocates political power amongst different levels of government. That purpose would be defeated if one of those democratically elected levels of government could usurp the powers of the other simply by exercising its legislative power to allocate additional political power to itself unilaterally.” (para. 74)

Although this statement may have been made with only the sovereign federal and provincial orders of government in mind, it is equally applicable to democratic local government.

45. Drawing upon this Court’s words in the Secession Reference, the Public Schools’ submissions on the legal protection of reasonable local government autonomy may be summed up as follows:

(a) The interpretation of the terms “municipal institutions” and “education” in sections 92(8) and 93 of the Constitution Act, 1867 must take account of the “underlying principle” and “essential interpretive consideration” of “democracy” (embracing as it does “representative” “self-government,” “political institutions which enhance the participation of individuals and groups in society,” “compromise, negotiation and deliberation,” and the “division of political power ... amongst different levels of government”)

(b) Such an interpretation implies that those terms embody a reasonable degree of autonomy for democratically elected school boards and other municipal institutions.

46. Flexibility Within Limits. The Government will argue that constitutional interpretation should not be restricted to original meanings because the Constitution is, in Lord Sankey’s famous words, “a living tree capable of growth and expansion within its natural limits.” (Edwards v. A.G. Canada ,[1930] A.C. 124 at 136-43, (P.C.) (Tab 30)). The phrase “within its natural limits” must be stressed, however. It implies the ongoing existence of the Constitution’s “foundational principles,” and it clearly rejects changes alien to those principles. This Court recognized that constitutional interpretation must take account of both our past inheritance and our future needs when it referred in the Secession Reference (Tab 51) to “the evolution of our constitutional arrangements” being characterized by “a desire for continuity and stability.” (para. 48)

47. Turning to the dispute at hand, it is submitted that although the “living tree” principle will tolerate major changes from Confederation-era models concerning the particularities of power and responsibility allocation, amalgamations, elections, and so on; changes so fundamental that they would violate democracy or other foundational principles of the Constitution, or would effectively convert “municipal institutions” into “provincial institutions” (branch offices of the provincial Government), are not permissible, because they would amount to legislative amendment of the Constitution. The impugned legislation herein is unconstitutional because it deprives Alberta school boards of a characteristic that is essential to any “municipal institution”: reasonable autonomy as to: staffing; program and management; funding; and spending.

(iii) Conventional Guarantee of Reasonable Autonomy

48. Even if there were no violation of constitutional law, there is most certainly a violation of constitutional convention. All three requirements of a judicially recognizable convention — precedent, belief in bindingness, and reason — are present. (Re: Resolution to Amend the Constitution, (Patriation Reference), [1981] 1 S.C.R. 753 at 888 (Tab 46))

49. Precedents relating to the reasonable autonomy of local government institutions date back at least as far as Magna Carta (Tab 1), and include all the governance arrangements previously reviewed. While those arrangements have changed over the years, it is submitted that before 1994 school governance in Alberta, as in most other Canadian jurisdictions, continued to be marked by de facto reasonable local autonomy (subject, of course, to provincial supervision) in respect of the fundamental questions of: staffing, programming, funding, and spending. The few jurisdictions that had removed those powers from school boards by that time were in violation of the convention. (T.T.: A. Sancton, pp. 153-154, R.B. 145-146).

50. Belief in the binding nature of the convention has also been consistent from at least 1215, when King John recognized he had no alternative to abiding by the obligations of Magna Carta. That belief persisted through 1875, when the Northwest Territories Act (s. 11 (Tab 5)) stipulated that both majority and minority ratepayers must “always” be allowed to establish, operate and finance their own school, until 1994, when consistency across most of Canada in respect of local school board autonomy for the fundamentals of staffing, programming, funding and spending, still evidenced a common understanding of what convention demanded. As Professors Corry and Hodgetts put it:

“Local democracy is now so firmly established in popular estimation that no legislature would think of using its constitutional powers to abridge it seriously. Local government has a wide sphere of autonomy guaranteed by political considerations and not by the constitution.... The councils are responsible to their electorate and, generally speaking, to no other political authority.... It is only in very unusual circumstances ... that a senior government can remove the local council or dictate to it what it shall do.” (cited in T.E. 8: A. Artibise, Expert Report, para. 39, R.B. 673)

Two contemporary political scientists, Drs. Barry Cooper and David Bercuson confirm, in a recent article critical of the Alberta Minister of Learning’s recent dismissal of the Calgary Board of Education’s elected trustees, that the belief persists today:

“[L]ocal government, the government closest to our daily lives, is the foundation of all democracy.” (“Ballot Box the Remedy for School Board Ailments,” Calgary Herald, August 25, 1999, A16 (Tab 64)); see also: Catherine Ford “People not gov’t, should have dealt with school board,” Edmonton Journal, August 25, 1999, p. 12 (Tab 65))

51. The reason for the convention is obvious: the principle of “subsidiarity.” As John Stuart Mill wrote in On Liberty, 1859 (Tab 61), not long before Confederation:

“[I]f ... the municipal corporations and local boards ... became departments of the central administration; if the employees ... were appointed and paid by the [central] government and looked to the [central] government for every rise in life, not all the freedom of the press and popular constitution of the legislature would make this or any other country free otherwise than in name.” (T.E. 1: Dr. A. Sancton, Expert Report, paras. 19-20, R.B. 595-596)

Government witness Dr. David Siegel echoed the thought in a publication he acknowledged on cross-examination:

“It is very important that municipal governments, and to a lesser extent special purpose bodies, have reasonable levels of autonomy so that they can deal with local issues.” (T.T.: Dr. D. Siegel, pp. 737, l. 9 to 738, l. 12, R.B. 277-278)

52 Dr. Siegel’s understanding of “reasonable levels of authority” tallies closely with the fundamental functions of which Alberta school boards have been deprived:

Q “Could you define ‘reasonable levels of autonomy’ for us, please?

A I don’t think that is susceptible of a, sort of, quick definition. What it means is that they would be able to conduct certain actions on their own, but I’m putting in the reasonable levels to indicate that they would have to also remember certain broader provincial interests in what they are doing.

Q When you were telling me about the most important areas on Chart 2, we agreed, I think, that those areas include goals?

A. Yes.

Q Elections?

A Yes.

Q Independent financing, independent control of staff?

A Yes.” (T.T.: D. Siegel, pp. 815, l. 21 to 816, l. 9, R.B. 279-280)

53 Rejection of the convention argument by the Court below seems to have been based, in part, on its failure to appreciate that it is only the suppression of such fundamental functions, all of which clearly existed in 1867, 1905 and 1994, that denies “reasonable autonomy.” The Court’s assertion that controversy about the degree of autonomy school boards should enjoy belied a precedent, (C.A. Reasons, para. 67, R.B. 1104) misses the point that there was always agreement that those fundamentals should be local responsibilities.

54 The other reasons of the Court below for denying a declaration as to convention were equally mistaken. Its concern that such a declaration “would seriously undermine the ability of the province to redress regional disparities and promote equity” (para. 67) is refuted by the Government’s witness Dr. Siegel, who agreed in cross-examination that “there are many ways of achieving equity, and to achieve equity with respect to local government bodies it is not necessary to move in and take over those bodies.” (T.T.: D. Siegel, pp. 817, l. 16 to 818, l. 7, R.B. 281-282) The Court’s final observation:

“[T]he nature of the remedy sought in this case does not obviate the basic principle that, whatever other application they might have, conventions should not be used in any manner to override explicit constitutional guarantees.” (C.A. Reasons, para. 68, R.B. 1105)

signals a basic misunderstanding of the Public Schools’ argument, which does not claim priority over “explicit constitutional guarantees”, but merely asserts that depriving all school boards, public and separate, of reasonable autonomy in their fundamental functions violates political convention. The Ontario Court of Appeal’s rejection of the convention argument in Ontario English Teachers’ Association v. Ontario (Tab 39) on the grounds that “conventions are not to be enforced by the courts” (para. 98), and “convention ... cannot be applied so as to strike down or overrule a clear and specific law” (para. 99) has no application here, since the convention argument in the case at bar is an alternative to the legal argument, and seeks only a declaration that the convention exists.