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Text of Judgment of Supreme Court of Canada in Jewish School Question

February 16, 1926
See Original Daily Bulletin From This Date

(Jewish Daily Bulletin)

The text of the judgment of the Supreme Court of Canada on the Jewish school question in the province of Quebec was made public by Justice Anglin, the Chief Justice of the highest tribunal in Canada.

The appeal was filed from a judgment of the Court of King’s Bench of the Province of Quebec upon seven questions which were submitted to the Quebec Courts for decision. The questions, as will be remembered, were all relative to the respective school rights of the Protestants and Jews in educational matters in this Province and in an indirect manner effecting the Catholic School Commission. The constitutionality of the 1903 Act between the Protestants and Jews was questioned; Jewish representation to the Protestant Board of School Commissioners was requested, but the legality of such appointments was submitted to the courts. The other questions concerned the appointment of Jewish Teachers in Protestant Schools; the right of the Quebec Legislalure to appoint Jewish representatives to the Protestant Board of School Commissioners or to the Protestant Council of Public Instruction, or to oblige the Protestant Board to appoint Jewish teachers; the legality and constitutionality and powers of the Quebec Legistature to establish separate Jewish schools; the right of Jewish children to attend the Protestant schools.

These questions were all adjudicated upon by the Quebec Tribunal and in the majority of the questions the learned Judges of the Supreme Courts concur with the decision of the local courts. But in the two main issues, the Supreme Court reverses the judgment. In the first instance the Quebec Tribunal held that the 1903 Act was ultra vires of the powers of the Quebec Legislature and in the second instance, that the Legislature of the Province of Quebec was not empowered to establish a Separate School Panel.

The Supreme Court holds that the legislation of 1903 is not ultra vires of the Legislature of Quebec, except insofar as it would confer a right of attendance at dissentient schools upon persons of a religious faith differerit from that of the dissentient majority; that persons of the Jewish religion cannot be appointed to the Protestant Board of School Commissioners; that the Protestant Board is not obliged to appoint Jewish teachers in their schools should they be attended by Jewish pupils; that only Protestants are eligible for appointment to the Protestant Committee of Public Instruction; that neither the Catholics nor the Protestant Boards of School Commissioners are obliged to appoint Jewish teachers should their schools be attended by Jewish puple; that Jews cannot be appointed to the proposed Municipal Finance Commission; that the Provincial Legislature can legislate to establish separate schools for persons who are neither Protestant nor Roman Catholic, provided there is no interference prejudicial to the rights and privileges enjoyed either by Roman Catholics or Protestants as a class at the Union. In this latter connection the Chief Justice say: -“We deal with this question solely as it relates to legislative power. Considerations of policy do not concern us.”


The Court also holds that as a matter of grace Jewish children can attend the schools of the Protestant Commissioners of Montreal and of the dissentient minority in the rural municipalities. As a matter of right such children can attend the Protestant schools of the City of Montreal but not the schools of the dissentient minority in the rural municipalities; and lastly, that the Province can force the Protestant School Board of the City of Montreal to accept Jewish children in their schools, but cannot so force the Trustees of dissentient schools in the rural municipalities.


The judgment of the Court was written and delivered by Chief Justice Anglin, the other members of the Court concurring. The text of the judgment of the Court is as follows:

“By Order-in-Council of the 3rd of February, 1925, the Lieutenant-Governor of the Province of Quebec, under Article 579 of the Revised Statutes of Quebec, 1909, referred to the Court of King’s Bench (Appeal Side) for hearing and consideration a series of ‘questions relating to the educational system in the Island of Montreal.’ The Quebec statute, c. 19 of 1925, assented to on the 3rd of April, declares that the opinion or view of the Court of King’s Bench (Appeal Side) expressed upon these questions, on the 11th of March, 1925.

shall be deemed to be a final judgment delivered by the highest Court of final resort of the Province of Quebec,

and that

an appeal shall lie therefrom to the Supreme Court of Canada in conformity with section 12a of the Supreme Court Act.

Section 42a of the Supreme Court Act, enacted in 1922 (12-13 Geo. V., c. 48), reads as follows:

42a. An appeal shall lie to the Supreme Court from an opinion pronounced by the highest Court of final resort in any Province on any matter referred to it for hearing and consideration by the Lieutenant-Governor of the Province whenever it has been by the statutes of the said Province declared that such opinion is to be deemed a judgment of the said highest Court of final resort, and that an appeal shall lie there from as from a judgment in an action.

“This provision seems to contemplate the enactment of Provincial legislation applicable generally to references made to the highest Court of final resort in the Province by the Lieutenant-Governor-in-Council. Such statutes have been enacted by six of the other Provinces. Cameron, Supreme Court Practice, 3rd edition, p. 197. It would seem improbable that Parliament contemplated enabling a Provincial Legislature to single out a particular reference and to make the opinion pronounced upon it by the Provincial Court appealable to this Court, still less that a specific judgment already rendered and not appealable when given should, as in this instance, become the subject of such legislation. The Quebec statute of 1925 would, however, appear to be within the letter of s. 42a and it does not seem sufficiently clear that it lies without its intendment to warrant our declining jurisdiction to entertain the present appeal.


“The reference now before us chiefly concerns the validity and interpretation of the Quebec statute of 1903, c. 16, entitled ‘An Act to amend the law concerning education with respect to persons professing the Jewish religion.’ The present appeal is brought from the judgment of the Court of King’s Bench by two of the Jewish members of a special commission of education appointed by the Provincial Government, who had been represented before that Court. The respondents are the Protestant and Catholic Boards of School Commissioners of the City of Montreal, the third Jewish member of the special commission, and the Attorney-General of Quebec, all of whom had likewise taken part in the hearing of the reference.

“The Court of King’s Bench had unanimously held the statute of 1903, c. 16, to be ultra vires. But differences of opinion developed in the individual views of the several member of the Court upon some of the other questions propounded by the Order-in-Council.


The validity of the impunged statuts is challenged on the ground that its provisions either

prejudicially affect some right or privilege with respect to denominational schools which (some) class of persons (had) by law in the Province at the Union (B.N.A. Act, s.93) (1).

or derogate from “powers, privileges and duties” then

by law conferred and imposed in Upper Canada on the separate schools and school trustees of the Queen’s Roman Catholic subjects.

which are by provision 2 of s. 93 of the B.N.A. Act

Extended to the dissentient schools of the Queen’s Protestant and Roman Catholic subjects in Quebec.

Legislation of the Quebec Legislature repugnant to either of these provisions of the B.N.A. Act is to the extent of such repugnancy… absolutely void and inoperative (Colonial Laws Validity Act 1865 (Imp.). c.63,c.2).

The remedy of persons aggrieved by such legislation is to invoke the jurisdiction of the ordinary courts of the country.’ The right of appeal to the Governor-General-in-Council given by provision 3 of s.93 of the British North America Act does not apply to such a case. Brophy v. Attorney-General of Manitoba (1895). A.C. 202, 216, 219. In this decision of the ultimate appellate tribunal it is also pointed out (pp. 222.3), that the ‘absolute’ power of provincial legislatures in relation to subjects specified in s.92 of the British North America Act, and not falling within those set forth in s.91. does not extend to the matter of education.

which is specially dealt with and has its own code… in the British North America Act (s.93).

the ‘provisions’ whereor

defines the conditions under which alone the provincial legislature may legislate in relation to education and indicate the limitations imposed on and the exceptions from, their power of exclusive legislation.

It would require an Act of the Imperial Legislature prejudicially to affect any right or privilege reserved under provision 1 (s.93). Ottawa Separate School Trustees v. Mackell, 1917. A.C. 62.69):

and this is equally true of any powers privileges and duties… extended to the dissentient schools… in Quebec by provision affecting them is incomperent.

Further the judgment deals with the question of differentiating between religion and race and that the question of education in the Province is effected by the Religion of the individual and not by his race. They further disenss the meaning of Common Schools and make clear that Common Schools are those composed of the Schools of the majority and of the “dissentient schools,” in fact, the schools of the minority, Catholic or Protestant as the case may be.

The question of added territory to the city of Montreal since Confederation was discussed at length in the judgment. But the learned Justices make it clear that since there is no discussion at Bar as to the effect of annexation to the City of Montreal since 1867, they make no references to it in their judgment. They point out, however, that in adjudicating upon the several questions submitted they refer only to the City of Montreal as it was in 1867. They further discuss at length the question of the 1903 Act and convincingly point out that the legislation of that date was not and is not ultra vires and unconstitutional.



The article entitled “Agudath Israel: A Menace.” which you rentinted from the “New Palestine”, contains thirteen definite untruths. Here they are:

1. It is untrue that the Agudath Israel deputies relused to join the Jewish Club at the Polish Parliament. Just the reverse is true, the Agudath Israel deputies are members of that Club.

2. It is untrue that until the close of the war the rebuilding of Palestine was not part of the program of Agudath Israel. Just the reverse is true. The kattowitz program of 1912 definitely and emphatically includes Palestinian reconstructive work.

3. It is untrue that it is a universal mystery where and how the Agudah obtained its 100,000 dunam. Just the reverse is true. The transactions are registered with the government officials in the Holy Land.

4. It is untrue that the Agudath Israel has not even kitchens for hundreds. Just the reverse is true. Agudath Israel in Tel Aviv and Jerusalem has kitchens which feed daily hundreds of Jewish workers.

5. It is untrue that there is not a single house in the Agudah Colony Machneh Yisroel. There are about eighty houses built by the Poale Agudath Israel the majority of which are in Machneh Yisroel, a few in Tel Aviv, Pethach Tikvah and Bnei Berak.

6. It is untrue that Dr. Weizmann was willing to make any compromise in the matter of Kehillah Draft Ordinance. Just the reverse is true. Dr. Weizman found it impossible to make any concession in this respect.

7. It is untrue that in all Agudah Schools. Yiddish is the language of instruction. In a large number of them the language of instruction. In a large number of them the language of instruction is Hebrew.

8. It is untrue that the location and number of pupils of the Agudah Schools are unknown. Just the reverse is true. Both have been published here and abroad and are acessible at all times.

9. It is untrue that the Agudath Ha-rabhouim, as you wish to convey, endorsed the United Zionist Appeal. Just the reverse is true. The Agudath Ha-rabbonie declare it absolutely forbidden for an Orthodox Jew to participate in it.

10. It is untrue that the Keren Hayishuv was stated after negotiations with the Zionist Organization had been begun. On the contrary the Keren Hayishuv was founded two years earlier and was acknowledged in its work by Mr. M. M. Ussischkin.

11. It is untrue that the Agudath Israel has broken the unity of the Jewish People. Just the reverse is true. The Agudath Israel has all along endeavored to obtain the cooperation of the Zionist Organization.

12. It is untrue that the Agudath Israel seeks Gentile courts for the satisfaction of its claims. Just the reverse is true. In every case, in matters of the Draft Ordinance and the Vaad Ashkenazi, the Agudah at times for years, has in vain tried to settle matters within the Jewish camp. Details on request.

13. It is untrue that the Agudah reproached the Mizrachi for giving too much attention to Palestine. The Agudah complained against the Mizrachi only because the latter assumed joint responsibility for the irreligious school system and other transgressions of the Law in the Holy Land.

These thirteen untruths reveal to the unpreiudiced the moral level of the “New Palestine.” Comment is super fiuous.

RABBI LEO JUNG. Jewish Center. 131 W. 56th Street, New York. February 7, 1926.

The new building of the Rabbi Solomon Kluger School at Housron Street and Avenue C. New York City was dedicated Sunday. City Court Justice Gustave Harumann. President of the Israel Orphan Asylun, was the principal speaker. The building cost $1,000,000, has accommodations for 2,000 pupils, more than thirty recitation rooms diet kirchens, a gymnasium and swimming pool.

The Sisterhood of Congregation Kehitath Israel, the Broax, will celebrate its nineteenth anniversary tomorrow. Dr. Elias Dolomon and Rabbi Louis Finkelstein will be the speakers. Mr. Louis E. Kleban is the president of the Sisterhood.

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