Looking to the courtsManitoba Roman Catholics had good reason to believe that the courts would overturn the Manitoba government’s decision to cut funding to denominational schools. Their argument was simple: Section 22 of the Manitoba Act prohibited laws that would “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.” The time of union that the Act referred to was 1870, when Manitoba became a province. At a time when the only schools in Manitoba were denominational schools, all Manitobans had the right or privilege to fund any denominational school they chose to and they also had a right not to fund schools that were not in keeping with their religious principles. By ending public funding of denominational schools while requiring Roman Catholics to pay taxes to support the new non-denominational schools, Roman Catholics argued that Manitoba had violated the Manitoba Act.
Governments can always change laws: but they can only change their own laws. The Manitoba Act was an act of the Canadian parliament. As such it could only be changed if both the Manitoba government and the federal government passed laws approving the change. Since that had not happened, Manitoba’s school laws had to conform to the rule laid out in the Manitoba Act.
In 1890 John Kelly Barrett launched a legal challenge against the education law on behalf of the Roman Catholic community. Barrett was a Roman Catholic and an employee of the federal government, indeed, the federal government agreed to pay his legal fees. Not surprisingly, Barrett lost his case in the Manitoba Courts, but he won a unanimous victory from the Canadian Supreme Court, which ruled that by demanding that Roman Catholics support a school system that they could not send their children to for religious reasons, their rights had been prejudicially affected. At that time the final court of appeal was the Judicial Committee of the Privy Council in England. In 1892 the Privy Council ruled against Barrett. It argued that the only educational right protected by the Manitoba Act was the right to establish privately funded denominational schools. If, for religious reasons, citizens felt they could not let their children attend a public school that was a personal choice and not an attack on their denominational school rights. This decision did not end the issue since the Manitoba Act also provided for one final appeal on issues touching education rights, namely an appeal to the federal cabinet. When the Roman Catholic community made this appeal in 1985 it split the governing Conservative party in two.