Amendment to the Constitution of Canada Term 17 of the Terms of Union of Newfoundland with Canada
Standing Senate Committee on Legal and Constitutional Affairs
Chair: The Honourable Sharon Carstairs
Acting Deputy Chair: The Honourable C. William Doody
JULY 17, 1996
TABLE OF CONTENTS
MEMBERS OF THE COMMITTEE
ORDER OF REFERENCE
MAJORITY REPORT
- The Role of the Senate: Protecting Provincial Rights
- Negotiated Agreement: The So-Called "Framework Agreement"
- Minority Rights Under the Proposed Term 17
- Right to Uni-Denominational Schools: Proposed Amendment to Add "Where Numbers Warrant"
- Right to Uni-Denominational Schools: Proposed Amendment to Change "Direct" to "Determine and Direct"
- Minority Rights: Striking a Balance
- Other Minorities
IV. EFFECT OF AMENDMENT ON OTHER PROVINCES
DISSENTING OPINION
I. SUMMARY OF EVIDENCE AS PREPARED BY THE COMMITTEE RESEARCH STAFF
1. Background and Expert Opinion
a. Historical Background
b. The Newfoundland educational system
c. The Role of the Senate in a section 43 amendment
d. Term 17 and denominational rights
a. The fairness of the process
i. The history of the process
ii. Whether a constitutional amendment is necessary
iii. Other minority rights
b. The effect on minority rights
i. The nature of the proposed Term 17
ii. The nature and scope of "denominational education"
iii. Criticisms and suggested amendments to Term 17
c. The effect on the national fabric
a. Events following the Royal Commission Report
b. The views of the protected denominations
c. Teachers, parents, and non-denominational interests
d. The House of Assembly
- The Impact of the Canadian Charter of Rights and Freedoms
- Term 17 and Denominational Rights
- Whether a Constitutional Amendment is Necessary
- Whether the Constitutional Right Established by the Proposed Term 17 Should be Subject to Provincial Legislation
- The Referendum
- Other Issues
APPENDIX "A" -- List of witnesses
MEMBERS OF THE COMMITTEE
(As of July 17, 1996)
The Honourable Senator Sharon Carstairs, Chair
The Honourable Senator C. William Doody, Acting Deputy Chair
and
The Honourable Senators:
Anderson
Beaudoin
Cogger
*Fairbairn
(or Graham)
Gigantès
Jessiman
Kinsella
Lewis
Losier-Cool
*Lynch-Staunton
(or Berntson)
Pearson
Rompkey
*Ex Officio Members
(Quorum 4)
Other Honourable Senators having participated in the hearings: Forest, Hébert, MacDonald (Halifax), Milne, Ottenheimer, Petten, Poulin, Prud'homme and Roberge.
Research Officers: Mollie Dunsmuir and Laura Snowball, Library of Parliament.
Staff: Heather Lank, Clerk of the Committee; Cathy Piccinin, Legislative Clerk and Colette Charlebois, Administrative Assistant.
ORDER OF REFERENCE
Extract from the Journals of the Senate, Thursday, June 13, 1996:
Resuming debate on the motion of the Honourable Senator Fairbairn, P.C., seconded by the Honourable Senator Stanbury:
WHEREAS section 43 of the Constitution Act, 1982 provides that an amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies;
NOW THEREFORE the Senate resolves that an amendment to the Constitution of Canada be authorized to be made by proclamation issued by His Excellency the Governor General under the Great Seal of Canada in accordance with the schedule hereto.
SCHEDULE
AMENDMENT TO THE CONSTITUTION OF CANADA
I. Term 17 of the Terms of Union of Newfoundland with Canada set out in the Schedule to the Newfoundland Act is repealed and the following substituted therefor:
"17. In lieu of section ninety-three of the Constitution Act 1867, the following shall apply in respect of the Province of Newfoundland:
In and for the Province of Newfoundland, the Legislature shall have exclusive authority to make laws in relation to education but
(a) except as provided in paragraphs (b) and (c), schools established, maintained and operated with public funds shall be denominational schools, and any class of persons having rights under this Term as it read on January 1, 1995 shall continue to have the right to provide for religious education, activities and observances for the children of that class in those schools, and the group of classes that formed one integrated school system by agreement in 1969 may exercise the same rights under this Term as a single class of persons;
(b) subject to provincial legislation that is uniformly applicable to all schools specifying conditions for the establishment or continued operation of schools,
(i) any class of persons referred to in paragraph (a) shall have the right to have a publicly funded denominational school established, maintained and operated especially for that class, and
(ii) the Legislature may approve the establishment, maintenance and operation of a publicly funded school, whether denominational or non-denominational;
(c) where a school is established, maintained and operated pursuant to subparagraph (b)(i), the class of persons referred to in that subparagraph shall continue to have the right to provide for religious education, activities and observances and to direct the teaching of aspects of curriculum affecting religious beliefs, student admission policy and the assignment and dismissal of teachers in that school;
(d) all schools referred to in paragraphs (a) and (b ) shall receive their share of public funds in accordance with scales determined on a non-discriminatory basis from time to time by the Legislature; and
(e) if the classes of persons having rights under this Term so desire, they shall have the right to elect in total not less than two thirds of the members of a school board, and any class so desiring shall have the right to elect the portion of that total that is proportionate to the population of that class in the area under the board's jurisdiction."
Citation
2. This Amendment may be cited as the Constitution Amendment, year of proclamation (Newfoundland Act);
And on the motion in amendment of the Honourable Senator Doody, seconded by the Honourable Senator Kinsella, that the motion be not now adopted but that it be referred to the Standing Senate Committee on Legal and Constitutional Affairs;
And on the motion in amendment of the Honourable Senator Murray P.C., seconded by the Honourable Senator Robertson, that the motion be further amended by adding thereto the following:
That the Committee be authorized to permit coverage by the electronic media of its public proceedings with the least possible disruption of its hearings;
That the Committee be instructed to travel to Newfoundland and Labrador to hear representation on the proposed Constitutional amendment;
That the Committee present its report no sooner than September 30, 1996; and
That the Committee be authorized to deposit its report with the Clerk of the Senate if the Senate is not sitting and that the said report shall thereupon be deemed to have been tabled in the Chamber.
After debate,
With leave of the Senate and pursuant to Rule 30, the motion in amendment of the Honourable Senator Murray, P.C., was modified by deleting the third paragraph thereof and replacing it with the following:
"That the Committee present its report no later than July 17, 1996; and".
After debate,
The question being put on the motion in amendment, as modified, it was adopted.
Resuming debate on the motion in amendment, as amended, of the Honourable Senator Doody, seconded by the Honourable Senator Kinsella, that the motion be not now adopted but that it be referred to the Standing Senate Committee on Legal and Constitutional Affairs;
That the Committee be authorized to permit coverage by the electronic media of its public proceedings with the least possible disruption of its hearings;
That the Committee be instructed to travel to Newfoundland and Labrador to hear representation on the proposed Constitutional amendment;
That the Committee present its report no later than July 17, 1996; and
That the Committee be authorized to deposit its report with the Clerk of the Senate if the Senate is not sitting and that the said report shall thereupon be deemed to have been tabled in the Chamber.
After debate,
The question being put on the motion in amendment, as amended, it was adopted.
Paul C. Bélisle