Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 21 - Evidence - Morning Session
OTTAWA, Tuesday, June 25, 1996
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 9:30 a.m. to consider the resolution to amend the Constitution of Canada, Term 17 of the Terms of Union of Newfoundland with Canada.
Senator Sharon Carstairs (Chair) in the Chair.
[English]
The Chair: Good morning, senators and colleagues. We are delighted this morning to have with us representatives from the Canadian Conference of Catholic Bishops.
Please proceed.
Most Reverend Francis J. Spence, Archbishop of Kingston; President, Canadian Conference of Catholic Bishops: Madam Chair, we thank you for accepting our presentation on behalf of the Canadian Conference of Catholic Bishops.
The first issue in our brief relates to the basic educational rights and concerns of parents. Given the importance of the constitutional question confronting Catholic schools in Newfoundland today, it is useful to begin by recalling precisely why the Catholic Church is engaged in education.
As indicated in the Universal Declaration of Human Rights, Article 26.3:
Parents have a prior right to choose the kind of education that shall be given to their children.
In the words of the Catechism of the Catholic Church, parents have a "primordial and inalienable" right and a duty to educate their children with the corresponding fundamental right to choose a school that reflects their own convictions. As for governments and other public authorities, we believe it is their duty to guarantee this parental right and to ensure the necessary conditions.
This basic concern of parents to choose the kind of education that their children should receive has meant that various religious groups and minorities have struggled to establish and maintain schools which reflect their particular values and social concerns.
Britain's Chief Rabbi, Jonathan Sacks, has noted:
The whole process of education has a spiritual context. The pursuit of knowledge begins with a sense of awe at the mystery of existence. The very idea of universal education is rooted in our sense of the sanctity of the individual. Secularize education and you diminish it. You diminish its power for children; you diminish the dignity of our teachers; you diminish the value of education as an end in itself...
No culture can survive change without faith. From today, and for the sake of our children, I hope that the voice of faith will speak more loudly in our culture.
[Translation]
Most Reverend Henri Goudreault, OMI, Bishop of Labrador City-Shefferville, co-Treasurer, Canadian Conference Catholic Bishops: Denominational education rights predate Canadian Constitution.
So important have been the contributions by catholic and protestant denominational schools to the social fabric and well-being of Canada, since the days of its earliest settlements, that the Fathers of Confederation in the British North America Act recognize the right of catholic and protestant minorities to have access to state funding for these schools.
The worth of such schools is not to be evaluated on the historical terms. Catholic and other denominational schools continue to enrich the common good of all Canadian society, and remain an important witness and source in Canada of tolerance for diversity, as well as a significant need to transmit values to new generations. Individuals or families by themselves cannot be expected to pass on those values which people need to maintain a sense of identity but are assisted in this by intermediary institutions such as the Church and the school:
Children and youth develop a sense of meaning and values by being consistently showed that love, spirituality, sexuality and social justice ultimately do matter. Yet it is not only families but society that is enriched by faith-based institutions which mediate moral and spiritual beliefs and those attitudes necessary for continuing sense of community as well as cultural and spiritual identity.
Today, as President and members of the Canadian Conference Catholic Bishops, we wish to address in our submission before the Standing Senate Committee on legal and constitutional affairs the right of Catholics and other recognized religious minorities in Canada to have access to state funding for education. This right is not only guaranteed by the Canadian Constitution, it indeed predates the Constitution.
[English]
Archbishop Spence: Newfoundland rights are not unique to that province. It is clear that Term 17 of the Terms of Union for Newfoundland has the same intent as similar provisions in the Canadian Constitution with respect to provincially funded Catholic schools in other provinces. What would be substantially altered by the resolution of the House of Commons, which is now before the Senate, is the provision which has been recognized since the very beginning of Confederation and which is being applied today, not only in Newfoundland, but in Ontario, Quebec, Saskatchewan and Alberta, as well as the Yukon and Northwest Territories.
[Translation]
Archbishop Goudreault: There is a substantial authorization without consent of those directly affected.
When Newfoundland entered Confederation, Term 17 of the Terms of Union recognized the right of seven denominations to control their own schools; this was amended in 1987 to include as well the Pentecostal Assemblies. Already in 1949, the then Prime Minister, Mr. Louis St. Laurent, stated that Term 17 was equivalent to provisions in the Canadian Constitution which guaranteed protection to the existing educational rights of religious groups in other provinces at the time they entered Confederation. Such rights have been subsequently described as collective.
Today, the members of the Roman Catholic Church and of the Pentecostal Assemblies in Newfoundland are minorities, representing 37 per cent and 7 per cent, respectively, of the total provincial population.
However, neither the Catholic community of Newfoundland nor the members of the Pentecostal Assemblies have given their consent to the changes proposed by the government of Newfoundland and Labrador in the process to date, nor have been specifically consulted, even though they would be most affected, and despite the fact that this a matter that would substantially alter collective rights which predate Confederation and have been given constitutional protection.
The representatives of the Catholic Church in Newfoundland and the leaders of the provincial Catholic Education Council have always shown a strong willingness to negotiate significant changes to the Newfoundland education system. However, they have been frustrated by the lack of willingness on the part of the provincial government to retain appropriate constitutional protection for the continued existence of viable catholic schools.
[English]
Archbishop Spence: Issue number 5 is the denial of equitable recourse before the Government of Canada.
The process thus far has been one lacking in civility. While the Prime Minister of Canada did agree to a preliminary meeting with Church leaders from Newfoundland shortly after the 1995 provincial referendum was summarily called, requests for further meetings were not acknowledged. As well, in most instances, letters to the Prime Minister and the federal Minister of Justice were not answered.
The concern here is not simply how one goes about having a dialogue and dealing with one another -- however important that is -- when there are major differences of opinion in a democratic society. What concerns us is the very process by which government is kept informed of the concerns of its citizens and assures them of a fair and equitable hearing.
[Translation]
Archbishop Goudreault: There is a risk to all minority rights. At the same time that it is the right of citizens to express their views to government, and the corresponding duty of government to listen to and carefully considered those concerns, it is fundamental in any democratic nation that minorities especially are ensured that their concerns will be heard and their rights duly respected.
In the case of Newfoundland, it is not only a pre-existing constitutional right that is at risk, but the right of a minority. It is difficult to comprehend how removing or substantially altering the constitutionally recognized historical rights of any minority without its consent can be said to not set a precedent that could later be used again to justify a further encroachment on other minority rights in Canada, especially in the historical trouble areas of language and aboriginal rights.
[English]
Archbishop Spence: In conclusion, the resolution presently before the Senate is one that would substantially alter rights that have been recognized since the very beginning of our nation and which are in effect in other provinces. The process in Newfoundland has done little to accommodate the concerns of those who would be most directly and deeply affected by the proposed change. Indeed, even the Government of Canada, until this moment, has made it almost impossible for the two minorities that are about to lose their constitutionally guaranteed rights to be heard on the same basis as those promoting this unprecedented amendment.
Finally, the resolution before the Senate of Canada sets a dangerous precedent regarding the rights of any minority in Canada by allowing a majority the arbitrary power to overrule constitutionally protected minority rights.
In calling upon the members of the Standing Senate Committee on Legal and Constitutional Affairs to give careful consideration to the concerns of Catholics, as well as to those of members of the Pentecostal Assemblies in Newfoundland with respect to their schools, the Canadian Conference of Catholic Bishops also urges the Government of Canada to reconsider and evaluate carefully the arbitrary process that so far has been used to amend a constitutionally guaranteed right.
Mr. Peter Lauwers will now give some consideration to legal concepts, such as the concept of Catholic education as seen by the courts, minority rights, precedents, and so on.
Mr. Peter Lauwers, Legal Counsel, Canadian Catholic School Trustees' Association: I have passed out a blue-bound document to which I will be making reference from time to time. It contains some constitutional excerpts, along with two opinions of mine and one of Professor Patrick Monahan of Osgoode Hall Law School. They have been widely circulated. You may already have copies.
Before I turn to the resolution, it might be helpful to consider this preliminary question: What is Catholic education from a legal perspective? There is a holistic character to denominational education, if I may use a modern term. Religious exercises and catechism classes once a week are not "Catholic education"; they are not what Catholic education is about. The Supreme Court of Canada recognized this in 1927.
At page 6 of tab 5 of my brief, there is an excerpt from an opinion of Chief Justice Anglin, in which he said:
The idea that the denominational school is to be differentiated from the common school purely by the character of its religious exercises or religious studies is erroneous. Common and separate schools are based on fundamentally different conceptions of education. Undenominational schools are based on the idea that the separation of secular from religious education is advantageous. Supporters of denominational schools, on the other hand, maintain that religious instruction and influence should always accompany secular training ... Catholics deem it of vital importance that denominational influence over, and instruction of, their children should continue during the period of their secondary education.
This understanding of Catholic education has been reflected by the Supreme Court of Canada in 1984 in the Caldwell case and in the same year by the Ontario Court of Appeal. It is well accepted in Canadian jurisprudence.
We are asking you to keep these two different visions of education in mind: One is that religion is an integral aspect of education; the other is that it is incidental to education.
These two visions of education have been competing with one another since before Confederation and, in one sense, this situation in Newfoundland is no different. It involves the same tension.
I will ask you to turn to tab 1 of this brief, where you will find section 93 of the Constitution Act, which is what courts have called the basic compact of Confederation in relation to minority rights and denominational rights in education. I should like to draw your attention to three provisions in section 93.
Subsection (1) gives recourse to those who have minority denominational rights legal if their rights are prejudicially affected. That is the purpose of subsection (1).
Subsection (3) gives that minority political recourse to the federal cabinet in the event that they are not getting satisfaction, and subsection (4) gives the federal Parliament the extraordinary right to enact remedial legislation in a provincial field where the rights of minorities have been adversely affected.
I want you to notice, for a moment, the kind of power contained in section 93. There is the legal authority on the one side and the political authority on the other side. These subsections make it clear that federal Parliament is the guardian of minority rights in education.
This role of guardianship is clearly implied in section 43 of the Constitution Act, which is the section under which you are being asked to change Term 17.
The succeeding pages at this particular tab show the provisions in the other provinces, apart from the original confederating provinces. I regret to tell you that on page 2, the first excerpt from Manitoba was cut off. I apologize for that. The others are from the other provinces. The last one at that tab is Newfoundland.
At tab 2, you will find an excerpt from the 1982 Canadian Charter of Rights and Freedoms. The relevant reference is section 29. Section 29 re-emphasized and reinforced the importance of denominational guarantees by indicating clearly that they could not be viewed under the Canadian Charter of Rights and Freedoms; they stood apart from it.
I will now turn from the provisions themselves to the whole concept of minority rights. Minority rights are placed in constitutions to put them beyond the easy reach of fickle majorities who might otherwise be inclined to turn on minorities. There are many examples of minority rights in Canada in our Constitution. They are part of the essential building blocks of Confederation, which gives rise to the question: Would passage of the resolution be a precedent from the perspective of minority rights in Canada?
It must be said plainly and clearly understood that the removal of a minority right, without consent of the minority, would be an unprecedented use of section 43. It would be a legal precedent because it is the first such use of a legal power in the Constitution. It also would be a political precedent, which, in some respects, is even more dangerous to minority rights. Minority denominational rights in education in Alberta, Saskatchewan, Ontario and Quebec, the Yukon and the Northwest Territories as well, would be subject to similar treatment under section 43. Other minority rights, such as bilingualism in New Brunswick, would be equally amenable to the same sort of treatment.
There has been some discussion of minority language educational rights under section 23 of the Charter. Those are better protected. It would take seven provinces with more than 50 per cent of the vote to alter them. This resolution makes those kinds of alterations even thinkable. That is the problem with the political precedent.
To this undeniable point about precedent, two answers have been given. First, 95 per cent of the right-holders in Newfoundland hold minority rights and voted to give them up in a referendum. I will deal with that and then I will pass over what I think are serious flaws in the referendum itself.
As a matter of principle, it is possible for minorities to consent to give up their rights. The difficulty in Newfoundland is that Catholics and Pentecostals did not agree do give up their rights, nor did Seventh Day Adventists. It is one thing for you to vote to give up your own right; it is quite another for you to vote to give up my right as well as part of the process. The point was well made by Professor Monahan in his opinion, which is found at tab 4 of this brief. I will go to the last sentence of the first paragraph on page 2. Professor Monahan states:
There is, however, no basis in principle for the proposition that a person who chooses to give up his or her own denominational rights as a member of a class of persons should be permitted to adversely affect the rights of other individuals who are members of other classes of persons altogether.
The legal flaw in the reasoning is a failure to recognize that denominational rights are collective and belong to groups -- that is, classes of persons, as they are called in the Constitution. They do not belong to everyone in general. At tab 3 and at page 9 and following of this brief, I set out the legal precedents which substantiate that conclusion.
The second answer given to the precedent argument is that Newfoundland is unique. There is no public or secular school system in Newfoundland, and it is argued that an amendment is necessary in order to establish one.
There are two flaws in this answer as well. First, as a matter of pure provincial power and education, the province has the right to establish a secular or public school system. It even has the power to do through legislation the following: To compel existing denominational school boards to transfer some of their assets to new, non-denominational school boards to follow the children that are lost as the new boards are established.
At tab 3 and page 3 and following of the brief, I set out the legal precedents in particular. Let us look briefly at page 5 of tab 3. When I read some of the discussion in Newfoundland, it occurs to me that they are missing an acute sensitivity to where the Supreme Court of Canada is right now on denominational rights under section 93. At the bottom of page 5, you will see a reference to a Quebec case. The court stated:
...the law in force "at the Union" cannot on its own set the content of constitutional right in s.93(1).
That means that just because one had a right, a privilege, or a practice in 1949, 1905, or 1867 does not mean one has it for all time. The court will look at the province and the way that it wants to exercise power to see whether or not it actually trenches onto the denominational nature of the guarantee.
At the bottom of page 7 and the top of page 8, you will see an enormous number of things that the provinces have done over the years to reform education. The first bullet deals with the creation of non-denominational school boards in Quebec and the requirement to transfer assets. The second and third deal with the dissolution of separate school boards. The fourth deals with the division of school boards into linguistic sections, and so on. You can see that the provinces have great powers to reform the system of education.
The system of education in Newfoundland can be restructured and reformed without the need for a constitutional amendment. Nothing prevents the Newfoundland government in principle, and as a matter of law, from establishing an interdenominational school system for those who voted to give up their denominational rights. The problem, and the second flaw to the argument that Newfoundland is unique, comes when it is sought to forcibly incorporate those who did not vote to give up their rights, such as the Roman Catholics. The desire for a public school system does not justify the forcible elimination of non-consenting denominational schools.
The committee should perhaps consider an additional criterion in reviewing the resolution. Members of the committee have received submissions on some criteria already. I wish to add another one for your consideration, namely, is the amendment necessary? One should not go about amending the Constitution lightly or even cavalierly. If a mistake is made -- and the risk is real -- it will be devilishly difficult, if not impossible, to repair.
Mr. Harrington is counsel from Newfoundland, and I will pass the ball to him.
Mr. Michael Harrington, Legal Counsel, Canadian Conference of Catholic Bishops: I have some brief comments to make with regard to the potential negative effect of the new Term 17 in Newfoundland itself.
First, there are two fundamental flaws with regard the new Term 17. One relates to the continued existence of Catholic schools or Pentecostal schools being dependent on provincial legislation as to their viability. The second relates to the concept or definition of denominational schools in the new Term 17.
Properly focusing on these two issues helps everyone analyze what the real effect of the resolution is at the end of the day. We have heard much already, including from Ms Brock and Ms Bayefsky last week, about whether the resolution eliminates or substantially diminishes minority rights respecting denominational education or simply modifies them.
The supporters of the resolution continually suggest that under the new Term 17 the Newfoundland system will still permit the operation of denominational schools -- the so-called "unidenominational schools" -- where numbers warrant. However, the phrase "where numbers warrant" does not appear anywhere in the resolution. The Minister of Justice, Mr. Rock, as recently as last week, said that this is so because to interfere with the resolution would tinker with a resolution drafted by the Newfoundland government and passed by the Newfoundland legislature. However, the fact is that in the absence of such a phrase you have to juxtapose that against the provision in the actual resolution which makes the continued existence of Catholic, Pentecostal and Seventh Day Adventist schools subject to provincial legislation setting viability criteria.
Where is there constitutional protection for the continued existence of such schools? They are to be subject to the whim of any future government making financial decisions respecting the viability of schools. Such provincial laws, like the provisions proposed by the Wells' administration in January of this year, could make it realistically impossible for any Catholic, Pentecostal or Seventh Day Adventist schools to exist.
The absence of the phrase "where numbers warrant" would leave the affected minority with no recourse to the courts because there would be no objective test of viability to be applied. I note that Ms Brock said here on June 18:
In Newfoundland, the government is saying to parents that if they get together, where numbers warrant and if the parents petition for a school, the government will stay with the denominational school. If the government holds to that principle, yes, protection is in place; but that is only a political decision -- it could be changed at any point.
That cuts to the heart of the matter.
It is therefore fair to conclude that existing constitutional protection -- and I emphasize "constitutional protection" -- for denominational rights in education have been abolished, not just modified, under the new Term 17. In this context, it is untenable to suggest that this resolution is not a serious threat to minority rights in Newfoundland or elsewhere because it merely adjusts the exercise of these rights. In fact, the unwillingness to insert even a phrase as well established as "where numbers warrant" is not only an abdication of Parliament's guardianship role of minority rights but will, as compared with the existing resolution, make it virtually impossible for the supporters of unidenominational schools to support their positions in a court challenge.
As well, there is the concept of the denominational school used in the resolution. The difficulty here is that "denominational school," as it is used in the resolution, has no reference point. It is a different concept of a denominational school from that which has been well recognized in Canadian constitutional history and in jurisprudence. Therefore, the statement in the resolution that all schools shall be denominational schools was designed, in my respectful submission, to do two things: first, to secure affirmative support for the referendum in Newfoundland last September; and, second, possibly to provide a defence to any future legal challenge mounted against the right to conduct any religious exercises in any Newfoundland schools in the future.
However, the resolution itself creates two different types of denominational schools. The traditional one finds its definition in Canadian constitutional history and in extensive jurisprudence in the courts. In the existing Term 17, the denominational school and its character only exists within the term itself because all the existing rights and concepts of denominational schools are really abolished, and the new concept of denominational school is substituted to the extent to which it exists under the resolution.
The resolution acknowledges that Newfoundland schools will be denominational schools but, in essence, they will be schools without the traditional characteristics of a Catholic school as recognized in the decisions of the court with regard to the Ontario secondary school funding reference, the Caldwell case, and even the Tiny case going back to 1927.
In a practical sense, it is important to bear in mind that we have seen already the vagaries of the provincial political scene which can lead to the threat to the right to maintain a unidenominational school. For example, in the January provincial legislation proposed with regard to the retention of denominational schools, and unidenominational schools in particular, it was proposed that in a single school area -- of which there are many, especially in rural Newfoundland -- there could not be the continuance of a Catholic school unless at least 90 per cent of all the students in a particular attendance zone were Catholic. The minute that number falls under the 90 per cent level, a viable Catholic school is no longer permitted to exist. A registration and voting process is then launched to see whether parents want to send their children to a Catholic school. This proposal attempts to claw back what was lost by a proposal to render all schools interdenominational as of the coming into force of the legislation.
During the election campaign, Mr. Tobin suggested that that model was being rejected. Then, as you well know, we had the framework agreement in April, which has seemingly fallen apart. The suggestion now is that that is proof positive that we need a constitutional amendment because of the absence of an agreement.
What is being missed here is the fact that there exists a group represented by the integrated faiths. Those faiths joined together in 1968 for the governance of their schools. Parents in that constituency believe that there should be no retention of unidenominational schools at all, that there should be interdenominational schools, and that there ought not to be any viability arrangement for the continuance any uni-schools.
The predicament left for Mr. Tobin and his administration is how to resolve the conundrum and satisfy the competing constituencies. That is a great difficulty. It is already the first clear manifestation of how the continued existence of such schools will be left to the vagaries of provincial politics and the to'ing and fro'ing which will go on between the constituencies I have just described, as well as the financial constraints which exist in the province. That is the malaise in which we currently find ourselves.
While some may use that as a basis to support the resolution because of the seeming impasse, the important perspective being lost is that it is a clear example of where the majority may, in effect, alter the rights of the minority by suggesting that provincial law should be changed to impose a viability standard for schools which will be impossible for Catholics or Pentecostals to meet and which will mean the effective end of those schools.
Those are the practical realities of how this resolution may ultimately work. Already, we are seeing signs of the undoing of the rights which Mr. Wells and his administration suggested would be retained.
In closing, the suggestion was made last week that these are historic rights that are being asserted once again and which are not in step with current political and social reality. As Mr. Lauwers said, as recently as 1982 in the Constitution Act and the Charter, Parliament reaffirmed the importance of denominational rights by section 29. This is not a case of Parliament now turning its mind to something it has not looked at for 100 years. The issues of minority rights and education were looked at carefully only 14 years ago and reaffirmed. Therefore, Parliament ought to look seriously at that again.
Senator Beaudoin: On general principles, I agree with everything you have said. I agree with the United Nations declaration and the prior rights of parents; the pact with Newfoundland in 1949; and the pact with Quebec and Ontario in 1867. Obviously, this is fundamental. I agree that section 93 is a collective right; there is no doubt about that.
The matter for me focuses on the Newfoundland government's statement that the right to denominational schools will remain. I would like to know from you and from the Catholic majority the exact reason why they disagree with that. Do they think that the right to denominational schools is not reflected strongly enough to protect the rights of a class of persons, in this case, the Catholics and the Pentecostals and perhaps others? Only you from Newfoundland can answer this question. You do not seem to believe that there will still be a right to denominational schools. Do I understand you correctly?
Mr. Harrington: Let me come back for a moment to the example we had last January with the legislation which was proposed but was seemingly abandoned or withdrawn. It proposed that, in single-school communities, 90 per cent of all the children must be Catholic; second, area parents would need to vote on whether they wanted to continue with the unidenominational school.
However, that was not the end of the process. Even if they were able to establish a viable Catholic school under that criteria, another provision in the legislation said that if, as a result of the continued existence of that school, it rendered an interdenominational school non-viable, then that school could not continue. That left everyone with a concern for fair and objective criteria to allow for the continued existence of these schools.
The same legislation provided a cabinet reservation with respect to the right to make legislation at any time, even without recourse to the legislature, for the purpose of re-establishing or changing the viability criteria for the continued existence of those schools. That is a long way away from constitutional protection for the rights of these schools to exist. If we saw that in draft legislation after long considerations, how long would it be before we see it again, especially when there is obvious disagreement in the Newfoundland area among various denominations as to how the system should be structured?
Senator Milne: On page 2 of your brief, you make the point that the worth of such schools is not to be evaluated only in historic terms; that separate schools remain a witness and source of tolerance and diversity in Canada.
I would like you to comment on my impression and experience that segregation usually encourages prejudice. It becomes "us here together, who go to this school and who believe in certain ways" against "those others." That in fact encourages prejudice.
Archbishop Spence: I would like to answer that question in this way: Catholic schools give a vision and values for the students. In regard to that vision and values, there is an indication of the basic dignity of each individual person and the idea that tolerance is something a good Christian should practise. I think the objection you are making is clearly offset by the values given in that school. Many efforts are being made to ensure that tolerance and respect for others of all religious denominations will be evident to the students and, in fact, will be carried out.
Obviously, what happens in a Catholic school has something to do with what people are expected to do in their communities. They are taught about the common good, how to love their neighbour, and all those things. I do not think that separating people so that they understand within their culture what it means to be a good individual and so that they can have a holistic development within society according to proper values is separatist or detrimental.
It is important to realize that in our society today there are many different cultures, and they are increasing. If young people do not have a clear understanding with respect to where they are in their journey of life and how they relate their journey of life to God and other people, then life can be difficult for them. In the Catholic schools, we feel it is possible for them to have a sound vision of proper values, which do not separate them from the community, but which, rather, prepare them to relate to other people properly and to contribute to society.
Senator Milne: Perhaps I better leave it at that rather than disagree with you.
Mr. Harrington, you made a point about the impasse and the situation it has left the Premier of Newfoundland. How would you solve that impasse, rather than just stating that it is an impasse.
Mr. Harrington: That is a dangerous question for a non-politician to answer.
Frankly, at the moment, we will have to leave it up to the politicians to sort through the impasse. The fact of the matter is that, as of April, we appeared to have an agreement amongst all the stakeholders which would have resulted in an immediate, significant change -- at least from an administrative point of view -- with significant cost savings. It then appeared that certain groups within the integrated sector were unhappy about the notion that schools might remain the same in the early implementation stage. Then there would be a process of determining how the schools would be designated over time, as to whether they would be interdenominational or unidenominational.
The fact of the matter is that when they did their own analysis, they were in support of neighbourhood public schools and not happy even with the proposed new Term 17. They feel it does not go far enough in providing for neighbourhood public schools as the norm.
As a result of that opposition, the integrated church leaders changed their views, feeling that they were not in any way bound by the so-called framework agreement. At the moment, there is a complete impasse. I am not sure that it will be easy to resolve. People will just have to get together and attempt to implement the fundamentals that the process had begun.
Senator Rompkey: I wish to welcome our guests, Madam Chair. Perhaps I will be forgiven if I say a special welcome to Bishop Goudreault, who is my own bishop from Labrador. I should place on the record, too, that Father Doug Crosbie is here. He is also a Labrador alumnus.
On the first page of your brief, you quote the Chief Rabbi of Britain, who states:
Secularize education and you diminish it.
Does not the new Term 17 give the right to teach religion and religious exercises in schools? Does it not give protection to the church insofar as exercising religious beliefs in the schools?
[Translation]
Archbishop Goudreault: I would say so. Religion may be taught and certain religious activities could take place. There is more to denominational schools than teaching religion, and more than some of the activities that can take place within its walls. It is an atmosphere. The school places the students in a certain context where all important values are being studied and dwelled into. There are scientific values, human values and religious values.
In other words, when at school the child is in a place where all three dimensions are being merged together. In a non-denominational school, the religious dimension is kept apart. Hence, it is not fully integrated into the educational system. This not only does not go far enough but we do not benefit the kind of protection from the elements you just mentioned. The government may change the law any time and we would loose those elements of protection.
[English]
Senator Rompkey: My next question is with regard to page 3 of your brief. In the second paragraph, you indicate:
Today, the members of the Roman Catholic Church and of the Pentecostal Assemblies in Newfoundland are minorities...
Just to be accurate, seven Christian denominations have rights under the Constitution now, the Pentecostal assemblies having been added in 1987. Everyone would agree that all of those branches of the Christian Church are treated similarly in the province.
... neither the Catholic community of Newfoundland nor the members of the Pentecostal Assemblies have given their consent to the changes proposed by the Government of Newfoundland and Labrador in the process to date, nor have they been specifically consulted ...
That question arose when we had testimony from the two law professors who appeared before us, as well as with the Minister of Justice. The view of at least some was that, in the process of consultation, you had to acknowledge, first, the Royal Commission which was held in Newfoundland. That, in fact, was a process of consultation. Then I understand there were hearings of the legislature, which could be classified as consultation. There was a referendum, which could be classified as consultation. There was a vote of the provincial legislature, which could be classified as consultation. There was a vote of the House of Commons, which could be classified as consultation.
I should like to ask about that process of consultation. How does the process of consultation take place? How does the minority express itself? The law professor asked whether it was reasonable to conclude that everyone did not have a chance to express himself or herself during that whole process of consultation. Could you comment on the process of consultation, and could you comment on how the minority expressed itself?
Mr. Lauwers: Let me attempt the first run at this. I am sure Mr. Harrington will have a follow-up response.
When the issue is the giving up of a minority right, the appropriate consultation is to ask the minority whether it agrees.
Senator Rompkey: That is my question.
Mr. Lauwers: The referendum did not do that. It did not divide the classes of persons appropriately so that that could be assessed. We know that Catholics voted against it. In certain geographic areas of the province, there is a predominance of Catholics, and in those areas there was a negative vote. Had the referendum been constructed properly, we would now know exactly the views of Roman Catholics and Pentecostals in Newfoundland. That is not possible.
The other consultation is very interesting and useful, but it does not get at the root problem, which is that in the resolution you are trying to take away a minority right without the consent of that minority.
Senator Rompkey: With regard to the referendum vote, I am not sure what conclusions can be drawn. As I look at the number of those who voted "no," I read Kilbride, St. John's East (Extern), St. John's West, St. John's Centre, St. John's East. As Senator Doody will no doubt acknowledge, these are predominantly Roman Catholic areas, and yet they voted "no" in the referendum.
One can use figures, but there is no hard evidence. The figures in the referendum are reversed in the election, for example. This brings me back to the question of how do we consult people and how do we know what the minority is saying through the ballot box or otherwise? I think we can use figures to show that there is no conclusive way of showing how Roman Catholics voted.
Mr. Harrington: Let me make two points. First, the referendum question asked, "Do you support revising Term 17 in order to permit restructuring the Newfoundland education system?" The presumption was, without a change in Term 17, the education system could not be reformed. That question was weighted in favour of the government.
The second aspect of this is that, in the analysis of the vote, at least 16 ridings out of 52 in the province have significant Catholic or Pentecostal populations, and they all voted strongly in the negative.
The question becomes this: Does it matter whether it is in Kilbride or Corner Brook or Grand Falls? If members of a class of persons in those areas do not want to give up their rights, does it matter where they are located or does it matter that they are only located in one educational riding? One can talk about how extreme that can be taken, but it is not as though there was an insignificant representation of concern on the part of certain portions of those minorities. That is the best voting analysis available because it is the only one available.
You mentioned the Royal Commission. There were over 1,000 submissions to the Royal Commission. You will be hearing from the commissioner tomorrow. My understanding is that there were nearly 400 groups and 130 petitions. From all the evidence gathered, 75 per cent supported the existing system, with only 9 per cent opposed.
There are statistics and there are statistics, as you know, but the bottom line is that there is a significant body of evidence to support the notion that many classes of persons wanted to preserve their existing situation.
Senator Doody: First, allow me to welcome our witnesses and thank them for appearing today.
My friend Senator Rompkey was very careful in selecting the ridings or districts he quoted. I did not hear St. Mary's, Ferryland or my own Harbour Main, for instance. The vote there was quite different.
I was taken by the way Mr. Harrington stressed the phrase "where numbers warrant." I got the impression that if that phrase were included in the resolution, the concerns of the affected minorities might be somewhat alleviated. If my assumption is correct, I should like to have it substantiated.
I also wish to ask if the affected parties have other suggestions for the Senate to consider. As you know, the Senate has a limited capacity in terms of constitutional change. How far we can go, apart from the six-month delay, remains to be seen. I would welcome your comments.
Mr. Harrington: It is fair to say that the inclusion of the phrase "where numbers warrant" would have been the beginning of providing some meaningful constitutional protection for the rights. I do not want to go over that discussion again. Whether that solves all of the problems is another question, but at least you would bring the preservation of the rights on a footing with, say, francophone school rights under the Charter.
The fact of the matter is that other issues surrounding the implementation of this new structure are still worrisome, but I think the absence of that phrase is a fairly important omission in terms of preserving an objective standard for these schools, which could be protected through a reference to the courts if necessary.
Senator Jessiman: You refer to the April framework agreement. Is that April of 1996?
Mr. Harrington: Yes.
Senator Jessiman: Is a copy of that available to us and the public?
Mr. Harrington: Yes. It is in the public domain.
Senator Jessiman: Could we get a copy of that, Madam Chair?
The Chair: We will try, Senator Jessiman.
Senator Jessiman: I also note that there has been a lot of discussion and correspondence as to the word "direct" in subsection (c) to the amendment to Term 17. The church has been writing to the government saying it does not think that is wide enough and that the word should be "determine." Would it help the situation if the words "determine and" were added so that the subsection would then read "observances and to determine and direct the teaching of aspects of a curriculum"?
Mr. Harrington: It would. I do not want to preempt the comments that will be made to you in the St. John's hearings by Mr. Colin Irving, who has been the constitutional advisor to the Newfoundland Catholic and Pentecostal education councils and who had some dialogue with former premier Wells on this point. The bottom line is that the correspondence indicated that what was needed to be included within the framework was the word "determine". Premier Wells acknowledged that that was the intent, but the government was not disposed to change the resolution to include the word "determine". With only the word "direct", the Catholic school and the people associated with it may have only the right to implement matters of curriculum, but they have absolutely no role whatsoever in the determination of curriculum, even for religious education.
Senator Jessiman: I understand the argument. I think your answer is yes, it would help if we could get those words into the amendment.
You would also like the phrase "where numbers warrant" added. Do you have any idea as to what the number should be? Should the phrase just be as vague as "numbers warrant" and let the courts decide?
Mr. Harrington: I do not think I am qualified to answer that question. I think you need someone familiar with the education system in the field to deal with the fact that we have both rural and urban settings. It is important to bear in mind that nearly 90 per cent of communities outside of St. John's, for example, are single-school communities. There are very strong demographics, either Catholic, Pentecostal, Anglican, or some other denomination. That all must be taken into account in deciding what would be a reasonable level at which a uni-school should be permitted to exist, but I do not think lawyers are qualified to make pronouncements on topics such as that.
Senator Petten: I was born in St. John's and attended school there. I suppose I could say I spend all of my life there, except when I am in Ottawa when the Senate sits. Over the weekend I attended the commissioning of the HMCS St. John's, a new frigate. I spoke to many people at various receptions, two in particular. One was held at City Hall when the mayor gave the ship's company freedom of the city, and the other one was held yesterday following the commissioning of the ship. Having lived there all my life, I think I know my fellow citizens and fellow Newfoundlanders. Without exception -- and with all due respect, Your Grace -- their comments cut right across all denominations, be they Anglican, the United Church, Roman Catholic, or whatever. In large numbers, they all told me repeatedly -- not suggested or asked -- "Pass the amendment to Term 17 so we can get on with it."
I thought I should place on the record how my fellow citizens in Newfoundland feel about this issue. I spoke with a good cross-section of people.
Senator Prud'homme: I first discussed the referendum last September, so I have shown that it troubled me. I wanted to pay attention. Then I insisted that we have these hearings. At first, I did not have much support, but at least this committee materialized. That is the role of the Senate. I always like to say something good about the Senate. I do not hide behind anyone. I believe the Senate has a role to play, and that is exactly what we are doing today. We do not need to apologize to anyone. I am sure the people of Newfoundland will know that we are doing our duty. There will be hearings here in Ottawa and in Newfoundland.
I was highly influenced by Mr. Lincoln -- once a member of the provincial house in Quebec -- when he defended the rights of minorities, as I do. He said, "Rights are rights are rights." He is now a member of the House of Commons. I am very disturbed by the fact that at times, the majority, being impatient, has a tendency to ignore a minority that has felt protected by the Constitution. That is a great concern of mine.
I have received a lot of mail since I put my neck out. The more mail I receive, the more I pay attention. The last one was yesterday. Someone wrote, "The majority has spoken; get on with Article 17. Permit the parents of our province to have a voice in the education of their children." I must admit that is troubling for me. I thought that parents in Newfoundland had the last word in the education of their children.
Many people refer to the fact that the Senate and the province have acted bilaterally. When we allowed a bridge to be built to PEI, people put that on the same level as this present amendment. We added a bridge; we did not take a bridge away. In New Brunswick, we added rights. If the system is so bad in Newfoundland, I do not understand how it has produced remarkable senators such as Petten, Rompkey and Doody, and people such as Mr. Tobin and Mr. Jamieson, people with whom I have been associated all my life. I do not understand the people who downgrade the educational system.
I totally share the definition of a school that you gave to Senator Milne. It relates not only to half an hour a week of teaching; it relates to the general atmosphere. It relates to the vision, as you said, of teaching tolerance.
I am increasingly nervous as I get older about the new definitions we hear of words such as "inclusion". We hear about "inclusion", but I think that requires us to downgrade everyone to a level where everyone will feel included.
Is there still a possibility that you could come to terms with the government and others to protect what you feel is rightly yours, which was one of the conditions of the union of Newfoundland with Canada in 1949? Is it still possible that without this amendment the churches could come to terms with the provincial government and do what the government is attempting to do with an amendment? That means the administration of schools and buses.
I have read all of the letters that we have received, and I am sure we will hear more about this in Newfoundland.
Mr. Harrington: The framework agreement that was reached provided for much of the intended administrative restructuring. There is still no disagreement on that. It was able to go forward, although the government feels it should have the resolution passed before it proceeds. However, everyone is on side on that point.
There is this issue of what types of schools should be the norm in the early days of implementation of a restructured system. That issue was still to be worked out and discussed in terms of polling the parents with respect to which way they wanted to go. That item was unresolved in the framework agreement. There are still the makings of an important agreement, but its status is somewhat fluid at the moment.
Yes, there is a basis for agreement on many items, including interdenominational boards where all denominations will have representatives on one, single school board. This is a change from the current structure which requires that the Catholics have their own board, as would the Pentecostals, and so on.
Senator Prud'homme: Could you explain to me why in 1987 we added a church to the number of churches mentioned by my colleagues? The Pentecostal Church was added as a second religion in 1987, and there was no debate whatsoever. Has the educational system been going downhill quickly since 1987? What has happened since that time? No question was raised in 1987 when we added a new religion to be protected. People think it has been there forever, but it was added in 1987 and no debate was held. I tried to find out if there was debate because I was a member of Parliament, but there was none.
Senator Doody: I introduced the bill.
Senator Prud'homme: Why this sudden urgency to take this protection away? I do not know how I will vote at the end of the day, but I need to be convinced. I am on the side of security. When I feel that my rights are protected in a Constitution, I feel better. Otherwise, what is the purpose of having a Constitution? What is the purpose of protecting my rights?
Mr. Harrington: This is a difficult thing because it is more of a political point than a legal one. I would simply suggest that the last government in office felt that it was important to bring more governance of the educational system into the state arena and the Department of Education than it was to continue with denominational boards and church authorities, which they felt were inefficient. That change has occurred since 1987 within the space of less than 10 years. That is the stated position.
Your point still begs this question: Why have things so dramatically changed in less than 10 years that you would want to take rights away?
The Chair: Thank you very much Archbishop Spence, Bishop Goudreault and Mr. Harrington. Mr. Lauwers will remain with us.
Our next witness is Ms Betty Mosely-Williams.
Please proceed.
Ms Betty Mosely-Williams, Vice-President, Canadian Catholic School Trustees' Association: To begin, I should like to explain that the president of our association is Dorothy Fortier of Saskatoon. She was unable to be here today, so I am very pleased to present to you on her behalf.
I am assisted again by Peter Lauwers, who serves as our legal counsel from time to time and tries to keep us out of more trouble than we try to walk into.
I serve as a trustee in the Nipissing District Roman Catholic Separate School Board. I am the First Vice-President of the CCSTA. My comments are made within the context of my wearing a number of hats, and I should like to explain them to you.
First, I am speaking as an elected representative of Catholic taxpayers in Ontario and in other parts of Canada. I am also speaking for the Catholic school trustees of Canada and as a graduate of Catholic school systems within my other family unit, namely, the O'Rourkes. We attended Catholic schools in Alberta, Saskatchewan, Manitoba and Ontario. It was not that we were nomads; my father was a railroader. I am also speaking as a parent of five boys who are all graduates of our system in North Bay -- four of whom we paid for because that was the way that secondary schooling was. One of those boys now teaches for our system.
I am speaking now as a grandmother -- a very young one, we hope -- of the next generation which has started its schooling. I speak from both belief and from the heart -- a belief that our graduates are in a system their parents chose as the primary educator of their children and that Canada is a better place because we, all Canadians, respect our history and traditions, and our country celebrates its diversity.
The Canadian Catholic School Trustees' Association is deeply grateful for the opportunity to address the Standing Senate Committee on Legal and Constitutional Affairs on a resolution concerning Term 17 of the Terms of Union of Newfoundland. We strongly believe that the resolution raises issues of a fundamental nature, especially for those who possess minority rights under our Constitution.
Lawmakers worry about precedent, and well they should. They recognize that the fundamental values of our society are reflected in the law. The problem of precedent looms very large over this resolution. It is of deep concern.
Concerns have been expressed about the process leading to adoption of the resolution and about its substance. Most importantly, concern has been raised about the implications of the resolution for the very nature of our democracy.
The CCSTA is opposed to the resolution because it would alter a minority right without the consent of the affected minorities. The CCSTA believes that adoption of this resolution by the Parliament of Canada will set a political precedent that threatens all minority rights.
Our association is affiliated with the provincial associations within the provinces of Newfoundland and Labrador, Ontario, Manitoba, Saskatchewan, Alberta and British Columbia. We have over 750,000 students in the Catholic schools of these provinces, and our association speaks on their behalf. We also have an ongoing liaison with the Catholics Parents of Quebec, an organization that represents over 60,000 Catholic families in that province.
As Roman Catholics, we are very aware of the rights we enjoy under the Constitution in matters of education. We accept the responsibility attached and we take these rights very seriously. We do not want these rights reduced in any way.
When Confederation came into being, certain arrangements were made to accommodate the educational desires of the families that made up the population of the day. The historic compromise that provided for a general school system with the right of Protestants in Quebec and Roman Catholics in Ontario to set up their own tax-supported schools has often been referred to as the Arc of the Covenant. Indeed, this cooperation was the key to Confederation itself.
Over the years, this arrangement served our country well. As other provinces joined Confederation, similar arrangements were made. When Newfoundland joined Canada in 1949, the existing rights of Roman Catholics to operate their own schools was entrenched in the Terms of Union.
The current debate is about the attempt to remove these rights against the will of the minority and to make the existent and essential control of the Catholic schools in that province, and that of the other denominational schools, dependent on the whim of whatever provincial government is in power. We say this is wrong.
Catholic education is based firmly on the premise that parents have the primary responsibility for educating their children, and they entrust their schools to impart the Christian values which are important to them as families.
Catholic education must be academically excellent -- our schools exist to educate -- but, in every way, Catholic schools reflect and respect the attitudes and values that have built up Canadian society over the years. In a world often in doubt about its future, the Catholic school provides optimism and hope and tries to teach goodness. This is a task which goes on through the entire school day and the entire school experience.
It is not sufficient that a religious education lesson be provided for one period in the day. That is not holistic education. Every aspect of the Catholic school is permeated by the view of life proclaimed by Jesus Christ. It is this form of education we are trying to preserve as we address the proposed changes to the status of Catholic schools in Newfoundland and Labrador.
This is a national issue. The CCSTA supported our colleagues in Catholic education in Newfoundland and Labrador in earlier discussions about education reform in that province. When the province referred the matter to the federal government, this association became directly involved because we saw that this was in fact a national issue and that the impact would be felt right across the country.
In repeated submissions to the Prime Minister, the Minister of Justice, other government officials and many of you, this point was made. We believe that one section of the Constitution cannot be altered without affecting other sections which deal with essentially the same matter; nor can one use a process for changing the Constitution without creating a precedent for future changes. Indeed, we would ask, how can this not be a precedent? The reactions of Roman Catholics right across Canada on this issue attest to their concern about the effects of the Newfoundland amendment on their entrenched rights.
We believe strongly that this is a minority rights issue in Canada. The issue, of course, is of minority rights. Respect for minority rights has been an essential part of the social contract in Canada. One of the roles of the federal government is to protect such rights, and we in Canada have developed mechanisms such as the Charter of Rights and Freedoms to ensure that minorities are guaranteed certain rights which allow them to operate more fully as responsible citizens.
When the entrenched rights of one group are reduced or ignored in any way, it is clear that the entrenched rights of all minorities are at risk, even if not directly affected at once. When the decision to reduce these rights is based, however tentatively, on a referendum conducted among the whole population rather than on the opinion of the affected group, or even if the decision is made by the provincial legislature, the system of protection of minority rights ought to come into play.
We regret that in this case the protection of the federal government, on which the people of Canada must rely, appears not to have been exercised. With the approval of the Newfoundland amendment, the rights of every minority group in Canada could be at risk. The risk is that groups, even provincial governments, will use the Newfoundland amendment process as a precedent for challenging educational and other rights now held by minority groups in Canada. There is no shortage of organizations and persons who, for sundry reasons, oppose the existence of rights such as those in education now held by denominational groups, minority language groups and aboriginal groups in other provinces.
This situation was foreseen by the Fathers of Confederation and by other political leaders over the years. They saw that legalization of such rights was necessary to ensure that the work of the groups continued in order that society could benefit. Obviously a great deal of political discussion went on before these decisions were made. Just as obviously, any reduction of a basic right, such as that of a minority group operating its own schools in one province, will be regarded as possible grounds for challenge to the rights of others across the country.
We note as well in this process the prospect that governments will be encouraged to use the referendum process more frequently as a tool for political decision making. We do not believe that the referendum process brings out the best in people. This procedure will not be reflective of the thoughtful way the political process works in our country. In fact, it could be seen as an affront to the democratic process by which representatives are elected to make such decisions.
In any case, a referendum should deal with a matter that affects the whole community equitably. In this case, a referendum was conducted among the whole community on the rights of a minority within the community, and that is unacceptable.
The recent development of a draft framework agreement between the denominations in Newfoundland and Labrador and the provincial government showed clearly that agreement on education reform can be achieved without changing Term 17 of the Terms of Union. Roman Catholic leaders are prepared to make a number of basic changes in the way education has been provided in that province. We applaud and firmly believe that made-in-Newfoundland solutions to what are admittedly difficult problems are the way to resolve this issue. We maintain that the ramifications of the proposed constitutional amendments are more serious than any possible dispute resolving agreement developed by the parties involved.
In spite of the reality that the resolution has already been passed by the House of Commons, we still respectfully ask that the Senate reject the resolution. In the matter of protecting minority rights, the beneficiaries of those rights must be able to rely on the federal government. The voice of the Senate must be raised to ensure that the entrenched rights -- here, those of Roman Catholics and other denominations in Newfoundland and Labrador -- are not removed or reduced for political occasion and that other minority rights not be put at risk by such a precedent.
Should it not be possible to return the resolution completely, we respectfully request that the amendments proposed by the Catholic education leaders of Newfoundland and Labrador be made to the resolution. These amendments would allow the Catholic community to have schools where numbers warrant rather than at the will of the legislature, and for those schools to be able to determine and direct the teaching that is to be done according to the wishes of the parents who support the school.
In conclusion, the Canadian Catholic School Trustees' Association is appreciative of the opportunity to present these comments to the Standing Senate Committee on Legal and Constitutional Affairs. The national impact of the proposed constitutional amendment has been extensive. We trust that this association has contributed to the discussion in a positive way.
Senator Pearson: Did you say that your association represents 750,000 people?
Ms Mosely-Williams: Just over that, yes.
Senator Pearson: In what way do you represent them? Have you consulted with them?
Ms Mosely-Williams: I am sure that you have heard from some of our students.
Senator Pearson: I personally have not.
Ms Mosely-Williams: I am an elected trustee in this province and I am an elected trustee at the national level. Therefore, I represent the taxpayers and students of those areas.
Senator Pearson: I am not questioning that. I am enquiring about the process of consulting with young people.
Ms Mosely-Williams: We have consulted with them. I am hopeful that some people in government have received letters from the students stating their concerns.
The Chair: I wish to make it clear that Senator Pearson is a strong advocate of children. It was at her suggestion that we constituted a young person's panel in Newfoundland to enable us to hear from the students themselves.
Senator Rompkey: I wish to welcome our guests.
I would first like to state the situation in Newfoundland as clearly as I can. You said that if rights are to be changed, they should be changed for the entire community equitably and not only for one minority. The situation in Newfoundland is that there are seven denominations of the Christian church, including the Roman Catholic Church, all of which have equal rights enshrined in the Constitution under the old Term 17. There are those who argue that the situation in Newfoundland is not unique. However, as far as I know, there is no situation anywhere else in Canada where those sevens denominations have entrenched equally stated constitutional rights and, as a matter of fact, an equal share of the public purse on a per capita basis. I wanted to put that on the record.
You stated earlier that a minority right should not be altered without the consent of that minority. My first question is about the minority right. What right is being lost? About what right are you concerned?
Ms Mosely-Williams: I am concerned that the right to have denominational schools would be at risk in this proposed resolution.
Senator Rompkey: Do you understand that the new Term 17 clearly states the right to denominational schools?
Mr. Lauwers: With the greatest respect, senator, that is not what it says.
Senator Rompkey: Perhaps I should put on the record what it states. It states, in part:
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.
It goes on, and I will not read it all. Paragraph (b) is an even stronger indication that there can be unidenominational schools.
I thought it was worthwhile to put that on the record, Madam Chair.
Mr. Lauwers: May we respond to that, Madam Chair? There are two observations to be made. First, the particular reference to paragraph (a) of the resolution -- that is, to religious education, activities and observances -- is not what Catholic education is all about. That point was made clear by the witnesses with whom you spoke previously.
Second, Senator Rompkey talked about seven different denominations having rights, but he did not refer to the integrated school system. Most of those people are part of one single school system as it now stands. We are not talking about the complexity of seven different school systems but about something much less complex.
Senator Rompkey: All the Protestant denominations are not integrated. I was a superintendent in the integrated system and I speak with some authority.
Mr. Lauwers: I understand that. You are quite right. However, to say that all seven are out there doing whatever they want is not quite accurate.
Senator Rompkey: They have access to public funds on a per capita basis in law.
Mr. Lauwers: However, they operate as an integrated unit.
Senator Rompkey: Three of them do.
Mr. Lauwers: That is the bulk of them, as I understand it, in terms of individuals.
The right to unidenominational schools is set out in paragraph (b) of this resolution. It states:
(b) subject to provincial legislation that is uniformly applicable to all schools specifying conditions for the establishment or continued operation of schools,
That is the provision that deals with the possibility of unidenominational schools. Nowhere is there reference to the words "numbers warrant". When Premier Wells spoke about this resolution, he said there would be unidenominational schools where numbers warrant, as did the Minister of Justice when he proposed this resolution. I believe he used the same phrase when he explained it to your committee. That phrase is not in there. That is why Newfoundlanders are so concerned.
Senator Rompkey: It seems to me that a right is changing hands here, that is to say, the right to draw on the public purse on a per capita basis. I would argue that the right to religious education is not changing hands.
I should now like to deal with the consent of the minority. How do we determine the consent of the minority? How does the minority express itself? I asked this same question of our last witnesses. Indeed, it came up in the presence of other witnesses whom we have heard.
How is the consent of the minority determined? Who speaks for the minority?
Mr. Lauwers: There are a number of different ways to assess what the minority wants. One way is to ask them directly in a referendum in which you differentiate among the classes of persons. That did not happen in the Newfoundland referendum.
Senator Rompkey: It could have.
Mr. Lauwers: It could have, but it did not.
Senator Rompkey: The government offered to have a distinction by class. Is that right?
Mr. Lauwers: I cannot comment on that. I do not know.
Senator Rompkey: Let the record show that that was the case.
Senator Doody: That is an important point. Can you demonstrate that that was the case, senator?
Senator Rompkey: I believe we can.
Senator Doody: I asked the previous premier why that was not done. I said that that was the way to go. He said, "No, 95 per cent had a right."
Senator Rompkey: Perhaps if we could find written evidence, it could be added to the transcript of our proceedings, Madam Chair.
The Chair: We will contact the Government of Newfoundland to find out if such evidence exists. If it does, we will distribute it to the members of the committee.
Senator Prud'homme: I am not a member of the committee.
The Chair: Excuse me, Senator Prud'homme. You will certainly get it as well.
Mr. Lauwers: The other way to do it is through the existing governing structures. People are elected to school boards and have those rights.
Senator Rompkey: You would not discount, would you, the elected representatives of the people?
Mr. Lauwers: When you are talking about a minority right, the answer is that I would discount that.
Senator Rompkey: Would you discount the unanimous vote of the Newfoundland legislature?
Mr. Lauwers: Completely.
Senator Rompkey: It means nothing in terms of making law or changing law?
Mr. Lauwers: There is a question of interpretation here. The original vote to enact the resolution passed by 31 to 20.
Senator Rompkey: The last vote was unanimous.
Mr. Lauwers: Yes. However, I do not know what that vote was about.
Senator Rompkey: As I understand it, it was a vote to tell the Parliament of Canada to pass the new Term 17.
Mr. Lauwers: There were all kinds of political reasons for that second vote. I discount it completely because minorities are entitled to be protected. They are entitled to be heard in the process. That did not happen in this instance.
Senator Rompkey: Would you agree that the minority has rights over the majority; that the minority can dictate to the majority? If so, how far would you take that?
Mr. Lauwers: If you are a person who wishes to give up a right, then you can give up that right. If you are a person who does not want to give up the right, then you should not be required to give up that right. That is the distinction that is being made here.
Senator Rompkey: My original question, with all due respect, was with regard to consent. I asked two questions. One dealt with rights; the other dealt with consent. My last question was: How do you determine consent? That is the question I want answered.
Mr. Lauwers: Both questions were answered. One way to determine consent is to hold a referendum with that particular class of persons. The other is to ask the governing group from that body who has the constitutional right to speak.
Senator Rompkey: That is not what we were told by Minister Rock and others. They went through a lengthy process of how consultation can be carried out. They stated that it could be done by a Royal Commission, by hearings of the provincial legislature, by a vote in the legislature, by a referendum and by a vote in the House of Commons.
By the way, I can tell you this. I was in the House of Commons at that time of the debate on this issue, although I was not there at the time of the vote. I can tell you that Mr. Duhamel, Mr. Mills and others were certainly very vocal. Voices were heard in all those fora.
Senator Doody: For the record, there were no provincial hearings. The provincial legislature debated it.
Senator Rompkey: Yes, they debated it.
The Chair: Senators, many of the questions now being asked would be better put in Newfoundland.
Senator Rompkey: Except that they arose here.
The Chair: With the greatest respect, in the witness' view, he has answered your question. It may be your view, but --
Senator Rompkey: Madam Chair, I do not want to argue with the chair --
The Chair: You are.
Senator Rompkey: I would make the point that the concern about this question is not coming from Newfoundland. It is coming from Ontario and perhaps other parts of the country, but it is not coming from Newfoundland.
The Chair: We will hear that, I am sure, in Newfoundland.
Senator Prud'homme: This is exactly why I wanted hearings. The more I hear, the more I realize that the true question was put by Senator Rompkey when he asked whether a minority can dictate to a majority.
I will reverse that question to illustrate my concern. As I said quite a while ago, the question is whether a majority, out of impatience, can "dictate" -- which means take away -- the rights of a minority. That is my fundamental concern. I just saw a preview of this impatience well expressed by Senator Rompkey a few moments ago.
There are those who say that we have no right to do that. If we have no right to do what we are doing now, I will start a campaign to abolish the Senate, because that is exactly what the Senate is all about.
This is the advancement of a modernist, secular culture, favouring one philosophy of education where religion is just a subject, and disadvantaging other traditional, heritage philosophies. This is a very fundamental debate.
Today is the 100th anniversary of the election of Sir Wilfrid Laurier. We know what took place then. Some subjects were supposed to be protected. They said, "Don't worry. The majority will take good care of minority rights." You know what happened to minority rights in Manitoba then. They disappeared, because they were at the whim or at the mercy of the majority.
[Translation]
And majority never really takes patience with minority. Majority is always ready to endure minority as far as it is not disturbed by it. This is what Canada is all about.
[English]
That is what Canada is all about. It is a federation where everyone is different. Some people say it only exists in Newfoundland. You are right, Senator Doody, in that this type of arrangement only exists there, but Canada is a series of special arrangements. Canada came about by a series of special arrangements.
Now we want to start taking arrangements away, but we must stand on guard for the other arrangements. There is a kind of new modernity, talking about inclusion where we should be a "je ne sais quoi", and the lowest denominator should be the common denominator for everyone.
I will not apologize for doing my duty as a senator for the people of Newfoundland for whom I have great respect. Newfoundland and Quebec have a lot in common. Listen to me debating, and you will see that we are both passionate.
Could you comment on that? Religion, according to what I read, suddenly is now, "Do not worry. There will be religion. It will be a subject," versus values that are inherent in the entire educational system.
Ms Mosely-Williams: We do not believe, and I do not believe, that a Catholic school system will be any kind of a Catholic school if you say, "We will teach a religion program from 9:00 until 9:30." A school that will teach values, that will support and enhance the values that parents are trying to teach at home and that they want imparted to their children, must have it permeated through each and every subject.
You may ask how we teach mathematics and make it religion; 2 and 2 will always be 4, and 1 and 1 will always be 2. However, when we try to teach these subjects to children, especially to those who will specialize in a certain subject, can we not broadened our teaching to provide not only a skill but something for that child's life, values which will be used along with the skill. To me, such values are in everything.
Mr. Lauwers: Listening to the debate around this table today, and remembering the discussion between Egerton Ryerson and Archbishop de Charbonnel in the 1840s and 1850s in Ontario, many of the same things were being discussed. A fundamental difference in philosophy is being debated. We had thought that debate was behind us. Obviously it is not.
Senator Prud'homme: To be sure.
Mr. Lauwers: If I may respond to Senator Rompkey on one point -- he outlined several consultative devices. The essential problem is that when you give the majority a number of opportunities to speak, it will speak every single time. The problem is not with the opportunity to speak, although it has been lacking at the Parliament. The problem is that the majority wants to take away the rights of the minority. You can have a number of proceedings, but that will not solve the basic problem that you are taking away the right of a minority.
Senator Beaudoin: I was fearing an emotional debate. It will be difficult to avoid that, unfortunately.
I was very interested in Senator Rompkey's comments. At one point, if I am not mistaken, you said that all parties and all members of Parliament voted in favour -- in favour of what?
Senator Rompkey: The resolution of the house.
The Chair: I have asked our clerk to obtain a copy of both resolutions passed by the Newfoundland legislature so that we are clear about what they voted on.
Senator Beaudoin: Suppose it is true that everyone voted for that resolution. You say you discard that. Why? Is it not the basis of democracy?
Mr. Lauwers: I would like to look at the context in which the vote was called, what Premier Tobin said, what the others said, and why they wanted this vote to come forward in the way it did. That would be important to me.
In any event, the original resolution passed by a vote of 31 to 20 which indicates that, in the house at the time, there was less than full support for this. A lot of water has gone under the bridge, and I do not know the context of the new vote.
I can only say that the opposition to this measure in Newfoundland is just as strong as it ever was. You heard Mr. Harrington, and you will hear more about that in Newfoundland. Just because the legislature decides, for reasons of its own, to gang up on the minority, the fact is that it is still a gang-up. It does not change the nature of the exercise.
Senator Beaudoin: In Canadian democracy, we are ruled by a majority system. That is the basis. That being said, all denominational rights, all minority rights in Canada are protected by the Constitution. We are a very democratic country. A national assembly cannot go against the Constitution. That is why we have the Supreme Court and why some statutes are declared invalid.
Senator Gigantès: What is your question?
Senator Beaudoin: I will come to my question. I may ask you that some time.
I think we are primarily concerned, in this case, with denominational rights. Let us forget about the Charter of Rights. Section 29 of the Charter of Rights is very clear. It has no bearing on denominational rights because Catholic and Protestant groups are in a privileged situation. This was the pact in 1867, and that was the pact with Newfoundland in 1949.
I think you have already answered my question. You say that the protection of denominational rights is the issue, and everything else is secondary. The protection of denominational rights is not good enough, in your opinion, to vote in favour of that resolution.
In other words, you say that the rights which Catholics have enjoyed as a class of persons are diminished in an unacceptable way. Is that your thesis?
Mr. Lauwers: That is right.
Senator Beaudoin: You say that their rights are diminished; to a certain extent, they lose the right to administer schools.
Mr. Lauwers: You will hear more about this in Newfoundland. The two fundamental problems you heard about today were the inability to ensure the presence of Catholic schools where numbers warrant and, second, the inability to direct curriculum in those schools. I am sure there are other interstitial and incidental issues, but those are the major ones.
Senator Beaudoin: That being the case, you say the protection given by this amendment is not good enough for the Catholic class of persons. That is your thesis, and it is clear cut.
Mr. Lauwers: Yes, that is right.
The Chair: Thank you, Ms Mosely-Williams and Mr. Lauwers.
We will hear next from the Ontario Separate School Trustees's Association.
Mr. Patrick Daly, President, Ontario Separate School Trustees' Association: Madam Chair, the Ontario Separate School Trustees Association is a Catholic trustees association representing 53 Catholic school boards in Ontario. Collectively, these boards educate more than 600,000 students.
Although I appear before you today as president of the Ontario Separate School Trustees' Association, I want to emphasize that I am also a parent with children in Catholic schools in Ontario. In both of these roles, I believe, along with my wife, that our educational rights, guaranteed under the Constitution of Canada, have been compromised because of the action of the House of Commons to amend Term 17 of the Terms of Union between Canada and Newfoundland. Our rights to educate our children in a school which supports and reinforces the values and beliefs of our family are now less certain.
Although I acknowledge the present commitment of the Government of Ontario to maintain the constitutional rights of Catholic parents, I am convinced that there has now been created a political and social climate which all too easily can subject the constitutionally protected rights of minorities, be they educational, aboriginal or francophone rights, to the whim of a majority vote. It is because this right of parents and of the Catholic community is threatened -- not only in Newfoundland and Labrador, but in Ontario and throughout Canada -- that we are here today representing Catholic school boards in Ontario to speak on the issues pertaining to the amendment to Term 17.
I might add that those who advocate a single school system in other provinces and mistakenly claim that bigger education is better and less expensive will be heartened by this or by any initiative which threatens minority education rights. There have always been voices who have sought the dissolution of separate schools in Ontario, and there still are.
I will leave it to my colleagues from the Canadian Catholic School Trustees' Association to address the particular legal and constitutional implications involved in this matter, but whatever legal precedents may or may not be established by this piece of legislation, it is clear that there are political and social consequences. These consequences affect the political and social climate in Canada, not only as regards minority educational rights, but as regards the minority rights of any of the classes of persons so protected by the Constitution of Canada.
Effectively, parents in Newfoundland and Labrador will, in large part, lose the right to educate their children in Catholic schools. The right will be taken away from them not because they agreed to it but simply because a majority of their fellow citizens voted to take it away upon the suggestion of their provincial government.
Our association of Catholic school trustees from across Ontario and I as a Catholic parent in Ontario consider that, as a result of what could happen in Newfoundland and Labrador, a diminishment of our rights is hereby threatened. That is my first point.
My second point is this: Despite disclaimers to the contrary by those proposing and supporting this amendment, denominational schools are now at risk in the province of Newfoundland and Labrador.
The new Term 17 does not provide any constitutional protection for the future existence of viable Roman Catholic schools since the criteria for their continued existence would be subject to provincial law. The proposals to change the school system, as brought forward to date by the Government of Newfoundland and Labrador, foreshadow the disappearance of Catholic schools. We can foresee the elimination of Catholic schools and the creation of secular schools which will offer religious education courses on a denominational basis.
Let me say this as clearly as I can: Catholic schools are not public schools in which a period of religious education will be taught each day. No one would define a Catholic school in this way. We believe and know them to be communities of faith in which the learning environment is distinctive through particular curriculum, various periods of prayer, liturgy and the symbols and sacraments which are integrated into the academic year. Indeed, in Catholic schools, all subjects and disciplines are considered within a perspective that establishes a common moral and ethical framework for interpreting human life. They are schools which acknowledge the presence of Jesus Christ as a constituent dimension of the learning environment. Such schools, Catholic schools, may no longer be possible in the province of Newfoundland and Labrador.
The honourable members of the Senate are aware that constitutionally guaranteed, denominational education rights were essential rights in the bargain of Confederation in 1867 when Canada was born as a nation. The same was true of the agreement made at the time of the entry of Newfoundland and Labrador into Canada in 1949. To dismiss such agreements and covenants in a hasty debate with no hearings, as happened in the House of Commons, is to dishonour both our history and our commitments to one another as Canadians.
I conclude by reminding members of the Senate committee that however one approaches the resolution to amend the Constitution which you are considering, there remains a simple and ineradicable flaw in it. It takes away constitutionally guaranteed minority rights at the will of the majority. Yet it is precisely to avoid this possibility that the educational and other rights of minorities are constitutionally protected. The political and social ramifications of this action by the federal government are not yet clear. It remains, however, that every minority with constitutionally protected rights fears that the purpose and effect of these guarantees have been profoundly diluted.
It is our conviction that the House of Commons has failed in one of its primary responsibilities of upholding and defending the Constitution of Canada in its protection of minorities. In solidarity with our brothers and sisters in Newfoundland and Labrador and with all who hold minority educational rights in Canada, we are here this morning to respectfully request the members of the Senate to correct the failure on the part of the House of Commons. Our request and hope is that action on your part will ensure that this type of procedure by the House of Commons will never again be used to so diminish a minority right. We believe that you can best send this message to the House of Commons by defeating the resolution.
We have outlined at length our views regarding the amendment to Term 17 in our brief which you have before you. I invite you at your leisure to review our brief. We are prepared to respond to your questions.
The Chair: I am sure the honourable witnesses before us know the limits on what the Senate can do with respect to this particular resolution, but I am not sure that everyone in the audience understands this. It is important for all who participate in these hearings to understand that, under the 1982 Constitution, the Senate has three choices: pass the resolution and send it back to the House of Commons; amend the resolution and send it back to the House of Commons; or defeat the resolution and send it back to the House of Commons.
However, if after six months of our receipt of the original resolution, the House of Commons does not accede to the wishes of the Senate, they may pass that resolution again, in its original form or in its amended form, and then the Senate no longer has any power. This is referred to as the six-month suspensive veto power of the Senate.
It is critical, particularly for those who may be watching on television, to understand that, unlike the case with most legislation which the Senate can reject if it so chooses and which rejection has full force of the law, in this case, the Senate does not have that power.
Senator Prud'homme: Madam Chair, on this point, to make it very clear, if this resolution returns to the House, either amended or rejected, the House must have a debate. They cannot just wait for the six months to expire. I want this to be clear on the record. They must take action on our action. They cannot be content to say the six months will come.
The Chair: They must reintroduce it and pass it and vote.
Senator Beaudoin: They have done this in the past.
Senator Prud'homme: It is good to allow people to prepare themselves accordingly.
Senator Rompkey: The argument has been made that Catholic education is more than simply teaching a course from 9:00 to 9:40 or however long a school period is now. I accept that. The argument has been made that it is the ambience that is important, and I accept that.
However, I would like to read from paragraph (c) of the new Term 17, which refers to provincial legislation which is uniformly applicable to all schools, specifying conditions for the establishment or continued operation of essentially unidenominational schools:
(c) where a school is established...the class of persons...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;
I should like you to comment on that paragraph and how you see that affecting the ambience of Catholic schools. You mentioned that it was more than simply the teaching of religious education, that it also involved the liturgy, sacraments, and so on. However, liturgy could be covered under activities and observances. In other words, it would not be directed toward the teaching aspects of the curriculum but toward activities and observances. Will you please comment on that?
Mr. Lauwers: There is no quarrel with paragraph (c) of the resolution with the exception of the necessity for an additional word or two. Immediately before the word "direct", which you read in the fourth last line, the words "determine and" should be added. That would allow the class of persons to continue to design curriculum for the schools.
To be clear, the province has the power to specify curriculum in the province; it has always had that power. The class of persons merely wants the ability to adapt that curriculum for use in Catholic schools. This paragraph would give them that. The difficulty of paragraph (c) is that it is made subject to paragraph (b), and paragraph (b) does not contain a provision to deal with "where numbers warrant".
That is the fundamental flaw; namely, the phrase "numbers warranting" is left out of paragraph (b). We fear that criteria will be set in an unreasonable way with no possibility of recourse to the court. Because "numbers warranting" does not appear there, we will lose Catholic schools. As happened in Prince Edward Island, Nova Scotia and New Brunswick, the schools will simply cease to exist over a period of time if they are interdenominational.
Senator Rompkey: However, there is recourse to the courts, is there not? If someone is aggrieved by what is contained in this section of the Constitution, they have recourse to the courts.
Mr. Lauwers: Yes, they have recourse to the courts, but the question is whether there are reasonably objective criteria which can be used by the court to decide whether a line has been crossed. Paragraph (b), as it now stands, requires only that the legislation be uniformly applicable. No objective criterion is stated called "numbers warranting".
Section 23 of the Charter concerning French language rights, for example, contains a reference to "numbers warranting" which allows the court to have some form of objective criteria to assess whether there are enough children to justify a school. That is missing with respect to Term 17.
Senator Rompkey: The brief from the trustees' association states that, while the denominational school circumstances in Newfoundland are not comparable to the separate school situation in Ontario, antagonists of Ontario Catholic schools will invariably utilize the federal government's intervention as a justification.
We heard from the Minister of Justice and from other constitutional lawyers who appeared before us that precedents require like facts and/or similar, if not identical, principles. Would you comment on that?
Mr. Daly: We have talked in our brief and in our comments about the political and social precedents which have been set by this resolution. That is our greatest concern and the reason why we are here today in support of those not only in Newfoundland and Labrador but also in Ontario and the rest of Canada. I will invite Mr. Lauwers to speak to the precedents which may or may not have been sent.
Mr. Lauwers: Earlier in my presentation, I talked about the nature of the precedents which would be set here on both the legal and political sides.
Precedent is the great solvent of modern political discourse. It rests on the idea of equality which is even more fundamental. In other words, if you did it for him, you must to do it for me; or if you did it to me, you did not do it to him. That is the kind of complaint one always hears in fundamental legislation. That is the reason why people fight in many cases.
Precedence should be the memorial of a rational process. That is why our common law system is built the way it is, one case after another. The same facts need not exist for a precedent to be created. The law works by way of analogies, not by way of exact steps. That is why one must be careful in creating precedents and also in refusing to follow them. Precedent is a very powerful force, and it is that force which we feel you will unleash with this particular amendment.
Senator Rompkey: It is arguable, I suppose, once one agrees that the people of Newfoundland have spoken in favour of this change, whether they can make the change under section 43 because of the implications across the rest of the country. If that were to be true, then Newfoundland really would be a hostage in Confederation.
On the legal argument, lawyers have opinions. They are paid to have opinions. I understand that and I respect that.
Mr. Lauwers: Yes, and some of them hold them sincerely.
Senator Rompkey: Some of them hold them sincerely, yes.
The Chair: Yes, as do some politicians.
Senator Rompkey: We will hear from Ian Binnie who has a contrary opinion. He says that, accordingly, the exercise by Newfoundland and Canada of their respective powers, under section 43 in this particular case, would neither add to nor detract from the scope of minority rights in other provinces or create a legal risk for minority rights which has not been obvious since adoption of the various amending formulae in 1982.
I put that on the record to show that there are contrary opinions here. We have heard testimony on both sides. I respect your testimony and your view, but, to make the record clear for us, we should reflect upon all the views that we have heard and will hear.
Mr. Lauwers: Actually, I sent Ian Binnie my opinions at his request, but he did not send me his. Could I get a copy of that from you?
The Chair: We will ensure that if you do not get it from Senator Rompkey, you will get it from the committee when Mr. Binnie appears.
Senator Beaudoin: If this resolution is adopted -- I have no doubt that it may legally be adopted under section 43 and no jurist would dispute that -- what will you lose as denominational rights?
Senator Prud'homme: It may yet be defeated in the House of Commons.
Senator Beaudoin: Please do not confuse the issue. That is another thing.
My question is clear. You say you are losing rights. I see that you are losing some administrative rights, but I would like to know, clearly, the rights that you are losing.
Mr. Lauwers: At the present time in Newfoundland, Roman Catholics have the right to establish and operate their own schools. Under this term, the right to operate their own schools is made subject to provincial legislation which is uniformly applicable to all schools. The difficulty there is that the right is no longer absolute.
The people in Newfoundland, as you will hear from them -- and Mr. Harrington did not have an opportunity to say this -- are prepared to accept a concept of schools "where numbers warrant."
Senator Beaudoin: Public schools?
Mr. Lauwers: Catholic schools, where numbers warrant.
Senator Beaudoin: You are prepared to accept that?
Mr. Lauwers: Yes, that is correct.
The problem is that that expression does not appear in here. You move from an absolute right to a right which is completely diffusible on the will of the provincial legislation.
Senator Beaudoin: Yes, by provincial legislation only.
Mr. Lauwers: That is right. You should understand that the good rights that appear in paragraph (c) of the resolution -- which I have indicated to Senator Rompkey are acceptable except for the addition of the word "determine" -- are only there for unidenominational schools. If you do not have unidenominational schools, you do not have any of the other stuff either. That is the problem.
Senator Beaudoin: I wish to thank you for that.
Mr. Daly: Our greatest concern is that those rights are now subject to provincial legislation. There are strong forces in Ontario and in other parts of the country that have captured that and are pushing that position in other parts of the country. That is exactly the fear of precedents that we are talking about.
Senator Beaudoin: I want to focus on this because, if I am not mistaken, five provinces in Canada have denominational rights and five do not. The two territories have those rights. Under the pacts of 1867 and 1949, denominational rights are protected. Of course, that may be changed, legally speaking. It can be changed according to the formulae of amendment; it is that simple.
Here we have the right to denominational schools, but you say that is not good enough because you are losing too many rights.
Mr. Lauwers: We are losing the certainty of being able to have Catholic schools.
Senator Beaudoin: As you want them.
Mr. Lauwers: The certainty of having them at all. We now have a certainty that we can have those schools where we want them. The province has said that it will allow us to continue to have those schools where numbers warrant, and that is acceptable. The problem is that the words "where numbers warrant" do not appear in this resolution. As a result, we go from a situation of certainty to a situation of complete uncertainty where the criteria are at the whim of the provincial government with, I would suggest, no effective recourse. That is the problem.
Senator Milne: Mr. Daly, Senator Rompkey quoted the last paragraph in item 1, "Backgrounder," in the brief from the Ontario English Catholic Teachers' Association. I believe this describes the nub of your argument and your main concern here today:
While the denominational schools' circumstances in Newfoundland are not comparable to the separate school situation in Ontario...
So your real concern is the separate school situation in Ontario and the role which you believe antagonists are now bringing forth to get rid of the separate school system there?
Do you really believe that the province of Ontario will try to get rid of the separate school system when it has extended those rights to the end of grade 13 and when census numbers now show, I believe, that Catholicism is the majority religion in Ontario?
Mr. Daly: I do not believe the last part of your comment is correct, senator, and that brief was not prepared by us.
Senator Milne: It has your name on the front of it.
Mr. Daly: That is the brief of the next group, the Ontario English Catholic Teachers' Association. However, I can answer your question.
We are here for two clear reasons. The first and foremost reason is to support the constitutional rights of Catholics and other denominations in Newfoundland and Labrador. The second reason is our fear of the political and social precedent in other provinces, including Ontario.
With regard to whether I think the Government of Ontario would take a similar action, what I think is not important, although I personally do not think it would. However, forces which put pressure on this or another government may cause them to consider it. That is our greatest fear.
There are strong groups and organizations in Ontario which have, for many years, put forward the concept of one publicly funded system in this province. They have spent a great deal of money pushing that system and continue to put pressure on the government. We do not fear it specifically with this government, but we fear that the precedent has been set for future governments.
Senator Forest: You have spoken of the denominational rights of Roman Catholics under the Constitution. We all know that there are denominations which do not have those rights. I should like to know your thinking about that.
Mr. Daly: That is an important question, especially in Ontario. Our association is on record supporting the right of other religious groups and denominations to receive public funds to have the values of their homes reflected in their schools. In a brief which we submitted to the Shapiro commission in 1985, we supported equitable and fair funding for those groups. As well, the Ontario Conference of Catholic Bishops has supported that in at least one, and perhaps more, pastoral letters. We do support equitable funding for all those groups throughout the province.
Senator Gigantès: How do you define "where numbers warrant"? What does that mean in percentage points?
Mr. Lauwers: The term "where numbers warrant" is a flexible but objective standard that is used in section 23 of the Canadian Charter of Rights and Freedoms to decide where French language schools will be located. That will include, for example, the number of supporters and the normal size of the schools. I cannot tell you right now what all the factors would be in a real claim. It depends to some extent on the administrative structure and the size of the buildings that currently exist in the province, about which I know nothing.
The key to the words is that they create a particular objective criterion at which the court can look in making its assessment. In the Mahé case, involving French language education, the court assessed about 15 factors in deciding what "numbers warranted". It was an objective evaluation and the court was willing to impose a number where the government was not prepared to do so.
In a sense, it creates a benchmark against which the government must be tested. If the legislation ultimately says that there can only be a Catholic elementary school where there are 1,500 students in the immediate environment -- and there is no area in Newfoundland where there are 1,500 students; most schools have only have 250 students -- the court would say that that "numbers warranted" criterion is unreasonable in the circumstances and it would be struck down because it does not bear any relationship to the rest of the system. That is the nature of those words.
I cannot give you an absolute definition because it is a flexible term. It must be flexible due to the way in which the courts would administer it. It has worked for French language legislation and we think it will work for denominational education in Newfoundland.
The Chair: Thank you very much, gentlemen, for your appearance.
Our next witnesses are from the Ontario English Catholic Teachers' Association.
Mr. Jim Smith, Vice-President, Ontario English Catholic Teachers' Association: Honourable senators, thank you for this opportunity to address you. After my brief statement, Mr. Cavalluzzo, our chief legal counsel, will provide some instructive perspectives on the constitutionality aspect of the amendment.
The Ontario English Catholic Teachers' Association, known as OECTA, represents 34,000 women and men who have chosen teaching careers in the separate schools in Ontario. These teachers are found, in the elementary panel, from junior kindergarten to grade 8 and, in the secondary panel, in grade 9 through grade 12 to OAC in publicly funded education.
As educators in denominational schools, OECTA members come before you as special representatives of students. OECTA adopts the following description of Catholic education and the role of teachers which has been articulated by Justice McIntyre in Caldwell v. the Catholic Public Schools of Vancouver Archdiocese, in which he stated:
...Catholic schools are significantly different from other schools mainly because of the doctrinal basis upon which they are established. It is a fundamental tenet of the Church that Christ founded the Church to continue His work of salvation. The Church employs various means to carry out His purpose, one of which is the establishment of its own schools which have as their object the formation of the whole person, including education in the Catholic faith. The relationship of the teacher to the student enables the teacher to form the mind and attitudes of the student and the Church depends not so much on the usual form of academic instruction as on the teachers who, in imitation of Christ, are required to reveal the Christian message in their work and as well in all aspects of their behaviour. The teacher is expected to be an example consistent with the teachings of the Church, and must proclaim the Catholic philosophy by his or her conduct within and without the school. The role of the school and its nature is described in paragraph 22(e) of the stated case in these words:
The Catholic school is a genuine community bent on imparting, over and above an academic education all help it can to its members to adopt a Christian way of life.
These values were eloquently expressed by Chief Justice Anglin in the Tiny case in 1927, when he said:
The idea that the denominational school is to be differentiated from the common school purely by the character of its religious exercises or religious students is erroneous. Common and separate schools are based on fundamentally different conceptions of education. Undenominational schools are based on the idea that the separation of secular from religious education is advantageous. Supporters of denominational schools, on the other hand, maintain that religious instruction and influence should always accompany secular training.
Let us be clear at the outset that we come before the Senate standing committee to encourage strongly the Senate to guard constitutional guarantees in this matter. Education, clearly, is a provincial issue. OECTA would not presume to tell the province of Newfoundland how to operate its educational system or how to make reforms in order to accomplish changes. As educators, we support any reforms which will provide a better educational system and resources for all students. However, provincial education reform does not require federal constitutional amendments.
OECTA understands that the stakeholders involved in the education system in Newfoundland have reached agreements on the areas of reform which are required to save money and provide effective schools for students. Consequently, OECTA believes that ongoing reforms can occur, if necessary, through further discussion and negotiations of those stakeholders. OECTA cannot support the utilization of a constitutional amendment, the results of which may diminish all minority rights to implement educational reform. Even constitutional experts cannot predict the repercussions of this change which has the potential for putting all minority rights at risk.
OECTA knows that the Constitution guarantees minority rights and that the rights to separate schools in Ontario are enshrined in the Constitution.
OECTA also knows that it is the responsibility of the Senate to protect constitutional guarantees. The association fears the possible ramifications of the precedent established by making direct connection between provincial educational reforms and a constitutional amendment which could have a national impact. OECTA urges you not to let this happen, not to risk this precedent and its repercussions.
Effective educational reforms can and will occur without constitutional amendment. We urge you to guard the rights of all minorities by not allowing this amendment to proceed.
Mr. Paul Cavalluzzo, Legal Counsel, Ontario English Catholic Teachers' Association: Madam Chair, we have presented a brief which you have before you in the green-bound document. Rather than taking you through that brief, in which there is a constitutional opinion, I thought it would be more useful for me to comment on the testimony given by my friend the Minister of Justice last Friday when he was before this committee. Mr. Rock made a number of points which should be reviewed by you. Hopefully, they are ones to which I can respond.
There are five points. The first point to which I would refer is the nature of denominational education. Throughout his testimony, Mr. Rock stated that a fundamental reason as to why the federal government approved the provincial resolution was that Newfoundland would continue to have denominational education and denominational schools. He stated this on numerous occasions.
The minister offered this conclusion based on the wording of paragraph (a) of Term 17 which provides that there shall be denominational schools and that the class of persons shall have the right to provide for religious education, activities and observances for the children of that class of persons.
I suggest that the minister's conclusion, although consistent with the wording of paragraph (a), demonstrates a fundamental misunderstanding of the nature of denominational education in this country. Denominational education is much more than the teaching of religion or the conducting of religious activities and observances. In support of that comment, I rely upon the statement of Chief Justice Anglin as read by Mr. Smith, which I will not repeat. The Chief Justice made that comment in 1927. It has been accepted by the Supreme Court of Canada as recently as the middle 1980s.
The second point to which I would refer is school governance. In his testimony, the minister stated that the proposed Term 17 will only affect the power and authority over the schools. He said that the only change will be in how the schools are managed and governed. He said that they will still be denominational schools even though they will change as to how they are run.
With respect, the right to manage schools lies at the heart of the constitutionally entrenched guarantee. On numerous occasions our courts have been very clear and unequivocal in that regard. We submit that it is misleading, to say the least, to suggest that this resolution is a simple change as to how schools are run. In our submission, the change significantly alters the nature of the schools and the nature of the education which will be given in those schools.
The third point we would like to answer is what the minister referred to as external effects. He said that this was one of the criteria that the federal government reviewed in passing the resolution.
I agree that the situation in Newfoundland is factually unique so that there may be some suggestion that no legal precedent is set for future governments. However, one must keep in mind that denominational rights in Canada have been treated in the same way from the perspective of legal principle, even though the scope of those rights may vary from province to province.
For example, in dealing with the interpretation of Term 17, the Newfoundland courts have consistently relied upon the jurisprudence under section 93 which, of course, is applicable in other provinces.
Moreover, the protection of denominational rights in section 29 of the Charter of Rights was gained as a result of the educators in Newfoundland. It is quite ironic. We have passed before you the Hansard for the debate of the committee on the Charter of Rights, and you may have that in front of you. You will see from these minutes that originally section 29 was brought only as protection for denominational rights in Newfoundland. The present wording of section 29, which broadened the scope of that guarantee to go across the country, was introduced by Mr. Tobin. In 1982, the present premier, before the Senate and House of Commons committee, introduced section 29 so that the protection of the denominational rights would be across the country rather than just in Newfoundland.
We suggest and submit, respectfully, that denominational education rights in Canada are similar from the perspective of principle. We respectfully suggest that it is foolhardy to think that the procedures adopted in Newfoundland to dispose of these rights will not influence what will occur in the future. The political precedent will be set by this proposal and, as has been stated before, all denominational rights across Canada are at risk.
The fourth point deals with the referendum itself. One of the factors upon which the minister relied in concluding that the process was fair and democratic was the referendum which was held in September of 1995. Although the referendum was not a legal pre-condition to the provincial resolution under section 43 of the Constitution Act, the minister relied upon it "as a relevant factor." We submit, respectfully once again, that this reliance is misplaced and suggests a serious lack of appreciation of minority rights.
As you know, a representative democracy lacks a tradition of the use of referenda to resolve serious political questions, although this is becoming more frequent. However, referenda should never be used to dispose of minority rights. The use of a referendum to dispose of minority rights is clearly unsound in law, in principle, and in policy. A minority right which is constitutionally entrenched was intended to be protected against the whims of the majority.
I would ask you to review a background paper from the Research Branch of Parliament which was produced by Pierre Marquis for the Senate in 1993. The title of the paper is, "Referendums in Canada: The Effect of Populous Decision-Making on Representative Democracy." I refer to page 18:
Referendums also pose a danger to minorities. If issues lend themselves to being settled on a majority-minority basis, as was the case during the conscription crisis in Canada, minorities will always lose out. Governing by referendum would in effect constitute a system of majority rule, in which the only possible position for the minority was complete submission. A system of government by consent and compromise, on the other hand, allows for a more equitable balancing of interests. Certainly where a nation is divided along minority-majority lines, be these ethnic, religious or linguistic, referendums are not in the best interests of the minority.
Senator Prud'homme: We will ask that that be distributed.
Mr. Cavalluzzo: Finally, I should like to address a question which was put to the minister by Senator Cogger but which was never answered by the minister. Senator Cogger asked the minister whether this was the first time the constitutional amending procedure had been used to limit minority rights rather than to expand them.
I can answer for my friend the minister, and the answer is yes, this is the first time that the amending formula will be used to limit rather than expand these rights.
In Canada, we usually do not interfere with minority rights through the democratic process without the consent of the minority; otherwise, the minority rights are meaningless. In respect of denominational education rights, the federal government was considered to be the guarantor of those rights. As I said, this is the first occasion upon which the federal government, at least the House of Commons, has approved the dilution of these rights or, indeed, any minority rights.
As the chamber of second thought and sober reflection, we hope that the Senate will scrutinize this proposed constitutional amendment in a way which fully respects the nature and sanctity of the minority rights at risk.
Senator Prud'homme: The more I hear, the more I am convinced that Mr. Tobin is absolutely correct. I am talking about the Mr. Tobin who sat on the committee on the Constitution on January 29, 1981. I kindly suggest that honourable senators read his testimony at that meeting. It is very enlightening.
That is even before the Pentecostals had any rights. That was in 1981, and, if my memory is correct, it was in 1987 that we added Pentecostals. We did not withdraw rights; we went further. His wishes, expressed in 1981, were met in 1987.
Having said that, the more we hear, the more we come to the conclusion that it is a question of money. I hear, on one side, that it is a principle, rights versus a not-yet-proven-better educational system, because that would downgrade too much for my taste the present educational system of Newfoundland.
Is that not really what this is all about: principle rights versus a so-called saving of money?
Mr. Cavalluzzo: I certainly hope that that is not the case, because in case of Singh, Madam Justice Wilson basically said that when we are talking about fundamental freedoms, administrative convenience cannot come into play.
Of course, there are many ways that we can be far more efficient. For example, if we did not have any laws protecting the disabled, we would perhaps be far more efficient, but the fact is that we have fundamental freedoms which are protected. Obviously, in balancing the interests of all concerned, money will be a factor. However, at the same time, these are fundamental freedoms which have been constitutionally entrenched, and normally we do not weigh the balance that way because of the fundamental nature of these freedoms.
Senator Beaudoin: You referred to the question asked by my colleague Senator Cogger the other day. There is one example where an amendment by a province -- not a bilateral amendment, but a unilateral amendment -- has set aside certain rights in the field of linguistic rights. I mention that for the purpose of the record. This is the Mercure case from Saskatchewan. It was perfectly legal. The Supreme Court of Canada said that you are a bilingual province, and you have the right to set aside linguistic rights by means of a unilingual statute under the power of a province to amend its internal constitution. They did so, and in that sense, the linguistic minority lost rights recognized by the court. However, it was perfectly legal because the Supreme Court said so.
We come back to the main question. The referendum does not set aside rights. The way the people are using the amending formula sets aside rights. In other words, you may change a system if you follow the amending formula. You may say that, from now on, all schools will not be denominational. You may do that very legally. However, the question that the people have in mind is this: Is this the right solution politically?
The referendum is not responsible for the change in the Constitution. The use of the amending formula is responsible. I would like your reaction to that because I think it is important in this debate.
Mr. Cavalluzzo: First, I agree that the referendum is not a legal precondition to the exercise of any rights under section 43. However, I raised that because the Minister of Justice stated that the referendum was one of the relevant factors upon which he relied or upon which the federal government relied in accepting the provincial resolution, and I thought I should deal with it.
Second, as far as what occurred in Saskatchewan, Senator Cogger's question related to the federal Constitution: Since 1982, have amendments been proposed and passed which diminished rights?
However, in response to your question, unquestionably, if this resolution is passed and if the Constitution is amended pursuant to section 43, then, yes, the courts would say it is legal. However, we here wondering whether it is political, social or moral.
These are the considerations which you must take into account in determining whether to accept this resolution or not. If you accept the resolution and the amendment is passed, yes, the Supreme Court will say it is legal.
Senator Jessiman: That is your opinion.
Senator Rompkey: I wish to raise the point that Senator Beaudoin raised and to clarify that, indeed, Minister Rock did not refer only to a referendum as a criterion. To be fair to the minister, he listed a number of different factors. Were there public hearings? Was there an attempt at non-constitutional reform? Were there negotiations with the affected parties? Was there a referendum? Was there an election which turned, in part, on this particular proposal? These, I think, were also mentioned by Professor Bayefsky and Dr. Brock.
I know that Mr. Cavalluzzo does not wish to leave the impression that Minister Rock or the others depended only on a referendum. He said that it was one of a number of criteria. Just so the record is straight, it was one criterion among a number of criteria.
We are putting together two schools of legal opinion -- which could be loosely described as the Lauwers school and the Binnie school -- on whether this legislation has implications across the country. Are the legal implications of this amendment confined only and solely to Newfoundland because of its unique situation, or does it have implications right across Canada from Cape Bonavista to Vancouver Island? Are you a member of the Lauwers school or the Binnie school of legal opinion?
Mr. Cavalluzzo: I have never been described as being a member of the Lauwers school.
Senator Rompkey: Can we take it that you are a member of the Binnie school?
Mr. Cavalluzzo: Absolutely not. I guess I am a member of the Cavalluzzo school.
We are using the word "precedent" fairly loosely. It is important to understand that we are not talking about a precedent for the purposes of the judicial application of a rule of law. We are talking about a precedent for future actions by government.
The question is, if this resolution is passed, will this have a precedential effect upon future governments in terms of how they dispose of minority rights? I suggest strongly that the answer is clearly in the affirmative. Once a province has disposed of minority rights in this way and has come to the federal government and said, "Will you please pass a similar resolution," then the next time another province asks for the same thing, what will the response of the federal government be? Will the Newfoundland "precedent" have some influence on the federal government?
I suggest, yes, of course it will. However, we are not talking about precedent in the judicial sense; we are talking about precedent in the political sense. If one province goes to the federal government and receives something, and two years later another province goes to the federal government seeking the same thing, chances are that similar contributions will apply.
Senator Rompkey: If I understand what you are saying, if another province, apart from Newfoundland and Labrador, came to the federal government and asked to make changes in that province, they could use the Newfoundland case as a precedent, even though Mr. Rock also testified that precedents require like facts or similar-if-not-identical principles in order to be valid and applicable. You are telling me that the Government of Canada would accept the political implications of the precedent, even though it would have no basis in law?
Mr. Cavalluzzo: That is correct. Mr. Rock was defining precedent in the way it is applied in courts of law. We are not talking about that. We are talking about political precedent. The political science theory is, "Me, too!" In other words, if two years from now another province asks for the same thing, they will say, "Me, too!"
What will the federal government say? No? How can the federal government not apply similar reasoning and similar decisions to the decision it would face at that point in time?
Senator Rompkey: Surely it could only apply them if there were similar facts or principles at hand.
Mr. Cavalluzzo: Similar facts and similar principles, in my respectful submission, are denominational rights. These denominational rights are applicable across the country. Mr. Tobin demonstrated that in 1981.
Senator Rompkey: That is another question, of course, whether denominational rights are being affected and exactly what rights are being affected.
Mr. Cavalluzzo: I thought we were dealing with denominational rights.
Senator Rompkey: I understand what you are saying; however, the particular question I raised was on the application of the precedent. The question must be: What are denominational rights and how are they being affected?
Mr. Smith: If I can respond, I think everyone around the able understands that. The success of this resolution will create a political momentum which will give comfort and support, at least in the province of Ontario, to those who are less than sympathetic towards a separate school system. We are extremely fearful of that kind of momentum snowballing quickly, given the political climate in the province and given the fact that every level of government is restructuring in an attempt to save money. We are very fearful that things will occur in this province that will be out of our control.
Senator Beaudoin: So it is national?
Senator Milne: Mr. Cavalluzzo, you talked about the precedents which had been set previously. The Pentecostal Assemblies obtained the right to form their own schools in Newfoundland in 1987.
Senator Doody: They had their own schools in 1954. They obtained constitutional protection in 1987.
Senator Milne: I am concerned about this constitutional protection. You have held forth that that was an additional constitutional protection. However, on the flip side, by extending this protection to the Pentecostal Assemblies, were you not, in effect, diluting the rights of some other minorities in Newfoundland?
Mr. Cavalluzzo: I cannot agree with that. When you enhance the rights of a particular minority, I do not think you do so at the expense of another minority.
Senator Milne: You were taking students out of those other schools and putting them into a seventh school system.
Mr. Cavalluzzo: That may be, but my view is that when you increase the rights of a minority, you increase the rights of other minorities as well because you are showing a respect for the fundamental nature of minority rights. I would suggest that, in 1987, when the constitutional amendment passed, the rights of all minorities in Newfoundland were enhanced as a result.
Senator Milne: In other words, you feel that dividing the pot seven ways rather than six ways increases the rights of minorities?
Mr. Cavalluzzo: I do not like to describe fundamental rights as "dividing the pot", but my response would be yes.
Senator Pearson: Mine is also a philosophical question, but my understanding is that all rights must be exercised in the context of other peoples' rights. No right is absolute in a society.
Senator Beaudoin: So said the Supreme Court.
Senator Pearson: With respect to Newfoundlanders who are not Christian, how does your request that we not accept Term 17 protect their rights?
Mr. Cavalluzzo: I feel very hesitant in responding with regard to the situation in Newfoundland, but I could respond if that question were posed in the context of Ontario.
Senator Pearson: I do not think it is valid in the Ontario context.
Mr. Cavalluzzo: That is true, but in terms of your question about non-Christians, the fact is that the constitutional fabric of this country was created on the basis of certain preferred denominational rights which were granted in 1867 and which were granted to Newfoundland in 1949. Your question goes to that basic compact.
Senator Pearson: I do not think it goes to that. My sense is that this country is in the process of evolution and that the richness of this country flows from the diversity of peoples who come here. I see a problem with Newfoundland in that there is no protection for those who are not Christian.
Senator Doody: Since 1949 when the original Terms of Union were accepted, only one denomination has applied for protection, other than those that were listed, and that was the Pentecostal Assemblies. There is no doubt in my mind that any other denomination applying for the same protection and the same privileges would receive them.
Senator Pearson: I am thinking of those with no denomination.
Mr. Cavalluzzo: In response to that, education, as we know, is within the exclusive jurisdiction of the province. Nothing would prevent Newfoundland from creating a public or an agnostic system.
Senator Rompkey: That could be challenged in the court.
Mr. Cavalluzzo: I do not know how it could be challenged.
Senator Rompkey: Under Term 17.
Mr. Cavalluzzo: I do not understand how it could be challenged.
Senator Rompkey: Term 17 gives to the denominations rights in the Constitution. If they feel their rights are being abrogated, they can challenge it in the courts. You are talking about the Government of Newfoundland making laws under the present Constitution.
Mr. Cavalluzzo: I am saying that nothing in the present Term 17 would prohibit the Newfoundland legislature from respecting those denominational rights while at the same time creating another system for people who did not wish to attend denominational schools, as long as those constitutional rights are protected. Nothing prevents that.
Senator Rompkey: Except a court challenge.
Mr. Cavalluzzo: There could be a court challenge, but I would respectfully suggest that it would be dismissed.
Senator Pearson: You are talking about precedents. I understand what you are saying, but my question is this: If this resolution, which is under the bilateral constitutional amendment provision of section 43, does not pass, then that also would create a precedent which I think may be more dangerous than the other one.
Senator Prud'homme: As I said, the more we advance in the debate, the more I see very profound disagreement. I enjoy listening to Senator Pearson. It reminds me of a conversation I had with someone from Newfoundland who is now a teacher in Toronto. They begged me not to fight for only half an hour of religious instruction. It is a question of values. He said that in his school, they are no longer allowed to wish "Merry Christmas" because it does include everyone. They have been told that, from now on, one should say "Season's Greetings."
As a matter of fact, the House of Commons is imitating that feeling as well with respect to what we used to call Christmas cards. Now they are pushing on us inclusiveness for everyone. That worries me, and I will do a lot of thinking on that this summer.
Senator Milne: Those have been my greetings all my life.
Senator Prud'homme: Those are your values. Mine are different.
Senator Gigantès: Sixteen thousand Christmas cards are sent every year by parliamentarians to other parliamentarians, and it is a waste of trees.
The Chair: Senator Prud'homme, ask your question, please.
Senator Prud'homme: Is it more than just protection? In your testimony this morning, you stand by the set of values that the school system represents.
Mr. Cavalluzzo: Yes. Those are the values which, as Mr. Smith stated, are at risk. We have a provincial government which describes itself as revolutionary. It is a "common-sense revolution." They are creating profound changes in the education system in the province, changes which no would have thought possible two years ago. That is what we are talking about in terms of the rights at risk.
Senator Beaudoin: I hear something very strange. The Privy Council and the Supreme Court of Canada in the Hirsch case have said very clearly in respect to Quebec that denominational rights are protected by section 93. I come from Quebec, and we have Catholic groups and Protestant groups. However, the Privy Council said clearly that you may establish a school for the Jewish population. You may establish a non-denominational school. Everyone in Quebec agrees with that.
Now, Senator Rompkey says that Newfoundland cannot, under the present constitution, establish a neutral school, and you say it can.
Mr. Cavalluzzo: Yes, the House of Lords in the 1928 Hirsch case clearly established that.
Senator Beaudoin: That is the way you interpret it.
Do you disagree, Senator Rompkey?
Senator Rompkey: If they can change the school system under the present Constitution, why are we going through this process? The fact is that the government and the legislature of Newfoundland cannot make changes under the present Constitution because they may be challenged in the courts if they make those changes.
The Chair: Senator Rompkey, I think that we should not confuse two issues. The question is, can they change the way in which denominational schools exist in the province of Newfoundland? That certainly is the question before this committee. However, there is also the role of the Department of Education and the Ministry of Education in the province of Newfoundland which, if you read the act of 1949, states that they can do nothing detrimental to the denominational schools, but it does not say that they cannot do anything positive for an alternative school system.
Senator Rompkey: Senator Milne has argued that some things could be detrimental to denominational schools. That is a valid argument.
Senator Beaudoin: This is fundamental. In Newfoundland, if all schools have to be denominational, that is one thing. That means that if they want to have what I would call a "neutral system", they must amend the Constitution -- thus, Term 17. However, I always thought that they may do that providing they do not do anything with the denominational system.
In Quebec, for example, we have schools which are not Catholic or Protestant. We may do that providing, of course, the legislature keeps the denominational system intact. After all, Newfoundland is in the same country as Quebec.
Senator Rompkey: It is in the same country, but it has a denominational system like no other system in this country.
The Chair: Honourable senators, we are getting into a dialogue between senators at this point. Perhaps we can excuse our witnesses and continue our dialogue at a future date.
Senator Beaudoin: It is very important to have the reaction of the witness from Ontario.
The Chair: His reaction on the record is very clear. If they establish non-denominational schools, he does not think the Supreme Court would ever overturn that.
Mr. Cavalluzzo: Senator Rompkey, if you ask Mr. Binnie that question as well, he would answer the same way. I understand he will be here tomorrow.
The committee adjourned.