Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 22 - Evidence - Morning Session
OTTAWA, Wednesday, June 26, 1996
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 9:00 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. Before we begin, we have a bit of unfinished business. We have never passed formally a motion to the effect that any votes on any motions dealing with the disposition in committee of the resolution to amend the Constitution of Canada, Term 17 of the Terms of Union of Newfoundland with Canada, be held no earlier than at the completion of the hearing of all witnesses.
That does not preclude any procedural motions; only votes on any final resolution until we return on July 15.
Senator Doody: I so move, Madam Chair.
The Chair: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chair: Our witnesses this morning are representatives from the Federation of Independent Schools and two legal scholars. We will begin with the representatives from the Federation of Independent Schools.
Welcome. Please begin your presentation.
Mr. Frank Cvitkovitch, President, Federation of Independent Schools: Thank you very much, Senator Carstairs. I am the president of the Federation of Independent Schools in Canada. We would like to extend our appreciation to this committee for accepting our request to be heard on this issue, which we believe is important for all Canadians, including Newfoundlanders.
The main part of our presentation this morning will be made by our executive director, Gary Duthler, who is from Edmonton, Alberta. However, in order to provide your committee with a true picture of our organization, commonly known as FISC, we have brought to the hearing our directors from British Columbia and Ontario. I represent Manitoba and Mr. Duthler represents Alberta.
Before Mr. Duthler provides a detailed statement of our membership across Canada, I will ask Mr. Fred Herfst, from British Columbia, to introduce himself and the B.C. population which he represents.
Mr. Fred Herfst, Vice-President (B.C.) Federation of Independent Schools: Madam Chair, I represent the non-government schools. I use that term in order not to confuse the issue. Non-government schools in British Columbia include what are commonly known as private schools as well as Catholic schools, since we do not have a separate school system as it is understood in Ontario, Saskatchewan or Alberta.
Approximately 8.3 per cent of all students educated in British Columbia are in the independent school system which I represent.
Mr. Cvitkovitch: Representing the Ontario area is Mr. Adrian Guldemond.
Mr. Adrian Guldemond, Treasurer, Federation of Independent Schools: The association which I represent is Ontario based, Madam Chair. Unlike British Columbia, Ontario has a long history on this issue. The separate schools are organized differently from the independent schools. I represent approximately 500 independent schools with about 60,000 students, including denominational, private and what I call secular schools. That includes pretty well the whole range of non- government schools in Ontario outside the official system.
Mr. Cvitkovitch: The Manitoba independent schools are those schools which are outside the one public school system that we have in Manitoba. They include approximately 13,000 students and approximately 90 schools. These schools include Roman Catholic, Ukrainian Catholic, Mennonite, Jewish Calvinist and other Christian and independent schools in our province.
In 1995-96, these schools negotiated a revised funding agreement which provides for continuation of some provincial funding support for all independent schools in Manitoba. The schools are at a level which in 1997-98 will be approximately 50 per cent of the cost per public school division per child.
In addition to our main presentation this morning, Mr. Gary Duthler will also speak initially about the group he represents in Alberta.
Mr. Gary Duthler, Executive Director, Federation of Independent Schools: Madam Chair, the way I usually introduce the organization I represent in Alberta pretty well applies to the Canadian federation as well, except on a larger scale. In Alberta, I usually introduce it this way: We have in our association three Jewish schools, each of which is quite certain the other ones are not really; three Islamic schools, each of which is fairly certain the other two are not quite; a lot of Christian schools of all stripes, all of whom are not so certain about the others' Christianity; Montessori schools, all of whom have their own accreditation system and do not think the others are quite up to snuff.
My job is to talk about the things they all agree upon. Believe it or not, that is not always as short a list as you may think it would be. There are about 20,000 students in independent schools in Alberta. I have prepared for you an overview of independent education in Canada. It has most of those statistics, for those who are interested, and I will not belabour that point. Instead, I should like to commence our presentation with regard to the issues before us.
I will assume that not everyone has had a chance to read through our brief in detail. Although I will not go through it in detail, I will highlight certain areas of it.
In our introduction, we describe who we are. The federation represents approximately 275,000 students in over 1,600 schools across the country. We describe the diversity in Alberta and in the other provinces as well. It is duplicated in each of the provinces.
The federation represents a microcosm of Canada, both in its diversity and in its accommodation of that diversity. Each school association represents unique characteristics based on educational expressions of belief and practice and on differences in provincial educational law and policy. The federation respects and encourages this diversity and thrives on the mutual respect and understanding necessary to draw all participants into a true multicultural mosaic.
It is wonderful that the federation and these associations meet together with a common objective. The common objective always is that if we want our rights to be respected, then we must respect the rights of others. In other words, it is the diversity and the claim to the right to have that diversity which in fact create a tremendous amount of tolerance for the views of others because we recognize that we cannot exist in isolation.
Our commitment to address cooperatively educational issues at a national level representing this diversity prompts our desire to address the Standing Senate Committee on Legal and Constitutional Affairs about the proposed constitutional amendment affecting the denominational character of Newfoundland's education system. As you know, we are not talking about the private schools primarily in Newfoundland; however, the issues are much the same.
Although a number of the schools in our membership would not describe themselves as religious or denominational, there is a consensus that the issue at stake transcends denominational interests. We wish to make it clear from the beginning that we are not opposed to reform in education. Our concern is with the process used by the Government of Newfoundland to achieve the aim of reform, a process which diminishes the constitutional rights of a sizable minority of citizens in that province. We are not talking about educational reform, but essentially about who governs the school system and how it will be governed.
I wish to emphasize that central to the rights protected under Term 17 of the Terms of Union is the question of whether the province, or the parents through their denomination, will have the power to determine if the schools their children attend will reflect the religious and moral values of the home and church.
As you know, there has been much talk about the constitutional amendment being necessary for educational reform. Our understanding is that the process that has been happening in Newfoundland, that is, the discussions between the denominations and the government, have indicated that it is possible to work out agreements without going through this step of a constitutional amendment. That process may take some time; but it is possible to achieve. However, since the Government of Newfoundland has requested the amendment, it is now important for the Government of Canada to deal with the resolution of the Newfoundland government in a manner that not only respects the rights of the people of Newfoundland for appropriate reform but one which also respects the constitutional rights of the denominational minorities.
We have two recommendations in this regard. Our primary position is this. We recommend that there should not be a constitutional amendment, especially not one that appears to be proposed by virtue of a majority acquiescence to the removal of the rights of a minority.
The grounds for this recommendation for simple. There is an inherent danger that this procedure will establish a precedent which will threaten the rights presently provided for others, not only in the field of education but also in other instances, including language, aboriginal rights, social services, et cetera. We are not talking here necessarily of a legal precedent, but a procedural one.
The Terms of Union require the Parliament of Canada to safeguard the rights of the minority. That is why the denominational rights in education were entrenched, even though education itself is a provincial responsibility. It is not enough that the legislature of Newfoundland deems it appropriate to amend Term 17; Parliament must be convinced that the action will not diminish the entrenched rights of the minority.
Therefore, the federation strongly urges the Senate to reject the amendment to Term 17, not only because of the harm it will do to the minorities in Newfoundland but also because of the threat such a precedent will create for other minority rights across Canada.
Our second recommendation is that if the first recommendation is not accepted and the government decides to deal with an amendment to Term 17, then there should be a revision to that proposed amendment. In our brief, we have outlined the paragraphs that are under consideration and the changes we propose.
In paragraph (a), we think there is a problem with the definition of "denominational." If you read that, you see that there is a new definition of "denominational" as opposed to the unidenominational schools which exist. We are not prepared to go into that at length simply because we suspect that is an issue better addressed by the people of Newfoundland who probably understand that language and the implications of it better within their own situation.
Paragraph (b) is the important part for us. You notice that in the proposal before you, paragraph (b) starts with the phrase "subject to provincial legislation." Our suggestion is to leave that off the introduction and start paragraph (b)(i) this way:
(b) where numbers warrant, any class of persons referred to in paragraph (a) shall have the right to have a publicly funded denominational school established, maintained and operated especially for that class, and
In effect, where numbers warrant it, there will be a unidenominational school.
When we talk about the government's right to set up other schools as well, denominational or non-denominational, that would be subject to provincial legislation. We have taken the introduction to paragraph (b), therefore, and added it to paragraph (b)(ii).
Paragraph (c) refers to the provision of religious education and the directing of the teaching aspects of curriculum. We suggest that the words "determine and" be added immediately before the words "direct the teaching of."
Our revisions to the amendment recognize the legitimate interests of the Government of Newfoundland and Labrador in the establishment of schools that meet the needs and aspirations of all citizens as the province's demography evolves. Thus, the legislation may establish denominational schools, unidenominational schools or non-denominational schools.
Our recommendations recognize that the constitutional right granted under Term 17 need not and should not be defeasible by a provincial legislature. The history of francophone education rights in various provinces demonstrates the wisdom of making those rights subject to a "where numbers warrant" clause rather than making them dependent on the pleasures of the provincial legislature. As you know, I come from Alberta where we went through a court case involving these matters. Therefore, we are familiar with the history.
Moreover, the Government of Newfoundland has on several occasions suggested that that is exactly what it meant. In its literature with regard to the referendum and in other places, they have said, "We mean this will happen where numbers warrant." Since that is their intention, we feel that should be made explicit. Future governments may interpret that differently if it is not in the amendment.
In presenting a diversity of educational perspectives, the federation desires to emphasize our interest in promoting a flexible accommodation of parental and provincial objectives in education. Our recommendations allow the Government of Newfoundland to accommodate the interests of non-protected faith and other minority groups without diminishing the rights of denominations that presently enjoy constitutional protection.
Our recommendation to include the words "determine and to direct" in paragraph (c) reflects the reality. There is a difference between directing and the right to determine.
The integrity of the schools will require that the school authorities be able to determine the appropriate qualifications of teachers and the content of "the teaching aspects of curriculum affecting religious beliefs." That integrity will not be protected adequately if they only have the right to direct -- that is, apply -- these matters according to provincial policies.
In conclusion, the Federation of Independent Schools in Canada appreciates the evolving diversity of our nation. There was a time when almost the entire population could be classified as either Protestant or Catholic. Over the years, we have come to recognize that our national character transcends that limited definition. We have now enshrined in our Constitution the legitimacy of our native populations and our French and English lingual minorities. In every instance where we recognize our diversity as a national resource, we have recognized the important role of the educational system in harmonizing our common interests with the rights and responsibilities of the minority. This does not mean that we take away the rights of some for whom the enshrining of their rights in the Constitution was the inducement and basis for joining the union; rather, we expand the principle embodied in those rights to embrace the unfolding of history, and Newfoundland is part of that development.
Recently, as you are probably aware, framework agreement was established. The churches, operating the integrated schools of Newfoundland, are now on record as desiring an end to all unidenominational schools. They have also withdrawn from much of that framework agreement. These churches represent the majority of citizens in Newfoundland, but this should not be taken as consent to remove denominational rights. It simply emphasizes that the churches for whom unidenominational schools are integral to the expression of their faith have become the minority whose rights Term 17 has always been intended to protect.
All citizens of Canada have a stake in the treatment of minorities in any part of this land. Any adjustment to the rights of minorities should only be made with the consent of those minorities if constitutional protection is to have any meaning at all. Therefore, the Government of Canada must ensure that the resolution before it is rejected or at least amended to harmonize the wishes of the majority with the rights of the minority.
We believe our recommendations address this concern and will be of benefit to all interested parties.
Mr. Cvitkovitch: The group we represent encompasses the vast majority of parents who want to direct the education of their children according to their religious beliefs outside the Catholic separate school system. There is a real fear across Canada that what is being proposed in Newfoundland undermines the right of that choice.
In different provinces, there are different systems of funding. I have already commented on the Manitoba situation. I understand that the committee heard yesterday about the infamous Manitoba school question. I am not as old as that school question, but I have been around for about 30 years in terms of negotiating, dealing and seeing the evolution of it, as has Senator Carstairs. Across Canada there is a real concern expressed by those involved in independent schools that this is a threat to minority rights, whether or not it is directly related to funding. It is a taking away of the parental choice that the Government of Canada and the governments of most of the provinces have agreed to in terms of United Nations' documents and other international treaties. That fear is real.
We do not come equipped with a legal brief in terms of constitutional law experts. We have seen some of those briefs. We know that certain constitutional experts will say that this is not a precedent and that it does nothing to intimidate people. However, these are lawyers talking, which does not necessarily create credibility in the community.
There is a concern that what is being removed is a minority right of parental choice. We want to emphasize that and be available for questions in that area, as opposed to any legal questions in regard to constitutional effects.
There is more than a groundswell of concern among parents involved in faith community schools. They believe that this is the beginning of what could be the end in terms of state schools.
The Chair: Every province in this country has a unique form of education. Manitoba's situation is particularly unique. As a result of a compromise worked out several years ago and renegotiated several times because of cuts to education generally -- and just so senators are aware of this particular uniqueness -- all independent schools, including Catholic schools in the province of Manitoba, are entitled to a certain percentage of the operating grants that the province provides to public schools. They are not entitled to funding for the construction of their schools or the maintenance of their schools. However, they are entitled to a certain percentage. That percentage changes, which is why I have not given it to you in exact terms. The goal is to relate it to 80 per cent of the operating funds provided by the province. It does not mean they will receive any money, however, from municipalities which also contribute to education in the province of Manitoba.
In order to qualify for that grant, they must hire certified teachers -- and certification is set by the province -- and they must teach a minimum of Manitoba curriculum. They may go beyond the Manitoba curriculum, but they must teach the minimum of Manitoba curriculum.
I think that gives a bare-bones explanation of the uniqueness of the Manitoba situation. I am sure other provinces have equally unique systems. I know that in most cases they do not receive any funding. In Ontario, as I understand it, there is no funding for independent schools whatsoever. It varies from place to place.
Senator Rompkey: Some independent schools receive tax concessions from the Government of Canada.
The Chair: They are not tax concessions, per se, Senator Rompkey. If they donate, they can obtain a charitable donation.
Senator Rompkey: That is right, which, in a sense, is a break on individual taxes. That benefit flows to the schools.
I wondered about schools in Newfoundland. Is it fair to say that the four schools you represent in Newfoundland are Seventh Day Adventist schools? To my knowledge, there is only one independent private school in Newfoundland. That is in St. John's, and it was started about two years ago.
Mr. Duthler: The Seventh Day Adventist schools are not private schools.
Senator Rompkey: I know that. I am asking if the four schools are in fact Seventh Day Adventist schools.
Mr. Duthler: Their schools are part of the ACSI group. One school is part of what is called the Association of Christian Schools International. There are two others that I have not been able to track down. I received those figures from the Government of Newfoundland. They are not part of any larger organization.
Senator Rompkey: You list four schools in Newfoundland, but you are not sure exactly what four they are.
Mr. Cvitkovitch: Mr. Duthler has provided you with a list of independent schools in the individual provinces.
Senator Rompkey: I am wondering where they are in Newfoundland.
Mr. Cvitkovitch: For example, in Manitoba, 95 schools are shown. Our particular organization does not represent all 95 schools.
Senator Rompkey: This is just an account of the schools that exist in Canada. You do not necessarily represent any number of them.
Mr. Cvitkovitch: We represent the majority of them, but we do not currently have a director from Newfoundland.
Senator Rompkey: I am still confused, but I will leave that point for now.
You state that the move here diminishes the rights of a sizeable minority. How well do you understand the Newfoundland system? How is it organized? How are schools funded? Are you fully aware of the answers to those questions?
Mr. Duthler: In their broad outlines.
Senator Rompkey: Could you tell me a little about how schools are organized and funded in Newfoundland?
Mr. Duthler: It goes back to the original settlement of Newfoundland. Homogeneous communities had their own schools and churches out of which the school system has grown. In effect, they were denominational schools. Those schools are now, in effect, funded by the government. As the system has evolved over the years, a number of churches have integrated their schools. The result is a system very much like the public school system in other provinces.
Senator Rompkey: That is the question. Is it like the public school system in other provinces?
Mr. Duthler: In some ways it is and in some ways it is not.
Senator Rompkey: Can you tell me in which ways it is?
Mr. Duthler: It is in the sense that the school system is more broadly representative of the population in a community. In other words, it is open to all. It is more like what used to exist in Ontario where the public school was assumed to be Protestant but all the different clergy would come in for religious exercises.
Senator Rompkey: The systems in Newfoundland and Ontario are quite different.
Mr. Duthler: I understand that.
Senator Rompkey: There is a public school system and a separate school system in Ontario. That is not the situation in Newfoundland. In Newfoundland, there are denominational schools operated with public funds. Even though there is an integrated section, which essentially includes the Anglican Church, the United Church, the Salvation Army, the Moravians and the Presbyterians, none of those churches have given up their right to public funds. They have worked together in a unified manner, but they have not become a public school system; they have not given up their right to public funds.
I want to point that out because the Newfoundland system is different from the Ontario system. When you say that this move diminishes the rights of a sizeable minority, I wonder of which minority you speak. All churches in Newfoundland have been treated the same way in the past and will be equally affected by this legislation.
Mr. Duthler: Part of the problem is that the section includes the term "denominational school," but it takes on a different meaning. What we propose is more like what exists in the public schools in Ontario.
Senator Rompkey: Are people on public school boards in Ontario elected by denomination?
Mr. Duthler: No, they are not.
Senator Rompkey: They will be in Newfoundland. Two-thirds of the members of the board will be elected by denomination.
Mr. Duthler: That is true. I am talking more in terms of the impact that will have on how the schools are operated and the actual character of the schools. There are many differences and many parallels.
In Ontario and other provinces, denominational schools -- separate schools -- are operated by boards elected from people within the Catholic or Protestant minority.
The issue is not primarily the governance of the integrated schools. I understand that the denominations will continue to have a significant role, but it will be a reduced role. In effect, the aim will be to make all schools integrated, as I understand it, except under the proposed paragraph (b).
Senator Rompkey: However, you are proposing that the words "where numbers warrant" be included to ensure that Catholics can have own their schools, where numbers warrant. In other words, you have assumed already that it is possible for Catholics to have their own schools in Newfoundland. You are saying that this must be inserted to ensure that they do, where numbers warrant. As I read what you are saying, you have already assumed that it is possible for them to have their own schools.
Mr. Duthler: There are two issues here. To a certain extent, the words "where numbers warrant" protect the Catholic, Pentecostal and Adventist schools. That is a fall-back position.
The other issue is whether a provincial government ought to tell the Government of Canada that it wants to change the definition of what the rights of denominations are, without the consent of those denominations. The very fact that the Catholics and the Pentecostals are concerned about this ought to be a clear indication to us.
Senator Rompkey: What evidence do you have for the concerns of the minorities? How is it possible to give evidence of what the minorities think and how they express themselves?
Mr. Duthler: It is possible through their leadership.
Senator Rompkey: How would you define the leadership?
Mr. Duthler: Those who are appointed by the denominations.
Senator Rompkey: Can you give me examples of what leaders that would be?
Mr. Duthler: Some of us were representatives at the Canadian Catholic Schools Trustee Association a couple of weeks ago in Hamilton. We spoke with a number of school trustees from Newfoundland about this issue. We heard their concerns. As a federation, we have in the past invited the executive directors of both the Catholic and the Pentecostal denominations to meet with us to explain the issues.
Mr. Cvitkovitch: In Manitoba, for example, our community -- which, as I have explained, represents a cross-section of denominations -- has been approached. Our appearance here today is as a result of the belief that we should be here, not only as a national association but as a province.
Coming back to the Manitoba school question, we have had experience in terms of negotiation and constitutional rights. The compromise which we currently have was levered through the Catholic constitutional right of the remedial order procedure. That is very much a political and -- we like to think -- made- in-Manitoba solution to the question. The concern that anyone else with constitutional rights should have them taken away by this method is enough to signal that we should participate. There must be a purpose for Parliament to deal with this issue, rather than the province itself taking away these rights, and that purpose must be to protect the minority.
Senator Rompkey: How do you define "minority"?
Mr. Cvitkovitch: We define "minority" in this instance as the Catholic, Pentecostal and Adventist groups, which obviously are threatened in Newfoundland. The evidence of that is that they come to us and tell us that they are threatened, and we believe them.
Senator Rompkey: I am trying to determine who "they" are. As Allan Rock and other people have said, several processes were followed in the province to determine how the people felt as a whole. One process was a referendum which was held, although it was not necessary that it be held. A more important process was the unanimous vote of the legislature. In terms of the leadership and who speaks for whom, what weight do you give to the unanimous decision of the legislature, or would you discount that?
Mr. Cvitkovitch: I am inclined to discount it. If that is all-inclusive and if that is the end of it, why bother going to Parliament? Let the provincial legislature decide. If there were a vote in Manitoba today in terms of funding independent schools, that vote would not receive a majority. If there were a vote on the French language in Manitoba, we would not have a majority.
Senator Rompkey: We need not worry about that because that would not be a problem, as you say.
Mr. Cvitkovitch: It would be a problem. The majority will always do away with minority rights.
Senator Rompkey: You are saying the majority would not vote for that in Manitoba?
Mr. Cvitkovitch: They would not vote in favour of supporting independent schools and they would not vote in favour of the French language, to the extent that we have it in Manitoba. However, that is not the question. Those are rights that groups have and, as I say, with the educational right, we have negotiated on the back of the constitutional right that exists under the BNA Act. For us, any effort to undermine the rights that someone is given at the time they entered into Confederation is a danger. If that is allowed here, regardless of whether it was a different contract or not between Newfoundland and Canada, as opposed to Manitoba and Canada, the precedent is still there in the minds of the people.
Senator Prud'homme: Is the school in Churchill Falls, Labrador one of the private schools?
Senator Rompkey: The school in Churchill Falls, Labrador began as a company school.
Senator Prud'homme: It is still funded by a private corporation.
Senator Rompkey: It is run by the local community association. It receives less funding than it did previously but it does receive some funds. It began as a private company school, that is true, as did the schools in Labrador City and Buchans.
Senator Beaudoin: We are dealing not only with a legal text but with a constitutional text. We have to take that into account. Therefore, each word is paramount even in respect of legislation. The concept of denominational schools has been in the BNA Act for over a century. There have been many cases before the Privy Council and the Supreme Court on that issue. It varies from one province to another, as you have said, Madam Chair. In Manitoba, Quebec, and Ontario, it is very different, as it is in Newfoundland. Therefore, we have to deal with each word.
Will the word "unidenominational" be included in the resolution? What is the legal difference between "denominational" and "unidenominational"? This is of the greatest importance because it is particular to Newfoundland.
Mr. Duthler: As Mr. Cvitkovitch suggested right at the beginning, we are not legal experts. We assume that you will receive a great deal of legal advice as to how the words will be interpreted.
We want to ensure that we bring the concepts across. You have hit on a very important point, senator. The word "unidenominational" is not in the text; however, it is implied.
Senator Beaudoin: Is it contemplated?
Mr. Duthler: What is in the text, in effect, is provision for a denominational school established specifically or especially for that class.
Senator Beaudoin: Where will it be in the legislation of Newfoundland?
Mr. Duthler: That is in paragraph (b)(i) in both versions of it. In effect, you have the words "publicly funded denominational school established, maintained and operated especially for that class." That would be a school specifically for Catholics, operated by the Catholic school board.
Senator Beaudoin: That is clear-cut.
Mr. Duthler: The problem arises because under paragraph (a) the proposal is to call all schools denominational schools, with some exceptions. "Denominational" would then mean that the denominations have the right to provide religious activities in those schools. That is a different definition of "denominational" from what existed prior to this revision. That is where the problem presents itself.
Senator Beaudoin: From where does the concept of unidenominational schools come? Is it in legislation?
Mr. Duthler: No. It is in the literature. This comes up as people talk about it and in the material that we have read.
Senator Beaudoin: Will it be in the resolution?
Mr. Duthler: No.
Senator Beaudoin: Will it be in the legislation of Newfoundland? We have to define that.
Senator Pearson: No.
Mr. Duthler: No. When we use the term, and we use it simply for convenience and clarity at this point, we are saying that in this legislation there are three kinds of schools that the Government of Newfoundland is talking about. It is talking about denominational, which means denominations have an opportunity to teach religion in the schools. It is talking about denominational for a class, which would be a particular Catholic or Pentecostal school. That is where we use the term "unidenominational" to distinguish it from the other.
Senator Doody: Then there is "multi."
Senator Beaudoin: You have multi also?
Senator Doody: That is the other side of the coin, to distinguish the unidenominational schools from public schools that would be established, that is, multidenominational, non- denominational or secular schools.
Senator Beaudoin: The only reason I raise this is because it is not in the resolution.
Senator Doody: No, it is not.
Senator Beaudoin: Where will it be, then?
Senator Doody: In the minds of the people who are operating the schools.
Mr. Duthler: It is a definition, Senator Beaudoin, an explanation of the term "publicly funded denominational school established, maintained and operated especially for that class." Rather than using that long phrase, we say "unidenominational." The two mean the same.
Senator Pearson: I have two types of questions, both of which arise from your presentation. The first question relates to precedents. You were talking about the danger of the precedent. However, precedents are of all kinds. Whatever happens with this resolution in front of us, there will be a precedent. If we turn it back, that will be another precedent. That may not have many implications on the educational side but it would have a lot of implications in terms of federal-provincial relations. When people talk about precedents, I want to ensure that they are aware that it cuts both ways.
I question your talking about this process not being legitimate. It has been legitimately requested of us by the province. They have gone through a legal process which legitimizes what they have done.
That is my first comment. I do not know whether you want to respond to it or not.
Mr. Duthler: You are right, precedents will cut both ways. We are in a crossroads situation. If you turn this down, it will set a very important precedent. In effect, you will be saying that the Government of Canada will not rubber-stamp a constitutional amendment just because a province wants it, unless it is convinced that the rights intended to be protected will be protected. I think that is a good precedent to set. The very fact that the constitutional amendment process requires the consent of the Parliament of Canada is a recognition that this is not just a provincial matter, but that it affects the rest of Canada and that the Government of Canada ought to take a role in protecting the rights of the citizens of a province. I understand that. I also understand that there is a potential for political fallout.
Senator Pearson: I think "fallout" is an unfortunate term in this case.
Mr. Duthler: Yes, you are right.
Senator Pearson: I think there are real issues here. If we were to turn it back, we would have to justify completely our decision. That leads me to my second point, which is the concept that all rights exist in the context of other rights.
Someone brought up the issue of parental rights, the question of international conventions and so on, but there are also children's rights.
We must be absolutely certain that our recommendations, whatever they may be, protect the rights of children along with any other rights to be protected. It is a question of balancing those rights. Some of the terminology, as Senator Beaudoin has carefully stated, is extremely important because rights are being transformed, perhaps not diminished but transformed. The balance between rights may also be transformed; and that is something which we must look at carefully.
Do you have any comments about parental rights?
Mr. Herfst: Perhaps it would help if we took this out of the educational context for a moment and simply asked this question: If we came to this committee from British Columbia having held a referendum to remove francophone rights to education, would the Government of Canada look upon that referendum as justification to remove those rights in British Columbia?
Senator Pearson: We have talked about the fact that the referendum in this case was not a requirement.
Senator Beaudoin: It was not a requirement at all.
Mr. Herfst: I understand it was not a requirement; but the referendum is being used to justify what is being done. Although it was not a requirement, it is in fact part of this legitimate political debate. We come here knowing full well that, legally, this does not set a precedent for other provinces. Our concern is the political implication of what has happened here.
The political implication arises if a province can come to the Government of Canada and say, "We have held a referendum" and use that as justification for removing rights.
Senator Pearson: No, that is not so, although that may be your concern.
Mr. Herfst: That is definitely the concern. That is certainly the way it has been reported in the press. That is the way the case has been argued publicly. It has been said, "We have held a referendum; it was passed by 54 per cent of the people; therefore, we will go ahead with it." That was definitely the justification used publicly, whatever the legal implications of the argument are. That is a different matter.
Senator Pearson: There were many other elements to it. It may be that the media picked that up. I am not sure you should be driven by the media.
Mr. Herfst: I thoroughly understand that there were other elements. I am trying to make the point that this was used as a justification, although not the only justification. If that process can be allowed, and if that justification can be used, then we have set a problematic course for ourselves in terms of what it means to protect a right in the Constitution. That is the concern here.
Mr. Cvitkovitch: I might add, coincidentally, as a member of the constituency of the Honourable Lloyd Axworthy, that I received a mailing from him last week saying that a "yes" vote would not override the Constitution. Of course, his mailing relates to the matter of Quebec and separation. However, basically, it states that it is a duty of the federal government to protect the Canadian Constitution and the vested rights of people in all parts of the country.
Senator Pearson: section 43 is not that kind of constitutional amendment, though. It is very important to keep clear which kind of constitutional amendment we are examining.
Mr. Cvitkovitch: I agree with you that, technically, it is not the same. However, the potential political will is created. You were quite right that, regardless of how you decide, you set a precedent. If this is allowed to go ahead, even though your decision is not made on that basis, someone else may say that it was because of the "yes" vote in Newfoundland. Then someone else will certainly use it, properly or not, as a grounds for a "yes" precedent wherever that is found.
Senator Pearson: Are you saying that Newfoundland is a hostage to this?
Mr. Cvitkovitch: It may be, yes.
Senator Gigantès: I have listened to you. You have not convinced me that the right of various religious minorities to have their own schools is in any way challenged by this amendment. What is diminished by this amendment is the turf of the administrators of those schools.
I am impressed by the unanimous decision of the House of Assembly. These people are politicians who want to be re-elected. I do not know many politicians who are politically suicidal. They must feel certain that they have the support of the population. It is not the referendum that would make them feel that.
Finally, if there are amending formulae in the Constitution, it is because the framers of the Constitution foresaw the need for change. If the need for change has been foreseen and the legal, constitutional method has been inscribed in the Constitution to permit such change, then how can you argue that the change must not occur if the constitutional requirements are met?
Mr. Cvitkovitch: If the framers of the Constitution wanted to provide for change, which was done on the basis of the unanimous vote of the assembly, then that would have been the term under which amendments could be made. That is not what they have said. They have said that there had to be an amendment approved by the assembly and that it then had to be referred to the Government of Canada.
There must be a reason for requiring the Government of Canada to deal with this issue. At our end of it, we keep hearing that the people in Newfoundland want this and, therefore, it should be approved. If that is all that is necessary to amend the Constitution, then that should be the term for amendment, not the provision of referral to the Government of Canada on an issue that is otherwise a matter of provincial responsibility.
Senator Gigantès: Are you saying that the Constitution should not have been framed the way it was framed?
Mr. Cvitkovitch: I am saying that the way it is framed should require consideration on your part of the minority right beyond what the majority wants or the fact that there is unanimity in the legislature.
Senator Gigantès: That was my first point. You have not convinced me of the loss of rights to the religious minorities to have their own schools to which they send their own children and where they will receive religious instruction and take part in religious worship and ceremony. I do not see anything in this amendment that would prohibit that.
Mr. Cvitkovitch: We did not come on behalf of the independent schools of Canada to convince you of the loss being suffered by the minority in Newfoundland and about which they have told us. We have accepted that loss as a given. We did not come to make that point. We came in an effort to communicate how this measure will impact on the rest of Canada in regard to minority rights, particularly with regard to the potential effect on rights in other provinces.
Mr. Duthler: This ties into the question asked by Senator Rompkey earlier about where we come from in addressing the situation in Newfoundland. Please understand that we have within our membership independent Catholic schools which are located across the country and in British Columbia and Manitoba specifically. We have in each province schools of Pentecostal and other religious denominations. All have their internal associations with what is happening in Newfoundland. The feedback comes to us on a number of different levels. In that sense, we hear what the Adventists, the Pentecostals and the Catholics are saying to us, which is that there is a real danger here.
In terms of how that applies particularly, it goes to the introduction to paragraph (b) of the resolution where the class of people to have their own denominational schools, the unidenominational schools, becomes subject to provincial legislation. The right for them to have those schools is now enshrined in the Constitution. That will now become "subject to provincial legislation." That should read at least "where numbers warrant" so that where those denominations exist in groups where there could be a viable school, they would have the right to set up such schools. Under this proposal, the right is no longer there for unidenominational schools. It becomes subject to provincial legislation. That significantly changes the rights of those minorities.
Senator Gigantès: I do not read the text that way. I am sorry.
Senator Prud'homme: Much has been said about the referendum question. I am surprised now that it is not an argument for some of my colleagues who at the moment are sitting across from me. I attended all the debates in the House of Commons. I will repeat again that there was not even a quorum on the 30th, and very few participated. Yet, almost all of them said, "The people have spoken. The referendum, the referendum, the referendum." I was in the gallery, and I heard that. Do not tell me that the referendum was something that turned some of the members around. Some members said, "I had no opinion, but the people of Newfoundland spoke in the referendum, and I have no other choice but to abide by that wish."
You are absolutely right when you say that if there was a referendum at the moment to strike minority rights in British Columbia, out they would go. If the Liberals had been elected in British Columbia and if they held a referendum to strike out the deal that the NDP made with the Nisga'a, the Nisga'a treaty would have gone down the drain.
Do not tell me the referendum had no effect on this issue.
Senator Milne: Gentlemen, there are two points about which I am confused. Mr. Duthler, you spoke with Senator Rompkey about the four independent schools in Newfoundland. Do you represent any of those four schools?
Mr. Duthler: We represent two of them. As I mentioned earlier, we have brought with us for the benefit of the committee an overview. Part of the difficulty is that we wanted to give you an idea of how many independent schools there are. The overview itself has such a breakdown.
Senator Milne: I am not questioning that whatsoever. I was simply unclear as to the answer to Senator Rompkey's question.
On page 3 of your brief, you propose some amendments or recommendations. I can follow quite clearly your proposed amendments to paragraphs (b)(i) and (c). I am confused about the proposed amendment to paragraph (b)(ii) where you would like it to state:
subject to provincial legislation that is uniformly applicable to all schools specifying conditions for the establishment or continued operation of schools, the Legislature may approve ...
Does that not run directly counter to what the Government of Newfoundland is telling us is the reason for this entire exercise? They are now presently financially strapped because of the fact that if they provide funding to one school board, they must provide it to all the others on a per capita basis.
Mr. Duthler: We are saying that should be the case "where numbers warrant." There is no question about that. As to the wording, I am not a lawyer.
Senator Milne: Nor am I, but I am confused by this.
Mr. Duthler: Only lawyers can dream up statements such as "subject to provincial legislation that is uniformly applicable to all schools specifying conditions for the establishment or continued operation of schools." My president is one of those people, and I will probably get a lecture about that afterwards.
Mr. Cvitkovitch: I wish to say that I did not "dream" it up, nor did I write it. An educator did that.
Mr. Duthler: We are talking here about an extension of rights that already exist. If the province decides to do that, they may, subject to provincial legislation. We are saying that, in effect, yes, the province may do that. It extended the rights of the denominational schools to the Pentecostal Church a number of years ago. Subject to provincial legislation, they may, in the future, decide to open other schools, as they see fit. That is their prerogative, whether those schools are denominational or non-denominational.
Senator Milne: Does this not put them right back into the financial soup from which they are trying to extricate themselves?
Mr. Duthler: That is already in their recommendation to you.
Senator Milne: No, they are just saying the last part of that, "the Legislature may approve."
Mr. Duthler: Please notice that paragraph (b) begins with that phrase. It states, "subject to provincial legislation that is uniformly applicable," and then you have (b)(i) which talks about the unidenominational schools. That is followed by (b)(ii).
Senator Milne: In effect, you are putting the preamble to the clause down into the second part of it, is that what you are suggesting?
Mr. Duthler: Exactly.
The Chair: Thank you very much, gentlemen, for your presentation. It is good to see you all, particularly Mr. Cvitkovitch. I must show my bias on that particular front.
Our next two witnesses will stretch our legal minds, particularly those of us who are not lawyers. Benoît Pelletier is from the Faculty of Law at the University of Ottawa, and Dale Gibson is from the Faculty of Law, University of Alberta. I will quickly be accused of bias here because even Professor Gibson has a Manitoba background.
[Translation]
Mr. Benoît Pelletier, Professor, Faculty of Law, University of Ottawa: Thank you, Madam Chair. Honourable senators, I want to thank you for allowing me the honour to address you today on the subject of the proposed amendment to Term 17 of the Terms of Union of Newfoundland with Canada.
With your permission, I will first briefly review the scope of the proposed amendment and then look more closely at the technical details surrounding the constitutional amendment itself.
First of all, as you probably know -- and that is why my comments will be brief in this regard -- Newfoundland currently has a fully denominational school system, which is in fact what makes it unique. Four independent systems operate within it: Catholic, Pentecostal, Seventh Day Adventist and another system that includes the Anglican and United Churches and the Salvation Army.
The proposed amendment is intended to deconstitutionalize denominational rights currently entrenched under Term 17 of the Terms of Union of Newfoundland with Canada in order to replace the current denominational school system with a new one where the majority of schools would be community schools or, if you prefer, interdenominational -- meaning that there would be community school boards and most schools would be community schools.
As I understand the amendment, however, religious education, activities and observances could be maintained, even within the community schools.
However, the role of the churches in administering both school boards and schools would be significantly reduced. Indeed, denominational schools could be maintained, but only where numbers warrant and when that is the parents' wish. There, briefly, is what the proposed amendment would entail.
Now I would like to look a little more closely at a number of more technical and, of course, legal concerns. I should first point out that Term 17 is part of the Terms of Union of Newfoundland with Canada set out in the Schedule to the Newfoundland Act. The Newfoundland Act can be found in the Schedule to the Constitution Act, 1982, and under section 52 of that Act, the Terms of Union of Newfoundland with Canada are part of the Constitution of Canada. The same would apply, of course, to the Newfoundland Act.
What that means, again under section 52, is that the Newfoundland Act and the Terms of Union of Newfoundland with Canada can only be amended in accordance with the procedure for amending the Constitution put in place in 1982 and set out in Part V of the Constitution Act, 1982.
I would also note that although the proposed amendments to the current Term 17 relate to denominational rights, there is one part of Term 17 that remains untouched, that is, the section that grants the province of Newfoundland exclusive authority to make laws in relation to education. This is the same power that the opening paragraph of section 93 of the Constitution Act, 1867, grants to six other Canadian provinces. What this means is that both this provision and the amendment under review do not interfere with the Newfoundland legislature's power to make laws in relation to education. Thus its legislative power over education remains intact. I see that as an extremely important point. An argument could be made that this part, and particularly Term 17, can only be amended under section 38 of the Constitution Act, 1982, with the consent of the Parliament of Canada and seven provinces representing at least 50 per cent of the population of Canada.
So, that part of Term 17 has not been touched and is therefore not at issue in the amendment currently under review. In my view, if one wanted to amend that provision of Term 17 of the Terms of Union of Newfoundland with Canada that grants the Newfoundland legislature authority to make laws in relation to education, such an amendment would have to be made under the 7-50 rule -- that is, the usual procedure set out in section 38 of the Constitution Act, 1982, which calls for the consent of the Parliament of Canada and seven provinces representing 50 per cent of the population of all the provinces.
Having dealt with that section of Term 17, I would now like to concentrate on changes to denominational rights. The question I intend to address is this: under what constitutional amending formula can denominational rights vested in Term 17 be amended?
In my view, it is clear that denominational rights vested in Term 17 can be amended under section 43 of the Constitution Act, 1982. Indeed, this was the very process used in 1987 to amend Term 17 to grant denominational rights to Pentecostal schools.
Of course, one could claim that the case we are dealing with here differs from the one back in 1987, which it does. In 1987, additional denominational rights were granted to Pentecostal schools, but historical denominational rights were not affected. Under this proposed amendment, the historical rights of denominational schools and religious denominations would clearly be threatened.
However, for the purposes of this constitutional amendment, I would forcefully make the point that an amendment to Term 17 to take away or add rights has no concrete effect in my view. Of course, it raises a fundamental issue of direct concern to you, namely should the Senate authorize or endorse anything that could diminish historical or denominational rights? So, that is certainly an issue, one that implies close examination of the merits of the amendment, a certain number of political concerns and the need to consider the role of the Senate and the Parliament of Canada. Again, my view is that this is of no import as far as the application of section 43 is concerned.
Whether Term 17 of the Terms of Union is amended to remove or add denominational rights in no way alters the fact that what is essentially at issue here is an amendment to Term 17. That amendment may go forward, in my view, in accordance with the procedure outlined in section 43. However, simply stating that the amendment falls under section 43 is not a sufficient answer to all the issues that have been raised. Section 43 provides for consent to be given by the Parliament of Canada, including the Senate -- subject to the fact the Senate has only a suspensive veto over such matters -- as well as the consent of all provinces directly affected by the amendment.
The question that arises, then, is this: Would any province other than Newfoundland be potentially or concretely affected by an amendment to Term 17? The answer to that question, I hasten to add, would be no, in my view, as I believe the amendment to Term 17 only concerns the province of Newfoundland. Of course, this could be accomplished under section 14 with the consent of the federal government, and that of the Newfoundland legislature and, at the provincial level, I would even venture to say on its own.
So, those are the technical issues I wanted to raise. Many people are tempted to draw a parallel between the Newfoundland situation and that of Quebec. I would be pleased to answer any of your questions in that regard, if you think it could be useful. I do want to emphasize, however, that there is quite a substantial difference between the Newfoundland and Quebec situations.
In the case of Quebec, the provision that grants denominational rights is section 93 of the Constitution Act, 1867. That section potentially applies to six Canadian provinces. Also, it is often seen as the product of an historical compromise that came about as the Canadian federation was being formed and that would more particularly involve the four founding provinces of Canada.
It should also be noted that because section 93 particularly affects Quebec and Ontario, it is entirely possible that those would be the two provinces most directly affected by an amendment to section 93. Legal experts have differing views as to the process by which section 93 itself could be amended.
Some claim that would require the consent of Quebec, Ontario and the federal government, again under section 43 of the Constitution Act, 1982. Others believe the consent of the federal government and the four founding provinces of Canada would be needed. Still others are of a view that the consent of the federal government and the six provinces to which section 93 effectively or potentially applies would be required.
As you can see, the dynamic surrounding an amendment to section 93 raises, in purely legal terms, issues that are not only different but, in the final analysis, more numerous than those arising out of the amendment to Term 17 in Newfoundland's case. Secondly, the issues raised by an amendment to section 93 of the Constitution Act, 1867, seem to me, from a legal standpoint -- and here I am concerning myself with legal issues only -- to be far less clear-cut than they are in the case of the proposed amendment to Term 17 of the Terms of Union of Newfoundland with Canada.
I am now at your disposal to answer any questions you may have. Or, if you prefer, I can turn it over now to my colleague, Professor Gibson.
[English]
Mr. Dale Gibson, Faculty of Law, University of Alberta: I should say at the outset, to simplify things, that I am in total agreement with everything my colleague has just said.
I have been a professor of constitutional law most of my working life. I now head a small law firm in Alberta which deals chiefly with matters of constitutional law and policy. I am currently involved in a piece of major litigation challenging some changes to the School Act of Alberta, having to do with rights in that province, so the issues which you are considering now are very close to my present interest.
As a Manitoban, now an adopted Albertan, and certainly a westerner, I have no personal stake in any of the matters being considered. As an individual I do not really care what ultimately comes of this resolution. I believe that my role, and that of Professor Pelletier, is to offer any assistance we can on the relatively dry and technical matters you are considering.
I have provided a brief summary of the points I wish to make to the committee. I will not follow the brief in detail but simply touch the high points and add one or two items that I forgot to include when I was preparing it.
At the bottom of page 1 of the outline, you will see three major points with which I wish to deal. The first has to do with the implications of this resolution concerning Quebec sovereignty. The second has to do with implications of the resolution with respect to minorities in the province of Newfoundland. I omitted, but will comment on when I get to that point, implications with respect to minorities outside the province of Newfoundland. Finally, I have some minor concerns regarding the drafting of the resolution itself which I would like to bring to your attention.
With regard to the implications for Quebec sovereignty, I read the debates in the House of Commons and was somewhat astonished by the number of comments, made chiefly by members of the Bloc Québécois but not exclusively so, to the effect that acceptance of this resolution from Newfoundland, because it is based on a referendum, would in some way obligate the Government of Canada in the future to accept a referendum favouring sovereignty from the province of Quebec. In my view, that is a mistaken opinion. I offer three reasons for believing that it is mistaken.
The first is that there are very major differences, both in form and in substance, between the resolution we are dealing with now, which has to do with the modification of one term of union of a province that continues to be a part of the country, and an amendment which would remove a major part of the country from the country. If ever there were apples and oranges, these are apples and oranges.
In terms of form, I agree with Professor Pelletier that this is a section 43 type of amendment, quite appropriately. If honourable senators or the members of the House of Commons had to deal with a resolution concerning the withdrawal of Quebec from Canada, it would not be a section 43 matter. It would be a matter under section 38, in my view. Others believe it would call for unanimous consent. It is not a matter that we need go into at this point, but clearly it would not be a section 43 type of amendment.
The second respect in which I think the view that approving this resolution would somehow approve a Quebec sovereignty resolution is mistaken is the assumption that the referendum in Newfoundland was a crucial part of the amendment process in this case. It was not.
It was perhaps employed for political reasons for the province of Newfoundland, but it did not have to be. The resolution could have appeared before you without a referendum, and it would have fully satisfied constitutional requirements if that had been the case. The referendum, in my submission, is not a significant component.
The third fallacy is the view which was repeatedly expressed by members of the Bloc Québécois in the House of Commons that Parliament is under an obligation to accept the resolution. That is not the case.
According to my reading of the constitutional amending formula, a constitutional obligation exists on the part of the House of Commons independently and on the Senate independently to consider the merits of resolutions which come forward under section 43. If they are found to be wanting in any substantive way, it is the duty of Parliament, in my view, to reject the resolution and send it back for change.
We are dealing here, particularly in this case, with entrenched constitutional rights. Constitutions exist to protect minorities from majorities. The resolution initially passed in any given province will be the product of the majority. What protection is left? It is in the scrutiny of the Senate and the House of Commons on the merits of the matter. I submit it is your duty to look at this totally independently, not by way of a rubber stamp. For that reason, there is no way of saying that, simply because a referendum or resolution or whatever comes from a province, it will automatically require anything to be done in Ottawa.
I will now move to the question of implications for minorities within the province of Newfoundland. First, the existing Term 17 excludes a significant minority from constitutional protection. It excludes those who do not wish to have their children educated in schools with a Christian milieu. There may be parents who want their children educated in schools with a different religious milieu. There may be parents who want their children educated in schools which are totally secular. Those people are without constitutional protection at the moment.
If this resolution offered constitutional protection for that group of people, it seems to me that, to such an extent, it ought to be welcomed by this group. I then go on, however, to ask whether it does provide new protection for that minority. My suggestion is that if it provides any constitutional protection, it is very little.
As I read it, it empowers the legislature of the province of Newfoundland to provide schools for those people, but it does not require them to do so. If they are to have school rights within the province of Newfoundland, it will be as a result of the political goodwill of the Newfoundland legislature.
Senator Gigantès: Are you talking about all classes?
Mr. Gibson: No, sir, I am talking about the excluded class up to this point. Now let me turn to those who are presently protected under Term 17.
According to my reading of this resolution, it would diminish the rights of those who are presently protected under Term 17 because the present term protects them from any provincial law that would prejudicially affect their rights or privileges, whereas the amended Term 17 would simply provide them with a list of specified rights and not that general protection against prejudice.
I must say that the proposed list of rights to be specifically granted are fairly significant rights; the right to have schools, the right to engage in observances, the right to direct curriculum and deal with teachers and so on. However, these rights are not as sweeping, clearly, as the rights which they now have. As was pointed out by the delegation which immediately preceded us, these rights are subject, in terms of the actual continuation of the schools, to provincial legislation. That is a very significant step backwards in protection, in my view.
It is also true that there are rights which are probably already embedded in the existing Constitution which are not specified in the list. In my written brief, I refer, for example, to the right to raise money locally by way of supplementing provincial legislature funding. I see that as a residual right of minorities under the existing Constitution which would be lost.
More important than that is the right to control completely the management of schools. It is true that there is a right of two-thirds representation on school boards, but those school boards can represent a great variety of schools and a great variety of denominations. The result is a significant, overall diminution of the management abilities or rights of the denominational school supporters.
Let me insert at this point a brief comment about minority school rights outside the province of Newfoundland. This is a difficult question to answer which is why you hear different views on it. In an important sense, this resolution should have no impact on rights outside the province of Newfoundland. Clearly it has no legal impact, but the more important question is whether it has a political or constitutional type of impact.
My view is that it does not have an impact outside of the province of Newfoundland if and only if the House of Commons and the Senate look at the matter on its individual merits, study it on its individual merits and accept it or reject it on its individual merits. Then there is no carry-over, no precedent. If, however, the matter is rubber stamped in Ottawa, it seems to me that there is a very significant precedent to apply to other provinces. It may be said, "Well, you have rubber stamped Newfoundland, therefore you should rubber stamp Quebec," or Ontario, or Alberta; whatever it might be.
In my view, the answer to the impact outside of the province of Newfoundland deals with how scrupulously this committee and the Senate overall deals with the merits of the matter. We have seen that, although there was a lengthy and pretty substantial debate in the House of Commons, there was no committee study there and little time for members to study the resolution.
In my submission, the House of Commons did not give the matter the attention it deserves. Only if the Senate gives the matter the attention it deserves can we say that this is a once-only matter without precedential effect.
The final point in my brief deals with drafting concerns. I will simply leave those with you. You can ask me about them if you wish, but my overall feeling is that this is an extremely difficult piece of legal draftsmanship for anyone, including lawyers, to understand. I really do believe, although I have not made the effort, that it could have been written in a way which was a little easier for us all to understand. Perhaps less confusion would have therefore resulted in the debate. I have made one or two specific suggestions and raised a couple of specific questions. I simply leave those with you.
My final point is not dealt with in the brief but it came up often in the debate in the House of Commons: Could Newfoundland achieve its goals vis-à-vis education without a constitutional amendment? Does the Newfoundland government require a constitutional amendment to achieve the reforms about which it is talking?
I submit the answer to that question is that it depends on what the Government of Newfoundland really wants. To the extent that it simply wants to provide non-denominational schools, or schools for denominations now presently protected, it does not need a constitutional amendment. In my view, an amendment was not needed to provide school protection to the Pentecostals in 1987. It was done by constitutional amendment in 1987 to give constitutional status to that right. If the Government of Newfoundland wants to give constitutional status to the rights of non- denominational minorities, et cetera, in Newfoundland, then it does need an amendment, but this amendment does not give any constitutional right.
In terms of non-denominational schools, and in terms of denominations not already protected, my submission is that this resolution is not needed.
However, in terms of other kinds of reforms that the Newfoundland government wants, such as achieving major cost savings by amalgamating school boards and that kind of thing, I submit that it does require this constitutional amendment because under the existing Term 17 you cannot simply amalgamate Roman Catholic schools and other schools. It cannot be done. To do so would interfere with the entrenched right of management. In that sense, to achieve those kinds of reforms, yes, this constitutional amendment is needed.
In conclusion, Madam Chair, as I see it, this resolution does not add to the constitutional rights of anyone. To some extent it diminishes the constitutional rights of those who are already protected under Term 17. It has no significance whatsoever with respect to Quebec sovereignty. With respect to school rights outside the province of Newfoundland, it will only have significance if this committee and the Senate does not do its job properly. If you do your job properly and either accept it or reject it on its merits, there is no precedential value, in my view.
[Translation]
Senator Beaudoin: As far as the legal issues are concerned, I am in general agreement with everything you have said. It is quite clear that the Newfoundland case is unique. It is also clear that the Newfoundland case falls under section 43. The issue of the Quebec referendum is quite a separate matter, which I will come back to later. Legally speaking, I think we can completely isolate the Newfoundland case. On the other hand, we cannot isolate it politically. In my view, that is quite impossible.
If the amendment does not pass in the Senate, the House of Commons will again intervene.
First of all, it is quite true that we are changing the system. Legally, that is not a problem. I fully agree with you, Mr. Pelletier, in strictly legal terms. This does not interfere with education. And we cannot interfere in that area because it is a provincial responsibility. In order to change that, we would have to apply the 7-50 formula. So, we are not interfering in any way in that area.
Term 17, like section 93, is divisible, and thus there is one part dealing with education that safeguards the provinces' responsibilities. The part dealing with denominational rights concerns all of Canada, not only Newfoundland. In that sense, we do have a role to play here in Ottawa.
However, there is another thing that concerns me. This question is addressed mainly to Mr. Pelletier: If, in two years' time, Quebec -- and I don't think this is likely -- requests that an amendment be made to section 93, I would agree that perhaps two, four or even six provinces might have to give their consent.
Legal scholars are strongly divided on that point. You are absolutely right. My feeling is that were a case to be brought before the Supreme Court, the latter would probably show some flexibility and say that for Quebec and Ontario, the consent of perhaps two provinces would be required. Anyway, that would definitely generate some debate, if it ever happens.
As far as a referendum in Quebec is concerned -- in other words, a referendum on secession -- again, I fully agree with you. Referendums are not covered by our amending formula. A referendum is a form of direct democracy. If we want to mix Quebec independence and educational reforms in Newfoundland and other provinces all up in the same pot, we will never accomplish anything. In that sense, it's important to deal with the case at issue here. However, we must remember that politically -- because this is both a legal debate and a political debate -- there will be consequences. Whether they are justified or not, there will be consequences.
[English]
I think the question of how we can isolate that entirely may be answered by Professor Gibson as well.
[Translation]
It is not that clear that we can isolate it. Legally, it is possible. There is only one point that is not clear, and it has to do with section 93 and the provinces of Quebec and Ontario. But as far as the rest is concerned, there is no problem. The same goes for language rights. But how can you possibly isolate this case from all the others?
Mr. Pelletier: Let us first look at the issue of denominational rights per se. I must say that I know of no other case where we have historically given the Parliament of Canada as significant a role in protecting minority rights. Historically, there has been an agreement among federative partners with respect to a certain number of language rights, as well as denominational rights. Those two components of the initial federative agreement were considered absolutely fundamental to Canada's creation.
Senator Beaudoin: Yes, there is no doubt about that.
Mr. Pelletier: In terms of denominational rights, section 93 of the Constitution Act, 1867, provides a right of appeal to the Governor General in Council, and even gives the Parliament of Canada the option of passing what is often called a remedial law. That proves that as far as denominational rights are concerned, we have historically wanted the federal authorities to play a protective role in relation to religious and denominational minorities.
In my view, what was true for section 93, was just as true for Newfoundland, Saskatchewan, Manitoba, Alberta or other provinces that later included in their constituent acts provisions that were similar, but not identical, to section 93 of the Constitution Act, 1867.
You often hear it said that any and all requests to undenominationalize a system must automatically be agreed to because, the argument goes, it is the only way to modernize and shake up our institutions.
However, I do think we have to be very cautious in that regard. It is important to remember, as Professor Gibson so accurately pointed out, that we should not be doing anything that could allow majorities to decide the fate of minorities, that being the very thing the Canadian Constitution wanted to prevent, indeed, prohibit.
Once again, each case must be examined on its merits. It is clear to me that if the Parliament of Canada agrees to Newfoundland's request to amend Term 17, because in this day and age, we can no longer oppose the undenominalization of educational systems, it will later be very difficult for Parliament to refuse a similar request from another Canadian province, particularly one coming from Quebec.
We must not underestimate the importance of the action the Parliament of Canada is preparing to take, in the sense that this is a precedent. It is quite clear that this is a precedent that could eventually be invoked by provinces other than just Newfoundland.
In terms of the flexibility that the Supreme Court of Canada would most likely demonstrate in dealing with the issue of constitutional amendments, were this issue to be referred to it, I fully agree with your view, even though theoretically one could argue that section 93 of the Constitution Act, 1867, for example, can only be amended with the consent of four or six provinces, or even two provinces.
It is possible that the Supreme Court of Canada would authorize amendments to section 93 made with the sole consent of Quebec and the federal government.
Senator Beaudoin: Yes, it's possible.
Mr. Pelletier: Yes, one can conceive of such a thing, particularly at a period in Canada's history when a number of people are speaking out, rightly or wrongly, against the rigidity of the Canadian Constitution, and when the Supreme Court of Canada might be tempted to demonstrate that the Constitution is far more flexible than some would believe.
On the issue of the referendum, particularly in the context of Quebec's accession to sovereignty, as pointed out by my colleague, which is in fact the object of your question, let me just say this: The Quebec referendum, were it to be held in the next few years based on a process similar to the one used last October 30th, would essentially deal with a proposed unilateral declaration of sovereignty under international law. I do not believe the Quebec government intends to comply with the process for amending the Canadian Constitution.
Senator Beaudoin: Exactly.
Mr. Pelletier: So, already the situation is significantly different from the one we are considering here. In this case, we are talking about a referendum held to endorse and support a request to amend the Constitution, but within the Canadian constitutional framework and pursuant to the amending formula put in place in 1982.
The referendum is obviously not intended to replace the current procedure with a new formula based on direct democracy. The established procedure remains in place and requires legislative ratification by the province of Newfoundland and the Parliament of Canada in this particular case. The purpose of the referendum is to support and endorse a request for a constitutional amendment and for the process put in place by the province to amend Term 17.
As regards the Quebec plan to secede from Canada, I believe we are dealing with a completely different issue, since the referendum is intended here to support a process designed to dismantle the Canadian constitutional framework or at least bring the province outside that framework, without observing the normal procedure for amending the Constitution entrenched in 1982.
If I am asked whether the Parliament of Canada, by accepting the resolution brought forward by Newfoundland, will find itself in the position of always having to accept referendum results, whatever their nature, my answer would have to be no. Once again, if a referendum is simply intended to endorse or support a process that is consistent with Canadian constitutional law, that is quite a different situation from a case where a referendum is supporting a process intended to dismantle that same framework.
Senator Beaudoin: That is so true, in fact, that had there been no referendum in Newfoundland, the situation would be exactly the same. It makes absolutely no difference.
Mr. Pelletier: Yes, just as Professor Gibson pointed out.
Senator Beaudoin: I would agree that it is in no way analogous to a province seceding.
Mr. Pelletier: No.
[English]
The Chair: Perhaps Professor Gibson would like to add something to that.
Mr. Gibson: My colleague and my dear friend and former colleague Senator Beaudoin have expressed themselves so clearly that I have nothing further to say on that.
Senator Beaudoin: If we all agree, I will stop there.
Senator Gigantès: Your presentation has been very clear, and I appreciate that. Professor Gibson, when lawyers appear before us, I understand them. When they write, I do not. I am glad that you explained that.
[Translation]
Professor Pelletier, you referred to section 38 as a means of changing something in a province, if that province representing 50 per cent of the population were to agree. Shouldn't that province be part of the seven in that case?
Mr. Pelletier: At the present time, no author would be prepared to either confirm or deny that the province must be part of the 7-50 formula. Section 38 does, of course, set out the 7-50 formula, and it is a general, residual process. It provides that if a constitutional amendment affects a province's rights in the area of education, a province may opt out with financial compensation. All of that is set out in section 38.
Most authors who review section 38 come to the conclusion that where a province's right to make laws in that area is at stake, the applicable process is the one provided for in section 38, namely the 7-50 formula. A province has the right to opt out with financial compensation only if the amendment affects its rights or privileges.
Of course, what comes to mind is the opening paragraph of section 93 of the Constitution Act, 1867, which grants the provinces the authority to make laws in relation to education but which, legally, only applies to six of the ten provinces. Would things be different in a case of amendments affecting Saskatchewan, Alberta, Manitoba or Newfoundland, which have specific provisions in their constituent acts? I believe the answer to that is no. There again, the provinces' authority to make laws in relation to education should be subject to the 7-50 rule under section 38.
Is there a requirement to include the specific province involved when applying the 7-50 rule? Again, this is an issue legal experts have yet to resolve. I would even say it is something that has practically never been addressed or even considered by legal experts up until now. So, I don't feel able to give you any kind of clear-cut answer in that regard. I tend to believe the Supreme Court would in fact demand that the 7-50 formula include the province concerned.
Senator Gigantès: I would like to come back to Quebec. You said a referendum held in Quebec on its plan to secede would be a referendum intended, as far as Quebec is concerned, to dismantle the Canadian constitutional framework and withdraw from same.
However, the rest of Canada will not have dismantled that framework. It would be forced to change its Constitution to allow Quebec to secede. That would take some time. It is quite likely that in the course of this process of constitutional change, other provinces in Canada would say they did not want to keep the same Constitution, one which would give Ontario an overwhelmingly dominant position. All of that would take a lot of time, and could certainly never be accomplished in a year.
When some Quebecers say that this could be accomplished in a year, I guess they either know nothing about legal and constitutional affairs, or their claim that they want to negotiate is nothing but smoke and mirrors.
Mr. Pelletier: I guess you would like to hear my reaction. Well, I believe the question of Quebec's secession raises a great many more issues than just the legal issues you refer to. Were Quebec to become sovereign under international law, mean at some point we would have to officially recognize that the Canadian Constitution no longer applied to Quebec, that its citizens no longer had any obligation to abide by it, and that Quebec courts having jurisdiction in the Quebec State no longer were required to enforce and abide by the Canadian Constitution, and would henceforth be bound only by a new legal order, namely the legal order of a sovereign Quebec.
We would then be dealing with a complete break between our legal order and the Quebec legal order, which would be fully sovereign and thus totally unconcerned with the Canadian Constitution and its fate thereunder. At the same time, a legal order would continue to exist in Canada, that legal order being the Canadian constitutional system of law.
If Canada were to say: We have to amend our Constitution and it's going to take three, five or 10 years; if Quebec becomes sovereign, it will no longer have anything to do with the Canadian Constitution. The problem of amending the Canadian Constitution will then be the sole responsibility of Canada and no longer concern Quebec, its institutions, citizens or courts.
It should also be noted that if Quebec were to become sovereign, one can assume that Quebec would acquire sovereignty, because if Quebec did not acquire sovereignty at least from the standpoint of international law, that would mean the Canadian constitutional order, including the Constitution of Canada, would continue to apply, even to Quebec. If Quebec were to become sovereign, in my view, Canada would not only be facing the problem of how to amend the Constitution to remove any mention of Quebec's existence. Indeed, all of Canada would have to redefine itself as a federative or unitary state. It would have to redefine its treatment of linguistic minorities and of different communities, as well as its values. This is illustrative of the magnitude of the problems not only Canada but its parliamentary institutions would be facing were this to occur.
Senator Gigantès: How could Quebec negotiate, having become sovereign through a unilateral declaration of independence?
Mr. Pelletier: I think we are digressing somewhat from the context of Term 17.
[English]
The Chair: This is fascinating, but perhaps we could concentrate on Term 17 and Newfoundland.
Senator Beaudoin: We are discussing three problems at the same time.
Senator Gigantès: Madam Chair, one of the questions relates to the implications for other provinces. The two professors mentioned Quebec. Professor Pelletier spoke at length -- and brilliantly -- on the constitutional and juridical problems of the secession of Quebec. He has just said that Quebec would not have to worry about what happens legally and constitutionally in the rest of Canada, but with whom would Quebec negotiate the disentanglement?
The Chair: With the greatest of respect, Senator Gigantès, that does not have anything to do with Term 17. Six other senators wish to ask questions specifically on Term 17.
[Translation]
Senator Prud'homme: Mr. Pelletier, I am very pleased to welcome you here. We have been following both your career and your advice for some time. Your comments are always balanced. Hearing it said that Newfoundland is unique is starting to become a little tiresome. The Constitution is full of unique features.
The Constitution provides that you cannot have fewer MPs than senators. That is why Prince Edward Island has four MPs, because there are four senators. New Brunswick should have seven members, but it has 10. Why? It is an exception to the rule. We are told the system in Newfoundland is very costly. Our friends have yet to present us with any substantial or convincing arguments. The whole issue seems to be that the system is very costly. Yet Ontario has never accepted section 133.
[English]
I will propose soon that Ontario abide by section 133. When Parliament returns, that will be my next motion. Why is it that only Quebec has section 133? That is immensely costly. Ontario never wanted to abide by section 133 relating to bilingualism. Everything must be translated, and everything must be in both languages. That is expensive.
I could go on and on with respect to the question of uniqueness. However, Madam Chair will say, "Well, what about Term 17?" This major argument was made all day yesterday, and will be made this afternoon when we hear from Mr. Ovide Mercredi. This is another great uniqueness.
[Translation]
You say that some were added in 1987. That was not debated, as you know. Who would object to adding rights? There was no debate about the fact that the education system in my friends' and neighbours' province of Newfoundland was the worst system around. Yet how can someone be so insulting as to suggest, as Senator Doody did, that a Grade XII graduate in Newfoundland is the equivalent of Grade VII graduate in Ontario. You have to be pretty vulgar, not to mention rude, to use arguments like that!
You clearly stated that in 1987, there had been no debate on the Newfoundland educational system; suddenly, there is a general debate. Why? Some were added. Certainly there would have been a vigorous debate. I was a member of Parliament at the time. So, there would most definitely have been a debate. Senator Rompkey was also a member of Parliament at the time. Senators Doody and Gigantès were members of the Senate at the time. So, there would most certainly have been a debate had someone been proposing to remove rights. In that case, they added some. My whole argument turns on that.
[English]
I repeat that I am still ready to be convinced as a senator. I am not a rubber stamp. I will not rubber stamp this resolution, and other senators should feel the same way.
[Translation]
Otherwise, there would be no justification for the Senate's existence. That is precisely the role of the Senate -- to protect minorities and regions. That is its whole purpose. The Fathers of Confederation demonstrated both wisdom and caution in determining that the Senate had to give its consent.
[English]
Why did the Fathers of Confederation say they needed the consent of the Senate? They did not state that the Senate would be a rubber stamp. Perhaps they did not trust the dealings of the provinces, and history has proven that they were right. Much harm can be done when you leave it to the provinces alone to tackle rights. Madam Chair knows what happened in Manitoba.
I received 17 phone calls this morning, after the hearings of this committee were broadcast on on TV last night, from people who now want to appear before us. They said they did not know the issues were so profound. Some disagree with me, as is their right in a democracy.
[Translation]
I find the attitude of some of my fellow committee members --
[English]
I am not a member of this committee. It is out of total devotion that I come here this week. I have followed this issue from day one. I want it on record that I was the first to ask for hearings a year ago. The matter is before this committee now. Others have joined in, and I am glad that they have.
[Translation]
Mr. Pelletier: I would be remiss were I not to put to you the following thoughts that your own comments inspired. It is clear that if a request to amend the Constitution were eventually to come before the Senate in relation to a language right vested in section 23 of the Manitoba Act, 1870 or section 133 of the Constitution Act, 1867, or any other constitutionally protected language right, the Parliament of Canada could quite legitimately say: There is a distinction to be made between language rights and denominational rights. The former no longer have the same status as denominational rights in terms of defining Canada's fundamental nature.
Based on various elements of differentiation, the Parliament of Canada could take quite a different attitude towards something that would alter a language right, as opposed to a denominational right.
That is probably what my colleague was referring to earlier when he said that each case must be judged on its own merits. If we are talking about an amendment of a different nature that affects rights of a different nature, the Parliament of Canada is clearly under no obligation to behave in the same fashion.
Having said that, it is quite clear to me that if you, as parliamentarians, are presented with other requests to undenominationalize the educational system of other Canadian provinces, the Newfoundland case will be a precedent and could have some impact on the action taken by the Parliament of Canada. If we agree to undenominalization in order to modernize or shake up entrenched systems, as some say is necessary, every time another such request comes forward, Parliament will almost automatically have to acquiesce, subject to the actual conditions surrounding the constitutional change, which may be different or pose a specific problem in one case as opposed to another.
I used the word "shake up" twice but I would point out that I use it reservedly. I consider denominational rights to be important. My view is that denominational rights are still important in our definition of Canada. Does that mean that there is no room for community systems? Just asking the question gives us our answer. There must be room for community systems, just as there must be room for the protections currently given denominational rights.
Last Friday, I was asked about a case in Ontario. A group there wants to file a complaint with the United Nations to stop the funding of Catholic schools in Ontario. They no longer want that funding to be mandatory, so that Catholic schools will no longer be entitled to provincial funds. You can see just how far the Newfoundland precedent has taken us. We see it in Quebec. Now we're starting to see evidence of its impact in Ontario, and I believe it is an issue that could go well beyond the actual Newfoundland case.
If the Senate is not fully cognizant of all of these political and, I would even say, sociological facts, then the Senate will not have all the tools it requires to make the best possible decision under the circumstances.
[English]
Mr. Gibson: I should like to say a few words briefly in response to one of Senator Prud'homme's points. I have to confess -- and one or two of you may already know -- that I have said in writing on more than one occasion that I thought that the Senate ought to be abolished.
Senator Beaudoin: You need unanimity for that.
Mr. Gibson: I must tell you that this is one of those few occasions when I have had to reconsider my opinion. When a matter of very significant constitutional import comes before the other house and is not dealt with adequately, this chamber is needed to do the job that the other house did not do.
Senator Pearson: Professor Gibson, you have said that the fallout or the implications beyond the decision will depend a great deal on how we consider this, and I really appreciate the way you put that. My question is on precedents. What kind of precedent do you think it would set legally and constitutionally if we determine that all the conditions have been fulfilled for the requests that came to us and that were outlined in the presentations we had last week by representatives of the province, and if we decide nevertheless to reject the resolution?
Mr. Gibson: In general terms, I think it would set a good precedent, not in terms of the merits of the particular case but in terms of establishing that it is the role of this house to exercise independent discretion and not just to follow technical conditions.
We are talking here about political precedents rather than legal ones, but even for political precedents, their significance is to be judged on the basis of the reasons that were given for whatever was done. If the reason for passing this is merely that the Parliament was asked by the province, then that carries a very significant impact. If the reason is that Parliament agrees that denominational school rights should be diminished, that also carries a very significant precedential value. If, on the other hand, you were to say, "We have examined this very carefully and in our view there will not be a significant diminution of the rights of minorities," I do not think that that would have much implication for other provinces at all. It would mean that the next time a province came with something like this, you would examine it carefully and see if you agree.
I do think that to accept this change would have a precedential value, at least to the extent that if I am right that there is a diminution of the rights of minorities here, at least it would have the precedential value that the Senate and House of Commons are willing to accept the diminution of minority rights on a province-by-province basis. That is a major precedent, and some would see it as a very dangerous precedent.
Senator Pearson: I come back always to my thought about the balance of rights because by diminishing some rights I think we are increasing the rights of others.
Mr. Gibson: Clearly that is a judgment for you to make rather than me.
Senator Pearson: If we make that conclusion, that would have another impact. In my view, confessional or denominational rights are complicated questions. It is not like being handicapped. People move in and out of denominations.
Mr. Gibson: It is possible.
Senator Doody: Where? Not where I come from.
Senator Pearson: Perhaps not where you come from. My concern is with the rights of children.
Mr. Gibson: I think the question, senator, is what offsetting right is created here. It is important to distinguish between rights that may be granted by legislation and the political arrangement in Newfoundland at the moment, and rights that are granted by constitutional amendment. I do not see new rights being granted to anyone as a result of this constitutional amendment. Rights may well be granted as a political act in Newfoundland, but not as a result of this resolution.
Senator Doody: I was curious about the possible precedent of rejecting this resolution. Senator Pearson has already asked that question, so I will pass.
[Translation]
Senator Poulin: Your research and our discussion this morning are extremely helpful and clearly show just how serious an issue this is. As you so aptly stated, our responsibility is a fairly heavy one. You most appropriately reminded us of our goal, which is to examine the possibility of allowing one province, Newfoundland, to make fundamental changes to its educational system. We are quite aware of the fact that this issue was raised well before our committee began its consideration. It is an issue that goes back at least six years, considering that the government of Newfoundland established a royal commission on this some years back.
The witnesses who preceded you, representing the Federation of Independent Schools, reminded us that every province in this country has its own unique history as far as education is concerned.
[English]
Representatives of the independent schools in Canada reminded us that the rights of minorities in other provinces could become fragile. All of my colleagues in the Senate represent a specific region and very often a specific minority. I am a Franco-Ontarian from Northern Ontario. The issue of minority rights runs deep in my blood.
It is very important that we move beyond appearances and that we are clearly reassured that the changes to Term 17 apply only to one province. It should permit the whole country to recognize that the history of education in Newfoundland is different from the history that I know in Ontario, that we have evolved as a society, and that minorities have evolved. Perhaps you could speak to that issue.
Mr. Gibson: I absolutely agree that virtually every province is unique with respect to the educational rights of minorities. One could go through the history of section 93 having a certain impact on Ontario and Quebec and then being found to have a different impact on New Brunswick and Nova Scotia. One could go through the horrors that occurred in Manitoba. What was thought to be an improvement was not quite an improvement. There were greater changes in the Northwest Territories, and on and on. Clearly, the bottom line is that the rights are different in every case.
I am not sure it is true to say that every province has the rights that it wants. Each province has different rights given the progression of different political situations. Newfoundland, being the last of the provinces in one sense, is the most up to date in terms of constitutional protections for minority rights. For example, Newfoundland is the only province which, under the current Term 17, has denominational rights for denominational colleges. In all other provinces, it either stops at the secondary level, or in some cases it does not even get to the secondary level.
By way of footnote, no one has commented on the fact that denominational college rights will disappear under Term 17.
In terms of providing full protection for denominational rights, Newfoundland has the most protection. If you say that their rights may be now diminished, what will people think in provinces such as New Brunswick, for example, whose minorities have even less rights? Will they say, "Even the extremely minimal rights that we have are now subject to attack"?
One possible solution might be to ask what, as a country, we want vis-à-vis our religious minorities. We should not do it on a piecemeal basis. Those rights were acquired on a piecemeal basis, and the result has been a rather unhappy history. If they are now going to be altered on a piecemeal basis, perhaps the result will be every bit as unhappy. This may be the point in history at which it is worth saying, "Wait a minute, let us take a fuller look at denominational school rights and minority school rights generally across the country and attempt to find some kind of rationalization." For example, why does it have to be done bit by bit and piece by peace as it has been done in the past?
Senator Poulin: Do you not find, though, that whenever we want to progress dans m'importe quel domaine d'activité, that true progress has been built piece by piece, like building a house? When we look at the results today, most provinces are extremely happy with the quality of service they are giving to their minorities. However, perhaps we can prudently, piece by piece, work with each province and recognize the work that has been done to make progress or to bring about change.
This is what I am hearing, having spoken with the premier and several colleagues who live in Newfoundland and who know the system. They have gone through it and their children have gone through it.
Is it not wiser to continue that approach of piece by piece so we can continue exercising the prudence which we have exercised in the past?
Mr. Gibson: There is much wisdom in your statement, if I may say so, Senator Poulin, so long as that piece-by-piece process is done thoughtfully and carefully and not as a quick, expedient political decision.
I keep coming back to my bottom line. The more fully this committee and the Senate does its work, the more acceptable the result, whatever it may be.
[Translation]
M. Pelletier: I would add that while it may be true that every province has a different history when it comes to denominational rights, the fact remains that constitutionally recognized denominational rights are practically all worded and recognized in the same way. For example, section 22 of the Manitoba Act, 1970, section 17 of the Saskatchewan Act and section 17 of the Alberta Act take most of their inspiration from section 93 of the Constitution Act, 1867.
I would point out, though, that Newfoundland is the only province that did not provide for remedial action on the part of the Parliament of Canada and the right of appeal to the Governor General in Council. That is surprising, but it is nonetheless the only province whose constituent act in 1949 did not confirm the federal government's role in protecting denominational minorities.
Should one conclude that the central government cannot take it upon itself to protect denominational minorities in the Newfoundland case? No, I do not believe we could take the argument to that extreme. The simple reason for that being that Newfoundland entered Confederation in 1949, and the framers of that act felt at the time that it was not appropriate to provide for an appeal to the Governor General in Council or the passage of remedial legislation by the Parliament of Canada.
[English]
Senator Rompkey: I would clarify the term "colleges" as used in Newfoundland, and Senator Doody can correct me if I am wrong. I think the act refers to "secondary schools" rather than "post-secondary schools." The colleges that are spoken of are really high schools.
Senator Doody: Some high schools were called colleges as a matter of prestige.
Senator Rompkey: It was based in an elitism which has now disappeared, and rightly so. I wanted to be sure you were not confused on that.
Professor Gibson, you say that rights of denominations are diminished. Minister Rock would have said that some rights were "transferred" from denominations to the government. I believe he used that term when he testified.
Putting that aside for the moment, let us assume that rights are diminished. We should really be clear what those rights are. I read into the record yesterday section 76(3) of the amended Education Act in Newfoundland, 1946. The first act was legislated in 1927. The 1946 amendment was enshrined in 1949.
That act essentially gives to the registered denominations legal access to public funds. I will be specific: As a superintendent who worked for an integrated board, if I wanted to build a school, I would go to the denominational education committee in St. John's. That committee was made up of representatives of the Anglican Church, the Salvation Army and the United Church. The committee head was an Anglican, as it happened, but there were senior officers from the Salvation Army and United Church. I did not go to the bureaucrats or even to the politicians. I may have tried use their influence, but one could not build a school unless the capital funds were approved by that denominational education authority.
The denominations all had the right, constitutionally, to public funds. I put that on the table because I want you to be clear on which rights are diminished. Of course, everything is relative. Therefore, relative to other parts of Canada, how are those rights diminished and how do those rights enable Newfoundland to hold its own, or otherwise, with other parts of Canada? Would you say, for example, that after this amendment the rights of the denominations would be greater than, the same as or less than those of the same seven denominations elsewhere in the country?
I will put the second question on the table because it may be relevant. In paragraph 12 on page 5 of your submission, you refer to specified rights which are extensive and which cover much of what parents could reasonably want.
The term "reasonable" is interesting. Senator Beaudoin and others have used it here. What can parents reasonably expect in respect of denominational schools?
The word "reasonable" must be used with the word "balance." Is there a reasonable balance of the rights of the majority and the rights of the minority in this legislation? Should we look for a reasonable balance? Is it a "reasonable" perspective for us to seek out a "reasonable balance" between the rights of the minority and the rights of the majority?
Mr. Gibson: Senator Rompkey, in my view, reasonableness and balance clearly need to be taken into account when rights are discussed. Rights are not absolute because one person's right can amount to a "non-right" for someone else. Yes, rights must be in a reasonable balance and I would urge that standard.
You asked how the future rights of these various denominations in Newfoundland would compare to their rights in the rest of the country. I cannot give you an accurate accounting of those rights because they vary. However, it is fair to say that much of what is acknowledged by the amended Term 17 goes beyond that which is available in many other provinces. Certainly that is true with respect to some of the denominations which are protected in Newfoundland and which are not protected elsewhere. I absolutely agree with that.
I say that rights will be diminished by this resolution because, as I read it, this resolution contains less than that which is found in the existing legislation and it is less in three important ways.
The most important lessening is that these rights are now subjected to legislative will.
Senator Rompkey: Would you say all the rights?
Mr. Gibson: It subjects the right to have the school, to maintain the school, to the legislative will.
Senator Beaudoin: I think it is "manage."
Mr. Gibson: It states:
(b) subject to provincial legislation that is uniformly applicable to all schools specifying conditions for the establishment or continued operation of schools,
(i) any class of persons referred to in paragraph (a) ...
-- may have a publicly funded denominational school established, maintained or operated.
As I read this, the ongoing right to have a school is subject to legislative control, and that is a very significant step back. If that provision were not in there, if it were not made subject to ongoing legislation, I think it could be said that minorities would be much better protected. With that provision, the basic right to have a school and to continue having the school is subject to legislation, as I read it.
Senator Rompkey: They are supported by public funds. You have to consider that.
Mr. Gibson: You can have your own school, if you want to pay for it. All of this is about publicly funded education. That is a very important one.
One of the other two that I have mentioned is the right to go out to raise your own money locally through local taxation, if you are not getting enough from the central fund. That is a right which exists in some provinces but not in all.
Senator Rompkey: I do not think it has ever existed in our province. We had school tax areas.
Senator Doody: It did not with respect to Term 17.
Mr. Gibson: Finally, the management of the denominational schools in the larger boards is a little difficult to figure out. At the moment, the Catholic schools are managed by Catholic boards, and that is fine. In the future, one would assume that a large board will have some Catholic schools, some integrated schools and so on. Two-thirds of the overall board members are to be elected by all of the denominations in proportion to the particular denomination. What does this do with respect to the management of Catholic schools by Catholic trustees? We will not know until we see how the numbers work out. It might very well shake out that in a given system, for example, there are two Catholic trustees on a 10-member board. What control does that give the Catholic trustees over their own schools? There is, I think, a significant diminution of management there.
Senator Rompkey: My understanding was -- and I am not entirely sure whereof I speak -- that the Catholic members of a board would have some control over a unidenominational school set up within that school board district. That was my understanding of what I think I saw in the framework agreement.
Senator Doody: I have heard that said but I have not seen it written.
Mr. Gibson: It is certainly not in the resolution, senator.
Senator Rompkey: No, it is not in the resolution. You were discussing more than what was in the resolution.
Mr. Gibson: No, I was not. I was trying to restrict myself to the resolution.
Senator Rompkey: There is nothing about funding in the resolution, is there?
Mr. Gibson: Yes.
Senator Rompkey: There is?
Mr. Gibson: I beg your pardon. What I am saying is that in my view that was one of the residual rights under the existing Term 17.
Senator Rompkey: The church has never had it, as far as I know. They could take voluntary contributions, but they never had the taxing power.
Mr. Gibson: If it was never exercised, then clearly the argument is there to say that it was never there; it was not entrenched in 1949.
Senator Forest: Madam Chair, I wish to preface my remarks by complimenting both our presenters this morning. They have certainly been a big help to me.
I should also like to say for their benefit that I am not a member of this committee. However, I am very much concerned about the matter at hand. I returned from Alberta and am here at my own expense because I am deeply concerned about this issue.
I am a former Manitoban. As I mentioned yesterday, I have lived through the result of what a majority in the provincial legislature did to minority rights there. I live in Alberta where the Catholic schools with which I have been associated are very fairly treated. Even at that, I chaired a large board that had to go to the Supreme Court to secure our taxpayers' rights. I am sure you may remember that, professor.
I am very much concerned about the minorities in Newfoundland. However, I trust that the Newfoundlanders will put up a good fight there, one way or the other.
My other concern is with the minorities and the fallout, as you would say, from this issue with respect to other provinces. You mentioned, professor, that if the Senate gave real scrutiny to this issue, it would not set a precedent that might unduly or negatively affect other minorities. Would you care to elaborate for just a minute on the kind of scrutiny which you think would save us from that kind of a precedent?
Mr. Gibson: Senator Forest, I think it has to do with exactly the kind of discussion that is going on now, that is, examining how the Newfoundland situation is similar to or differs from the situation in other provinces. You and I could make a long list of how the Newfoundland situation differs from that in Alberta or in Manitoba. The more those differences are accentuated and the more an attempt is made, as Senator Rompkey put it, to genuinely balance rights within the province of Newfoundland, then the less danger, I think, minorities outside the province of Newfoundland will sense. You simply will not be able to come along on another occasion and say, "Well, the government did this for Newfoundland, so they can do it for Manitoba or Alberta," when the situations can be demonstrated to be significantly different.
The Chair: Is either one of you familiar with the 1988 case of the Quebec Association of Protestant School Boards, Fédération des commissions scolaires du Québec, Commission scolaire Chomedey de Laval, Conseil scolaire de l'île de Montréal and Montreal Catholic School Commission versus the Attorney General of Quebec? The case was finally decided by the Supreme Court in 1993. It seemed to me that they gave a very broad definition of what a province could do under section 93. Do you think a similar judgment would be made by the Supreme Court of Canada with respect to Term 17 as to how broad the powers of the Government of Newfoundland are vis-à-vis their control over education?
Mr. Gibson: First, I must offer several apologies. I made a note to bring that case, yet I forgot to pull it out and read it.
The Chair: I have it.
Mr. Gibson: Although I have read it in the past, I am not sharply familiar with it now. I can certainly not read it right now, although I thank you very much, Madam Chair, for the offer.
As I understand it, that case is about the ability of governments to deal with things in addition to the existing constitutional rights. This goes back to a point I made earlier. If the Newfoundland government had only wanted to provide new rights for non-denominational schools or for denominations not already recognized, clearly it could have done so under its existing powers. That, for me, is the significance of the 1988 decision. I do not think the 1988 decision says that a province can take away from existing rights, and we have been addressing primarily existing rights. I do not see the 1988 decision as allowing the erosion of existing denominational rights in Newfoundland.
[Translation]
Mr. Pelletier: With your permission, I would simply like to add that as regards the 1993 reference on the Education Act, a ruling was handed down by the Supreme Court of Canada. That ruling gave quite a broad interpretation of denominational rights under section 93 of the Constitution Act, 1867. It recognized that Catholics and Protestants in Montreal and Quebec City were not only entitled to their own denominational schools, but also to a structure that would allow them to manage those schools.
What exactly was meant by the term "structure"? Does it mean a school board? Can it mean a denominational committee within a school board, a possibility the Quebec government has raised in its plans to reform the Quebec school system? Did that only imply that Catholics and Protestants would have their say over the way their schools were run? Or did it actually imply giving them their own school boards? There, I must admit the ruling remains unclear.
However, there is no doubt that in 1993, the Supreme Court of Canada did not hesitate to confirm the importance of denominational rights in our society, and even recognized that the right of appeal to the Governor General in Council and the potential passage of "remedial" legislation by the Government of Canada -- although never exercised in the history of Canada -- were outdated -- in other words, it recognized that these provisions are still valid today and could be used.
Under the circumstances, one can only conclude the following from this judgment: the Supreme Court of Canada confirmed, only a few years ago, the importance of the historical compromise that came about in Canada in the area of denominational rights.
[English]
Mr. Gibson: The point is very well taken. The right of minorities under existing section 93 to go to the federal government for assistance if they have not been dealt with effectively is missing. It is important, and it is an important thing to be missing from the Newfoundland section.
While it is true that that provision has never been used in the sense of bringing it to a full decision or a full action on the part of the federal government, it is also true that in the Manitoba debate of the 1890s, a submission to the federal government by the minorities brought about what was eventually called the Laurier-Greenway compromise. It was not a terribly good compromise from the point of view of the minorities, but nevertheless that provision did stand as a kind of enforcement mechanism which does not exist in Quebec. I agree with my colleague on that point.
The Chair: I think it is fair to say that the reason a settlement was made with the Manitoba schools in the mid-1980s was the threat to do that again.
Senator Beaudoin: I am very glad you raised that point because it is exactly in line with my question.
I asked yesterday, as did Senator Rompkey, about Term 17. There is a debate as to the extent the legislature of Newfoundland can legislate for schools that are not denominational. Every time I asked that question, the answer has been, "Wait for the experts." Well, the experts are here, and I raise my question again.
I cannot imagine that a legislature in our country has no right to legislate about education, secular or non-secular. I always thought that the denominational rights are a constitutional guarantee for the religious groups, but the competence itself is still there. It is not too clear, as Senator Rompkey said. What is your opinion?
Mr. Gibson: My view is exactly yours, Senator Beaudoin: The power is already there in the hands of the legislature.
Senator Beaudoin: They have it?
Mr. Gibson: To provide for public schools, non-denominational schools, and other denominations.
Senator Rompkey: Out of what funds, though?
Senator Beaudoin: It is not a question of money; it is a question of jurisdiction.
Mr. Gibson: Senator Rompkey, the existing Constitution does not say that all money goes to the denominational schools.
Senator Rompkey: Yes, it does. I can read you the clause I read yesterday. Section 76(3) of the 1946 amendment to the 1927 act which was enshrined in 1949 reads:
Moneys provided by the Commission of Government for Colleges, for assistance to pupil teachers, for Board contingencies, for industrial education, and for the erection and equipment of schools shall be apportioned among the several religious denominations according to their respective populations and may be expended for such purposes upon the recommendation of the proper Executive Officer and in accordance with the provisions of this Act and of regulations made thereunder.
Mr. Gibson: I read that as money provided to those schools is controlled in that way.
Senator Rompkey: As I understand it, this says the total budget for the construction of schools, for example, would have to be divided among the denominations.
Mr. Gibson: I am saying that I do not read it that way.
Senator Rompkey: You may not read it that way, but I am telling you the experience of one who worked in the system.
Mr. Gibson: Was there ever an attempt by the Government of Newfoundland to provide moneys to other schools? My submission is that that can be done. They can call it whatever they want to call it.
Senator Doody: They provide money to schools for the deaf. That is non-denominational.
The Chair: They did it for almost 33 years to the Pentecostal schools that were not part of 1949.
Senator Rompkey: They were an additional denomination.
The Chair: They were not a denomination as recognized in the Constitution.
Senator Rompkey: That is true. They could very well include the Jehovah's Witnesses and the Moravians and the Presbyterians and so on. They could do that, but they would not be protected. None of those would be protected under law. If another church in 1954 wanted to object to the Pentecostals getting money, they could conceivably have done it and legally been right to do so, because they are protected under law. They did not do that, but they could have done it.
Senator Beaudoin: The core of the system is that the power over the purse is in Parliament. The power to levy taxes, et cetera, exists in Newfoundland. I cannot imagine that they will change that arrangement.
I think it would be unbelievable if a legislature that has full power in the field of education could not spend money the way it wants, except that it would have to comply with the denominational rights. The Hirsch case was in 1927, before the entry into Confederation of Newfoundland, but it says to Quebec that it has to respect section 93, although it may establish a Jewish school or a neutral school. I am sure they may do that in Newfoundland.
Senator Rompkey: There are no Jewish schools in Newfoundland.
Senator Beaudoin: I would like to hear from Professors Gibson and Pelletier on that.
Mr. Gibson: As I see it, Term 17, or all of those similar guarantees in the Constitution, wherever they apply, are the lowest common denominators -- this much is guaranteed; above that much is within the full realm of the legislature to provide. Senator Rompkey is right that that would not be constitutionally guaranteed, but I believe that the right to provide it legislatively exists.
Senator Gigantès: In a very poor province, the amount of money you give to all the denominations is not much.
I am a little uncomfortable with the use that has been made of the word "reasonable." Religion and faith have more to do with faith and passion than with reason. What may appear reasonable to someone may not appear reasonable to someone else. I would have preferred if the term "reasonable" had been left aside and you had only talked of judicial precedents, and so on. The term "reasonable" has made me uncomfortable, and I wanted to say so.
Mr. Gibson: Senator, the term does come from my brief so I take the blame for it. Let me say that I completely agree with you that from the point of view of the minorities or majorities we are discussing, the individual groups affected, it is not a question of reason, it is a question of faith or need. However, from the point of view of those who must make a decision for all of these different faiths, the judgment, in my submission, must be accomplished by a reasonable balancing process and not by passion.
It seems to me that this chamber is not the chamber where such passion should rule. This is the chamber where reason should rule.
Senator Gigantès: The amendment proposed for Term 17 seem to someone like me to be perfectly reasonable, but to someone like Senator Doody, whom I much respect, it does not seem reasonable. So we should not use the term "reasonable."
Mr. Gibson: I am happy with any other term.
The Chair: Thank you, Professors Gibson and Pelletier. We are most appreciative of your presentation this morning.
The committee adjourned.