Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 22 - Evidence - Afternoon Session
OTTAWA, Wednesday, June 26, 1996
The Standing Senate Committee on Legal and Constitutional Affairs met this day, at 1:30 p.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: Honourable senators, we will begin our afternoon with Mr. Ian Binnie, a lawyer with McCarthy Tétrault.
Please proceed, Mr. Binnie.
Mr. Ian Binnie, Lawyer, McCarthy Tétrault: Honourable senators, I should say a few sentences about myself. I was in the Department of Justice at the time the 1982 constitutional amendments were passed. From 1982 to 1986, I was the Associate Deputy Minister of Justice. Before and after being in Ottawa, I was in private practice in Toronto. At the moment, I am with the firm of McCarthy Tétrault.
By way of public law experience, in addition to working within the department, since moving to private practice I have represented Canada before the International Court of Justice. I have represented the Senate on occasion in the Supreme Court of Canada. I take it my opinions today will be treated with as little weight as they are when you act as my client.
I thought it would be useful to say something about the context of the amendments to Term 17 because the Supreme Court of Canada, as you know, has had quite a bit to say on the subject of denominational and linguistic rights. I have five summary points to leave with you as a framework within which to consider these amendments. The first three I draw from the Quebec Education Act Reference decision in 1993.
The first point is that you do not look either on section 93 of the Constitution or on Term 17 simply as a species of entrenched rights. The courts emphasize as a first proposition that it is a grant of legislative power -- that is to say, it authorizes the provincial government to deal exclusively in the matter of education. The rights of denominational schools are treated by the court as a limitation on the grant of legislative power. That is important because it shows that, from the outset of section 93, there is a balance to be drawn between legislative power and the limits that surround it.
The third proposition or element is that the courts have said time and time again -- including the 1993 Reference re Education Act (Quebec) -- that imposing too many limits on the provincial legislative power would prevent the province from exercising its jurisdiction over education effectively.
From those three propositions, the court has derived a fourth, which is that there is a balance between the jurisdiction of the province to regulate the education system in the best interests of the population and the right of denominational schools to define what precisely are the rights that pertain to denominational schools. The courts have warned against saying that everything done by a denominational school somehow relates to its denominational characteristics.
The Supreme Court, in the 1989 Quebec Protestant School Board case, drew a distinction within denominational schools between denominational aspects and non-denominational aspects. They said that the former are protected under section 93 and, by extension, Term 17. They defined those core values in the Quebec context as religious and moral education, indicating that that is what the constitution seeks to protect, even though the language of section 93 and the language of Term 17 may, on first reading, be broader. The court added that there may be elements of non-denominational features, such as financing, which must support the denominational features. There is a division of the denominational school structure into a number of different aspects, but the core is religious and moral education.
The fifth proposition, which was addressed by the Supreme Court in the Ontario Separate School Reference, is that the machinery of education must be modernized and altered over a period of time to respond to evolving needs. A distinction is drawn between what is delivered in the classroom in terms of this religious and moral education and the machinery of delivering that moral and education to the students who are ultimately the beneficiaries of the system.
If I take those five propositions and look at what is proposed by way of amendment to Term 17, what is contemplated is not that the province is to create a non-denominational system or that it is to bring to an end a denominational system; rather, it is a reorganization.
In terms of minority values and minority interests -- which are at issue across the country, according to some of the witnesses who have appeared before you -- the question at the end of the day is whether this reorganization has to do with efficiency and prudence in the expenditure of public moneys or whether the reorganization strikes at what the Supreme Court of Canada has defined as the core values of denominational rights. That, in turn, leads to the question as to whether there is, in this proposal, a transfer to the legislature of any rights that are not machinery rights or program delivery rights but are rights which strike at the core values of denominational education.
With that in mind, if we look at Term 17 as amended, we see that, at the opening, there is a legislative grant in common with section 93 and companion provisions in other provinces and the existing Term 17. The courts have laid great weight on that aspect of the balance.
Subsection (a), as I read it, is essentially a grandfather clause permitting existing schools to continue to have the right to provide for religious education activities and observances, which seems to me to focus on what the Supreme Court has said is the essence of denominational education. It does not cover everything that is covered in the existing Term 17. I am certainly not an expert on the Newfoundland educational system in 1949, but rights are exercised by the denominations and by the churches in relation to schools and facilities which are not identified in subsection (a).
The question is this: To what extent are those non-core rights -- which do not address what in constitutional terms the Supreme Court has said are the core values of denominational education -- to be balanced off against the rights of the legislature to deal prudently with public money and to deal with the concept of need?
That takes us to subsection (b), which addresses this overall framework of provincial legislation that is uniformly applicable to all schools. Again, to borrow on Supreme Court cases, the attempt to identify non-core values should really be left to the guardians of the public purse: the legislatures. From a student's point of view, it would include not only the right of the student to denominational education as identified in the subsection, but other factors which may not touch the student in a denominational sense, such as the ability to consolidate schools, provide laboratories and enriched programs, and the right of taxpayers who, in addition to their denominational interests, also have a general interest in the administration of government.
Subsection (b) insists that any criteria applied by the provincial legislature in the area of non-core values -- that is, those that have nothing to do with religious education activities or observances -- be uniformly applicable. If they are uniformly applicable so that all denominations grow and abate and are affected in the same way, that is the protection for existing denominational schools to continue the programs in the future as they have in the past.
I understand there have been objections that this could be misconstrued and abused by the provincial legislature and that there should be some check built into the constitutional amendment against or in addition to uniform applicability. One of those checks would be a right to establish an unidenominational school where numbers warrant.
I should like to address this concept of "where numbers warrant" because it grows out of section 23 jurisprudence under the Charter in relation to minority language rights. There is no parallel between denominational rights and linguistic rights in terms of the role and function in the Constitution. They are both aspects of minority rights, it is true, but as the Supreme Court has pointed out, denominational rights essentially are historical in origin and they capture whatever it was that existed, good or bad, as of the date of the union. It is a historical protection of the status quo, and the Supreme Court has put those kinds of rights on a lower plane of importance than fundamental legal rights in the Constitution which the court sees not in terms of preserving the status quo but in the evolution of Canadian society.
In terms of linguistic rights, the Supreme Court says that section 23 is a statement that the status quo is not good enough; it is a rejection of the status quo. It is a remedial provision, whereas Term 17 is not remedial. Therefore "where numbers warrant" is designed to make inroads on existing legislative judgment and to expand the rights of linguistic minorities according to the sliding scale with which you are all familiar.
You must keep in mind the distinction between a right which captures a historical snapshot -- which is what one is talking about here, albeit one of enormous importance -- and a remedial right which is to be pushed by the courts where numbers warrant.
No matter what criteria are placed in the establishment and continuation of schools, no matter what considerations are present, whether they are pedagogical or financial, at the end of the day the question is who makes the decision. "Where numbers warrant" is a statement that the decision ultimately goes over into the courts. The courts, as you know, have been very elusive at determining what is meant by "where numbers warrant."
Because of the way these amendments are drawn, the decision goes into the legislature provided the legislature deals uniformly with all schools. The question is: In matters which effectively touch the public purse and affect matters outside the core denominational values, is it appropriate that people who are elected ultimately make those kind of decisions?
Subparagraph (c) relates to the direction of teaching of aspects of curriculum affecting religious beliefs, of student admission policy, and assignment. There is a concern that this may not extend to a determination of the curriculum but only to implementation.
If you were to consult any standard dictionary on what is meant by "direction," you would likely see something similar to this: carrying out, organizing, supervising and determining the course of the activity being directed.
Linguistically then, adding "determine and direct" does not add very much except to pander to the lawyers' love of saying in several words what ordinary people say in one word.
The other principled concern is fear that the courts will say "direct" only means "implement." One must look at Term 17 and ask who is determining that which is to be implemented. The objectors on that point must say that it is not the churches but the legislature which gives direction to religious education and that denominational schools merely implement it. That would be totally at odds with everything in Term 17 which states that, in this area of religious instruction, activities, and observances, it is not the legislature but the churches.
Of those who say they do not know whether "direction" includes "determination," one should ask who it is that is supposed to determine. The only conceivable answer on the face of Term 17 is that the denominations themselves determine, which simply reinforces that those who "direct" also "determine."
I do not wish to say very much about the balance of Term 17. Subsection (d) reflects the principle of non-discrimination which is a continuance of the present regime.
Subsection (e) deals with the election to the boards. As I understand the concept of subsection (e), the denominations who hold Term 17 rights, those classes of persons, elect not less than two-thirds. Within that two-thirds, there is a proportional right to elect trustees according to the population of that particular class.
Professor Gibson left with you this morning what he considered to be some anomalies in the drafting. I simply point out that one can always, particularly in a crowd of lawyers, think up new and more complicated ways of saying things. The question at this stage of the process is whether the drafting issues are sufficient to precipitate a reworking of this whole process. That is true of the desire to add the word "determine," but it also relates to the anomalies which Professor Gibson believes he may have identified in the drafting.
I will deal in one sentence each with his three concerns: It is evident on the face of Term 17 that the guarantee expressed in subsection 17(c) is not extended to 17(b)(ii) schools but is related and deliberately related to 17(b)(i) schools only.
Insofar as the grandfather clause is concerned, I am not sure why he talks about persons who had rights in 1949 because, as he points out, the introduction to the clause is "class." It is the class which existed in 1949, and the individuals who make up that class are not limited to those in existence at that date.
With regard to subclause (c), he has expressed a concern that one part of the amendment refers to "non-discrimination" and another to "proportionality." They are really different objectives. One has to do with non-discriminatory funding, which is designed to carry forward the language in existing Term 17; the other is this concept of school governance in which the concept of proportionality would appear to be quite appropriate.
Madam Chair, the length of my comments is perhaps a result of not having put them concisely on paper. I would be delighted to answer any questions the senators may have.
Senator Doody: Mr. Binnie, central to your presentation and your defence, in effect, of this proposed amendment is that the proposed amendment preserves the rights of the denominations to maintain their traditional way of regulating the religious atmosphere of the schools which, up to now, they have controlled. You speak of the core values being preserved.
There are thousands of people in Newfoundland who feel that this proposed amendment will destroy the core value of the system they have known all this time. There is a great deal more to a denominational education, as has been pointed out by a variety of witnesses over the past several days, than just half an hour of religious instruction or permission for a religious celebration in a school at a given time. There is an ambience, an atmosphere, a tradition, a system of ethics and values which has been built up over generations which is at risk.
Do you really believe that the denominational system of education which exists today in Newfoundland will continue to exist with the proposed new Term 17?
Mr. Binnie: I am not suggesting that the system continue. I am suggesting that the point you just made in terms of constitutional values was put to the Supreme Court in the 1989 Protestant School Board case where it was argued that the Protestant educational ethic touched upon every aspect of education and every aspect of the functioning of the school. That proposition was put directly and forcefully to the Supreme Court.
The answer of the Supreme Court was not to disagree with that concept but to say that the intention of denominational rights as a constitutional value was narrower because in the Constitution there must be a balance between the rights of the legislature and the limitation on the rights.
I was describing to the committee not a personal view of how broadly denominational education touches on schools, but suggesting to those who say that this amendment strikes at denominational values that one must look at how the Supreme Court has defined those aspects of denominational schools which touch denomination as distinguished from other aspects of denominational schools which the court says are not constitutionally protected.
Senator Doody: I have no doubt that the Supreme Court said exactly that. However, I am concerned about the rights as they now exist for the minorities in Newfoundland and the impact that this proposed amendment will have on these rights. They will be diminished under this proposed amendment, will they not?
Mr. Binnie: As I understand it, the rights that are diminished are essentially rights that will go to the construction and funding of schools -- the machinery of the educational system. As I indicated, the courts have said that legislatures should be able to adapt over time to changing conditions. Yes, I am sure there will be changes; however, as I understand it, those changes are not within what have been defined as the core constitutional values.
Senator Doody: I missed something somewhere. How can rights be directed toward the construction of new schools? Rights are rights are rights. Are we talking about principles, or are we talking about economics?
Mr. Binnie: I will offer an analogy with which I know the committee has dealt in other contexts, and that is the jurisdiction over Indians and lands reserved for Indians, which is also an ability to provide for a minority. The Supreme Court has been conscious of inquiring as to what are those rights that pertain to an individual human being by reason of his aboriginality and what are the reasons which may be equally important to that individual or community which do not strike at aboriginality. It is only the former which are constitutionally contemplated in section 91(24).
Yes, you are dealing with rights, and you are dealing with rights of individuals and classes of individuals, but there must be a process of characterizing whether the particular rights of administration -- if those are the rights to which you are referring -- strike at the core of denomination.
Senator Doody: Can you divert rights to economics? Can you divert the rights of a minority toward a school program or a building program or a construction program? What are rights for? What does the Constitution do in terms of the protection of rights? It does not deal with the diversification or the distribution of the wealth of a province or country. It deals with the protection of the basic rights of the individuals who live in it.
In 1949, when Newfoundland joined Canada, Newfoundland was offered certain rights for various religious minorities. Now I am being told that in the interests of more money for school programs, these rights will be diminished. Did I misinterpret you?
Mr. Binnie: With respect, I think you did. I am not trading off money against rights, but I am suggesting that there is more than one set of rights at play. In terms of language rights -- to try to pick something which is not directly in conflict here -- the courts have said that there are minority language rights but that the population may not justify the cost of supplying it and that there is a balance. In terms of denominational education, the courts have said that there is a balance between the cost of supplying the education and the rights sought to be protected within the system.
I do not pretend to be an expert on the Newfoundland education system, but if there is a problem with declining enrolment and a problem with the amount of money that governments have to spend, should it not be open to rationalize --
Senator Doody: Then we change the Constitution. We are not talking about a small number of people. We are talking about 37 per cent of the population in terms of the Roman Catholics and 7 per cent in terms of the Pentecostals. That is not a small minority; it is a very substantial minority. I do not pretend to speak for each and every one of these people individually. However, I do know that they are very agitated, excited, concerned and worried about this proposed amendment. They see it as the erosion of rights that they earned in 1949 by accepting Confederation with this country. It seems these rights will be eroded now.
The economic aspect to which you keep returning is, in my mind, irrelevant to the principle involved here. Most of the problems in terms of the financial implications appear to be either resolved or in the process of being resolved. The number of school boards has been reduced dramatically. A joint interdenominational construction board is being established to distribute the available funds on the basis of need. There will be a joint school bus system for the various denominations, and so on. All the economic problems appear to be in the process of being addressed or corrected.
I am speaking of the basic principle of the protection of minorities under the Constitution of Canada. Bringing an economic factor into it really diminishes the whole constitutional process.
Mr. Binnie: The point I was endeavouring to make is that the Supreme Court does not accept the distinction you draw between denominational rights and linguistic rights on the one hand and economics on the other. The court says that these rights do not exist as an imperative in the way of a right to be presumed innocent because there are massive financial implications of giving effect to these rights. It is not something that is being added to the Constitution, it is there. It is there in the case of linguistic minorities, and it is there in the case of denominations.
As I understand it, all that is at issue here is that if there is a way of reorganizing denominational education in Newfoundland in a way which preserves what the courts have considered to be the core constitutional values pertaining to denominational groups, then other interests, such as the effective expenditure of public moneys, should be looked at in terms of balance. It is not trading off money against rights; it is a definition of that right.
Senator Beaudoin: Denominational rights are not exactly the same from one province to another. For example, in Quebec, it has been stated that they include the right to receive subsidies from the state, the right to tax, and the right to select professors and books. The more I hear from the other provinces, the more it seems that that it is not exactly the same in the other provinces.
The denominational school system in Newfoundland is very strong. We are told that, nevertheless, constitutionally speaking, the legislature may legislate for schools that are not denominational. There may be a question of money, but I am dealing with the principles here. The state may do that.
That being the case, if they ask for an amendment, it must be because they want more power. If it were possible to do that without an amendment, then they would not request an amendment.
I have no doubt that this matter falls under section 43 of the Constitution Act, 1982. You have some doubts in that regard, but I do not. Section 93, or Term 17, is divisible in law. In other words, if you want to amend competence in the field of education, then you need seven provinces and 50 per cent of the population. If you want to change the system in Newfoundland, then you need a bilateral amendment. Legally speaking, I think that is the case.
Therefore, the problem is one of philosophy and policy. Is the transfer of rights from the classes of person to the state an acceptable or reasonable reform in Newfoundland? This is what it is about. Do you see it that way?
Mr. Binnie: In a sense, this goes back to Senator Doody's question. I believe the authority to create new schools is in the Newfoundland legislature now. However, it is in the context of the participation of all denominations under the practices and procedures as they existed under the law in 1948. There is quite a bit of institutional complication that does not exist in other provinces.
On the funding question, as I understand it, and as I believe you have had discussion with other witnesses, if they are trying to establish new schools, they can do that, and they can probably finance it. However, it means increasing the allocation of money to the denominations in accordance with the population and not in accordance with need.
While there is the power, is it realistic to exercise the power, given the historical context created by 1948? I agree with you that it is a policy judgment as to whether you clear out some of that historical context which, constitutionally, probably does not affect the core values of denominational education as interpreted by the Supreme Court of Canada.
Do you retain all of that 1948 context in the year 2000, and, if so, why? You get into the other area of whether you can organize it more efficiently and whether you can deliver a better educational system by changing the machinery and without changing the importance and the role of the curriculum and the teachers and the other things preserved by Term 17.
Ultimately, it is a policy judgment as to what extent you let go of the past in response to what are seen to be needs of the future. That balance is for other than lawyers to make.
Senator Beaudoin: I will select one clear case. I refer to the right to hire professors. If I am not mistaken -- and I will ask this question this afternoon of the people from Quebec -- it is a denominational right in Quebec. The selection of books is a denominational right. In some other provinces, it is not.
We are here in our own right. We are a legislative house. Obviously, we have the right to say "yes", "no", or amend it. However, if it is a bilateral amendment formula that applies in this case, which in my opinion it is, then we must take into account the situation in the entire country.
Education falls under provincial jurisdiction. We should not be touching education. Let us leave Newfoundland with its schools.
Our power is not over education; our power is about denominational rights. We may be in favour of a secular system of schools, but it is up to the Senate to decide. We must keep in mind that we cannot entirely isolate Newfoundland from Quebec, Ontario, Manitoba, Saskatchewan, and Alberta. It is in that sense that we in this second house are to a certain extent the guardians of the regions, not legally speaking, but politically.
Mr. Binnie: In terms of politics, as a precedent, one must consider whether a continuation of a series of historical snapshots representing denominational rights at various dates of union is the most rational way of proceeding or whether it is not really the appropriate task of framers of the constitution, the politicians, to ask, "What is it we are really trying to protect?"
I believe that the decisions coming out of the Supreme Court of Canada are in effect saying, "If the politicians are not identifying what it is precisely that the constitutional value of denominational schools represents, then we will set to work and try to define it. If they do not agree with us, they can pass an amendment and overrule us." This process of rationalizing rights is proceeding at the judicial level.
It seems to me the problem the committee has is the absence of some broader approach, without which these various anomalies to which you referred will not be solved. Do you freeze everyone in their place until there is some kind of apocalyptic change in the Constitution resolving all the problems, or do you address each province as they come forward saying, "In our particular case, here is what we see as the core values and the changes that we see are necessary for other reasons"? Does the Senate then say, "That may be what you say are the core values, but do we agree with you that those are the core values? Where the Supreme Court has said the core involves religious education and ethics and morals, is that core being preserved?"
It seems to me that you can say, "If we agree that Newfoundland is respecting what are truly the rights of denominations as denominations and allowing rights of Newfoundlanders as citizens and taxpayers to a rationalization of the school system through the legislature, and if that is a reasonable balance in Newfoundland, why should the lack of progress in some of the other jurisdictions hold it up?"
At the end of the day, is the guarantee to the denominations in Newfoundland any less in relative terms than is applicable to denominations elsewhere? As I understand it, Newfoundland fares very well on that comparison.
Senator Rompkey: I wish to pick up on that last point. I asked Professor Gibson this morning about the diminishing of denominational rights in Newfoundland. I asked him if he could put it in perspective comparatively, because there have been many comparisons made over the last two days. There is a concern, of course, that what is happening in Newfoundland will have implications across the country, so it is useful to do an actual comparison of systems.
I would argue, and you can agree or disagree, that the system that Newfoundland has had up to now is different from any other system anywhere in the country. No such system exists anywhere else. There is not a public school system and separate school system in Newfoundland; there is a denominational system of education which is quite different from what has existed anywhere else in the country.
I will ask you the same question I asked him: When the rights are diminished, will the denominations in Newfoundland then be ahead of, equal to, or behind the same seven denominations anywhere else in Canada, under the new Term 17?
Mr. Binnie: I do not hold myself out as an expert on the various systems across the country. I have done legal work in the Ontario system. I have some knowledge of the Quebec system and some of the Newfoundland system. It depends what you are measuring it against.
You run into a fundamental difficulty when you talk about comparing the rights of the denominations. If there was some principled statement, a statement of values against which you could measure each of the provinces, you could answer your question. If you accept what the Supreme Court sees as the standard, then, as I understand it, Newfoundland will stand very high on the level of denominational rights even if the amendments are passed.
If you adopt a holistic approach, as Senator Doody was proposing, under which everything is part of the denominational ambience and environment of the education system, then you would need to take a detailed look at each and every system to see the different eccentricities and anomalies and particular mix of features which exists in each province and then somehow make a cross-reference to Newfoundland. I would think that would be a very difficult exercise. I am not sure what the value of it would be, because you would simply be comparing a whole lot of historical snapshots against each other, whereas, in my view, what it ought to be compared against is a vision of what a denominational education should be.
Senator Milne: Mr. Binnie, yesterday and this morning we heard groups suggesting to us that there should be amendments to this proposed amendment. The gist of their amendments seem to be basically two-fold. I must admit this morning they seemed fairly innocuous to me, in effect adding five words to all this: adding the words "where numbers warrant" to paragraph (b)(i); and adding the words "determined and" to paragraph (c).
You are telling us this afternoon that adding the words "where numbers warrant" would, in effect, throw the interpretation of this to the courts rather than to the legislature of Newfoundland, and that adding "determine and" to paragraph (c) would be an exercise in wasting people's time. I should like some comments from you about this, because if that is indeed your position, then I may have to back off on my position that perhaps a few amendments would be in order.
Mr. Binnie: The notion of "where numbers warrant" was conceived in a proactive attempt to change the status quo in terms of minority language rights.
It is not only the courts that would have regard to the language. A legislature in formulating education policy would need to guess at the meaning given by the courts to the phrase "where numbers warrant." In the Mahé case, the Supreme Court refused to define the phrase but considered it a function of services and -- to return to Senator Doody's point -- the cost of supplying those services. All these things were mixed up in this notion of "where numbers warrant."
It is my position that nothing is really solved by defining it. At the end of the day, someone must decide on the applicable criteria in terms of services, cost, available resources, and so on. This amendment says that such decisions are best made by elected people rather than judges.
Senator Milne: A lawyer would say the courts should decide.
Senator Doody: I am not a lawyer. In this case, I, too, am saying the courts should decide.
Senator Beaudoin: Do you say the decisions are better made by the courts or by the legislators?
Mr. Binnie: I say it is better done by the legislators. People should be accountable for decisions which have resource implications and teaching implications. The public has a right to get at people who make those kinds of decisions; they cannot get at the judges. The judges are back-pedalling away from making those decisions.
Senator Beaudoin: In the field of bilingualism, it is better that the courts were involved.
Mr. Binnie: The courts have drawn that distinction. They say that the whole essence of the bilingual policy of the Constitution is that "what is" is not good enough.
Senator Beaudoin: That is right.
Mr. Binnie: The essence of section 93 is that "what was" should be preserved. They are proceeding from the opposite end of the spectrum. Why would you take an apple from there and put it in with a whole lot of oranges?
Senator Gigantès: Did I hear you correctly to say that legislators should define the vision of what denominational education should be?
Mr. Binnie: I was speaking in terms of the Constitution, if Canadians as a people feel that denominational education is a value which should be enshrined in the Constitution. I am suggesting there is a more rational approach to getting at the value which we are trying to protect than to take a snapshot of where everyone was at the moment of union and preserve whatever existed then.
Senator Gigantès: The consequence then is that the elected representatives of the people will make that decision; correct?
Mr. Binnie: That is through constitutional decision-making. Ultimately, the people should have the power, through a very difficult amending formula, to make those kinds of decisions. This is our country. Why can we not make a constitution which fits our country in our era rather than being governed by 1867?
Senator Gigantès: I fully agree, and I was delighted to hear you. However, thinking in terms of what we have heard earlier today described as the proper and natural anxieties of the people who currently administer those schools in the hierarchy of those denominations, this is a retreat. This is definitely taking away powers from them. You and I may think that it is proper, but when they say that their rights are being diminished, they are then correct.
Mr. Binnie: Is it taking away powers which appertain to them as denominations, or is it taking away powers which appertain to them as people who are running schools? That is the distinction.
Senator Gigantès: Have the linguistic minorities not fought a battle to have control over the management and finances of the schools? They said that their right to French schools did not have much meaning if it were a Protestant board or a non-denominational board which determined how much money they would have.
Mr. Binnie: Yes, but if one looks, for example, in Ontario, at the whole issue of linguistic minorities and education, there is massive intervention by the province in curriculum, school construction, and the grant system. One is not talking about anything analogous to a church running a school. One is talking about a provincially organized, provincially funded, provincially supervised school where the language of instruction is constitutionally mandated according to the sliding scale of "where numbers warrant."
It seems to me that what is contemplated under Term 17 is a good deal more independence from provincial government in relation to the minority value -- that is, the denominational value -- than is present in Ontario in relation to the minority value of language.
Senator Gigantès: More independence necessarily means more power to do what you want to do.
Mr. Binnie: Yes.
Senator Gigantès: We must reach some decision. The people who are saying that these amendments will diminish their powers are speaking the truth.
Mr. Binnie: Yes, but it is not so important that powers are diminished in absolute terms. If there was no shift in power, there would be no need to have an amendment. The question is: Are those powers directed toward that which was constitutionally designed to be protected, being the value of denominational education?
I agree that one can define it narrowly or broadly. I have suggested here that the Supreme Court, which comes to the matter with some independence, has defined the core values. Why not then measure what is being taken away against any diminution in those core values, as opposed to a diminution in what happened to exist in 1948?
Senator Forest: I have spent a number of years working in the field of human rights. I have always felt that the protection of a right presupposes the protection of the administrative or support systems which give meaning to that right. In other words, there is not much use having a right if you cannot exercise it.
You seem to differentiate between the constitutional right to be protected and the administrative regulations necessary to enact that. Have I misunderstood you?
Mr. Binnie: Perhaps you have a little. I do make a distinction between the right and the machinery which delivers the program in satisfaction of that right. I agree in terms of human rights law that if the right existed but there were no means to realize it, it is an empty right.
At the same time, section 17(b), which says that the law is uniformly applicable, means that the only way that Roman Catholic education can be diminished is if everyone abates equally.
So long as that uniformity exists and the reduction would fall equally across all denominations, that is a very strong protection that what will be done will be rationally done so that the machinery will be there within which the specific rights pertaining to religious education activities and observance can be vindicated.
Senator Forest: Again, I do not pretend to understand the situation in Newfoundland. However, we were given an example this morning of a board of an integrated school or a multidenominational school. As an example, a Pentecostal group which previously had its own school would not have it under this amendment. There might be two Pentecostal trustees on a board of twelve. Although they had full control over their school before, they would now be a minority on the board.
I am not sure whether I understood that correctly, but if that is the correct interpretation, would that not be a diminution of their rights to, for example, realize the core values of their school system?
Mr. Binnie: I think the core values are protected in any event in Term 17. I take it that that example presupposes that there is a reorganization within school districts. This reorganization would be according to criteria that would apply to all school districts. It would be uniformly applicable through the province.
It may be that by the force of circumstances, that is to say falling enrolment, lack of money or another circumstance, the system simply has to tighten its belt. If that is the case, everyone is diminished but no particular denomination is singled out to take a worse hit than the others.
If one is dealing in a community of minorities, which seems to be the case in the Newfoundland education system, the Constitution cannot protect against poor, long-term, economic health and declines in population. Those are simply facts. I do not think it is fair to blame circumstances which are brought about by unrelated reasons -- economic or otherwise -- on a constitutional amendment.
The Chair: Mr. Binnie, I was interested that you picked up on the question I asked this morning with respect to the judgments, particularly with regard to the Protestant schools. You indicated that according to your reading of those judgments, issues like financing and machinery were well within the purview of the province.
We have heard repeatedly from Newfoundland that they require a construction board which would build schools where needed throughout the province, that they require a bussing policy which would unite routes instead of running buses side by side, and that they want to reduce their school boards from 23 to 10. How many of those things do you think could be achieved by simple legislation of the Newfoundland legislature which would be upheld by the Supreme Court of Canada, in light of what the Supreme Court of Canada has already said?
Mr. Binnie: In the Quebec case, the decision was driven by the court's analysis of the pre-Confederation legislation as to what was protected and what was not. The court said that in the case of Quebec, many things which the Quebec government sought to do in its reform of education were permitted.
As I understand it, the 1948 context in Newfoundland is much more constraining than the 1867 context in Quebec. It is difficult to take conclusions from Quebec and apply them in Newfoundland. That is one of the problems with talking about precedents in this field, because we are dealing with a patchwork.
There are others better able to speak to it than I, but in terms of the specific issue of creating new schools and funding, et cetera, you have already discussed section 76 of the 1948 Newfoundland legislation, which does appear to put a strait-jacket on the ability to fund according to need rather than population that did not have a counterpart in Quebec.
The Chair: Thank you, Mr. Binnie.
Our next witness this afternoon, honourable senators, is Len Williams, the Chair of the Royal Commission of Inquiry into the Delivery of Programs and Services in Primary, Elementary, and Secondary Education, Government of Newfoundland and Labrador. You have the shortened version of that report. You were also given the longer version yesterday. Both are entitled "Our Children and Our Future." I would suggest that Mr. Williams is an expert on how the Newfoundland school system operates.
Please proceed, Mr. Williams.
Mr. Len Williams, Chair, Royal Commission of Inquiry into the Delivery of Programs and Services in Primary, Elementary, and Secondary Education, Government of Newfoundland and Labrador: Thank you, Madam Chair, for the accolade. I assure you that if I am repetitive, it will not be on the law. I will stay away from that area.
By way of introduction, I should say that I have been a teacher, a school principal, a president of the teachers' association, and a very happy professor of education until, in an unguarded moment, I decided to accept the position of Chair of a Royal Commission. I retired as Deputy Minister of Education in December of last year.
I should like to take a few minutes to share with you my thoughts on this issue. The Newfoundland school system, like school systems in other parts of the country, confronts significant challenges. In Newfoundland, significant economic and social changes necessitate our reassessment of what we do and the way in which we do it.
I sense a profound and widespread concern of our people about the quality and direction of schooling. There are three powerful forces which impact on the Newfoundland school system that necessitate change.
The first is a need for comprehensive programs to address the needs of all children. With that comes a demand for higher standards. School systems are under considerable pressure to respond meaningfully to individuals and groups whose needs are not being adequately met: children with learning disabilities, children with special interests and talents, and children who are socially and economically disadvantaged. At the same time, schools are pressured to place higher priorities on attaining skills of literacy, numeracy, critical thinking and scientific reasoning.
There is a concern in Newfoundland about the quality of schooling and the competitiveness of the system. The dominant concern heard by the Royal Commission had to do with the quality of schooling. Two central issues came through to the commission. The first was that parents wanted environments conducive to learning, quality programs and competent, current teachers. At the same time, they were prepared to accept revisions to the denominational system but not the replacement of it.
A second priority for us is the need to look at the impact of a severe decline in school population. I will not dwell on this except to say that our school enrolments have dropped drastically from 127,000 in 1990-91 to 110,000 this past year, and all projections indicate that the population will go below 100,000 by the turn of the century. That impact is most pronounced in rural Newfoundland.
In 1958, when I began teaching, there were over 1,260 schools in the province. We now have 476. We are a province of small schools in many respects.
The third force to which I very briefly allude is the province's inability to provide resources to address the wide range of expensive needs. Current fiscal and educational inefficiencies imperil the overall quality of programming.
I wish to look for a few minutes at the history of education in our province. There is a belief in some quarters that the changes required could be addressed through consultation and consensual agreement between churches and government. That certainly would have been the preferred option.
The Newfoundland school system is not a static system. Indeed, its history is one of a considerable number of compromises and collaborative changes.
The first Education Act passed in 1836 made provision for the setting up of nine regional school districts. A secular school board on which the senior clergyman of each denomination in the educational district was to be represented was established. However, a dispute over which version of the Bible was to be used led to discord.
In 1843, the government abandoned the attempt to maintain a totally secular system and divided the education grant on a per capita basis between the Protestant churches and the Roman Catholic Church. A dual system of education was introduced.
In 1874, following a bitter debate among the Protestant churches, the Protestant grant was divided between the Church of England and the Wesleyan Church on a per capita basis.
In 1892, the Salvation Army was given educational rights. The Seventh Day Adventists and the Pentecostal Assemblies were given rights in 1912 and 1954, respectively.
However, the systems recognized the need to collaborate and work together. In 1874, there was established a joint non- denominational Council of Higher Education with authority to establish a syllabus, conduct public examinations, and issue certification for students.
In 1903, the Education Act was amended, permitting the establishment of amalgamated schools in sparsely populated areas. Interestingly enough, it was not in a sparsely populated area but in the industrial town of Grand Falls that the first school was established in 1910.
In 1921, the churches agreed to set up a non-denominational normal school to train teachers. The normal school later closed and teacher training became the responsibility of Memorial University College. In 1949, teacher training became the responsibility of Memorial University.
Thus, through a collaborative arrangement and agreement, the curriculum, except for religious education, public examinations, teacher certification and teacher training became external to the denominational control. That remains to this day.
I should like to speak for a moment about cooperative efforts. Around 1950, the Protestant churches began to cooperate in setting up what was known as joint service schools. Under this arrangement, one designated denominational school board agreed to provide schooling in a community at certain grade levels, while another Protestant denomination had responsibilities for the remaining grades.
In 1969, the Anglican Church, the United Church, and the Salvation Army officially integrated their school systems into the integrated school system. Also, at that time, the integrated churches, the Roman Catholic Church, and the Pentecostal Assemblies cooperated in setting up a Denominational Education Council and agreed to making the Department of Education non-denominational.
From 1964, when the Roman Catholic and the integrated education authorities agreed to share a single school in Wabush, to the present, a number of formal joint service arrangements have been made.
I am telling you this because I believe this history illustrates a recognition that certain fundamental and essential functions of schooling can best be done external to the denominational system. Further, within the denominational system, it made sense to undertake certain initiatives cooperatively.
I believe the changes being proposed build on this history of evolution. I believe what is being proposed is the logical sequential step to this history that I have outlined. It should be noted that the changes proposed by the government will not remove the churches from education; nor, indeed, will they make the system non-denominational; nor, indeed, will they create a parallel secular system, such as there is in other provinces.
In essence, what is proposed is what was proposed by the integrated churches to the Royal Commission, except with a major change. They proposed a single unified church school system. The proposed amendment, however, allows for the retention of denominational schools where there are reasonable numbers to provide for it.
The Royal Commission report was presented to government in March, 1992. To my way of thinking, there has been little done with that report since. Other provinces have moved on with respect to many of the recommendations contained therein. The real losers in this protracted dispute are the students.
I urge that you accept that this is a logical, sequential, and historical step in Newfoundland's education and pass this amendment.
Having said that, I would welcome an opportunity to answer any questions or have a discussion with you, Madam Chair.
The Chair: Thank you for that brief summary of Newfoundland's historical tradition in education.
Senator Forest: I am delighted to hear that historical background and about the steps of cooperation. I certainly agree that in education there must be cooperation.
Could you tell me what the stumbling block was after all those steps to the framework agreement which was almost achieved? I really believe that if this could be settled in Newfoundland by the Newfoundlanders, that is where it should be settled. What happened with this last effort in the spring of this year?
Mr. Williams: I was not there at the time of that framework. I left in December.
Some churches would agree with what was proposed which, essentially, would be an interdenominational school system except where numbers would allow the retention of an unidenominational school or the establishment thereof. The fundamental changes are not beyond the school level. They are not at the provincial level with the school construction board, nor are they at the school board level. Certain provinces are even looking -- and one did -- to the elimination of school boards. You can question why school boards are needed, if school councils and other means to run the system are established.
The fundamental changes are directly at the school level. They are focused on the nature of the school, who will attend the school, transportation to the school, and who will control the staffing of the school. It is my thinking that it was around these issues that certain churches could not agree. To do so, you would need to move to what I am calling a unified church system -- in other words, a totally interdenominational system.
I was not there at the table; however, I think it had nothing to do with issues beyond the school level but, rather, the nature of the school itself. That is where it fell down.
Senator Forest: Would that have been the parents in those schools expressing those concerns?
Mr. Williams: I suppose parents, through the official church spokespersons. However, my feeling is that Roman Catholic officials and Pentecostal officials would have had real trouble with interdenominational being the norm.
Senator Pearson: I read this with considerable interest last night. It helped me understand some of the complexities of the issues confronting the system in Newfoundland. I have been aware of them from other points of view in my past experience with children and children's issues. I know that with respect to issues around children's mental health, for example, it has been difficult to respond to needs. You gave us some sense of the potential diminishing size of the child population. Do you have any sense of increase or decrease in the problems you have been discussing?
Mr. Williams: One of the major changes in Newfoundland education over the last decade has been a trend towards what we call "inclusion"; in other words, an attempt to accommodate children within the school system regardless of disability. We have closed provincial institutions which at one time catered to such children. As a matter of fact, the only institution now open is the school for the deaf in St. John's. That has placed an inordinate strain on the school system in terms of resourcing with respect to the teacher and teacher assistant dealing with a child and the kind of professional support beyond the school level, either at the board level or regional level. While we have made great strides -- probably more than most other provinces in some respects because we move with that philosophy -- the difficulty is that a child with that kind of disability is a very expensive child to address in terms of educational needs. It does not make sense to do it on a denominational basis. Many times we have tried to cross denominational barriers in addressing these problems, unfortunately not to the extent we would like.
It does not make sense to employ a teacher for a student in one part of the province if you have two other students who fit that category and can be housed together. It does not make much sense, as I saw in the paper two weekends ago, to call a tender to bus four children from one town to another 20 kilometres away when there is a school in the town capable of accommodating the children. Those are the kinds of problems we are wrestling with. We have scarce resources, and the demand is on us to use efficiently the resources we have.
Senator Doody: Where have you been since you left the deputy's office?
Mr. Williams: I am working in Nova Scotia. They do not have a denominational system to restrict educational change.
Senator Doody: I gather that you feel much more comfortable in Nova Scotia.
As well, I gather the basic thesis of the commission report is that what we really need in Newfoundland is a single system, a non-denominational system -- or what do they call it now?
Senator Rompkey: Interdenominational.
Senator Doody: Yes, which, from the perspective of the Roman Catholics and the Pentecostals, is a non-denominational system.
Mr. Williams: That is right.
Senator Doody: Therein lies the core problem.
Under the general framework agreement -- and unfortunately the wheels fell off somewhere along the line -- most of these administrative problems you referred to and the chair referred to had been agreed upon. The busing problem, duplication, the allocation of maintenance and construction funds on a per capita basis were to have been replaced by a board consisting of three government representatives, with a chairman to be agreed upon by all parties. I understand that it was not the Roman Catholics and Pentecostals who walked away from the table -- it was the others who felt that this proposed legislation does not go far enough.
There is a group in Newfoundland now which feels, as much as you feel, that the denominational system is an historic and important part of the history of the province but really is not very relevant any longer.
Mr. Williams: When the integrated churches came out to the Royal Commission, they called for a single church system. By that, I presume they meant all of those who held rights would come together into one system without changing the Constitution, but it would be a unified church system. When they got into the details of this agreement, there was some difficulty on the part of the integrated churches with respect to uni-integrated schools.
Another question was raised as to whether the integrated system was strictly denominational. I do not know the ins and outs of all of that, but I do know that you may be right -- the integrated churches walked away. That is unfortunate because they were the ones who wanted the integrated system.
Senator Doody: That is right. The important thing is that that agreement was almost there and it is now on hold pending the approval or non-approval of this amendment. It seems to me that it would be far more practical and sensible to reinstitute that process of negotiation and get the logistics and mechanics worked out at the table.
Mr. Williams: Senator, I am not sure that agreement was going anywhere because it did not address what I saw to be the main concern -- that is, the nature of the school system below school boards.
Senator Doody: Public announcements made by the minister at the time led me to believe that things were coming up roses. Apparently, they were not. There were some dandelions in the patch.
With respect to the integration of the system into a one-unit operation, does that take into consideration the value of the assets of the various denominations as they now exist? When you did your report and described the cost of the denominational education system and how much could be saved if it was reduced to a single-unit operation, did you factor in the contribution of the various denominations in terms of buildings, real estate and so on?
Mr. Williams: No, we were looking at operating costs. These are old figures now. We did that study towards the end of 1990, almost six years ago. We looked at operating costs and did not try to put capital costs or cost-in-kind into the equation at all; and we arrived at a figure of $20 million. It would be considerably less than that now because changes have been made to further reduce the system.
Having said that, we did not do a very thorough job on busing to the extent that it is currently being done. There are still substantial savings to be made, but they are to be made at the school level.
Senator Doody: At the school level rather than the school board level?
Mr. Williams: There are savings to be made there, but the government in recent months and years has been reducing the number of full-time personnel at the board offices.
Senator Doody: That is right, something like 320 people.
Mr. Williams: That is right.
Senator Doody: Putting this proposed amendment aside for a moment, tremendous progress has been made over the past number of years in streamlining the system in the province, partly thanks to you and your people and partly thanks to demographics, the shifting population. I am told that in 1967 there were more than 1,046 schools in the province and now there are less than 500. There are 480, I think. Now there are schools in 293 communities, and in 1967 there were schools in 800 communities. Today there are 33 communities.
Only 11 per cent of the communities in Newfoundland now have more than one school system. This myth or bugaboo about three or four schools serving a small population is an historic relic. It was a factor at one time and quite an interesting anomaly, but a very expensive one. Much of the duplication has been removed from the system.
With the joint service agreements to which you have alluded -- the 30 or 40 agreements between the denominations -- it appears the system is in a process. As Mr. Smallwood once said, "Let it evolve." That was his answer in reply to a plea from one of the members in the house to change the school system. It is evolving and coming together.
It seems to me that the process of consolidation of the whole system into one will not happen in the foreseeable future, legislation or not. There is just too much opposition to it. Premier Tobin said during the recent election campaign that there will be no consolidation now because of community opposition. There is also a lack of capital funding to make it happen. There is very little money. It seems to me that the objective of one multi-denominational system of schools for the province of Newfoundland, although laudable on paper, is really not in the cards at the present time.
Mr. Williams: I think that is unfortunate for a number of reasons. It is time for the school systems to come together. As I say, in 1992 we presented the report. Evolution is a very slow process, and we cannot afford to wait. We cannot afford to have our young people miss out on the kind of resources they need and the kind of programming they need. It is an inevitable step in many communities. It will happen anyway. Unfortunately, it is not happening where it is most needed. Consider Roddickton, where we still have two denominational schools side by side. This must change. It will not change through evolution, in my estimation.
Senator Doody: It will not change through legislation unless the Government of Newfoundland withholds funding for one of the schools. That sounds like a bloody process. Fortunately I am now in the Senate.
Senator Beaudoin: You seem to have two groups of denominational school rights in Newfoundland in the sense that five confessions, if I am not mistaken, or classes of persons have an idea of what denominational rights are. Two are of a different opinion. Five are thinking that their rights may be affected to a certain extent, but nothing unreasonable or unacceptable. Two say that the transfer of rights from those confessions to the state is objectionable. Perhaps it is not the only province to have that problem, but the context is certainly unique in Newfoundland.
Does that mean, for four or five confessions, that a unilateral system or a general system would be quite acceptable and only unacceptable for two confessions? Is this not the case in practice? This is why you want to change the Constitution.
Mr. Williams: Of course there is another group of people in Newfoundland who have no rights.
Senator Beaudoin: Which group is that?
Mr. Williams: Other denominations and people of other faiths do not have rights and privileges at all. They are schooled by the good graces of the existing denominations. We do not have a public system, so if you are not one of the magical five, then you are schooled in a denominational system. These people have been clamouring for some time to be recognized as taxpayers and as parents in the system.
Then there is another group of people who had very little affiliation with one of the denominations, even though traditionally they may have been.
Senator Beaudoin: Why do you not have a public system as well?
Mr. Williams: It is a case again of trying to deal with the resources one has. When one has scarce resources with 100,000 students spread over the geography, an alternate or parallel system would be just too expensive to maintain. It would further dilute the system we currently have.
Senator Gigantès: This question is probably an illustration of my ignorance, but all of these denominations are Christian, are they not? They subscribe, presumably, to the Ten Commandments. They believe in the divinity of Jesus Christ, the resurrection, surely the sermon on the mount. They all teach the same thing. Why would they want to segregate their children from one another's children?
Senator Beaudoin: That is a big question.
The Chair: I do not think that is a fair question to put to Mr. Williams. In a way, he answered it with a recognition of the historical reality of what has gone on in the province.
Senator Gigantès: I hope the question is on the record.
The Chair: The question is indeed on the record, and the perplexed look of the witness is also on the record.
Mr. Williams: I could respond. There are many reasons for that sort of thing.
Senator Gigantès: Are there any good reasons?
The Chair: You may not be a lawyer, Senator Gigantès, but you are leading the witness.
Senator Prud'homme: Last September, I was the first senator to mention your report in the Senate. I went to Newfoundland to see what was happening there.
I hate to refer to myself as a minority. I say clearly again that I have no complex. Minority means less, and that is all.
I travelled Newfoundland extensively for a week. I spoke directly to the people in the streets. Senator Ottenheimer was afraid that I would start riots. However, I do that in every country I travel to.
The Chair: Start a riot? I think perhaps you should qualify that. It sounds as if you go from place to place starting riots.
Senator Prud'homme: People talk. They are provocative, direct, but friendly. They reacted very well. The people in Newfoundland react like French Canadians, or vice versa.
I recommend that people read the report. For someone who was curious about how Canada and Newfoundland came together, I was enlightened. I thank you directly, now that you are here and I have the chance to do so.
I have one question, and I will put it in French.
[Translation]
I want to be very clear here. In your view, at the time of the first and second referendums in 1949, would the results have been the same -- in other words, to join Confederation?
[English]
Canada was the second choice on the first ballot. On the second ballot, Canada became the first choice.
[Translation]
Would Canada have been the first choice in the second referendum if part of the population -- specifically Catholics in the province -- had not believed they had assurances their schools would be protected? That's how I negotiate.
[English]
We sign a contract if you and I agree, and that is how we shall we behave. You are reluctant, but you read it and see that I have signed it.
In referring to 1987, eventually I may approach Senator Forest and ask whether I can give more or give something to Senator Gigantès. If you know that nothing is taken away from you, then why not?
However, if I reduce the rights which you know have been there since 1949, then there is a problem. My question is always the same.
[Translation]
What is the point of having rights entrenched in the Constitution if, because of the impatience of the majority and the slow pace of reform, I can decide at some point that I want to replace a religious administrative nightmare with a new bureaucratic nightmare? I want to be absolutely certain that whatever we do here is in the best interests of the children.
[English]
That is for Senator Pearson. We care for the children. However, are bureaucrats or parents the best people to decide for children? That is a very fundamental question.
[Translation]
Shouldn't parents' views come first?
[English]
On the first question you heard the result.
Mr. Williams: These are very difficult questions you are raising. Under what condition, then, could any right be changed, if even one objective must remain the same? The majority of people have indicated a receptiveness to change.
What is a minority? One? Must a system be bound in perpetuity because of one? I do not know the answers, but I am troubled by that.
Senator Prud'homme: So am I.
Mr. Williams: The expressed will of the majority has been to change.
Senator Prud'homme: Is it the expressed will of the majority as a whole or the expressed will of the majority of this class of citizens?
Mr. Williams: In the referendum, of course, it would be the former because people did not vote as a class.
Senator Prud'homme: I want to go on record to say that the referendum and I are not the closest of friends. I believe in leadership. In a federal system, it is too easy to rely on a referendum because it has all the appearance of democracy; however, a referendum comes at the end of the day when everyone is totally impatient. Let the people talk. That looks so good on paper. At the end of the day, we know what it means so we are very reluctant.
If we were to go through a referendum for the Nisga'a in British Columbia or for the French language in British Columbia or in Manitoba, how would they react? I know better. I know the impatience of a majority and I understand it. For that reason I am very careful about giving up to a class of persons what I may also have to give up tomorrow. I also like consistency. I cannot say "yes" here and suddenly say "no" to something else which may arise later today or sometime next week. It is troubling.
Perhaps I can help you in your reflection and me in mine. I believe in evolution. The best way for evolution to occur is to let things evolve but to tighten up. This debate will certainly have a great effect in Newfoundland. Many people now are taking sides. There is no doubt. I am no fool -- I know.
A violent reaction is not being provoked by letting things evolve and by having this debate. I agree with what you said. I cannot stand for the tyranny of one.
Nothing stops Newfoundland from having a public school system. Perhaps many parents whose children are now in religious schools will transfer them to a public system. By transferring their children, they are transferring money away from people who one day will say, "I have this right but there are not enough in my school to allow me to exercise these rights."
Mr. Williams: As I said, I do not think the Constitution should bind a system in perpetuity. I do not think it can be left to evolution. There comes a time when the priority need is to move faster, and we must do it. We cannot afford to waste resources by duplication. We need to move.
Senator Prud'homme: In the United States, with a 200-year old Constitution, many people still agree with "la liberté d'expression." Is it because 200 years have passed that suddenly it is in the Constitution? I do not understand. I am not a scholar, even though I studied as long as Senator Beaudoin and others in this room.
I wonder, what is your definition, colleagues, of a constitution? Do we put something in a constitution for a while and then suddenly change our minds? I do not know. I ask myself this question openly in front of all of you. That is my duty as a senator.
The Chair: Thank you, Mr. Williams. I want to tell you how much, as an educator, I have appreciated this report. I have only been able to read the shortened version at this point, but I will read the full version. I must also say that it could have been written about Manitoba just as it has been written about Newfoundland.
In the recommendations -- I do not know whether this was an oversight or whether you chose not to deal with it -- you do not come right out and ask for an amendment to Term 17.
Mr. Williams: No, I am an optimist. I had hoped, frankly, that we would have built on our system of collaborating. In the end, as you know, I did recognize that the kind of changes we recommended could only come with the consensus of those who held the rights or with a constitutional amendment.
The Chair: Thank you.
We will hear from our next panel now.
[Translation]
Mrs. Jocelyne St-Cyr, Coordinator, President, Association des parents catholiques du Québec: Madam Chair, we would first like to thank you for this opportunity to make our views heard. We are not, at least speaking personally, constitutional experts or lawyers, and the purpose of the Coalition pour la confessionnalité scolaire (CCS) is not to interfere in the administrative affairs of the province of Newfoundland, but rather to demonstrate our support for religious minorities in the province and, by the same token, demonstrate our concern with respect to the constitutional amendment requested by the government of Newfoundland. The Coalition pour la confessionnalité scolaire represents some 2,835,250 Canadian citizens.
We come before you today as Canadian and Catholic citizens. The various groups that make up the CCS have always been very concerned about respect for parents' rights in the area of education, particularly their right to have their children educated in schools that reflect their virtues, moral principles, values and culture. Like many other Canadians, the Coalition also believes that this proposed amendment to the Constitution would affect the very nature of Canadian society and communities all across Canada, as well as the institutions through which they express, shape and pass on to future generations their faith and values.
The CCS wants the members of this committee to know that it shares the views expressed by Senator Doody on June 6, 1996:
... the fundamental, primordial issue at stake here is minority rights -- rights that were enshrined in Canada's Constitution under Term 17 of the Terms of Union of Newfoundland with Canada.
Like many other Canadians, we have deep concerns about the effects of such an amendment to Canada's Constitution.
In our opinion, passage of such an amendment would be a dangerous precedent for minorities in all parts of Canada, because it would mean that for the first time, Canada's Constitution would be amended in order to repeal vested rights, rather than create them. We would again quote the words of Senator Doody, who pointed out in his June 6th motion, and I quote:
... This minority right, on which the representatives of the people of Canada and Newfoundland have agreed, was enshrined in the Canadian Constitution so that it would be sheltered from the changing whims of legislators.
We also agree with his Eminence Emmett Cardinal Carter, who noted the following in a letter to the Prime Minister dated May 21:
... that the government of Premier Tobin and the administrators of the denominational school system had reached an agreement on the reform of Newfoundland's school system (...) and that the changes do not require an amendment of Term 17, which creates a dangerous precedent for minority rights in all parts of Canada.
In Quebec, it is not the rights of the minority that are threatened, but those of the majority.
In 1993, the Supreme Court of Canada ruled that the Montreal Roman Catholic School Board and the Quebec City Roman Catholic School Board are protected under section 93 of Canada's Constitution within the current boundaries of those two cities, as are dissentient school boards operating within those boundaries.
This decision recognizes the Quebec government's right to establish linguistic structures on boards, but in our view, does not require it to eliminate denominational school boards outside Quebec City and Montreal, where Catholics are in the majority and the situation is very different.
Despite these recognized constitutional guarantees for classes of persons in Montreal and Quebec City, however, Quebec Education Minister Pauline Marois has indicated her firm intention to introduce linguistic school boards throughout the province of Quebec. That is why we would assert that in Quebec, it is not only the rights of the minority that are threatened, but the rights of the Catholic majority.
The CCS is very concerned about the Newfoundland government's request, as Term 17 is largely based on section 93 of the Constitution, and here I would like to quote an excerpt from Appendix 2: Denominational School Rights Guaranteed by the Terms of the Union, of the Canadian Conference of Catholic Bishops' press release of March 1996:
It [the Newfoundland government] proposes not only to remove the present Term 17, which makes such a provision, but it also inserts at the beginning of its new proposal the wording "In lieu of section 93"...
These words, which are clearly of crucial importance, were not part of the Newfoundland government's proposal at the time of the referendum.
What the Canadian Parliament is being asked to do, in short, is to grant to the Newfoundland House of Assembly jurisdiction that no other Canadian province has -- that is, the jurisdiction to legislate prejudicially against the rights and privileges affecting separate schools held by a religious group at the time the province entered the Canadian union.
Honourable senators, we represent Catholic Canadians who are very concerned about the Newfoundland government's request to amend Canada's Constitution in relation to denominational schools, and we ask that you exercise the greatest possible caution with respect to the repercussions of this proposed constitutional amendment on minority rights, particularly the right to be educated in one's own language and religion. It goes without saying that the same principles of respect and legitimacy apply to the rights of the majority as well.
For these reasons, we and other organizations in Quebec and the other provinces are honoured to take part in these hearings of the Senate Committee on Legal and Constitutional Affairs with a view to ensuring that the rights of Catholics are respected.
We agreed that I would share my 10 minutes with Mr. Fernandes.
[English]
Mr. Paul Fernandes, Chair, Metropolitan Separate School Board, Municipality of Metropolitan Toronto: Madam Chair and members of the committee, I thank you, on behalf of the Metropolitan Separate School Board, for giving me the opportunity to address you on a number of matters of importance in relation to the matter of proposed amendments to Term 17 of the Constitution of Canada.
You may or may not be aware that the Metropolitan Separate School Board is the largest single board in Canada with over 105,000 pupils and supported by over 620,000 separate school ratepayers in Metro Toronto.
I also want to note from the start that I appear today in harmony with our Montreal counterpart, with which we have joined previously in order to emphasize not only the importance of the issue to both boards, but also to demonstrate that the concern for the abrogation of constitutionally protected rights transcends both provincial jurisdictions and language.
This is not a religious issue, not even a Catholic issue, but in a sense is a minority rights issue of critical importance to all Canadians. This is why we are here. This is why so many groups remain concerned and even outraged at the process which permitted this fundamental change to proceed based on premises which are clearly unsound.
I have come here today, along with other interested parties, because I see the Term 17 amendment as something about which all institutions in Canada which represent a minority group of one form or another must have serious reservations. The perspective from which I base my conclusions is that the Constitution of Canada was intended to preserve and protect certain rights for minority groups.
These constitutional rights were accorded by the will of the Parliament of Canada and have been looked upon as symbols of a country which is strongly committed to the maintenance of minority rights and the common good of Canadian society. These principles, which are held dearly by millions of individual Canadians and the cultural, religious and social institutions of which they are part, are now sought to be changed as a result of the will of the provincial legislature of Newfoundland and Labrador, a process we see as dangerous and of serious impact to members of all minority groups.
Having said that, I will proceed to outline the main issues as I see them. I have with me copies of my presentation and additional material for your consideration.
The first issue of concern relates to the process which was employed by the Government of Newfoundland and Labrador in taking the matter of the constitutional rights of a minority in the province to a referendum by the majority. The results in favour of the government's position were predictable since the general population was unlikely to reflect the views of the Catholic minority. From the start, the question put to the people of Newfoundland and Labrador was a loaded question, if you will: "Do you support reform of the denominational educational system?"
In a province suffering, as many now are, from debt, increasing costs, high taxes and massive unemployment, who would not want to see reform? However, how many actually realize the import of the question or the intent of the government to request a change to the constitutional protection afforded to minority groups? The "yes" vote was given by the slimmest margin. Just 52 per cent of the eligible voters turned out and only 54 per cent supported the change.
Think of it. If just 5 per cent more of the one-half of eligible voters had turned out and voted in the negative, the results would have been reversed completely. In other words, the change to our Constitution hinged on a mere 2.5 per cent of eligible Newfoundland and Labrador voters.
The parallels that can be drawn are obvious. By acquiescing to this requested amendment based on such a slim majority of victory, the federal government is giving credence to the concept of governments by referendum -- a dangerous precedent. I strongly maintain that the process was wrong. It was undemocratic, and we are a democratic society.
The information that has been provided to me by other concerned parties, such as the Canadian Catholic School Trustees Association, suggests that in fact the Catholics and other minority groups in the province are prepared to make the framework agreement which has been reached with the government work to the benefit of all. However, it remains unclear why a constitutional amendment is required to make that agreement effective. What has happened to negotiation, to consensus building, to cooperation for the common good of the children of the province? The backgrounder to the issue which was put out by the Government of Canada itself indicates that the minority partners have been able to accept some elements of the government's proposed model, particularly the formation of interdenominational school boards and the establishment of a provincial school construction board. It goes on to justify the need for a constitutional amendment on the basis that a number of other key issues remain to be resolved. I would say, then, that the time should be taken to reach a compromise, reach an agreement without resorting to the hurtful club of imposed constitutional amendment.
No one disagrees with the need for education systems and school boards to be efficient and implement savings when they are in the best interest of pupils. However, this should be done through review and improvement of organization, administrative and educational process improvements and cost control rather than by eliminating denominational school boards and modifying minority rights within the Constitution. The need to bring about efficiencies exists throughout the government; however, no one would suggest their elimination as opposed to improvement of their operations.
If the amendment to Term 17 progresses and is enacted as law, I honestly believe that a major precedent will have been set which other provinces could seek to emulate, including my own province of Ontario, despite assurances to the contrary. As I mentioned earlier, this will demonstrate that the constitutionally protected rights of a minority anywhere in Canada, English or French, Catholic or non-Catholic, could be taken away as a result of the word of the majority within a province.
I wish to reinforce the fact that concern generated as a result of the proposed Term 17 amendment has not emanated solely from one province. Minority groups in all provinces are cooperating to press for termination of the proposed change. The fact that I am here today with my fellow school board representatives from Montreal is evidence of that. I know that the Ontario Separate School Board Trustees' Association, of which I am a director, will be pressing the same case, as will the Canadian Catholic School Trustees' Association and other separate school jurisdictions. Minorities across Canada take this matter seriously. I simply want to reinforce this fact which has been substantiated for me as a result of the input and feedback I have had from many groups who have urged me to speak up.
You are no doubt aware that the Catholic Education Council of Newfoundland and Labrador, the CEC, has prepared an amendment to the amendment to the Constitution of Canada which has been forwarded to the Senate by the House of Commons. While we earnestly hope that you will reject the House amendment in total in favour of a negotiated agreement with all parties, if you determine that to be impossible, I urge that the CEC amendment to the amendment be strongly considered as a fall-back position which will help alleviate the concerns of denominational minorities in the province.
The notes I have received from the CEC indicate that their proposed amendment will do three things. It will remove the confusion regarding the definition of denominational schools which the Term 17 amendment causes. It will bring the test for establishment of denominational schools in the province into conformity with section 23 of the Canadian Charter of Rights and Freedoms under which separate schools in Ontario have rights. It will bring the Term 17 amendment into conformity with the framework agreement which is being developed between the denominational groups of the province and the government. The notes and proposed amendment to the amendment are included in the material provided to you today.
I urge the Senate to continue with hearings, which will allow ample time for all parties and minority interest groups to be heard regarding the proposed Term 17 change; to take into consideration what has been accomplished to date with regard to the framework agreement and what the denominational minorities in the province of Newfoundland and Labrador would now agree to with regard to educational reform in the province; and, as a last resort, to recommend to the House of Commons that the proposed Term 17 amendment be further amended to take into consideration the proposed wording suggested by the Catholic Education Council of the province.
I strongly urge that any amendment to the Constitution of Canada should result in a framework which would strengthen minority rights, not weaken minority rights.
Senators, I thank you for the time you have provided to hear my concerns. My prayers go with you that you may reach a fair, just and reasonable conclusion to the issue before you.
In view of the time constraints, I have omitted parts of my presentation, but you will have it in writing.
[Translation]
Mr. Michel Pallascio, Chairman, Commission des écoles catholiques de Montréal: Madam Chair, I first want to apologize for not having been able to provide you with the English version of our text in time.
Senator Prud'homme: Oh, don't worry about that! We didn't get the French version of the English presentations either. We're used to it! Please proceed.
Mr. Pallascio: Before I begin our presentation, I would just like to give you some background information. First of all, we were invited to appear as representatives of the Montreal Catholic School Board (CECM). Just to give you an idea of how things work, within the CECM and at the level of the Board of Trustees, there are a variety of groups represented. I represent the Regroupement scolaire confessionnel which is part of a coalition.
I would like to introduce Mrs. Gadoury, who is Vice-Chair of the CECM and a member of the same group as myself, as well as Mr. Roger Dominguez, who is an independent trustee and is also part of the Coalition that operates primarily within the CECM. I think it's important that you have this information because at the end of our written presentation, you will find a resolution passed by that same Coalition dealing with denominational and linguistic or non-denominational school boards in Montreal, in particular. This is a proposal developed by the Coalition.
We are committed to preserving the denominational character of our school boards. Mr. Dominguez, however, is a proponent of linguistic or non-denominational school boards. At the same time, we fully respect each other's position. I believe our goal is the same -- namely to meet the expectations of both the parents and the children attending our schools.
The province of Newfoundland has asked the federal government to amend section 17 of Canada's Constitution. Although it is the only province to be directly concerned by this provision, I believe that every citizen in Canada may well be affected by the decision. We come before you today to ask the Senate not to accede to the Newfoundland government's request, which could well infringe on the rights of all Canadians. My presentation will address three specific points: the connection between religion and culture; minority rights, and finally, the need to maintain freedom of choice for parents.
Historically, Canadian society was either Catholic or Protestant. Beyond the issue of confessionality and instruction in a particular religious faith, these religions have shaped the values and culture of our people. So fundamental are they to the people of Canada that, at the very beginning of Confederation, the founding peoples enshrined protection of the privileges granted by the provinces to denominational schools in the Constitution itself.
Even then, the role of schools in transmitting culture was acknowledged and it was felt essential to ensure the legitimacy of religion in the school setting. Moreover, the Supreme Court of Canada is of the opinion that section 93 of the Constitution Act, 1867 is the product of an historic compromise without which it would not have been possible to create the Canadian federation.
This analysis of section 93 as the fundamental compromise of Confederation must be borne in mind when the provinces request or prepare to request constitutional amendments. These religions, which marked our origins, are still very much a part of the lives of most Canadians and, although the makeup of our society has changed a great deal over the past few years, many immigrants are also of the Christian faith.
In the CECM, 78 per cent of all our students profess themselves to be Catholics. In addition, among students from the cultural communities, 60 per cent are members of the Catholic Church. It is often through their parish community and their membership in religious groups that new Canadians are brought into the mainstream of our culture. But what really is culture? What does it encompass as a concept?
Culture is both a heritage and a vision, an origin and a destination, an environment and a horizon. It encompasses language, customs, attitudes, beliefs, lifestyles and ways of seeing the world that distinguish one community from another and give it its own identity.
This definition of culture, as developed by the Catholic Committee of the Quebec Superior Council on Education, clearly includes religion as one of its components. Who would dare to deny that the Judeo-Christian tradition has influenced the establishment of our major institutions and that it still influences their very nature and behaviour?
There is much evidence in Canada to indicate that Canadians are reluctant to discard their religious heritage, despite the fact that the tangible signs that previously made it possible to identify religious practices are less obvious today. However, less obvious does not mean completely absent. Like all peoples today, Canadians are looking for a new way of experiencing and expressing their humanity while still maintaining their identity, an identity deeply rooted in Christian humanism. The religious roots of our people are so strong and so deep that they guarantee the vitality of the society we continue to build. To separate our religion from our culture would be to seriously compromise our identity, because the living culture of Canada, both its popular everyday culture and its literary and artistic culture, is still deeply marked by Christian tradition, both Protestant and Catholic. No matter what people may think, removal of this religious element from our educational institutions will in no way facilitate the provision of services truly geared to the needs of a diverse population, no more than it will help develop a common identity and culture.
Over the years, Canada has been cited many times for various practices it has adopted, and is now recognized worldwide for the respect it displays toward its minorities. This tradition, which attracts immigrants from all backgrounds to Canada, is also entrenched in those provisions of Canada's Constitution designed to protect minority rights from the potentially prejudicial effects of a majority's exercise of power. It goes without saying, of course, that the exercise by a minority of its rights must not infringe on the rights of the majority.
Yet Newfoundland's request for a constitutional amendment creates an undemocratic precedent. Through the vehicle of legislation passed by the will of the majority, without regard for that of the minority, the government is being asked to simply abolish some of that minority's constitutional rights. Acquiescence in such a request is tantamount to saying that in future, any province in Canada can, if a majority of its population agrees, abolish the rights of one of its minorities within its borders, even though those rights are respected in other provinces.
This time, religion and education are involved, but what will be at stake next time? Language, perhaps. While there is clearly a need to change certain decisions made more than a hundred years ago to bring them into line with modern realities, it is absolutely inconceivable that minority rights should be usurped in the process. If the province of Newfoundland is allowed to take this approach, a large hole will be made in the Canadian Constitution which may well be impossible to repair.
Hitherto, amendments made to the Constitution have always been designed to broaden the rights of minorities, rather than diminish them. Do we really want to move in that direction? Supporting Newfoundland's request is no way for Canada to demonstrate that federalism can be renewed. Rather, it will simply demonstrate that the country no longer cares about its minorities.
In human rights charters and even in the Universal Declaration of Human Rights, freedom of choice of schools and respect for the wishes of the parents occupy a prominent position. In Canada's provinces, parents are generally also recognized as having such rights. There is an increasingly marked trend towards pluralism in our society and the cultural diversity of Canada's population is clearly evident. How then, especially in the difficult economic times we are currently experiencing, can we create an educational system that fosters respect for these parental rights?
In those provinces that are currently attempting to renew or adapt their educational systems, a number of parents have expressed their desire to retain denominational schools and religious instruction. This clearly emerges from a variety of surveys conducted recently and from certain publications, such as "For the love of learning", which concerns the education system in Ontario. At the same time, other parents would prefer to have access to non-denominational schools and moral instruction. The common denominator in this area is the insistence of all parents on their right to choose a school for their children that reflects their values. In such a context, plans to create common public schools seem increasingly difficult to implement.
At the present time, the trend in education policy in the West is toward maintaining choice and diversity. In its paper entitled "L'école catholique: Un choix éducatif et culturel" [Catholic schools, an educational and cultural choice], the Catholic committee states, and I quote:
... in the industrialized countries, the principle that there should be a choice of schools has historically been associated with freedom of conscience and the desire to provide all individuals with the possibility of withdrawing from a mandatory, state-controlled system of public education. For a long time, the choice was essentially between the public and private systems and, more often than not, denominational or secular schools.
A recent OECD study shows that in the industrialized countries, the general trend is towards increased choice for users of the school system. There are three main reasons for this.
The first of these is pedagogical. The current accepted philosophy of education advocates education that focuses on the student, rather than on the community. Young people must be taught how to learn. The emphasis is increasingly on developing a sense of initiative and creativity. Each student or, where appropriate, his or her parents, must have an opportunity to determine how learning can occur. If the government really wants to meet existing public demand, it cannot lock itself into a single approach and offer a predefined system of learning, which the public can take or leave.
The second reason, political this time, relates to the increasing conviction that extreme centralization in education, as in other services, is ineffective. The decentralization of many powers to school boards produces programs and initiatives that are more responsive to needs and more stimulating for each different community. Freedom of choice leads school boards and the schools they run to focus increasingly on the values and interests of users. Any educational system must reflect this reality.
Finally, this trend is the result of the current social context. Parents look for the best school for their children, one that offers an educational program in line with their values and their concept of education. Although neighbourhood schools still have a certain power of attraction, parents are often ready to make different choices if some other school board or school offers what they see as significant advantages. Is consensus on the establishment of an integrated public school system or even a single school board really possible at this time? The assumption that it is could well be a myth.
The pluralist approach allows a choice between different models of schools and school boards within the public education system. One of the choices available within a pluralist model should be a denominational school board.
Denominational schools are part of the public sector, particularly in Germany, the United Kingdom, New Zealand and some Canadian provinces, such as Ontario, Alberta and Saskatchewan. In the Netherlands, Belgium, France and Australia, such schools are private, even though they receive public funding. Agreements between the Church and State are rarely questioned. In 1970, the judgment of an Australian court interpreted that country's Constitution in a way that favoured public funding of denominational schools and noted in its decision, and I quote:
that the section prohibiting funding of a religion did not apply to instruction provided in denominational schools.
In France, the 1993 election campaign led to the promise of a broader choice of private denominational schools, partly funded by the government, reflecting the wishes of a great many parents. In the United States, despite the still widespread conviction that public funds should be devoted only to common schools for all children, and not merely secular schools, the diversity that is tolerated elsewhere in society is now making its presence felt in the field of education. A cosmopolitan heritage and a tolerant attitude toward differences are national characteristics that promote pluralistic choices in education. Indeed, the development of parochial schools, notably in the United States, is a striking example of that.
The dynamic that I have just described is a growing reality in the CECM. At the request of and with the assistance of parents in the community, schools have developed very diverse educational programs. While some parents demand the option of neutral schools, others emphasize the need to maintain the Catholic status of their school. It is important to offer an alternative within the public education system. In Montreal, the creation of linguistic school boards while still maintaining the Catholic School Commission seems to offer an appropriate response to popular demand.
That is why the institution I chair adopted a resolution to that effect on December 20, a copy of which is attached to our written presentation. At the same time, it is essential that the province of Newfoundland offer its residents a real choice that reflects the wishes of both its minority and majority populations.
At a time when Canadian society is becoming more diverse and the choices of individuals are growing ever more complex, the future of our public services will not be one of uniformity but rather of diversity. With a little imagination and a lot of goodwill, it is certainly possible to provide such choice, despite difficult economic conditions. Surely the people of Canada are creative enough to renew their institutions through alternatives other than slashing the rights of minorities.
[English]
Mr. Roger Dominguez, Independent Trustee: I am a proponent of linguistic school boards -- in other words schools that are not necessarily denominational. In Montreal, and in Quebec as much as the rest of Canada, it seems to me that taking rights away from minorities, particularly by referendum -- in a country where referendums are not part of our tradition -- is a step towards absolute majority rule which has the potential to create major problems.
For that very reason, countries that hold referendums have rules relating to referendums in their constitution that set out clear guidelines, so that minorities are in a position to defend themselves; in this particular case, however, whether we're talking about Newfoundland or future requests from other provinces, it appears such guidelines are nonexistent. Under the circumstances, the referendum is clearly less significant.
In terms of Montreal and the CECM, it is important not to divide people. If we take rights away from minorities, or even a majority, it will have a divisive impact. We have to find solutions, but they must be solutions that allow everyone to coexist within a single public system.
Senator Beaudoin: I want to thank you for your presentations, which were really excellent. I want to state from the outset that a referendum held in Newfoundland is not enough to change the Canadian Constitution -- witness the amendment currently before the Senate. Only the Newfoundland House of Assembly, the House of Commons and the Senate can effect constitutional change.
I certainly agree that politically, of course, a referendum is highly visible and has certain consequences. It is also true that our decision on the Newfoundland case could influence a future decision on our part if Quebec were ever to request an amendment to section 93. But there are major differences. In Newfoundland, Catholics are in the minority. In Quebec, there is a Catholic majority. I know that people will respond by talking about religious practice, and I realize there is a difference. In Quebec, section 93 has very often received what I would term a generous interpretation by the Supreme Court of Canada. In Newfoundland, I am not aware of any ruling on Term 17.
Senator Prud'homme: There will be some.
Senator Beaudoin: Yes, there certainly will be one day. We are not sure Quebec will ask that section 93 be amended. That would pose a political problem for current leaders in Quebec. However, it could happen one day.
My assumption is that the referendum was not necessary. I think there is a tendency to abuse the referendum process in Canada. We act as though that were part of the amending formula. The federal government made the same mistake with the Charlottetown Agreement; the Agreement had already been signed by all the provinces and the Prime Minister of Canada and, God forbid, they decided to hold a referendum anyway.
I think such cases must be judged on their merits. We are currently dealing with the Newfoundland case. There is no doubt that as far as denominational rights are concerned, the decision we make in this case could one day influence the situation in Quebec, Ontario, Manitoba, Saskatchewan and Alberta -- although I should say right away that the Newfoundland case is somewhat special, as is the Quebec case.
If you read the Constitution, you will see that Quebec and Ontario are in the same boat. A number of legal experts have presented testimony to the effect -- and we heard some excellent testimony this morning -- that Newfoundland and Ottawa can pass a bilateral amendment. I don't think any legal scholar would disagree with that. It is a philosophical or political decision. In Quebec, there is no guarantee that things would work the same way, but obviously people would use the Newfoundland precedent; there is no doubt about that.
I would like to hear your thoughts on that. The issue is not a legal one, in my view, but rather a political one, in the positive sense of the term, with a capital "P." There are minorities in Newfoundland that agree with the idea of amending Term 17. It is really only the Catholic and Pentecostal minorities that object.
Do you really believe this would set a precedent that could have unfortunate consequences in Quebec? In what way? I am from Quebec, although our circumstances are not quite the same. Close, though.
Mr. Pallascio: Madam Chair, I would like to have a chance to respond. First of all, I want to convey my regards to the former Dean of the Law Faculty. Since I studied law at the University of Ottawa, I am very pleased to have this opportunity to meet him again.
To answer your question, the issue really is far more political than legal to a certain extent. I would remind you of Judge Deschênes' ruling in the Notre-Dame-des-Neiges case -- a well known case in Montreal -- where he concluded by saying basically the same thing -- that beyond the legal debate, it was really a political issue. The government was supposed to take action based on the position known at the time, but it has yet to take any action whatsoever.
Looking at the situation in Newfoundland which, in my view, is even more dangerous than section 93, since we are talking about minority rights, whereas in Quebec, the problem is somewhat different -- as you yourself have very aptly pointed out -- as Catholics are in the majority. Rights are being challenged. I personally believe that both have rights. It's a question of meeting people's needs. What is important is serving the public well.
As Mr. Dominguez said earlier, we have to meet those expectations and find ways of responding positively to them, while respecting the needs of all. We often cite the example of Metropolitan Toronto -- I'm sure my colleague from Toronto won't mind if I use that example -- where you have two systems operating -- a denominational one and a public non-denominational system open to all.
The resolution we passed on December 20 at the CECM essentially involved forwarding a request to the government of Quebec. Naturally, we can speak only for Montreal, not for the entire province. But this is a crucial issue in Montreal -- namely to establish, where economically feasible, two separate systems, one denominational and the other non-denominational, which would meet the expectations of both parents and the general public.
We believe that to be possible. We even think it is possible to rationalize our educational system while incorporating such changes, if the economics are really that important. There is indeed a political issue involved here, but to allow this amendment to pass would be to endorse a full-fledged attack on minority rights, as we pointed out in our brief, and that would open up a Pandora's box that could have dangerous consequences for the future.
Senator Beaudoin: Let me put the question to you from a different angle. You can do a lot of different things when you amend a constitution. With a constitutional amendment, you are bound first and foremost by the amending formula. You are also bound by some fundamental principles. They are the real source of debate. If Quebec were to one day say yes, we do want francophone and anglophone school boards, but the right to denominational schools will be very clearly and explicitly entrenched in the act to amend, what would your reaction be?
Mr. Pallascio: In a way, that is the position the Quebec government has taken. The problem is essentially the same for all the provinces. In the public sector, the legal entity is not the school but the school board. That is important. This amendment would have the effect of minimizing the power of a board of trustees, which is responsible for distributing the human, material and financial resources that allow the schools to remain in existence or implement their educational programs.
Our board, which has pastoral activities, is a good illustration of that. The opposition party is a very secular party. It systematically challenges the need for these activities. That suggests that if that particular party were in power at the school board level, that service might disappear completely.
The mentality behind that policy is that if everyone isn't using it, we won't provide it at all. That's why the school board is so important as a decision-making locus. School board trustees are elected by universal suffrage, and by a specific segment of the public. I think we have to respect the choice they make.
Senator Beaudoin: You're in favour of denominational schools, but you feel that is not enough. You also want denominational school boards. Look at the history of Quebec and Canada. In 1867, Cartier, Galt and his colleagues wanted to protect confessionality, language and collective rights. All of that is part of the federative pact. There is no doubt about that. They thought of those things.
However, the Privy Council informed them in 1917 that language was not protected under section 93, only confessionality. That shortcoming was corrected in 1982. We decided that if French and English were not protected in the schools, we would introduce that protection -- hence section 23 of the Canadian Charter of Rights and Freedoms. We have two constitutional guarantees: one relating to the French and English languages, Canada's two official languages, and the other relating to Catholic and Protestant schools in Quebec. In the rest of the provinces, there are other denominations as well.
That is the current system in Canada. Those are two fundamental values that must be preserved. There is no doubt about that in my mind. How should we go about preserving them? I believe our roots in Canada and Quebec suggest that these two fundamental values need to be safeguarded. You say the Newfoundland precedent is a dangerous one because their school boards will not be denominational, only the schools. You seem to say that were that to happen in Quebec, Quebecers would never go along with it. That may be true. In any case, the majority will express its will -- at least, let's hope so! That is our dilemma. How do we go about it?
I would, however, draw some distinctions between Quebec, Newfoundland and Ontario. I am quite familiar with the three systems now. I was less familiar with the Newfoundland system, but I'm starting to understand how it works. It is just as complicated as the Quebec system, if not more so. We will find a way. You are here to tell us exactly what you want and what you don't want. As I understand it, what you don't want are school boards that would not be truly denominational, because you do not believe that denominational schools would actually be safeguarded under such a scenario. That appears to be your argument.
Mrs. St-Cyr: I believe having a denominational structure within a given system would be one solution. The school board administers budgets that allow the school to be established. It hires personnel, chooses school principals, and assists with the implementation of various ministerial programs. It plays a very important role. A school operating under a linguistic structure or school board would be on very shaky ground. As Mr. Pallascio said earlier, the people who administer theses school boards or structures may -- we have to be optimistic -- not be in favour of denominational schools, even though Quebec legislation allows parents to ask that their children receive instruction in denominational schools. And the fact is, that is what 80 per cent of them choose.
You say that people practice less, but that is a non-issue, as far as I am concerned. It is not up to us to make such judgments. They still expect the school in their chosen system to provide their children with a well-rounded education that includes the physical, psychological, intellectual, spiritual and moral dimensions.
That is our concern. If we start to tamper with rights that are enshrined in the Constitution, we will be diminishing minority rights, rather than creating new rights. That is a great source of concern for us.
Mr. Pallascio: As far as we are concerned, there is a fundamental principle involved when we talk about religious education and values and even language, and we don't think we should be at the mercy of administrative or even political decisions. Our constitutional framework is therefore of crucial importance.
In 1867, in Montreal, the Fathers of Confederation deemed it appropriate to provide a particular status to two classes of persons, most likely because there were issues at the time that justified affording them this protection. I am not saying the situation is exactly the same today; it may well be different, but there are still issues.
I believe our current constitutional framework allows us to frame those issues and find solutions that meet people's expectations, while at the same time protecting those denominational values in this particular case.
In 1982, it was felt necessary to provide additional protection for our languages. We want to preserve them. That is a fundamental issue. Even within the current framework, solutions can be found to meet the public's expectations.
Mr. Dominguez: I have been a parent since 1976. I am in favour of linguistic school boards, which have yet to be established. I am part of a minority that has not been able to obtain the services it is entitled to.
Why? Well, the fact is there were no guarantees. We had to make the system work, but it wasn't always easy. Nor will it be in future. I understand why Mr. Pallascio doesn't want to see his current vested rights taken away. I say that it's not by taking away the rights of a minority that others will have more rights. That is not the way it works. If a minority has rights, it must keep those rights. What we have to do is to broaden those rights and ensure that everyone has an opportunity to exercise his own rights. If we take rights away from minorities, we will be heading towards conflict, rather than a solution.
Senator Beaudoin: I agree with you. I fully understand the goals you have set. There is not a society in the world that doesn't evolve. But don't forget that Galt was one of the framers of section 93 in 1867. Galt was a Protestant. He wanted to protect the rights of Protestants -- which is perfectly natural. Catholics want to protect their rights. The problem is, how do we deal with that particular issue at this point in history. I think it's important to take the time to reflect and to listen to people's views. And that's exactly what we're doing.
We must find a solution, though, because every country is founded on certain values and historical facts. We must find some way to balance those rights.
Senator Gigantès: Through compromise!
[English]
Senator Pearson: As I have been listening to all the presentations from the Catholic groups that have appeared in front of us, I have been trying to get a handle on whether I believe your concerns are real with respect to the question before us. I hear you all saying more or less the same thing.
In fact, the situation in Newfoundland is unique to Newfoundland and is being responded to under the amending formula. It is not the one you have been talking about in most of your presentations; rather, it is only bilateral.
As mentioned earlier today, to diminish the impact on the rest of the country, we must arrive at our conclusions thoughtfully and consider the various points of view. Then perhaps your concerns are not as great as you may think they are.
The presentation this afternoon from Mr. Binnie seemed to be quite convincing that the kinds of guarantees of confessional rights or denominational rights that have been described by the Constitution are in fact represented in Term 17 as amended. They are separate issues.
Mr. Fernandes, you speak of a school board in Ontario which you represent and which has more children than all the children in Newfoundland, who are not all Catholic. There are many children from different faiths. I feel that you are holding Newfoundland hostage to a situation about which you are concerned, but I do not think it is as serious from your point of view. I do not think it will have the impact that you think it will have for the reasons given to us by the constitutional and legal experts. We will see how the people of Newfoundland themselves feel about this.
Mr. Fernandes: I believe that the situation in Newfoundland is serious for a number of reasons. One of the most important is that once the Constitution is amended and the guarantees under the Constitution are diluted, there is nothing sacrosanct about the Constitution.
Senator Pearson: You are assuming a dilution of guaranteed constitutional rights; others say there will be no dilution. Some rights will be transferred, but they may not be the ones about which you are worried.
Mr. Fernandes: The understanding reached by the government and the educational community in Newfoundland is what ought to have been respected so the need for the constitutional amendment was not there. Today, it is not there.
Senator Pearson: The agreement was never reached.
Mr. Fernandes: There was an understanding between the government and the Catholic education community.
Senator Pearson: No.
Mr. Fernandes: It is my understanding that there was an understanding with the government. However, be that as it may, I accept your statement that there is no agreement or understanding between the government and the education community. If that is the case, as you say, then I am concerned that once a dilution of constitutional guarantees is accepted in Newfoundland, it will happen everywhere else.
Governments have a tendency to hang on to something to protect themselves from failure in others areas. They try to magnify something. What is the main reason for the Newfoundland government coming forward with this amendment? They feel that the boards are operating inefficiently, but so are many government departments at the federal level and at all provincial levels. Are we abandoning and eliminating those departments? No. We try to bring about efficiencies.
Senator Pearson: Yes, we are.
Mr. Fernandes: There is the question of addressing a problem in a realistic and practical manner. Whether laying off 42,000 people will solve the problem, I do not know. The question is how effectively are things done? In order to cover up it own inefficiencies, the government hangs on to the school education system and says, "Let's hang on to this issue and divert people's attention from the real issues of the economy and unemployment." These are issues from which governments are trying to divert people's attention. I do not think this is right way to go about it.
When it comes to constitutional rights, I believe that once the rights of the Catholic minority or any minority -- whether in Newfoundland or elsewhere -- are compromised, such an action will be cited as a precedent and other provinces will be ready to emulate that example.
[Translation]
Mr. Pallascio: We said earlier that this was primarily a political issue. Is it right to use the Constitution to solve a problem with school system administration in one province or another? Is this intended to meet the needs or expectations of parents? What we're talking about here are constitutional rights enshrined in the supreme law of the country, precisely so that they will not be at the mercy of local or other political decisions. Its importance hinges on that crucial function.
When the Quebec Minister of Education, Mrs. Marois, introduced her plan for reform, she informed the CECM. She even stated publicly, on a program, that if people challenged her legislation, she would request an amendment to section 93, and then there would be no more denominational schools in Quebec. Of course, I am not suggesting that she will get her amendment.
But it is essential to have constitutional protection for things as fundamental as education, and even in other areas. Even the institution of the Senate is protected by the Constitution. That, too, is important. If we're talking about education and the fundamental right of parents and the public to receive an education that reflects their own values, I believe we have all the guidelines we need in the Constitution. Let us try to find accommodation within those guidelines. In any case, there is no reason to believe that we cannot do it -- quite the opposite.
Senator Gigantès: What percentage of the population votes in school board elections in Montreal?
Mr. Pallascio: On average, about 15 per cent. I know that's a loaded question. In mayoral elections in Montreal, it was about 40 per cent. So, Mr. Bourque was essentially elected by about 25 or 28 per cent of the population. Yet it would never occur to me to question his legitimacy as Mayor of Montreal.
Senator Gigantès: Mr. Fernandes questioned the legitimacy of the referendum result in Newfoundland, where 52 per cent of the population voted.
Mr. Pallascio: It's not the percentage that counts. Minority rights are under attack here. People are being asked to take a position on those rights. In terms of the consequences of such a vote, I don't really think it's possible to make valid comparisons in this case.
Senator Gigantès: Some minorities in Montreal find your Commission pretty tyrannical.
Mr. Pallascio: For 150 years we have been open to every segment of the population. We refuse no one who wants to register with the school board. For instance, in Côte-des-Neiges, which is an extremely ethnic neighbourhood, we have St-Pascal School which is overcrowded, while the Protestant School Board has half-empty schools. The fact is parents are choosing to send their children to the CECM.
We never refuse anyone, whatever his or her colour, race, sex or religion; they are all welcome. We ask that people respect the institution. We offer options in Catholic and moral instruction. It's important to point out, though, that in Montreal, unlike Toronto, as Mr. Dominguez was saying, there is no choice between confessionality and non-confessionality. A number of people would like to have their own boards and their own schools. One of the Coalition's proposals is that there be two separate systems that meet those expectations.
Senator Prud'homme: I, too, realized that Senator Gigantès' question was a loaded one. My father was a city councillor and at the time, was elected with 15 per cent of the popular vote, which didn't prevent him from helping René Lévesque to get started, as René Lévesque himself states in his memoirs. You know, if you start saying just when 15 per cent is good enough and when it isn't, you're playing a dangerous game.
Personally, I would encourage you to continue your work. I know it isn't easy defending certain values. We are living in a time where people want us all to be -- I don't know what! But I don't agree with that school of thought. I believe there are still fundamental values.
I have been in Parliament for some 33 years now: 30 years as a duly elected M.P., not only elected but reelected with strong support. Now I'm in the Senate to give sober second thought to these issues.
Senator Gigantès: And not elected.
Senator Prud'homme: True, but we have a constitutional duty to fulfil and we will fulfil that duty, even though people may smile and make jokes. I, for one, will not shrink from that duty. It is Canadians who will decide -- not the press or a couple of professors or a small group of people. When Canadians decide that the Senate should not longer exist, perhaps I can help them. But in the meantime, we have a constitutional duty to fulfil and we shall fulfil it. I certainly shall.
I just want to make one comment to my friends who speak the other official language; sometimes I get rather impatient, as everyone knows, and that is increasingly the case as I get older.
I have crisscrossed Canada over the past 33 years. I know the country very well. I have noticed one thing and it is starting to really bother me.
[English]
In the end, it is always the French-speaking minority or the Catholic minority that must go through the compromise that some people are talking about.
[Translation]
I note that it is always the same people who are being asked to compromise. The history of Canada is filled with examples of that. I started to give a couple this morning, and I know that makes people feel uncomfortable. There is no need to revisit the entire history of the educational system in Ontario, or the entire history of schooling in the province of Manitoba and other provinces. As far as I'm concerned, a right is something that is written into law. That's what a Constitution is all about.
[English]
I am not ready to tamper easily because it costs money. Yes, it costs money. Everything else costs money. Are we giving up?
[Translation]
Are we going to eliminate everything we find too costly? That is what this debate is all about. Some services might be more appropriately provided in the provinces -- at least by those who want them. Canada is full of exceptions. But let's not have people say that Newfoundland -- and I know the province well, which is quite rare for a Quebecer and French Canadian like me -- I realize this is causing problems. But I think there is another way of going about it without infringing on the rights of people who were absolutely convinced they were entitled to that protection when they joined Canada. To me, that is the crux of the issue. And things will be no different if Mrs. Marois comes before our committee. I hope you will join me. I do hope she will appear before the committee. I've been waiting for this for years. We will talk about the definition of minority rights. One must never fear public opinion. Public opinion is like a weather vane: just when you think you have finally got a handle on it, it moves in a different direction. So you just have to concentrate on your own convictions, and ask yourself whether you're doing the right thing or not.
Thank you very much, and good luck. I know that you're facing some formidable obstacles in Montreal, but just because it is a struggle doesn't mean you should get discouraged.
[English]
Senator Rompkey: I did not want to let the record go unchallenged. The gentleman on the extreme right of the panel, Mr. Fernandes, seemed to suggest that the Government of Newfoundland somehow was using this as a smoke screen or as a diversion of some sort and that there was no support for it amongst the population. I wanted to place on the record that a Royal Commission conducted public hearings. There were also negotiations with denominational authorities, which we have already established were inconclusive and did not bear fruit. There was no agreement. There was a referendum, it is true, where only 55 per cent voted for and the others voted against. However, an election was conducted in the province of Newfoundland with this as a plank in the platform and Premier Tobin increased the majority of the government. To say that this is a government whim is to suggest that the people of Newfoundland were either stupid and did not know what they were voting for or to ascribe some other motive to them which is not exactly complimentary.
If the premier of the province goes through a democratic election where he is open about what he wants to do with the school system and he asks the people of the province for their support in a duly democratic process, that is the voice of the people. I would reject any suggestions to the contrary.
The Chair: I thank the witnesses who have appeared here this afternoon from Montreal and from Toronto. Thank you very much for your presentations.
Our last witness this afternoon -- and, I am delighted that he has been able to join us -- is Grand Chief Ovide Mercredi, another Manitoban.
I saw Chief Mercredi in the audience yesterday. Realizing that he clearly had some interest in the case and that he would not have attended the hearing if he had not, I invited him to join us today.
Chief Mercredi, please proceed.
Chief Ovide Mercredi, National Chief, Assembly of First Nations: Madam Chair, my intervention will be very brief. It will involve the issue of how the Constitution can be amended to affect the rights of minorities and the inherent rights of First Nations in Canada.
First, let me convey my amazement at the lack of honesty on the part of the Liberal government in its dealings with First Nations. The Prime Minister and his Minister of Indian Affairs claim to the First Nations that our rights and advancement can be dealt with without resorting to constitutional reforms. In the meantime, our people's constitutional rights are being challenged in the Canadian courts across this land, ranging from issues such as fishing rights, tax exemption rights, self-government jurisdictional powers, and so on. At the same time, this Liberal government refuses to address the constitutional issues for either Quebec or the First Nations. It is, in a rather sneaky way, allowing the Newfoundland Liberal government to make unilateral changes to the constitutional rights guaranteed in the supreme law to the Catholic and Pentecostal denominational schools.
One might argue that this point does not raise a legal issue per se, but no one can deny that we are confronting a national government that is selective -- very selective -- in whose rights it decides to recognize and protect in the Canadian Constitution. I add with confidence that our rights as First Nations and the constitutional objectives of the Quebec federalists are nowhere to be seen in the Chrétien version of Canada.
My primary concern with the amendment is the precedent it will set for the majority in Canada or in any province of Canada to essentially terminate the rights of minorities and the rights of First Nations. I am here to speak against the tyranny of the majority. For that reason, I am here to express support for the submission provided to the Senate by the Canadian Conference of Catholic Bishops.
How confident can First Nations be of the constitutional protection of their treaty and aboriginal rights if it is possible, as is being shown by this amendment, that the majority can, by way of referendum, effectively cancel by a stroke of the pen the constitutionally guaranteed rights of a minority? The fundamental reason for placing minority rights and treaty and aboriginal rights in the Constitution is to shield them from the will of the majority. The explicit recognition of our treaty and aboriginal rights is one way of achieving the confidence and certainty that we need to carry on as distinct peoples in Canada.
As you can see, nothing in the Newfoundland amendment gives explicit protection to the First Nations in that province to maintain and operate with public funds their own schools under First Nations authority and jurisdiction. To the contrary, this amendment creates a bad precedent of assimilation by placing, like the denominational schools, the First Nations under the exclusive jurisdiction of the province of Newfoundland. We oppose any such effort to undermine and violate our inherent rights as First Nations to govern ourselves.
We are told that democracy is the golden rule of conduct for our country and our governments. Minority rights are part of democracy. Minority rights are part of this country. It is not only the majority that makes up a democracy; it is also having respect for human collective rights that distinguish a democracy from a totalitarian state.
Senators, who should have the power to alter minority rights? To protect the democracy of our nation, only the minority affected by any amendments such as this should have the right to decide how those rights can be altered to accommodate changing circumstances. Otherwise, why enshrine minority rights in the first place?
My people do not regard themselves as minorities. Neither do we regard our treaty and aboriginal rights as minority rights. In our perspective as First Nations, we are the first collectivities in this country, the first founding peoples of the North American continent. Consequently, our rights and freedoms belong to us as a distinct people across this land. They do not come from those who came after. However, since our rights are also protected in your Constitution, we are mindful of the fact that at some future date a federal or provincial government, or all white governments, may well try to extinguish all our treaty and aboriginal rights. This Newfoundland amendment is both a scary and a dangerous precedent for us as it is for those more directly affected by the unilateral changes being made to their constitutionally guaranteed rights.
As you are well aware, part of our constitutional objective is to ensure that our consent will be required prior to any constitutional amendments that will directly affect the rights and freedoms of First Nations.
At present, all we have in the Constitution is the right to be consulted prior to any changes to specific provisions that relate exclusively to our people. We have always felt that this is not enough to protect us from the will of the majority. We now know for certain, observing how minority rights are being dealt with in Canada, that we need a consent clause in the Constitution to protect such arbitrary alterations to our constitutionally protected treaty and aboriginal rights.
Senators, do not let a narrow vision of democracy and an even narrower vision of Canada become the established precedent for our Constitution. We are not the same. We do not have to be the same. We all have a human right to be different.
The challenge for us is to develop a democracy that is based on the principles of pluralism, not on the principles of assimilation.
The Chair: Thank you, Chief Mercredi.
For your information, senators, Chief Mercredi is accompanied by Alfred Linklater, Senior Manager and Director of Education for the Assembly of First Nations and the National Indian Brotherhood.
Senator Rompkey: I thank Chief Mercredi for being here.
There has been much discussion of the termination of rights issue, but I do not think anyone who has appeared before us so far has suggested that rights will be terminated. There is some suggestion that rights will be diminished. There has been much discussion about what position that will place Newfoundland denominations in compared to the same denominations across the country. However, I do not think anyone has suggested that rights will be terminated.
In fact, the proposed new Term 17 states:
(a) except as provided in paragraphs (b) and (c), schools established, maintained and operated with public funds shall be denominational schools..."
The fact that there will be denominational schools is actually written into the new Term 17 and will be in the Constitution.
My second point has to do with the rights of First Nations. I raised this yesterday with Dr. Carney from Alberta. I asked him whether he thought that under the proposed new Term 17 it would be easier for First Nations in our province to have their own schools if in fact that is what they desire, and I suspect that it is. He answered that it would be because 17(b)(ii) states:
the Legislature may approve the establishment, maintenance and operation of a publicly funded school, whether denominational or non-denominational;
Therefore, the new Term 17 gives a greater opportunity for First Nations to have their own schools in our province than did the old Term 17. It is very clear, if you read the old Term 17, that the seven denominations now listed in the Constitution have guaranteed rights, including the rights to public funds and the disbursement of them.
It would be difficult, under the present Term 17, to establish aboriginal schools in particular. However, in the proposed new Term 17, there is a paragraph which provides the opportunity for the creation of aboriginal schools. I think that would give the Inuit in Newfoundland and the Innu in Labrador the opportunity to have their own schools.
I would like to give Chief Mercredi an opportunity to comment on that.
Mr. Mercredi: I will deal with the latter part of your question first.
You claim that it will be easier for our people to establish schools in the province of Newfoundland. That is the issue. Our people believe that their relationship is not with the provinces but with the federal government. In addition, the text for the proposed new Term 17 would take away the governance from the Catholic Church or the Pentecostal Church and give it to the province so the province would essentially have the authority to decide the nature and quality of education. They would narrow the role of denominational schools to teach religion or offer prayers or something like that.
Senator Rompkey: That would only be with the consent of the parents.
Mr. Mercredi: That is the point. The rights that Catholic parents now have would be diminished by this provision.
Senator Rompkey: If the people in Sheshatsheits wanted to maintain a Roman Catholic school, as they have now, presumably it would be their right to do that. On the other hand, if they wished to establish a school that was not a Roman Catholic school, then presumably they should have the right to do that as well.
Mr. Mercredi: The fundamental issue I am raising with you is that under this provision our people will still be under the white man. Our people will be placed under a white government -- that is the issue. This amendment does not recognize my people's constitutional right to an education. It does not recognize my people's constitutional right to run their own education programs. What this does is it places us under the authority of Brian Tobin, or future Brian Tobins, forever. That is the issue for us.
In relation to the other issue you raised about there being no effective change to the denominational schools and the fact that they will still have the right to carry on, I think that issue has been addressed by the Catholic bishops. Their opinion differs from yours. While their rights might not be terminated, as you claim, the fact remains that their rights are being diminished.
I raised the issue of what right the majority has to alter a constitutional right of a minority. In Canada, if minority rights can be altered so quickly and so easily without proper hearings even in the House of Commons, then what assurance do we as First Nations have that our rights will be enshrined in the Constitution for as long as we live and for as long as future generations of our people continue to live in this country? That is the issue. Clearly, there is no certainty as to constitutional rights in Canada.
Senator Beaudoin: I wish to return to the question asked by Senator Rompkey. If it gives more right, which I think is the thesis, then it is only an implicit right. What you would like is an expressed right. Do I understand you correctly?
If there is self-government for aboriginal people, then you want something expressly stated in a text, of course, not something which is implicit.
Mr. Mercredi: First Nations people in Conne River now operate their own school. This amendment would not give them anything more than what they have already. We object to the fact that this amendment places our people under the authority of the provinces.
When you think about our constitutional objectives, you will know that the inherent right of self-government is a distinct order of government. It is a separate order of Government in Canada. You cannot proceed to alter, subject-matter by subject-matter, things such as education and health and claim to be respecting those inherent rights when you are doing something else behind the door. That is the case here.
Mr. Chrétien is saying to us, "We respect your inherent right." Mr. Irwin is saying to us, "We respect your inherent right." Where are they to ensure that the Newfoundland government does not alter our inherent right? The Newfoundland government is altering the inherent right of our people to have jurisdiction over our education.
Senator Beaudoin: Under the provision of section 91.24 of the Constitution Act, the Parliament of Canada may legislate in relation to aboriginal people. I know that in some cases provincial laws of general application may apply to aboriginal nations. However, there is no legislative power for the province, as we have in section 91, where it is stated "Indians on reserves."
I understand your reasoning. You have always advocated self-government. In your scheme, education is there, of course. If ever a right is awarded, then you want it to be awarded expressly and not implicitly.
Mr. Mercredi: We want it to stand alone, yes.
Senator Rompkey: We should explore this question for a little more clarity. The Terms of Union of 1949 were completely silent on aboriginal people. I happen to think that was a bad thing.
Mr. Mercredi: The same holds true for 1867.
Senator Rompkey: That may be true. However, I want to deal just with the Newfoundland issue. We were there in 1867, but decided not to join. We joined in 1949. When we joined in 1949, the Terms of Union were completely silent on aboriginal people.
Senator Beaudoin: That is right.
Senator Rompkey: Let us admit that that was not a good thing -- however, it is a reality.
At the moment, in our province, we have both the Inuit and the Innu. I am not referring now to Conne River because that is a distinct group which settled their situation with the Government of Canada much earlier. However, both other groups are negotiating now in a tripartite situation. They are negotiating land claims both with the Government of Canada and the Government of Newfoundland. My contention is that in that process, if the issue of self-government is important -- and I think it is -- and if education is an element in that process, then it will be easier for them to negotiate what they want under the new Term 17 rather than under the old Term 17.
I accept what you say about fiduciary responsibility. I am just talking about the reality in our province as it exists now. I contend that it would be easier for both the Innu and the Inuit to negotiate what they want under the new Term 17 rather than under the old Term 17.
Senator Prud'homme: You mentioned earlier the word "may", senator.
Senator Rompkey: The legislature "may" approve it.
Mr. Mercredi: It is not explicit. It does not say, "First Nations can have their own schools." It implies that we can.
Senator Beaudoin referred to section 91.24 of the Constitution under which Parliament can make laws for Indians and Indian lands. However, Parliament did not consider the Indian people in Conne River Indians until a few years ago. Parliament did not consider the Innu in Labrador Indians until recently. In fact, they are not considered Indians under the Indian Act.
We helped the Innu in Labrador take the Department of Indian Affairs to the Human Rights Commission on the grounds that the department was discriminating against them. They were not receiving the same services from the same government as other Indians in Canada because they were not recognized as Indians within the meaning of the Indian Act under section 91 of the Constitution.
Other First Nations on the island still do not have status within the meaning of the Indian Act. They are seeking to be recognized as Indians in this country.
Senator Rompkey: That is quite right.
Senator Beaudoin: section 35 of the Constitution Act, 1982, states in part:
... "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.
That is enshrined in the Constitution.
The Supreme Court stated in a case in 1939 that "Indian" includes "Inuit." That was only a decision of the Supreme Court which, of course, is very important. Now it is enshrined in the Constitution.
The Chair: Someone must recognize them as aboriginal, Inuit or Métis.
Mr. Mercredi: That is one of the issues. The other issue is that their involvement within the province can be prescriptive. Mr. Tobin cannot make that choice for them. He cannot say, "You will now come under my jurisdiction", which in effect is what would happen if this amendment remains silent about their special status in Canada.
Senator Rompkey: Could you repeat that, please?
Mr. Mercredi: Mr. Tobin cannot, by prescription, say to the First Nations in Newfoundland, "You are now part of the jurisdiction of the province in relation to education."
Senator Rompkey: There is nothing to say that here.
Mr. Mercredi: Let me read it to you.
In and for the Province of Newfoundland, the Legislature shall have exclusive authority to make laws in relation to education....
Senator Rompkey: That is for the whole province.
Mr. Mercredi: That is for everyone in the province, including Indians. You said to me that it would be easier for them to get a school through this.
Senator Rompkey: It would be easier for them to have their own school under the new Term 17 than under the old Term 17.
Under the Constitution of Newfoundland at present, there is no mention of aboriginal people, but powers are clearly given to the seven denominations, including the power to access the public treasury. Under the new Term 17, subparagraph (ii) states:
...the Legislature may approve the establishment, maintenance and operation of a publicly funded school, whether denominational or non-denominational;
In other words, the school does not have to be denominational any more. It can be something else. Therefore, my theory is that this new Term 17 gives the aboriginal people in our province an opportunity that they did not have before in law to establish their own schools. That is my contention.
Mr. Mercredi: My contention is that it will be easier for the federal government now to say to the First Nations in Newfoundland, "You are now a provincial responsibility." When the Innu and the First Nations on the island itself begin to negotiate their land claims and to consider authority over education, the federal negotiators will tell them that they now come under provincial jurisdiction.
Senator Rompkey: But they have come under provincial jurisdiction since 1949.
Mr. Mercredi: But they have never consented to it.
Senator Rompkey: They do not have to consent to it here. This says nothing about aboriginal people.
Mr. Mercredi: You are missing the point. I am making the point that no Indian in Canada has agreed to come under any white government. That is what I am saying to you. The assumption made by all politicians is that we are citizens of this country and that you can make decisions for us in the same way you make them for your own people.
Senator Rompkey: Surely you acknowledge the ongoing land claims process in the province.
Mr. Mercredi: That is not the issue. I am raising this issue with you -- your government and your society cannot bind our people and our governments. We have never agreed as a people to come under your wing and to be controlled by your people.
Senator Rompkey: Having accepted that, surely the reality is the ongoing land claims process in the province now where aboriginal peoples are negotiating with both levels of government. Granting what you say, granting that aboriginal people feel they have never given up the right to self-government and want to maintain that right --
Mr. Mercredi: And their land and their resources.
Senator Rompkey: Accepting that in theory and in principle, in our province now, the reality still is that there is an ongoing land claims process whereby the Inuit and the Innu are at the table with both levels of government to negotiate a long-term agreement on governance.
Mr. Mercredi: The other reality, Senator Rompkey, is that we have treaties in the West which say we have the right to education and to our own schools. The reality is that your government does not respect those treaties.
Senator Rompkey: We do not have any treaties in Newfoundland.
Mr. Mercredi: Not yet.
Senator Milne: Chief Mercredi, perhaps you or Mr. Linklater can answer my question because I do not know Newfoundland well. How many aboriginal schools are in Newfoundland and Labrador right now and who operates them? I have heard of Conne River but I do not know how many others there are.
Mr. Alfred Linklater, M.Ed., Senior Manager and Director of Education, Assembly of First Nations: That is the only one.
Senator Beaudoin: To add a final point to this interesting conversation, section 91.24 and the division of powers is part of federalism and cannot be changed by bilateral amendment at all. To change anything in sections 91 and 92, we need the approval of 7 provinces with 50 per cent of the population. In that sense, your protection is there.
Mr. Mercredi: I think the Catholics and the Pentecostals in Newfoundland thought that they, too, had constitutional protection in the article which guaranteed their minority rights, but it is not there.
Senator Beaudoin: It is always the same dilemma. Things may be changed according to the amending formula.
Mr. Mercredi: You know now that the provinces and the federal government have the power to change those rights. To us, that is not enough protection. To ensure that no future governments change our rights, we have been trying to obtain the requirement that we consent to any amendments. We now have the right to be consulted -- you can read it for yourself -- and perhaps to be involved in the meeting where they discuss these amendments, but we do not have the power to stop changes. Only the right of consent will give us the power to stop them. We would need our own veto over constitutional provisions directly relating to our people.
Senator Beaudoin: That is right.
Mr. Mercredi: That is the only certainty, the only real guarantee we could have. Quebec does not have that protection either because they lost their right to veto. Even that protection was not enough to save them from the majority of the provinces.
Senator Beaudoin: It is true. The Prime Minister will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that matter. That is in the Constitution Act of 1982, but that is another area for discussion.
The Chair: Chief Mercredi, knowing the history of residential schools in the province of Manitoba, I find a certain amount of irony in your support today for the position taken by the Canadian Conference of Catholic Bishops. My question relates to Manitoba. Have the issues in Manitoba between the church and the aboriginal people ever been resolved? Has the church ever given an unqualified apology for their treatment of aboriginal people?
Mr. Mercredi: There is no irony to my position. There is no dissidence whatsoever. I am defending the right of people to maintain their rights as guaranteed to them in the terms of agreement at the time of union.
If the rights of white people cannot be protected by their own people, what will happen to our rights? There is no certainty that our rights will remain protected if the Canadian federation shows no respect for the rights of its own people whom they intend to protect.
The Catholic Church has issues with us. That is between us and the Catholic Church. In the history of the residential schools, there were two culprits -- the church and the government. Both have yet to answer in full. That does not prevent me from coming here and saying to you that the rights of the Catholic and the Pentecostal minorities in Newfoundland are being affected by the majority in that province. In other words, due process is missing here.
The fact that people held a referendum is not enough, in my opinion, to take away a right from people who have constitutional rights. More is required. The people who stand to lose that right should be more than consulted -- they should have the final say on whether their right should be altered. It should not just be a simple majority decision. That is the same argument with respect to Canada; a simple majority should not break up the country.
Those are the signals that this amendment is sending: By referendum, you can alter minority rights. Hence, by referendum, you can also alter the nation state and the boundaries of Canada.
Senator Rompkey: Of course, the referendum was only one part of the process.
Senator Pearson: It was not essential.
Mr. Mercredi: The process went to the House of Commons, and what happened in the House of Commons? There was a complete denial of democratic rights in the House of Commons.
Senator Rompkey: The process did not require a referendum. The process requires an agreement between the province and the Government of Canada.
Mr. Mercredi: I understand that but I am saying that is not enough. Otherwise I would not be here and the Catholic bishops would not be here. If that were enough to protect minority rights, it would not happen.
The House of Commons should stand in shame for the way it treated Catholics and the Pentecostals in Newfoundland by not even giving them a right to appear before them. These are elected representatives and they did not even give the people of Newfoundland the right to appear before them to argue their case. They had to come to the Senate, but senators know they cannot do much about this. Only the House of Commons has the power to make changes to protect certain rights, and from what I heard yesterday sitting here, the Catholic Church has been making alterations in the way in which education is governed in that province, perhaps not fast enough to satisfy certain politicians, but changes are being made to the way the education system is run.
Senator Rompkey: Well, 55 per cent of the people voted for Mr. Tobin several months ago in an election with this as part of his platform.
Mr. Mercredi: Let us take your argument one step further. Let us suppose the Reform Party runs on a platform of eliminating constitutional rights for Indians and that it receives a majority. Should they then get rid of Indian rights in the Constitution?
Senator Rompkey: My point is that you cannot limit it. You were limiting it to a referendum. The point I was making is that that was an oversimplification of the process. Similarly, an election is an oversimplification of the process. The testimony we had from constitutional lawyers and from the Minister of Justice and others was that there had to be a reasonable attempt to consult. Was there an attempt at non-constitutional reform? The answer is yes. Were there public hearings? Yes. Were there negotiations with the affected parties? Yes. Was there a referendum? Yes. Was there an election that turned, in part, on this particular proposal? Yes. All of those things are part of the process. To say that the referendum was the process is wrong. To say that the election was the process is wrong. All of these things were the process. The point these people were making, which I think is valid, is that there was due process of consultation. The minorities, not just the Pentecostals and the Catholics, but the Anglicans and the United Church and the Salvation Army, who also have rights in Newfoundland -- nowhere else in the country, but in Newfoundland -- were able to say what they wanted to say. All of those minorities had a right in due process; that is the point I am making.
Senator Prud'homme: Chief Mercredi, I regret not speaking your language. Our discussion will take a long time if you speak my language, so I will use what I call a neutral language, the other one, which is neither mine nor yours.
I should like to push Senator Rompkey further in his argument. He asked a series of questions and gave the answers: Yes, yes, yes. I wish to add a last question. Was there a hearing in the House of Commons? That chamber voted without it.
From day one -- and I will not apologize to anyone -- I was a pest in the Senate, begging of them that at least the Senate should have hearings. At least we are having them now. At first, everyone thought "There goes Prud'homme again." However, this is a question of conviction. I know we are right; I know that the House of Commons was wrong.
I am not attacking the House of Commons. I was in the House of Commons for 30 years, through ten elections. I know that when you want to get something done quickly, you do it at the end of June on a Friday. I was national caucus chairman, but I had difficulty and I am now an independent. People from Newfoundland said, "Well, we will pass that on a Friday." I saw what a Friday did -- no hearings. Hence, I am glad that the Senate took its responsibility. It is a good process, and I am glad that you are here.
The chairman raised the question of apologies from the Catholic hierarchy in Manitoba. I did not see any apologies from Anglicans for their treatment of Indians in other parts of Canada. I am not defending the Catholic Church, but I did not see apologies from the people in Newfoundland. I heard there were Indians in the old days in Newfoundland. I do not know where they are now. That history was taught to me by Senator Rowe. I did not know about the sad history of Indians in Newfoundland. I did not hear any apologies.
The Chair: There have been apologies from some groups in my province.
Senator Prud'homme: Chief Mercredi, I think you should pursue and continue.
I am a French Canadian, and for three years in the Senate and before, I have said -- and I say it publicly -- that I feel humbled when I am in the presence of representatives of the First Nations. There were people here before my ancestors arrived from France, and if we want to have an harmonious country, we must come to terms with each other. As unpopular as this may be in every part of Canada --
[Translation]
I made my comments in French. I have never had a really bad reaction, because I believe in what I say. It's important to understand the meaning of respect.
[English]
Everyone is saying, "Vive le Canada!" Canada has been voted number one in the world by the United Nations two times in a row. The United States is second and Japan is third. The Europeans are way down the list.
The question I always ask as a proud Canadian is this: Why is it that people seem to see in us things that we may not? I dare say today that it may be because we always come to terms with each other in respect of our minorities. That is certainly one of the reasons the world perceives us to be great. At the end of the day, we find solutions. We do not take away rights.
No evidence yet has been brought forward here to say that I should change my opinion. Having said what you have said, you have reinforced my position.
The Chair: Thank you, Chief Mercredi and Mr. Linklater.
That is the end of our session today, senators. We will, as you know, reconvene in St. John's, Newfoundland, on July 9.
Senator Prud'homme: Madam Chair, as you know, I am not a member of the committee, but I am interested in this matter. I may not be able to go to Newfoundland. As a non-member, I could, but I am like Senator Forest -- I would travel on my own budget. This is irrelevant, budget or not. However, at the end of the day, how do you intend to proceed? I would like that clearly established for the record. Many senators here are not regular members of this committee. That is all right; they were substituted. Senator Forest has missed no meetings. She is not a member of the committee.
Senator Forest: No, I am not a member.
Senator Prud'homme: Madam Chair, will regular members of the committee come in and draft a report on July 16 or 17 to be tabled with the Senate no later than July 17? Will these senators say, "Senator Petten, step aside, even though you heard all the testimony. Senator Rompkey, step aside. We, the full members of the committee, are taking over this committee and will draft the report"?
Senator Petten: Perhaps I could respond to that.
The Chair: I should also like to put a few things on the record.
Senator Petten: I am on this committee because I come from Newfoundland and I have a parochial interest.
Senator Prud'homme: I agree.
Senator Petten: I will assure you now that I will be here until the matter is settled one way or the other.
Senator Prud'homme: Since this proceeding is televised, I wish to reassure Senator Petten of my devotion to him. I would have found myself totally out of place if there would not have been any senators from Newfoundland. That would be unthinkable.
The Chair: Let me assure you that the cameras are off. Let me also assure you that, for the purposes of this hearing, there were some senators, such as Senator Rompkey, Senator Doody and Senator Petten, who, through their caucuses, asked to be members of this committee for the duration of its study of Term 17.
As to the question of how we will proceed when we come back on July 15, we will go in camera, as is customary. However, all senators who have an interest in this issue will be free to attend those in camera meetings. I certainly hope that Senator Prud'homme and Senator Forest will be with us during the preparation of our report because you have listened carefully and will obviously have something to contribute to the drafting of that final report. If you have ideas you would like to see in the final report, please jot them down and share them with our clerk, although no writing of the report will begin until after we have heard from the people of Newfoundland.
Senator Prud'homme: Who will be the voting members?
The Chair: The voting members of this committee at the present time are, among the Liberals, Senator Fairbairn, who of course is always ex-officio, or Senator Graham, Senator Gigantès, Senator Lewis, Senator Pearson, Senator Petten, Senator Milne and Senator Rompkey. On the Conservative side, we have Senator Beaudoin, Senator Cogger, Senator Doody, Senator Jessiman, Senator Nolin, and of course Senator Lynch-Staunton or Senator Berntson as the ex-officio members of the committee. I am on the committee as your chair, but I must say that, unless called upon to vote, I will not do so.
Senator Pearson: Senator Anderson is replacing Senator Milne.
The Chair: I am aware of that. That has been an official change. Senator Milne had a prior commitment. Senator Kinsella will be replacing someone on the Conservative side as well in Newfoundland.
Senator Forest: Madam Chair, I thank you for extending the invitation to me. I appreciate the opportunity. I certainly did not expect to be voting.
The committee adjourned.