Proceedings of the Standing Senate Committee on Legal and
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
Senator Beaudoin: Do you say the decisions are better made by the courts or by
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
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
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
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
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
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
You seem to differentiate between the constitutional right to be protected and
the administrative regulations necessary to enact that. Have I misunderstood
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
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
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
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
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
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,
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
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
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
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
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
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
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
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
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
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.
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
Canada was the second choice on the first ballot. On the second ballot, Canada
became the first choice.
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.
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.
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.
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
Shouldn't parents' views come first?
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
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.
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
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
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
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
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
We agreed that I would share my 10 minutes with Mr. Fernandes.
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
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
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
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
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
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.
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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!
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
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.
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
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
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.
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.
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.
I am not ready to tamper easily because it costs money. Yes, it costs money.
Everything else costs money. Are we giving up?
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
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.
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
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
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
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
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
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
Senator Beaudoin: That is right.
Senator Rompkey: Let us admit that that was not a good thing -- however, it is a
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
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
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
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
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
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
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
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
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
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
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 --
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.
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
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.