Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 19 - Evidence
OTTAWA, Tuesday, June 18, 1996
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:00 a.m. to begin its consideration of the resolution to amend the Constitution of Canada, Term 17 of the Terms of Union of Newfoundland with Canada.
Senator Sharon Carstairs (Chair) in the Chair.
[English]
The Chair: Before we begin with our witnesses, I would ask for a motion that the Honourable Senator Doody be elected Acting Deputy Chair for the committee's hearings on Term 17.
Senator Jessiman: I so move.
The Chair: Does it have the approval of the committee?
Hon. Senators: Agreed.
The Chair: What your steering committee -- Senator Nolin, Senator Lewis, now Senator Doody, and myself -- has organized for this morning is an information session, not specifically on Term 17 but on section 43 of the Constitution, which is the process by which Newfoundland is introducing its amendment of Term 17.
To help us in our deliberations this morning, and in setting the stage for our future deliberations, I have invited Kathy Brock, who is a Professor of Political Science at Sir Wilfrid Laurier University. She has a Ph.D from the University of Toronto and is a former professor at the University of Manitoba.
We also have with us Anne Bayefsky, who is a constitutional law professor and the author of Canada's Constitution Act, 1982 and Amendments; a Documentary History. She is presently at the University of Ottawa and will be going to York University on July 1.
Ms Kathy Brock, Professor of Political Science, Sir Wilfrid Laurier University: Thank you for inviting me to appear before you. This is a good opportunity for me to speak on something which I consider very important.
I will be addressing section 43 of the Constitution in relation to Term 17. I have decided to focus on four main aspects, and then to turn to the question of constitutional hearings, which is one of the areas in which I specialize. I have tried to tailor my remarks to what I thought would be most useful at this point.
The proposed amendment to Term 17 of the Terms of Union between Newfoundland and Canada is important because it will have a real impact on the lives of the children in Newfoundland, and on the educational, moral and religious lives of Newfoundlanders.
Senator Rompkey: On a point of order, I should like, at the very beginning of our hearings, to put on the record that the name "Newfoundland" is pronounced with the accent on the last syllable.
Senator Petten: If I could just add to that: "Understand Newfoundland."
Ms Brock: I was listening to CBC radio a few days ago and they used that very phrase, and I thought to myself, I must remember that. I will try to remember that, because I know it is a way of identifying people from "outside".
The amendment is important also because it will have an effect on the future of that province and its ability to meet the challenges of the next century.
The first point I would like to address is where section 43 fits within the amending procedures, and the internal logic of that section, because I think it does have an internal logic to it. I will very briefly skim over some information that you know, just to highlight it.
Section 43 provides for amendments to be made to the Constitution by an identical resolution passed by the province concerned, the Senate, and the House of Commons before being proclaimed into law. It may be used for matters affecting one or more but not all of the provinces. Under section 46(1) of the Constitution, the procedures for amendment under section 43 may be initiated by either the Senate, House of Commons or by the legislative assembly of a province. That is important, as will become clear later in my remarks.
Unlike amendments made under the general formula contained in section 38, there are no prescribed time limits.
What is the internal logic of section 43? It should be noted that that section recognizes two essential facts about the Canadian Constitution and the Canadian compact. First, it recognizes the Canadian commitment to local autonomy over local matters. That is a principle that was instilled in our Constitution from 1867, and one that is of central importance to all of the provinces. It allows provinces to make amendments which affect them directly without having first to secure the approval of the other provincial governments which are not directly affected. This releases the provinces from the strictures of both the 7/50 and the unanimity rules.
It also recognizes that the needs and aspirations of all of the provinces are not the same, that they may vary greatly, and that they may not be understood by all of the provinces. This is the second principle and fact of the Canadian compact.
The first, then, is the recognition of local autonomy; the second is the need to recognize diversity, and to treat provinces as distinct.
Section 43 is also important because it provides flexibility. Amendments may be initiated by a province, by the Senate, or by the House of Commons. This means that, if the representatives from that province perceive a need for change, they have different avenues of ensuring that that change is addressed.
Honourable senators should note that coordinated action is not required by this section, although in some cases it may be advisable because it will help an amendment to pass more easily. It also means that independent judgments on each amendment should be formed by each of these bodies.
Another quality of this section is that, by omission, it allows for the provincial and federal governments to set their own timetables for the amendments; thus it provides flexibility and it trusts in the discretion of the politicians. So flexibility, accommodation, reasonableness and cooperation are all implied by this section.
I should like to turn to the role of the provincial and federal governments, and then focus on the role of the Senate, before moving to precedents that we have already seen under section 43.
Section 43 provides a role for both federal and provincial governments, and both of these roles are important and must be respected. This section ensures that no province may have a change in its internal affairs thrust upon it or imposed without its consent. If the Senate or House of Commons initiates an amendment, the province has a veto. However, the formal inclusion of this section in 1982 implies a role for the federal government in assessing the effect of changes made within provinces on the federation as a whole, and that is an important role for the federal government to play. It cannot just legitimize actions by the province. It must treat each action independently and evaluate it according to criteria it develops. These amendments require independent judgment as well as cooperation and, ultimately, agreement on the necessity for change.
Within this process, we see a specific role for the Senate. There is not much material on section 43 because it is a new section. There have been only three prior successful amendments and one failed attempted amendment.
I tried to put section 43 in the context of the historic role of the Senate, because the Senate is bringing some of the key principles of Confederation into play, and there are some contradictory principles here.
First, we must note that the section gives precedence to the elected legislatures -- the House of Commons and the provincial legislative body -- in consideration of the amendments by providing the Senate with a suspensive veto as opposed to an absolute veto. However, the suspensive veto, the delay accorded to the Senate, is important and should not be underplayed. It is important for two key reasons in terms of the legislative role of the Senate. First, the Senate has an obligation to scrutinize the procedures used by the elected officials in considering amendments. In accordance with its traditional parliamentary duty, the Senate must consider whether due and proper deliberation has been given to the amendment by elected officials. Here I caution you that the quantity is less important than the quality of deliberation.
On the prior Newfoundland amendment there was only one day of debate. On the New Brunswick amendment on official languages there was one day of debate. On the Prince Edward Island amendment there were three days of debate in the House of Commons. In terms of the provinces, there were two days of debate on Newfoundland and New Brunswick and one day on Prince Edward Island. Therefore, it is not the amount of debate with which we are concerned but whether there has been adequate scrutiny of the amendment.
It is very important that the elected officials consult the constituents and provide for democratic input, especially from the minorities. It is important that the consultations are of high quality. The Senate also has an obligation to correct any oversights, omissions or technical errors.
The Senate can reject the amendment, pass it or recommend modifications. That is obvious. However, for the Senate to reject the amendment or to recommend modifications to it, and thus to decline to accept the decisions of the elected legislative bodies and substitute its open collective judgment, would require the flaws in the amendment and procedure to be significant in a future moment.
The criteria must be clearly developed that minority rights would be damaged and that that damage would not be offset by the gains in terms of educational quality or the rights which other groups within society gain. For example, you must balance minority rights against the right of parents to have control over where their children go to school. When the Senate is making this judgment, it must balance its duty to scrutinize the process with its relationship to the House of Commons.
The Senate must also be attentive to its traditional duties within the federal system. This goes back to the original purpose of the Senate, of which I need not remind you but upon which I will reflect. Throughout this debate, we have seen the Senate come forward as the protector of minority rights. That is the traditional role of the Senate in Canada, and it is an important role. This role is, by its very nature, complex and that complexity should not be underrated.
On one level, the Senate has an obligation to hear and carefully consider the view of minority groups within the provinces who believe that their rights are being adversely affected, particularly given the wording of Term 17, and also that of section 22 of the Manitoba Act and section 93 of the Constitution. This role is even more pressing in the case of Term 17, given the reason it was included at Confederation.
In considering minority rights, the Senate must determine whether rights are being denied, what protections are being put in place if the rights are being changed and whether the offsetting values are sufficiently important to change those rights. If a minority group is claiming that it is being oppressed or adversely affected, you must ask whose interests are being served. You must bear in mind as well that protection of minority rights is very important but must not be detrimental to the rights of other minorities, particularly those which may not have an equal voice.
It gets even more complex. The minority rights which the Senate has the role to protect are also the rights of the provincial governments. A key role of the Senate has also been to protect the provinces from the nationalizing effects of the federal government in terms of the House of Commons and its legislative initiatives and, since 1982, in terms of the Supreme Court of Canada and the Charter. The Senate is the guardian of provincial diversity within our political system. The Senate's deliberations on amendments proposed by individual provinces under section 43 must reflect that important role.
There are three important precedents upon which I think senators should reflect. The first is that section 43 was first used in 1987 to amend Term 17 of the Newfoundland Act to provide the same protection for the Pentecostal Assemblies as was provided to the six other religious groups in the province. Second, it was used by the Government of New Brunswick in promoting the equalities of status and equal rights of the French speaking and English speaking communities within that province. That was proclaimed in March of 1993. Third, it was used in 1994 to amend P.E.I.'s Terms of Union to provide for a federal obligation to maintain the fixed link between P.E.I. and the mainland.
The fourth attempt, made by Manitoba, to use section 43 to provide for French as an official language of the province and the translation, editing and publishing of statutes in both official languages was unsuccessful. That caused much furore. It has caused divisions between groups in that province which have never been settled. The amendment expired.
With regard to those precedents, there are some important things which should be borne in mind. First, how did the federal and provincial governments act with respect to each other? Did they coordinate? Did they cooperate on the amending and tabling of the amendment? Second, how were referenda used? We must consider that referenda can be the barometers of public opinion but they are not binding. That must always be clear.
In this case, there is a debate on whether a 54 per cent majority is valid when only 52 per cent of voters participated. In the referendum in Prince Edward Island on the fixed link, the figure was 59 per cent. The numbers are questionable, but, if a referendum is used, it must be determined whether the minorities have been otherwise consulted and whether their views have been taken into account through either hearings or other public consultation mechanisms. It must be determined whether the public is aware of the implications of the amendment as well as, as I mentioned earlier, what the quality of legislative debate has been.
In defining this amendment and the use of section 43, you must be conscious that it will set a precedent. You must decide whether you will press for more coordinated action between the governments or whether you will preserve the autonomy of governments to initiate amendments on their own.
What should be the role of referenda? What should be the role of hearings? Should there be directions for the provinces in handling these types of amendments?
In allowing for diversity of method and respect for provincial difference, the original purpose of the section should be borne in mind. The Constitution should be allowed to adapt to what the provinces need; but it should not be treated cavalierly. In this case, you should also be looking back at the way Term 17 was understood when Newfoundland entered Confederation. It was put in as a protection to guarantee the support of some groups within that province for Confederation. Under what terms can you change that?
Finally, in terms of hearings, how can they be constructive? We are at a point in Canada's history where national unity is a real issue. That has come up in this debate. You must look at your hearings as a means of trying to reinforce what holds our country together as opposed to what divides us. That means there must be strong justification for this amendment put forward by the government.
Opponents to the amendment have an obligation not just to criticize what the government is doing but to offer constructive suggestions, either in terms of modifications to the amendment or, if you feel that that is unlikely to be accepted by the other two legislatures, then constructive solutions for the accommodation of those rights within the system. This means addressing directly issues such as the viability of denominational schools, an issue which has not been resolved in that province.
Hearings can be constructive in building consensus. If they are not structured, they can mobilize public opinion which can spiral out of control and cause divisions. They can also open up a process to be used by other groups for unintended consequences.
In conclusion, I would ask that senators consider the internal logic of section 43; what the appropriate roles of the provincial and federal governments are in these amendments; the limits on the roles of the House of Commons, the Senate and the provincial legislature; how the Senate may balance its competing obligations; what important lessons are there to be gained from the section 43 amendments that have occurred; and, finally, how hearings can aid in building consensus.
In addressing this amendment in particular, the Senate has to be careful. We are dealing with a question of minority rights. It has to be made clear that Term 17 has distinct features from section 93, section 22 of the Manitoba Act and the Saskatchewan provisions. This one must be separated out. It must be made clear that section 43 allows and obliges senators to do that.
The Chair: Thank you, Dr. Brock.
Honourable senators, we were authorized to invite the electronic media to cover our hearings, and they were invited. Because of other commitments, CPAC was unable to be here this morning to televise our proceedings. They have received an open invitation to attend our hearings.
Ms Anne Bayefsky, Constitutional Law Professor: Madam Chair, I appreciate the opportunity to be here this morning.
The question of amending our Constitution and the process of amendment is, of course, one that has occupied us for much of this century. The question, in particular, of section 43 and how it should be used, to my mind inevitably relates to how we amend the Constitution as a whole. I have been informed that the subject- matter for this morning is a general discussion of the amending process, including, in particular, section 43.
In view of the language of section 43, the Houses of Parliament should take a considered view of whether or not the amendment is appropriate. They should be concerned, in particular, with a whole series of issues, including the motivation for the amendmentit, minority rights affected, and modernization of the Constitution.
From the outset, one must recognize that the Constitution is not immutable, that it ought to be open to modernization, that the process of amending the Constitution has to be one which accounts for and includes flexibility. It seems to me that one has to approach the whole project of amendment with an open mind, with the concept, as was said so many years ago, that the Constitution ought to be considered a living tree.
The question of modernization, of keeping our Constitution up to date and responsive to the needs of Canadians over time means that it is not a sufficient answer to say that there are rights here which hitherto have been entrenched and, therefore, in and of themselves, cannot be altered. By definition, that would make the Constitution inflexible and prevent change.
Yes, there are rights that are affected. The questions to ask, then, are: Is it appropriate? Has it been done fairly?
Having said that the whole project must be governed by this concept of flexibility, the question then becomes: What is the role of the Senate and the House of Commons in relation to section 43? It seems to me that this is not a time to simply rubber stamp a proposal which comes forward from a provincial government. In accordance with the language of section 43, Parliament must make its own judgment. After all, this proposal does not fall under the terms of section 45, which does not contain a provision specifically made for overseeing the amendment process. There is a role specifically given to the Senate and House of Commons. That role must be exercised with due consideration.
Having said that, Parliament must still consider the wishes and desires of the province. Those must be taken into consideration and be given an appropriate degree of respect. After all, one has an expression of provincial will and it must be fairly considered. The two subjects must be balanced. That is to say, there must be fair consideration and respect for the expression of provincial will, while Parliament has a responsibility to make, ultimately, its own judgment.
In exercising its own judgment, Parliament must develop criteria for determining that the proposed amendment by the province is, indeed, appropriate. This is where there are no written rules.
This opportunity provided by the circumstances now before the Senate gives senators a chance to articulate those criteria. The opportunity should not be lost to develop a series of explicit factors for exercising judgment in this case. This is a question of determining a process which will be influential when other section 43 amendments come forward.
What are the appropriate factors to consider when exercising judgment on this proposed amendment? It seems to me they include a number of specific items.
The first question that must be asked is whether the process of generating the proposed amendment was fair. Did it come through a process which was fair and democratic? Were there public hearings? Was there an attempt at non-constitutional reform? Were there negotiations with the affected parties? Was there a referendum? Was there an election which turned, in part, on this particular proposal? All of those issues will be part of the determination of how fair was the process in a democratic sense.
The process can be democratic and still be potentially oppressive to minorities which do not find a voice or which do not have a determining role in the outcome of democratic processes. Therefore, the second question which must be asked is, even if it was fair in a democratic sense, was there a minority here which has been sufficiently disadvantaged or oppressed.
How does one answer that question? It seems to me there is another series of factors. What were the intentions of the government in proposing the amendment? Were their intentions laudable, or were they suspect? More specifically, was the intention to improve the quality of education or was it some kind of suspect intention? Was it racist, for example? One must analyze the intentions in this particular case, and that is a factual question.
As well, you must consider the involvement of the affected minority in the process. In this particular case, there was a great degree of involvement, in my opinion, but again, that is a question which must be asked in factual terms. What was the outcome? Does the outcome still protect those minority rights in some form? Are they left with a certain measure of protection?
In addition, what is the impact of the Canadian Charter of Rights and Freedoms as a whole on the concept of minority rights here? After all, simply because a particular minority may define their rights in a certain way does not mean they are in fact rights which are consistent with the Canadian framework for rights protection in the Charter of Rights. The Charter itself articulates goals such as equality, multiculturalism and freedom of conscience, which includes the right to be secular and non- denominational in orientation.
Having asked the first two questions on whether the process was fair and whether it nevertheless oppressed a disadvantaged minority, then one must consider the consequences for others. What are the external effects on other provinces, for example? Does it set a precedent? Are the peripheral effects significant and damaging to the character of Canada, or is this a unique situation which is not analogous to other provinces?
All these subjects are especially suited to the role of the Senate and the federal government because they provide an opportunity to have a federal overview of what is generated in local terms. One moves, for example, beyond provincial majorities and considers the motivation for change. Was it legitimate? One moves beyond the local provincial majority and asks, looking at the country as a whole, what are the effects which may be felt elsewhere through this process? These considerations are especially suited to the federal government.
I would therefore urge you to take a careful look at the process in arriving at your own judgment as to whether the proposed amendment is appropriate.
At this point, I will only add one other point. In my mind, the question of the process of amending section 43 inevitably relates to the process of amending the Constitution as a whole. We agreed in 1981 to an amending formula. We agreed about the parties to amendment. We agreed about their respective control over agreement to proposed amendments. However, the Constitution is silent on how we generate proposals for amendment, on how they are initiated, and on how their terms are to be considered or negotiated prior to entering any sort of final stages of ratification.
In many ways, although it is probably beyond the context of this particular amendment, we must be aware of the larger issue, namely that this country needs to articulate a coherent structure for constitutional change, and we have not done so. We run into the situation where we face the question of process on an ad hoc basis, and you are faced in this situation with an immediate problem. There is room for orchestrating an appropriate process in the context of section 43, but it will not remove the larger issue of generating constitutional change as a whole.
Senator Beaudoin: We have not heard very much, so far at least, about collective rights in this case. I must say that I am very surprised by that, because we have only two categories of collective rights in our Constitution. All the others are individual rights. The two collective rights which have been recognized by the courts are aboriginal rights and denominational rights.
If we want to amend the Constitution to accommodate Newfoundland in the field of education, obviously it comes under section 43. Denominational school rights are safeguarded. The question is whether they are adequately safeguarded. There is also a transfer of administration from classes of person or churches -- and I hope you will correct me if I am wrong here -- to the state.
There is no doubt that we may amend the Constitution under section 43, but is the transfer of the right to amend the school system reasonable? Is the amendment acceptable having regard to the question, even though denominational schools will be protected, will they be adequately protected?
There is no doubt that we can transfer the administration from classes of persons or from a church to the state. However, we must follow the applicable principles of law here.
What is your conclusion? Is the transfer of the right of administration in the area of denominational schools from classes of persons to the state acceptable or reasonable within the context of Canadian democracy?
Ms Brock: We are talking about the way that resolution, if approved, will be exercised. In terms of the proposed solutions for Newfoundland, one of the questions is will the Catholic schools be viable? I point them out because I think they will be the most affected. What happens in the case where you have two schools within a district, one denominational and one integrated, such as a common school? How will the government respond to the needs of that community should the numbers begin to drop? Will they always give precedence to the common school? If that is their criteria, that will cause an erosion of denominational rights, which may go to the question of adequate protection for schools in the long run.
The idea of a local option intrigues me. I do not mean to trivialize it because this issue was very crucial in its day. It is very similar to the way Ontario handled the question of liquor. With respect to that question, beginning in 1927 when communities were opposed and felt this measure would have a disintegrative effect on family and community, the government said it would introduce a system of local option -- each community would decide.
In Newfoundland, the government is saying that where numbers warrant and if the parents petition for a school, the government will stay with the denominational school. If the government holds to that principle, yes, protection is in place, but that is only a political decision -- it could be changed at any point.
One must look at the quality of protections to be put in place by the state. Who will be the ultimate decision-maker?
Ms Bayefsky: It is a factual question as to what extent these minority rights are affected. On the facts, a great deal of protection is still left for particular religious minorities; a significant role is still given to minorities within the educational system, in fact a great deal more power and control than would be the case in a lot of other provinces. Additionally, one must balance the right to freedom of religion with other rights-oriented questions, such as the concept of equality and fair and equal treatment across the board. This is not a specific religious minority that can be viewed in isolation from other religious minorities. It would be wrong, for example, to focus only on Roman Catholics and their particular views in this situation. There are other religious minorities. They have also expressed themselves in this particular case, and they have different views. In part, it is a matter of weighing those different perspectives as to what constitutes fair and sufficient protection. They do not agree.
Other Charter values must be factored in, such as multiculturalism and the small percentage of individuals who do not wish to send their children to any kind of denominational school, or those who approach their education system from a secularist perspective or a non-Christian perspective.
I think the question of rights and whether the rights have been sufficiently protected must balance the rights of a whole series of different groups and that it would be wrong to focus only on one.
Senator Beaudoin: The protection of the Constitution here is two-fold. Education is provincial. There has been no change in that. Denominational schools are guaranteed by the Constitution. That is not to say that we cannot make changes to that system. However, I am interested in the reaction of the classes of persons in Newfoundland because their right of administration is being transferred from their churches to the state. Everything is there, in my opinion. Is such a transfer acceptable and reasonable? What is their reaction? What do they think?
Ms Brock: What do the different groups think?
Senator Beaudoin: I am speaking of any class of persons, Catholic and others. They are all protected in the same way.
Ms Brock: My understanding of the current debate within that province is that the government is attempting to negotiate a framework agreement with the classes of persons that would be affected. They almost achieved agreement except that proponents of the integrated boards felt that they wanted an integrated system across the province. The reason why I centred on the Roman Catholics and the Pentecostals was because they pulled out of that agreement due to the viability of the schools. That was an important question for them, and I do not think that issue has been settled. That is one reason why I stated that if these groups come forward to object, perhaps they can suggest some compromise or some means of reaching agreement on this process. Ultimately, though, according to this change, the provincial legislature will have the final discretion and authority.
What I think the Senate could do is ask the provincial government to make it clear that they will consult fully with the minorities. Where, say, an agreement breaks down between the representatives of the churches, perhaps they could have an alternate mechanism.
This question arises: Who represents these minorities? Is it the churches or is it the people who voted in the referendum?
Senator Beaudoin: You have put your finger on a very important point. Denominational rights are protected by the Constitution. These denominational rights belong to a class of persons. That right is a collective right for that class of persons. The Privy Council and the Supreme Court have stated that very clearly. The question is this: What do those classes of persons think?
Senator Lewis: I appreciate the principles you have put forth for our consideration in studying the resolution, but I take it that these principles and their criteria are general in nature.
I notice that some witnesses have made reference to some facts, but do you have sufficient facts regarding the situation? That is to say, do you have all the facts dating back a few years, including everything that occurred? Do you have sufficient information to express an opinion? If so, where did you get that information?
Ms Bayefsky: The background material for these hearings comes from a variety of sources: documents from the Library of Parliament; newspaper reports from Newfoundland and elsewhere; a variety of articles on the Constitution and the nature of the amendment processes which we have generated; and personal participation in previous constitutional amendment processes. The information specifically on Newfoundland involves papers that have been generated largely by government and the Library of Parliament, as well as newspaper reports coming out of Newfoundland during the process period.
We were not asked specifically to address the Newfoundland proposal. We were asked specifically to engage in a more general discussion. That is why we have shied away from devoting our attention to it. However, if you are asking me for my personal opinion as to whether or not this particular amendment is appropriate, my answer would be, "Yes, it is."
Senator Lewis: I assumed that you were speaking generally; that is why I asked that question. You can talk about the process, but discussions concerning this problem have been going on for decades in Newfoundland, and possibly you may not have had that background. I could give you a whole history on it.
The Chair: There will be specific constitutional scholars who are asked to deal with the provisions of Term 17. These two witnesses were asked to give us background information about section 43 and how Term 17 fitted into section 43.
Ms Brock: For your information, I checked the original debates of Newfoundland on Confederation. I read through those, as well as the current debates in the province Newfoundland. Also, I read through the debates that took place in the House of Commons and the Senate. I then tried to get all the academic articles that appeared on Term 17. There has been one key one, the amending formula. I began with that.
I also consulted two experts on the amending formula. Additionally, I contacted the Newfoundland government and had them send me information. I also contacted the representatives of the Catholic and Pentecostal churches to find out what was happening. I contacted a representative of one of the other governments and spoke to a series of officials to find out what they thought the implications would be for that province. I then phoned a friend and asked what the feeling was within Newfoundland, and that is when I found out about property taxes there. That is a secret that keeps people out of the province. If everyone new, they would probably move there.
Senator Lewis: Then we would have another problem.
Senator Milne: You mentioned in your reply to Senator Beaudoin about how the Conservative government in Ontario brought liquor into communities. Once upon a time, the Conservative government in Ontario, under George Drew, permitted the opening of cocktail lounges in communities. They bought off the Conservative right wing by allowing for the teaching of religion in schools.
The two of you, as well as Dr. Brock, have given us a textbook lesson on the duties and responsibilities of the Senate. I appreciate it very much. I wish I had it eight months ago when I started this job. My question will be answered when I consult the record of this meeting tomorrow.
Senator Gigantès: Both you, Dr. Brock, and you, Ms Bayefsky, have alluded to the necessity to articulate a process for generating constitutional change. We live in a federation that has 10 provinces run by democratically elected governments. We have a federal government which is democratically elected. I believe that partisanship is essential and inevitable if you have two parties. If you do not have two parties, you have a banana republic or a Soviet socialist republic.
In that context, how realistic is the idea that we can generate a process that is not tainted by political considerations, as inevitably it will be, in the search for votes from this or that community or influenced by this or that current of opinion?
Ms Bayefsky: I do not think it is a matter of being "tainted" either by votes or by the electorate. Yes, it is inevitable. Yes, it is to be applauded, and it is part of the Canadian culture.
When I spoke about the lack of a process for generating constitutional amendments, I was referring to the fact that we, as a country, simply have not sufficiently worked it out. This process was ad hoc. One did not know precisely what the Senate would do with the proposal, or how long the proceeding would last, or how many witnesses you would call, or the kind of people you would want to hear from, or even what you would want them to talk about. That is what troubles me, namely, that we do not have a very good idea of how we go about addressing these subjects. That applies not only to section 43 but also to subjects which would fall within the general amending formula in section 38.
I do not think the answer lies in some notion of excluding the participation of elected officials. It is extremely important. It is not just inevitable. Ultimately, ratification of amended proposals must be done in accordance with the amending formula as it is set out, requiring the approval of legislatures and the Houses of Parliament. It is also to be viewed positively.
The question is: Is it sufficient? Would it have been sufficient if Newfoundland had not held a referendum or had not, in fact, had an election fairly recently in which, at least, this was one of the subjects before the electorate? Would it have been sufficient if there had been no attempt at a negotiated settlement or a non-constitutional solution? Those are the issues for which one hopes that this process will generate some kind of articulated framework for undertaking future constitutional change, both in the context of section 43 and maybe with respect to other constitutional changes.
Senator Gigantès: You do not think that such a specific process might be counter-productive because it would tie the hands of the legislators and put them in an impossible position, as did the Charlottetown referendum, for instance?
It put everyone in an impossible position.
Ms Bayefsky: It depends on the process that is articulated. One that relies for the initiation of constitutional reform solely on the people or on some kind of constituent assembly can, depending upon its form, raise difficult questions of selection of representatives and so on. We already have a process of representative democracy in place. One might furhter elaborate on an approval mechanism by holding referendum at different stages. One could envisage a situation which would make popular participation so extensive as to preclude, practically speaking, amendment. I do not think that is the only way of factoring in popular participation.
In this particular context, I think it is perfectly appropriate to ask what the degree of popular consultation was in the Province of Newfoundland prior to the amendment coming to Parliament.
It seems to me that there was a considerable effort over many years, as was said earlier, to resolve this problem. There was a rational and deliberative process for a considerable length of time, which, when one looks at it from an overall picture, has been fair and reasonable.
I do think those are questions which must be asked.
Senator Rompkey: Professor Brock said the Senate must protect the provinces and it must also protect the minorities. It is easy to define a province and a government, and to determine who speaks for that province and that government. How do you define a minority? You, yourself, Professor Brock, raised the question of who represents a minority. Do you have an answer to your question? What is a minority and who represents a minority?
Ms Brock: The easiest way to answer that is to say that in this case, there are seven state-recognized minorities within the province. Those must be considered as key minorities.
Senator Beaudoin: Could you repeat that? How many minorities do you consider?
Ms Brock: Seven.
Senator Beaudoin: Seven classes of persons.
Ms Brock: That is correct. When I started to examine this issue, one of the things I found very frustrating is that when I started to push that question, it began to fade. If you look at the breakdown and the analysis of the actual vote that was done after the referendum, and how people felt on different questions, it was not clear that all of the groups within those distinct classes of persons agreed with the official positions of that group.
Senator Rompkey: What do you mean by "the official positions"?
Ms Brock: For example, one of the things that people said was that the minorities here, these classes of persons, are very concerned with the hiring and firing of teachers, and whether or not a particular school board should have the right to hire and fire teachers as they wish. However, if you look at the analysis of the results that was done shortly after the vote, a majority of those who voted yes and of those who voted no said that they did not want to see discrimination in terms of hiring and firing of teachers. One can see that the opinion within those groups is breaking down.
The other aspect of the minorities that we are not considering are the ones which are not officially recognized. Ms Bayefsky has pointed this out. There are secularists, as well as people of the Jewish and Muslim faiths. There is one aspect of the issue which, in my opinion, has not been given due consideration: When we talk about traditional faiths and traditional religions, what message are we sending to people of Buddhist faith or other faiths, in, say, B.C. or in Manitoba, or to other groups which are not from the traditionally recognized religions?
One can see that the definition of "minority" begins to break down in different ways. We have to be careful about the official classes of persons that are recognized within the Constitution and the groups which have not received recognition, and the consequent implications within the province. We must also be careful about the messages sent out at the provincial level, the official minorities level and at other levels within Canada itself.
Senator Rompkey: Would you say there are two classes of religious minorities in Newfoundland, those that are recognized and those that are unrecognized? The reason I ask the question is because there are seven recognized denominations, including the Seventh Day Adventists. There is also a group on the Labrador coast which is not now recognized and has never been recognized, and that is the Moravian Church, which is an established Protestant church that originated in Bohemia in the 17th century and brought Christianity to the Inuit on the Labrador coast beginning in the latter part of the 18th century. This is a denomination which, even though it has been in the province since the latter part of the 18th century, has never been recognized as a denomination.
The other interesting aspect of that question of classes of minorities involves a racial minority in the province, the Inuit, who have never had their own schools or the right to have their own schools.
What is a minority and who represents or speaks for the minority? Are there, indeed, at this moment, two classes of religious denominational minorities in the province, those who are recognized in law and those who are not recognized in law? I think those are fundamental questions for us.
Ms Brock: I would agree with that. I would say we should also consider the situations of the First Nations within Newfoundland and Labrador, because they have not been officially recognized for many years by the federal government. Some of these questions have had serious consequences for First Nations even in terms of staffing and attracting teachers to some of their schools. We must be conscious of how all minorities are affected, and we cannot forget our original peoples.
Senator Pearson: My interest follows on the question of minority, but I have a great interest in children's rights. I have two questions. One is, in a population, are children ever considered a minority? My second question relates to the requirement for consultation. When one considers the Charter of Rights and Freedoms and the Convention on the Rights of the Child, do you believe that we are required to consult with students and get their opinions on this issue?
Ms Bayefsky: In terms of designing the course of these hearings, I think it would be very important to hear from the students as to how the system has functioned, what they perceive to be the difficulties, and how they anticipate the future under these proposals. We have articulated in part the question of parental ability to control the educational lives of their children, but, indeed, one ought to reverse that and ask the children as to their perceptions of the management and efficacy of the system. I do think that would be important.
Senator Cogger: In the preliminary meetings which led to the creation of section 43 in 1982, to your knowledge did anyone give any consideration to a bilateral agreement being used to reduce or remove rights? The only three precedents you have for section 43 grant rights. I suppose that in the case of the fixed link in P.E.I. some Islanders may argue that it is not a right they wanted, but on the face of it, it would not appear to take anything away.
The first Newfoundland amendment under section 43 extended rights. The New Brunswick amendment did not appear to take anything away; it appeared to extend the rights of francophones and the use of the French language throughout the province.
I cannot think of a single amending precedent since 1867 which has taken away rights. Here we appear to be taking rights away from a minority. When section 43 was being discussed prior to 1982, did the then premiers or the federal government ever envisage a situation such as the one we are facing today?
Ms Bayefsky: I think they were fully aware of the fact that keeping the Constitution a modern document that reflects the ongoing developments and changing character of Canada might very well mean a shift in rights. It seems to me to be a bit of a misnomer to say that one is simply taking away rights. The description in itself tends to beg the question. The mere fact that one had, by a previous constitutional framework, an entrenched set of entitlements, should not of itself mean that one has those entitlements forever by definition, by the mere fact of history.
I do not think that history, in itself, is a reason for preserving those rights when faced with conflicting considerations, or at least competing considerations. Here the competing considerations are other minorities, other of the five, six or seven recognized groups, which have views different from the two which pulled out of that framework agreement. There are also the unrecognized minorities which have competing interests which are, as yet, unrecognized at the same level. There are also unrecognized and non-denominational groups which similarly do not have the same degree of protection. All of those sets of rights and interests must be weighed and balanced. I do not think the situation can simply be characterized as, "We have had it; we will always have it; we are entitled to always have it; there will be no change unless we voluntarily give it up." I do not think that is a rational way of proceeding.
Senator Cogger: That is your point of view; your opinion. My question was whether in your view this was contemplated prior to 1982 when section 43 was brought in.
Ms Bayefsky: I think it is inevitable.
Senator Cogger: You seem to be saying that one should assume that when those involved were looking at ways to modernize, they must have contemplated that something like this would happen. Is that more or less your answer?
Ms Bayefsky: No. The answer is that they considered a whole series of issues. After all, when they included certain protections in the Charter of Rights, they knew there would be potential clashes of rights in the future. They sought specifically to protect certain rights which were already entrenched in the Constitution. They factored those into the design of a Charter of Rights, and they left the rights which were not specifically protected in the Charter to evolve a different relationship with the other parts of the Constitution.
Ms Brock: On that point, when Term 17 was included there was a debate on whether it was there in perpetuity or whether it could be changed. The federal and provincial governments had differing views on the matter. The federal government thought it would be more flexible.
Senator Cogger: Are you referring to 1949?
Ms Brock: Yes. With regard to section 43, one of the things considered was whether this section could be used to create new rights. It was felt that a province could not, for example, use section 43 to entrench a right to property in that province which no other province had. That was discussed.
They did anticipate some type of transformation of rights. The only precedent for that would be the debate in P.E.I. on whether financial compensation for the ferry services could be transformed into an obligation for financial services for the link itself. That is a transformation of the right of compensation of that province.
There is no precedent for taking away rights but, as Ms Bayefsky has said, I am not sure that that is what is happening here.
Senator Cogger: I realize that. Some people would not call it that. You are telling me squarely that there is no precedent for an amendment taking away rights, leaving aside whether that is the purpose of this one.
Ms Brock: No, not for the complete denial of rights.
Ms Bayefsky: Of course, Quebec would argue that certain rights were taken away in another context. It is a little too general to say that no one perceives rights to have been taken away. If one goes outside of the Newfoundland context and asks the more general question, "Has there ever been a constitutional amendment that is perceived to have taken away rights", many in Quebec would say that rights were taken away by parts of the 1982 amendments. I do not think that one can answer the question quite in those terms.
To get back to the earlier question of defining a minority and the appropriate minority here, one can push that further and ask whether minority rights have been oppressed as opposed to merely affected. Is this a disadvantage to a minority which in some sense has not had an opportunity to participate in the process of renewal and change, which is so disadvantageously affected by the outcome that their objections ought to preclude change now and for the foreseeable future in the context of the education system in the province?
There are additional questions to be asked with regard to identifying the kinds of minorities and their status in the society. There is a difference between the unrecognized minorities and the minorities which already have constitutional protections. One must parse the kinds of minorities which are potentially entitled to block amendment in this context. The ones which are heard the loudest and clearest in the particular context may not be the same ones which are entitled to claim historical and special disadvantage.
Senator Doody: Madam Chair, I have a couple of observations and then a short question. My understanding, and I stand to be corrected, is that the only group, class of persons or denomination in Newfoundland that was not included in the original 1949 agreement was the Pentecostal Assemblies. They later applied for recognition and were granted that recognition immediately. I do not think the Moravian Brethren has ever applied for recognition as a class of persons. I suspect that if they did they would be recognized pretty quickly.
There is a clarification, Madam Chair, which I would like to get. I understood Professor Brock to say that the framework of agreement which had been reached fell apart because the Roman Catholics and the Pentecostals left the table. That may not be what you said, but that is what I heard. I want to give you an opportunity to correct that.
Ms Brock: It broke down generally because they were of different points of view. The proponents of the integrated schools wanted a system for the whole province as well. There was a lot of difference in debate on that point.
Senator Doody: Most of the administrative changes that the Government of Newfoundland was seeking in the educational field had been agreed to by the denominations. My question, then, is this: Is it necessary to have a constitutional amendment to bring about the changes in the system that the Government of Newfoundland wants? Is it necessary to diminish the rights of the minorities? There are many people who feel that their rights are being diminished, despite the learned opinion, which I respect. Is it necessary to go through this process in order for the Government of Newfoundland to achieve its laudable objectives in terms of educational reform? I suspect that it can be done through legislation. The Government of Newfoundland says that it needs the protection of a constitutional amendment so that legislation cannot be challenged. Do you have an opinion on that?
Ms Bayefsky: First, I would not presume to dispute that there are groups who feel that their rights are diminished. Indeed, that is the case.
With respect to the second issue, I agree that, in fact, constitutional amendment is the appropriate and necessary process because the threat of constitutional challenge would hang over any kind of suggested reform along these lines right from the beginning. Inevitably, it would be bogged down in the courts for a long time. Clarification can only be sought through the process of a constitutional amendment.
Senator Doody: The purpose of the constitutional amendment, then, is to curtail, or at least forestall, any court challenge by the affected minorities; is that right?
Ms Bayefsky: I would be surprised if there were not future constitutional challenges any way. However, I think that the fundamental issue as to the changes in the balance of authority between church and state in the context of the educational system is one which requires constitutional amendment and which would not be achievable without it.
Senator Jessiman: I have one question which has to do with section 29 of the Charter and section 43 of the Constitution. Section 29 states:
Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, ... schools.
Notwithstanding section 29, is it your view that, if it is done properly under section 43, you can derogate from those denominational rights?
Ms Bayefsky: You can change the Constitution in a manner which can alter special protections for denominational schools. Existing protection for denominational schools in the rest of the Constitution was determined by the Supreme Court of Canada in the Bill-30 case to be protected despite the Charter of Rights. That would also hold true of a prospective amendment.
Senator Jessiman: In essence you think that that right could be changed and abrogated notwithstanding section 29. These are denominational rights. You are saying that they can be taken away under section 43. They are not being taken away under the Charter. Can an amendment under section 43 take them away?
Ms Brock: My understanding is that section 29 only applies to Charter rights specifically. That would be independent of the section that we are considering here. That would be referring more to section 23.
Senator Jessiman: Would that not substantiate the rights of the denominational schools? You are saying that even the Charter cannot take that away from them. Now you are saying that under section 43 of the Constitution you can amend the Charter. You are amending it to take away the denominational rights that are given by the Constitution. The answer you are giving me is "yes."
Ms Brock: That is an argument analogous to one which was made during debate on the Meech Lake Accord. That is to say, although section 29 only applies to the Charter of Rights, it does not affect denominational schools. It cannot. Section 29 highlights the importance of denominational rights.
Senator Jessiman: Those are rights which are given by the Constitution.
Ms Brock: That is right. Are we creating a hierarchy of rights? In this case, denominational rights are recognized as being special and important. We have to give them special consideration if we are thinking of changing them under section 43.
Senator Beaudoin: I am glad this point has been raised. Obviously, it could be raised next week, too, with other experts. It is obvious that the Charter of Rights does not touch denominational rights. That is what section 29 means. In other words, we can amend the Constitution. We may even substitute another system for the current system, providing it is done under section 43. There is absolutely no doubt about that.
The main difference here is that Charter rights are individual rights and denominational rights are collective rights. In that sense, you cannot, for example, invoke the Charter to change denominational rights. They are independent of each other because of section 29. However, the question of an amendment is another matter. Since that is up to the federal and provincial authorities, it becomes a question of acceptance and whether or not it is reasonable.
The Chair: I have one short question for Dr. Brock. Ms Bayefsky went out on a limb and said she thought that this is a proper constitutional amendment. Dr. Brock, are you willing to go out on that limb as well?
Ms Brock: Madam Chair, I see my role as one of making it clear to the Senate what its obligations are. I would want to hear what all the groups have to say and to see if they have constructive solutions on how to deal with this issue and bring the population back together again before I pronounce an opinion on the matter.
The Chair: Thank you. We may ask you the same question later.
The committee continued in camera.