Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 20 - Evidence
OTTAWA, Thursday, June 20, 1996
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:30 a.m. to continue 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: We are continuing our deliberations on Term 17. We have the Honourable Allan Rock with us this morning. Please proceed, minister, and then we will ask our questions.
Mr. Allan Rock, Minister of Justice and Attorney General of Canada: Honourable senators, I am here this morning to speak to whether the Senate should pass a resolution in connection with the amendment to the Constitution of Canada, under section 43, to give effect to certain changes in the Terms of Union between Newfoundland and Canada.
I have followed the debate in the Senate and I had the opportunity last night to read a transcript of the presentation made by Dr. Katherine Brock and by Anne Bayefsky, the two witnesses from whom the committee sought an opinion on the purpose and procedure under section 43 of the Constitution Act, 1982. On the whole, I agree with the comments of both those witnesses.
The question surely is, in the last analysis, the House of Commons and the Senate having been empowered by resolution to participate bilaterally with a province in changing the Constitution in a manner that affects only that province, once the province through its legislature has expressed a desire for that change: What criteria should govern the exercise of Parliament's judgment to resolve to the same effect?
I note that Ms Bayefsky proposed a number of factors for the Senate to consider when exercising its independent judgment. Surely we are not intended by the constitutional documents to be merely rubber stamps, to act automatically when the provincial legislature asks; we are obligated as legislators to make up our own minds. The question becomes: How should we go about doing that and what are the factors we should take into account?
I was much impressed by the factors enumerated by Ms Bayefsky. The first factor is an examination of the process by which the amendment came forward from the province as to whether that process was fair and democratic. I noted in the transcript, Madam Chair, that Ms Bayefsky raised a number of questions about the process in Newfoundland: Was it fair? Was it democratic? Were there public hearings? Was there an attempt at non-constitutional reform? Were there negotiations with the affected parties? Was a referendum held? Did an election turn, in part, on this particular proposal? These indeed are many of the questions that we asked ourselves in cabinet and in the other place in coming to our decision that a resolution should be passed there.
[Translation]
Given as well the protection of the rights of the minority and the history of the motion, including the process that led to its adoption, we came to the conclusion that it deserved the approval of Parliament, and we have considered several things to reach our position. First, the process as such, which is the presentation of the resolution by the Newfoundland and Labrador House of Assembly.
Second, the nature and the scope of the participation of denominations to the administrative and financial decision-making process in the education system of Newfoundland have been controversial for generations. We learned that the matter was the subject of a Royal Enquiry Commission which made the recommendations that are found in the proposed amendment as late as 1992.
Third, there were long negotiations and discussions between the government of that province and the leaders of the denominations concerned. Fourth, a referendum was held last September in which the people of the province were asked to give their opinion as to whether this reform should be made. That proposal was approved by a majority.
[English]
The final factor is that late last month the Newfoundland House of Assembly adopted a unanimous resolution calling upon this Parliament to act urgently to give effect to this constitutional change.
The second criterion suggested by Ms Bayefsky was that, after determining the fairness and democratic sense of the process, one should evaluate the question as to whether a minority would be unreasonably disadvantaged by the proposed process. Let me say, honourable senators, that I am confident that the proposals put forward by the Government of Newfoundland and Labrador with respect to denominational education easily pass this test.
In the other place we considered whether the proposed change would adversely affect or would extinguish minority education rights in Newfoundland and Labrador. We considered as well that there is no single majority denomination in that province. Unlike some other provinces, there is no single denomination that dominates numerically. We also gave weight to the fact that each of the seven denominations is affected equally by the proposed changes. We concluded, on a fair reading of the amendment and on a balanced assessment of its effect, that what is in issue here is really a change in the manner in which those rights are exercised and in the manner in which denominational schools are administered. The question is not whether they will exist, because they surely will; the question relates to how they should be administered and governed, and that will change.
Even with the amendment, there will still be denominational schools in Newfoundland and Labrador. They will still be constitutionally entrenched as an entitlement of the affected denominations. Religious education, activities and observances will remain a central feature of the Newfoundland and Labrador school system. The amendment will neither abolish denominational education nor will it extinguish the role of the churches in education. Under the proposed amendment, single denominational schools will exist where requested by the parents and where there are sufficient numbers of students for a viable school.
I note with interest that Professor Bayefsky stated that, on the facts, particular religious minorities will still be protected to a large extent. She stated:
...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.
Let us not forget, honourable senators, that denominational rights will remain entrenched in Term 17.
The third matter that Professor Bayefsky raised in her testimony was the potential effects of the amendment on other provinces and whether or not a precedent would be established that could imperil religious education elsewhere. I spoke to this issue in the other place and I will very briefly summarize what I said.
First of all, in many respects the situation in Newfoundland and Labrador is unique. Precedents, to have value, require like facts or similar, if not identical, principles. It would be difficult to find a future circumstance elsewhere in Canada that would replicate the principles and circumstances that prevail in this instance. Quite apart from that lawyer-like examination of whether on the facts this would be a precedent, the contention that it would bind the hands of Parliament in future cases ignores the proposition that in each and every such proposition Parliament must form an independent judgment.
As members of Parliament, we are obligated to form our own conclusions on the facts of every particular case as to whether our judgment should be exercised in favour of participation with a province in a bilateral amendment. If in some future case it is argued that we should proceed only because Term 17 in Newfoundland was amended by this process, that argument will not and cannot succeed. We will have to form an independent judgment on the facts of that case. That is true, Madam Chair, particularly in relation to section 93 dealing with religious education in schools. It will be up to us to make up our own minds in future cases.
Let me deal with the question of minority language education rights and whether this resolution might form some precedent which would imperil minority language education rights which are enshrined in section 23 of the Constitution Act, 1982. Any such change would require the broader amending formula to be applied. Surely that is clear. At least seven provinces with at least 50 per cent of the population would have to concur in such a change. It could not be achieved bilaterally.
The case before us is, of course, profoundly different from a proposal to change minority language education rights provided for in section 23. Similarly, aboriginal rights are enshrined through sections 25 and 35 of the Constitution Act, 1982, and those rights cannot be changed bilaterally with any province. The terms of those articles cannot be amended without the application of the general amending formula requiring at least seven provinces and at least 50 per cent of the population.
Dr. Bayefsky and Dr. Brock both opined that this issue involves weighing and balancing interests, and I must say I agree that I agree. Ms Bayefsky put it this way:
I think the question of rights and whether rights have been sufficiently protected must balance the rights of a whole series of different groups and that it would be wrong to focus on only one.
Dr. Brock stated:
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.
[Translation]
And I agree with that. I think the Senate should use these criteria, that the cabinet and the House of Commons have used. In my opinion, the amendment concerning Newfoundland puts in balance the rights of those who are affected by the amendment. Those rights are the following:
[English]
First, Newfoundland children and their right to the best possible education; next, parental rights to have control over where their children go to school; third, the rights of each religious denomination; and fourth, the rights of the elected representatives of Newfoundland and Labrador to provide an appropriate educational system as they see fit.
With that, Madam Chair, I conclude my opening remarks and I would be delighted to respond to questions that honourable senators might have.
Senator Beaudoin: I agree that the main point is that, since Term 17 says that the right to denominational schools is still in the Constitution, the transfer of rights from classes of persons to the state is a question of fairness and a question of raisonabilité, as we say in French. I agree also that in the case of the aboriginals, the formula is 7/50. With respect to minority language education rights in section 23, it is 7/50 at least. I have no problem with that.
My only hesitation is the question of section 133 of the Constitution Act, 1867 for Quebec and section 23 of the Manitoba Act for Manitoba. Before the Charter of Rights was enacted, the Supreme Court said that section 133 and section 23 could not be divided. The question is this: After the enactment of the Charter of Rights of 1982, can it be divided? The reason that I ask this is that we are already dividing section 93. Section 93 says that education is provincial, but that there is a limit. You have to obey denominational rights; so it is divisible. I agree.
If that is true for section 93, will it not be true for section 133 for Quebec and section 23 for Manitoba? Obviously Newfoundland may, under section 43 of the Constitution Act, 1982, claim the bilateral form of amendment. I have no problem with that. However, could the same thing be done in the field of linguistic rights? I am inclined to believe that it may. I am thinking of a particular case where Saskatchewan said, "We are bilingual, but we may amend our internal Constitution to become unilingual." The Supreme Court said in Andrews that it was possible.
I agree that linguistic rights and denominational rights are not the same. As a matter of fact, denominational rights are collective and linguistic rights are probably not collective. There is a big difference.
If you use the argument that section 93 is divisible -- and I think you are quite right -- and if you use the argument that section 43 applies -- and I think you are right -- could you not use the same argument for linguistic rights?
Mr. Rock: Madam Chair, the point that Senator Beaudoin raises is an interesting and, I think, an unsettled one. I have views on that issue but, before I express them, perhaps I could say that no matter what the response to the question -- and I say this with great respect to Senator Beaudoin -- surely it does not touch upon the policy issue as to whether a resolution should be adopted in this instance in favour of an amendment to Term 17. In other words, if on the merits you are persuaded that changing Term 17 for the school system in Newfoundland is a good idea, based on the factors that I mentioned in my opening remarks, the mere fact that the sections referred to by the senator might also be capable of bilateral amendment ought not stop you from proceeding with the resolution. I think they are really apples and oranges.
Let me come to the question the honourable senator has raised.
An argument could be made that section 43 could be used to achieve a bilateral amendment to the Manitoba Act, for example. However, I hasten to add two things. That could not abrogate the constitutionally protected rights in section 23 of the Constitution Act, 1982.
Senator Beaudoin: I agree.
Mr. Rock: Second, as I said this morning in relation to Term 17, it would be up to us as parliamentarians to decide whether we wanted to participate in such a change. In other words, we would have to decide on the merits of any such future, imagined case whether it was in the public interest to allow that amendment to occur. By withholding our agreement to a resolution in the House of Commons, the matter could be stopped right there.
I know this is a matter of interest to Mary Dawson, who is at the table with me. She will be anxious to correct the errors that I have made in my response. I invite her to add whatever she wishes to add.
Ms Mary Dawson, Associate Deputy Minister, Department of Justice Canada: Actually, I could not have said it better than the minister. I think he covered all the things that need to be said.
Senator Beaudoin: Legally speaking, there is a distinction in that denominational rights are collective and linguistic rights, so far, have not been declared collective. I think they are individual rights. In that sense there is a difference. Obviously the other parts of sections 133 and 23 relate to federal jurisdiction. My inclination is that they cannot be changed without either unanimous consent under section 41 or, at least, 7/50. Some people are relying on that argument to say that what we do now may be invoked later on. Perhaps it will never be invoked. I know that section 93 will be invoked by Quebec one day if they choose to do so. My impression is that there is strong pressure in Quebec now to do that. Obviously, the case of Newfoundland cannot be entirely separate from the case of Quebec, even if there are some differences.
There is no definite answer now from the courts, but your answer is that it is case by case. We are dealing now with a denominational case. If ever we have a linguistic case, the Senate will decide that on its own merits.
Mr. Rock: Yes, senator, that is right.
[Translation]
Madam Chair, the hour provided for the vote in the House of Commons has been postponed to eleven o'clock, so I'll be happy to be with you until eleven thirty.
[English]
Senator Milne: We have been told that one of the tests that we should be applying is whether a minority would be unreasonably disadvantaged by this amendment. Are there any precedents as to how governments have proceeded in the past when they were dealing with the rights of one minority versus the rights of a whole group of other minorities? There is no majority in this case; it is a group of different minorities.
Mr. Rock: I am not aware of a case in the past that would be similar on the facts, which leads us back to first principles. If there are no precedents to draw upon, we have to proceed on the first principles. That led me this morning to speak about fairness and the democratic process and the net effect of these changes on the separate rights that are engaged.
I will not repeat what I said this morning. When we trace the history of this proposal, we find that it was not precipitous; it was methodical; it was not unilateral; there was consultation; there were negotiations; it was official and it received approval from the legislature. Indeed, it grew out of a royal commission of inquiry which looked at the situation in detail.
Furthermore, if this amendment were passed, the next day you would find that there would still be denominational schools and a right of parents to make choices. If there are not examples, at least we can look at first principles. On first principles I say that we are here setting an example for the future, in which all the appropriate criteria have been considered, and that the judgment must go in favour of respecting the province's decision.
Senator Pearson: I should like to follow up on a question that I asked on Tuesday. I was glad to hear you say that you put the rights of the students first. It is hard for me to clarify in my mind, when we talk about minorities, where the students' rights fit into the picture. Do you place them with the denominational minority while at the same time the students may have freedom of religion and conscience? I am hoping that somewhere in this process we can have some discussion about the rights of students.
Mr. Rock: I know that the Minister of Education for Newfoundland and Labrador will be at the table during your hearings in Newfoundland. Minister Grimes may wish to address the plight of students currently and what the province has in mind for students in the future.
Speaking for myself, I have learned through discussion in the House and in the cabinet that there are many who say that there is room for improvement in the school system in Newfoundland and Labrador and that the improvements which are contemplated by this change will accrue to the practical benefit of the students. Surely the rights of the students in Newfoundland and Labrador are the rights of students everywhere in this country, the first being the right to the best possible education we can give them.
The provincial government has expressed the strong view that it is in the interests of improving the education system to enact these changes. To that extent the rights of the students, on the evidence I have seen, would justify the enactment of the amendment.
Senator Pearson: The committee will be hearing from a panel of young people. You have not helped me much with the more fundamental question about the rights of students to go against parental wishes. I think we need to enable students to participate in decisions that affect them.
Mr. Rock: That may go beyond the scope of this particular matter and would involve parents and the students themselves discussing where they might want to go for education. Of course that might also be a matter of provincial jurisdiction in terms of the administration of the school system.
Senator Doody: A minute ago you mentioned the process of the matter arriving here as not being precipitous. I presume you meant in Ottawa rather than in the Senate.
Mr. Rock: I meant in Newfoundland.
Senator Doody: You said "here," and I immediately thought of the request of the Government of Newfoundland arriving in the government offices sometime in November and coming to the Senate on May 31, with pressure being put on us to pass the thing immediately because there would be "chaos" in the schools in Newfoundland if the Senate did not rubber stamp this thing immediately and send it on its merry way.
I am pleased to see that the Senate has agreed that the committee hold hearings, although I don't feel that enough time has been allotted in light of the importance of this issue to a large number of people in Newfoundland, many of whom feel that the process was not all that fair. Many of them feel that the question was slanted and that the selling of the proposed changes has been done in a somewhat slanted way and that the suggestions and proposals for change that were put forward by various denominations in Newfoundland have not been responded to in a meaningful way.
I know that various letters have been written to the Prime Minister by various groups of people in Newfoundland, but I have not been able to find any response. My understanding is that the pleas of the Roman Catholics and the Pentecostals on this matter have fallen on deaf ears. Do you have any comments to make on that?
Mr. Rock: I know that it is a controversial matter and I know there are people who do not agree with this amendment and who are critical of the proposal. However, it is not surprising that there is not unanimous approval. Changes are being proposed as to who will wield authority and power in the governance of school systems in Newfoundland and Labrador. What is being proposed is a change from the way things have been done for generations.
All I can say is that changes have been discussed for many years. We have to assume that negotiations were carried on in good faith, which did not result in agreement. A referendum, while not required, was held which resulted in majority approval. I am aware of the turnout for the vote, but everybody had the right to vote.
Senator Doody: I am not quarrelling with that.
Mr. Rock: Then there was a resolution in the legislature pursuant to section 43 of the Constitution Act, which is required to trigger federal involvement, and more recently there was the unanimous resolution. Clearly not everybody is happy about this but, if we waited for unanimity, nothing would be done. What we are talking about here is a process in which people have had an opportunity to speak -- the campaign, the referendum, public discussion, a royal commission -- and, at long last, a government that has decided to act.
Let me also add, senator, that another factor we should not lose sight of is that there was a provincial election in which the government ran for office on a platform that included changes to the school system and that government was elected with an overwhelming majority. At a certain point, as with every other issue, notwithstanding that there are dissenting voices, government has to act. The provincial government in this instance has acted. We have been asked to participate in a bilateral effort to make a change.
Speaking for the government, we have looked at the history, we have looked at the process, we looked at the involvement and, notwithstanding that there are those who are still not happy, we have concluded that it is something that we should do. Of course, I am here today to explain how we arrived at that judgment and to assist you in the process by which you must do the same.
Senator Doody: Minister, none of the things that you have said changes the fact that Term 17 was put in there to protect the rights of minorities and that now it is being changed without the consent of those minorities.
Mr. Rock: Is it?
Senator Doody: Yes. Very definitely it is.
Mr. Rock: Who speaks for the minorities, senator?
Senator Doody: Their elected representatives on the school boards, two-thirds of the elected representatives on the Roman Catholic school boards, the parent-teacher associations, the pupils, all of whom will be represented before this committee in St. John's. They will say quite clearly that they feel that their rights will be diminished under this legislation. Indeed, the premier of the Province of Newfoundland will admit quite candidly that their rights will be diminished by this change in the legislation.
Mr. Rock: As I mentioned this morning, it is beyond doubt that the manner in which the denominational school boards are to be governed is being changed. It is beyond doubt that the way in which rights are exercised is being changed. There is no question about that. The fact remains that education will still be provided by denominational schools in Newfoundland and Labrador. The fact remains that, even though various of the minorities have spoken out against this measure, the minorities taken in the aggregate represent 95 per cent of the population of the province. The fact remains that by majority vote in a province-wide referendum the proposal was endorsed. And the fact remains, senator, that the mere existence of a 50-year-old term does not mean that it can never be changed.
The Constitution provides for bilateral change. The mere fact that the Term was implemented 50 years ago does not mean that it can never be altered. The Constitution is a living and flexible document and must adapt.
Senator Doody: Even though it is 50 years old, it still represents protection for a significant minority of the people of Newfoundland and their rights under the Terms of Union with the government and people of Canada. It is highly improbable that Newfoundland would have joined Confederation without that assurance even though the terms were negotiated after the referendum, which in all fairness should be restated, but it was widely accepted. Certainly in the part of the province in which I grew up that protection would be given for denominational education and for the system which we knew for generations down there and which has served us well.
There is some sort of a myth rampant in the halls of Parliament that the education system in Newfoundland is in a terrible state and that it does not compare favourably. That is another myth that we will put to rest when we hear from the representatives of the system in the province. I am still wondering how you can assure us that the rights that are currently exercised by the minorities in Newfoundland will continue to be protected if this change goes ahead.
Mr. Rock: I spoke this morning as well about the balancing of rights. In a society such as ours, if we are to govern in the public good, no particular right can be absolute and dominate over all the others. We have to do the best we can to accommodate rights in some sensible way.
Senator Doody: Why do we need the Constitution?
Mr. Rock: The fact is that here we have, without question, a change in the way these rights are being exercised. Some people came before us and argued strongly that these changes are necessary to improve the school system, that these changes are necessary to modernize the school system, to enable the province within its resources to provide the best education to students. Yes, there will be a change. Yes, it will not be exactly like it has been, but the fundamentals will still be there and the way in which the system is administered will be improved; it will cost less money and produce a better product. The fundamentals will be there, senator, because there will still be denominational schools. Indeed, there will not be public schools; there will be only denominational schools. There will be unidenominational schools in certain circumstances.
Senator Doody: You say there will be no public schools?
Mr. Rock: Newfoundland is unique, as you know, as being the only province in the country where there are only denominational schools. My point is that the fundamental right of parents to send their children to a denominational school is there now and will be there after the amendment. It may not be exercised in exactly the same way, but is that change sufficiently unacceptable in and of itself that we are to deprive a province of what it has democratically decided is an improvement in its system.
Senator Doody: A lot of people in Newfoundland feel exactly that way, that it is that important.
Senator Lewis: Minister, this resolution for amendment proceeds by way of the amending formula under section 43, I believe.
Mr. Rock: Yes.
Senator Lewis: I believe that process has been used on several other occasions, particularly in 1987 for the purpose of according the Pentecostal assemblies rights under Term 17. I cannot recall what the process was, but I have an idea that it was nothing like the process that has been followed in this particular case, with public hearings and referenda and that sort of thing.
Including the Pentecostal assemblies in Term 17 surely had an effect on the rights of the other denominations that were then protected under Term 17. Do you know if there has been any challenge made to that particular amendment, which was made in 1987?
Mr. Rock: I am not aware of any, senator.
Senator Lewis: Apparently it was accepted.
Mr. Rock: I believe it was.
Senator Lewis: Even though by its terms it did affect the other denominations whose rights were changed proportionately.
Mr. Rock: That is correct.
Senator Jessiman: Senator Beaudoin brought up section 133 of 1867 and also section 23 of 1982. I am more interested really on how section 43 of 1982 allows a province to agree with the federal government on a change. As you and I know, section 23 is not effective as far as Quebec is concerned at the moment. The English language does not have the same protection in Quebec as the French language does in all the other provinces because the National Assembly in Quebec has not approved this particular section. Is that correct?
Mr. Rock: A portion of it, senator. Mary Dawson may wish to give you the detailed answer.
Senator Jessiman: When do you think we will be able to give the English people in Quebec the same protection of their language as the French have in the other provinces of Canada by virtue of section 23(1)?
Mr. Rock: I am not sure that this is relevant to Term 17.
Senator Jessiman: Do you think a province could come to you -- and I am suggesting Quebec -- and, only as it affects those people in Quebec, ask you to relieve them of the responsibility, to assume all the rest of the Charter but not 23?
Mr. Rock: It is always dangerous to answer a question you do not fully understand, but let me say something of which I can be confident. Section 23 cannot be changed except with the use of the general amending formula, not bilaterally. Section 43 cannot be used to amend section 23.
Senator Jessiman: So it is 50 per cent and 7?
Mr. Rock: It is at least 7/50 and maybe unanimity. There is some debate about that among constitutional scholars, but it certainly is not bilateral.
Senator Beaudoin: Just for the purposes of the record, he mentioned section 23. I meant Manitoba, of course, because there is no debate on this.
Senator Jessiman: I am concerned about section 23 under the 1967 act.
Senator Beaudoin: It is at least 7/50; it is not unanimity.
The Chair: It is a confusing section. Let me alert the senators that, when we are talking about section 23 we are either talking about section 23 of the Canada Act, or section 23 of the Manitoba Act. It is section 23 of the Manitoba Act which Senator Beaudoin was addressing.
Senator Cogger: Minister Rock, your own colleague, Mr. Duhamel from Manitoba, is quoted in Le Journal de Montréal back in March 1996 as stating -- and I will translate loosely -- that the idea of enshrining the rights of a minority in the Constitution is precisely to put it beyond the reach of referenda and the whims of majorities. Do I assume that you basically agree with this statement?
Mr. Rock: It is impossible to disagree with such a statement, senator. The question is whether it has relevance to the amendment of Term 17.
Senator Cogger: I suppose you would agree as well that other than an expression of interest from a judicial point of view the referendum is irrelevant in this matter.
Mr. Rock: No referendum was required under section 43.
Senator Cogger: We use a referendum essentially, I suppose, to poll the opinion of the population or, if one wanted to be a little more cynical, for a government to go and seek a majority, however slim, to cover its deeds.
Mr. Rock: There may be witnesses from the provincial government who can provide you with the explanation as to why the province decided to hold a referendum in Newfoundland. As you suggest, senator, no referendum is required under section 43.
Senator Cogger: Minister Rock, I raised a question with Mrs. Brock and her colleague and I will now raise it with you. It seems to me that since 1967 all amendments to the Constitution have consistently extended rights, granted rights or made their application broader. It seems to me that this might be the first time ever that a constitutional amendment would have the effect of limiting, as you call it -- I think you refuse to call it "diminishing." You call it changing, but evidently in the eyes of the minorities in Newfoundland it is diminishing their rights.
Mr. Rock: Which minorities, senator?
Senator Cogger: The Roman Catholics, the Pentecostals. Why do you think they are screaming?
Mr. Rock: Which of them is screaming, senator?
Senator Cogger: The Roman Catholics for starters.
Mr. Rock: I just wonder if we are about to categorically say at this table that there is a minority that takes a position. There are minorities within the minorities, and there are different views. If the whole process were to become sclerotic because of the absence of unanimity or because of the expression of strongly held views against a proposition, surely we would never achieve anything.
Senator, what is in issue here is the desire of a provincial government to modernize its school system. There is no unanimity; there are some who are speaking out against it. However, there has been a process that has been open, methodical and fair, and now the national government is being asked to make it happen.
If you wish to only rely upon those who speak against it and say that, because there are those voices, we must stop, then I think we would be doing a disservice to the bilateral process of amendment to the Constitution.
Senator Cogger: Please do not put words in my mouth. Surely, minister, you are not arguing that because there is not a single identifiable minority, but several little bits and pieces, that justifies the whole thing. The 54.9 per cent voted in favour, therefore, 45.1 per cent voted against. That 45.1 per cent is affected, no matter how you qualify them.
Mr. Rock: The national government is not acting and the House of Commons did not pass its resolution because of the result of the referendum. The House of Commons enacted this resolution because the Legislature of Newfoundland and Labrador passed a resolution and called upon us to participate with them in effecting constitutional change under section 43. We looked at all the circumstances, including the generations of discussion, the long-term negotiations, the royal commission's report, the provincial election, the state of the school system in Newfoundland, the nature of the proposed changes and the rights that would remain after the amendment, and we concluded that it was the correct course of action. It was not the referendum that caused us to act; it was the resolution of the legislature in all those circumstances.
Senator Cogger: I can appreciate that, minister, and I thank you for that answer. Professor Brock suggested also that one of the considerations the Senate should be bringing to this matter is that we have a right, indeed probably a duty, to satisfy ourselves as to the quality of legislative debate that has taken place. I took it upon myself to read everything that was spoken in the House of Commons on this matter and I will tell you that I was not impressed one little bit with the reasoning offered by the Bloc Québécois to vote in favour. The reason they voted for this matter with your government had absolutely nothing to do with the quality of education in Newfoundland, nothing to do with anything other than the sheer putting into the constitutional régime of this country the sanctioning by the federal government of a referendum with a slim majority. That is all in the debates, and I will not bore you with all the quotes. You were there, I am sure.
When we look at the quality of the legislative debate, I suppose we have a right to take that into consideration as well, do we not?
Mr. Rock: Yes, but, if it is nonsense, I hope you will set it aside.
Senator Cogger: If I set it aside, your amendment does not pass in the House of Commons.
Mr. Rock: Senator, you are entitled to look through the debate and decide what is sensible and what is not. The mere fact that a number of voices expressed nonsense does not mean that the nonsense becomes sensible. Anybody who argues that this is a precedent for anything in the context of Quebec separation is talking nonsense.
I do not think it is necessary to go into the reason for that; it is too obvious for you and I will not be tiresome about it. However, let me say that my understanding of Professor Brock's testimony was not so much that we should look at the quality of the debate in House of Commons, which itself is quite a challenge; rather, we should look at the quality of the debate in the Newfoundland legislature and the issues that were raised and the points that were made there.
Senator Cogger: She did not qualify it. I suppose we have to interpret it as the whole thing, both in Newfoundland and here.
You are aware that some churches, sometimes through their attorneys, have proposed through the voice of Mr. Mills in the House of Commons an amendment to the amendment which would essentially remove the words "subject to provincial legislation" and substitute therefor the words "where numbers warrant." I find it interesting to note, minister, that in your own comments in the House of Commons you state, and I quote:
The government of the province of Newfoundland and Labrador has also tabled draft legislation by which it would be provided that unidenominational schools may be created where numbers warrant...
Those were your own words in the House of Commons. Since you seemed to be using the same wording and seemed to be using that argument in support of the bill in the house, would you also contemplate an amendment to the amendment that would enshrine those words?
Mr. Rock: No, senator. I represent the riding of Etobicoke Centre and I do not presume from Etobicoke Centre to tell the Province of Newfoundland and Labrador how it should word its legislation for the administration of its school system. I do not know how someone from Broadview-Greenwood can do any better. The fact is that we have a proposed amendment here which has the support of the Legislature of Newfoundland and a unanimous resolution asking us to act urgently to implement it.
What we also have -- and that was my allusion in the House of Commons -- is a stated intention by the provincial government to introduce legislation building upon this amendment, if it is enacted, to ensure that where there are sufficient numbers of students to justify that course, there will be unidenominational schools made available. That was my reference in the House of Commons.
I find that interesting and relevant to the debate, but I do not see that we should take it upon ourselves to amend the amendment in a manner which the provincial government does not think is appropriate. We should bear in mind that education is a provincial responsibility. They have decided what is good in their province.
I believe that the Constitution contemplates bilateral change to recognize that in certain areas, such as education which is in the provincial jurisdiction, a province can decide, perhaps not unanimously, but democratically that it wants to change in a certain way and that the national government is to respect that. So long as the process is fair and democratic and results in no abrogation of minority rights, then we should proceed without imposing capriciously from this distance words that may not be appropriate in the amendment.
Senator Rompkey: I have a question which really comes out of the questioning of Senator Doody and Senator Cogger, and it relates to minorities. I will give you some more time, minister, to help us with defining a minority and who speaks for a minority. This will be important to us, when we go to Newfoundland, to help put what we hear into context.
The context in Newfoundland is that there are now seven registered denominations included in Term 17: the Roman Catholics, the Pentecostals, the Anglicans, the United Church, the Salvation Army, the Seventh-day Adventists. Jehovah's Witnesses, for example, whom I would consider a religious minority, do not have rights under Term 17. The Moravian Church does not have rights under Term 17. I have discovered -- and I do not wish to trivialize the debate -- that there are ten male Doukhobors in Newfoundland as well.
What I am looking for is a definition of "minority." The second question is: Who speaks for the minority and how do we determine that?
Mr. Rock: In terms of a definition of "minority," in my view you could approach it numerically or you could approach it politically. What I find interesting in this context, senator, is that the seven registered denominations, as you refer to them, when they are taken together make up 95 per cent of the population of the province. In that sense it is a majority of minorities, if you wish to put it that way. There is no single denomination that dominates over all the others.
When we have a province-wide referendum or a provincial election on an issue and the issue is affirmed, what we have is a collection of minorities acting as "the people" and affirming that resolution.
Senator Rompkey: Who speaks for the minority and how do we determine who speaks for the minority?
Mr. Rock: That is why I asked for clarification of part of Senator Cogger's question. When individuals or institutions come forward, it is difficult to know for whom they are speaking. They claim to speak for the whole of the group but, manifestly, they do not. I have heard representations from across the spectrum taking different positions on these issues.
We should resort to democratic principles and consider the view of the provincial legislature. They are elected democratically. That voice has been very clear. On what amounted to a free vote, they decided in favour of this resolution. As I say, more recently they unanimously called upon Ottawa to act urgently.
Society is a collection of minorities in the broader sense. The Province of Newfoundland and Labrador has denominations, but together they make up the vast majority of the population, and their elected representatives have called upon us to act. The fact that there is not unanimous agreement should not stay our hand; otherwise we would never get anything done.
The Chair: I will warn senators that there may be an emergency meeting of this committee, not with respect to Term 17 but with respect to two other pieces of legislation, this afternoon while the Senate is sitting. It has not been confirmed but, if in fact Senator Cools speaks to Bills 42 and 48, I believe that there is agreement on both sides that those bills will then come to us for consideration and then returned to the house this afternoon. Be prepared for such a meeting.
I also remind steering committee members that we have a further meeting on Term 17 immediately following in the Francophone Room.
The committee adjourned.