Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 25 - Evidence
ST. JOHN'S, Thursday, July 11, 1996
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 9:00 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.
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The Chair: We are delighted to have as our presenter, Mr. Loyola Sullivan, Leader of the Opposition for Newfoundland and Labrador.
Mr. Loyola Sullivan, MHA, Leader of the Official Opposition of Newfoundland and Labrador: Honourable senators, I appear before you today as a Progressive Conservative on behalf of the caucus and as Leader of the Official Opposition, a position I have held since March 11 of this year. The PC caucus holds 9 out of 48 seats in the House of Assembly.
I appear also as a former teacher and as a parent of three children who are currently in our province's school system.
After carefully weighing all the arguments and considering the current circumstances, our caucus has chosen unanimously to support passage of Term 17.
Let me give you three key reasons for our decision. First, amending Term 17 is the course of action our House of Assembly democratically, on behalf of our people, has voted to undertake. Second, the Newfoundland government received a mandate in the 1996 election which, in effect, affirmed this course of action. Third, Premier Tobin has given his assurance that this amendment to Term 17 will achieve the kind of educational reform that Newfoundlanders and Labradorians were told, and therefore believed, they were voting for in the referendum of September 1995.
Let me state as well, at the outset, that this issue is not black and white. It has been very divisive in our province. Many people whose views we greatly respect stand on different sides of this issue. This fact is underscored by the wide variance in views expressed to the Senate committee over the past couple of weeks. Make no mistake about it, the burden on the shoulders of legislators is an onerous one, the burden of choosing the best course of action in light of competing arguments, conflicting values and outstanding concerns.
I am pleased that the Senate has chosen to refer this matter for public hearings to allow Canadians, especially Newfoundlanders and Labradorians, to express in a public forum their views about the Term 17 amendment. It is truly unfortunate that public hearings had not previously been held on this matter, neither by the Newfoundland government nor by the House of Commons. I therefore count it as a privilege to join other presenters in appearing before this committee to make the views of our caucus known.
With your indulgence, I would like to present a brief history of the education reform issue from our perspective. I believe it is important to put this information on the public record and to give senators an opportunity to consider the information before voting on this amendment.
Constitutional guarantees of public funding for denominational schools and the role of denominations in education governance were written into the Terms of Union in 1949. As recently as 1987, they were reaffirmed in being extended to the Pentecostal Assemblies by agreement of the federal and provincial Parliaments.
Since 1949, our education system has been evolving through cooperative efforts among the various denominations. The number of school boards throughout the province, once numbering 270, has now been reduced to 27, and further consolidations were anticipated.
At the same time, because of declining enrolments and other factors, many schools of different denominations have been brought together to share facilities and services. In 1964, we had 1,266 schools. By September 30 of last year, there were just 472. Further reductions were expected. In fact, the only thing holding back consolidation, in some areas, has been a lack of capital funding to finance consolidated facilities.
In March of 1992, the provincial government received a report of the Royal Commission of Inquiry into the delivery of programs and services in primary, elementary and secondary education.
The government had established the Royal Commission to seek ways to improve the quality of education while lowering costs. The Royal Commission identified some $14.5 million in annualized savings which it felt the government could not easily achieve under the existing Term 17.
The denominations have suggested that most if not all of these savings could be achieved without a constitutional amendment through a continued cooperative effort among the denominations and government to consolidate and share facilities and services.
The Royal Commission implied that the government could not demand these particular savings unless governance of the system was transferred from the denominations to the government. Otherwise, the government's action could be challenged on constitutional grounds.
In November of 1993, the government released a proposal to implement many of the reforms considered by the Royal Commission. This proposal was called, "Adjusting the Course (Part I) -- Restructuring the School System for Educational Excellence". Using "Adjusting the Course" as the basis, the government tried first to achieve sweeping reforms of the system by agreement rather than through a constitutional amendment.
By several accounts, these negotiations were successful in reaching agreement on all but a few issues. These issues include school viability criteria, pupil transportation, and the protection of religious education and religious practice. However, the government was not satisfied with the results achieved. It said the outstanding issues, though perhaps few in number, were substantial in content.
Meanwhile, during these three years of negotiations, the government chose not to implement numerous reforms recommended by the Royal Commission on which agreement with the denominations had been reached or on which agreement was not required under Term 17. Many such recommendations focused on curriculum, teacher training, consistency and excellence in classroom teaching, time on task, length of the school day, length of the school year, special needs students, discipline and disruptive students, and evaluation. Education reform in these key areas during this period seemed to be at a standstill.
The House of Assembly was adjourned for the summer on May 31, 1995. On the very next day, the Wells government publicly released a letter it had sent to the denominations issuing what was, in effect, an ultimatum with respect to reform.
Three weeks later, on June 23, Premier Wells announced that a referendum on amending Term 17 will be held on September 25, the day following Labour Day and the first day of school. Unfortunately, the legislature was not open for debate in the interim and public hearings were not held.
The government's public information campaign centred on a brochure entitled, "The Education Referendum: A Decision on the Future of Education in Newfoundland and Labrador." The contents of this brochure were repeated in various advertisements at that time. In the end, some 55 per cent of those who voted, voted in favour of the proposed amendment to Term 17.
The referendum was not binding on the legislature or on individual MHAs. It was intended to gauge public opinion for the sake of legislators who would then make a decision on the matter.
The Term 17 amendment, with its wording slightly altered from the version for which people voted in the referendum, was brought to the legislature for debate in October. All MHAs were given an opportunity to make their views known and to speak on behalf their constituents.
On October 31, following seven days of debate, the legislature voted on the Term 17 amendment. Members of the opposition and the government caucuses were given a free vote on the resolution. We made our individual decisions for individual reasons, each taking into account the choices of his or her respective constituencies and each weighing the arguments and principles involved.
The legislature passed the resolution by a vote of 31 to 20. We had collectively made a decision. We as a legislature would move ahead on amending Term 17.
In November, the Speaker of the House of Assembly sent a certified copy of the resolution to the Clerk of the Privy Council in Ottawa. Although the Prime Minister indicated in a January letter to Premier Wells that the federal government would be in a position to table the resolution in Parliament once the House of Commons reconvened, as of late May the Commons had not yet been asked to deal with Term 17.
On May 23, with summer approaching and Term 17 still not before the Commons, Premier Tobin brought to the House of Assembly a resolution asking Ottawa to deal expeditiously with Term 17.
There has been some confusion at these hearings as to exactly what the legislature voted for on Term 17. The preamble indicated in part that enactment of a revised Term 17 is essential if the government is to implement necessary and urgently needed changes in the province's education system. However, the resolution itself simply asked that this House respectfully ask the members of the House of Commons and the Senate to consider the proposed amendment to Term 17 at their earliest convenience and to decide the issue before Parliament rises for its summer recess. It was as a result of our desire to see Ottawa deal with this matter prior to the summer recess that we expressed unanimity on May 23.
Why support the Term 17 amendment? Several issues have been raised in the debate over Term 17. Number one, is amending Term 17 necessary?
According to the denominations, most of the changes recommended by the 1992 Royal Commission and most of the savings they identified could be achieved by consensus through continued cooperation between the denominations and the government.
They argued that, in the negotiations between the government and denominations, agreement had been reached on reducing the number of school boards to between 8 and 10, on closing some 100 schools, on constructing schools by a single province-wide school construction board, on streamlining bussing and on letting government determine operating grants and the number of teachers. They argued that changing Term 17, therefore, represented nothing other than a grab for power.
The government, for its part, said the denominations were wrong that agreement was close on education reform. It said the denominations and the government had a very different picture of the optimal education system. It said its model was far less expensive and that savings could be achieved in far less time than it would that take for efficiencies to evolve under the current arrangement.
It is also said that the other recommended reforms to classroom-centred education were costly and could be financed in current circumstances only through the swift elimination of costly duplication and administrative excesses. Supporting the government's argument was the 1992 Royal Commission report itself which said that fundamental change of denominational system could save $14.5 million per year.
What about minority rights? Some of the religious classes of people in this province have argued that guaranteed minority rights are being stripped from them without their consent. The government has countered this claim with several arguments. The minority rights in question belong to all seven denominations. Each of these denominations is a minority. Neither constitutes a majority. It is therefore wrong to say the majority is riding over the rights of the minority. The rights of all groups are being affected in the same way. No group is being treated differently from the others. None is suffering discrimination.
Under the revised Term 17(a), a denomination has the right to provide for religious education, activities and observances for the children of that denomination in any school. Under the revised Term 17(b), a denomination has the right to have a publicly funded unidenominational school. Under the revised Term 17(e), denominations have the right to elect at least two-thirds of the members of a school board, and any denomination has the right to elect the portion of that total that is proportionate to the population of that class in the area under that board's jurisdiction.
Government has assured people that minority rights are essentially maintained under the revised Term 17. In fact, it seems this conclusion has been accepted by most of our people. During the election campaign here in February when denominations and individuals had an opportunity to make a major issue out of minority rights under the revised Term 17, they chose not to do so.
After carefully weighing these and other arguments, our caucus reached a decision to support passage of the revised Term 17. We are satisfied that, on balance, the issues raised favour supporting the revised Term 17. In addition, there are other arguments based on events which have occurred since the debate in the legislature in October which lend weight to this position.
First, we respect the vote of MHAs in October. Remember, the referendum was not binding on the House of Assembly. When we went into the House in October to debate this issue, amending Term 17 was nothing more than a proposal that had received majority support in a referendum. In the house, members defined the issue and made their arguments.
Many of us, as members, after weighing the circumstances, voted in accordance with the wishes of the constituents in our respective districts. There were yeas and nays on both sides of the House.
In the end, amending Term 17 was chosen as our course of action by a majority of MHAs. Amending Term 17 had become more than a proposal. It was the chosen course of action of the legislature on behalf of all Newfoundlanders and Labradorians. We have made our decision and the issue is now in the hands of the federal Parliament.
Second, we respect the vote of the people in the election. The 1996 general election was the first in this province since the Term 17 amendment became an issue. The Wells government neither had nor sought a mandate for constitutional change. In fact, immediately prior to the 1993 election, Premier Wells stood in the legislature to assure church leaders that he had no plans or intentions to seek a constitutional change to effect constitutional reform. It was only after the election that he made changing Term 17 his government's policy.
The new leader of the Liberal Party, Premier Tobin, went into the election promising to pursue the education reform initiatives of his predecessor including the Term 17 amendment. He promised to be more cooperative in education reform than Premier Wells had been. But Premier Tobin never indicated, at any point, an intention to rescind our province's approval for the resolution or to ask Ottawa not to further consider this matter. In fact, Premier Tobin's election red book stated on page 67:
Last year, a referendum was held on the important question of denominational schools. The people have spoken. Educational reform will proceed.
The denominations and the general public had the opportunity during the election campaign to challenge the government's position on Term 17 and make the matter a major issue of contention. They did not. There was in the election campaign no strong movement to have the Term 17 resolution rescinded. In returning the government to office with a new mandate, the people of this province, in effect, approved the government's Term 17 amendment strategy.
Third, Premier Tobin has committed to five conditions. As I indicated at the outset, our caucus was aware of growing public concern that this particular Term 17 amendment might not achieve the results for which people had been told, and therefore understood, they were voting in September.
In the referendum, people were asked: Do you support revising Term 17 in the manner proposed by the government to enable reform of the denominational education system?
People's understanding of the implications of revising Term 17 was shaped by the amendment itself and also by the information in the government's brochure and the public statements of the Premier and his ministers. However, the framework agreement negotiated by the government and the denominations this spring raised questions about whether people would really get what they voted for.
I insisted, as a condition of my going to Ottawa in May, that the Premier commit in the legislature that Term 17 would achieve the five results that our people were asked to endorse in the referendum.
Those five results are as follows: the establishment of interdenominational schools open to all children without regard to their religion; the right of all children to attend their neighbourhood school; provision for unidenominational schools; appointment of teachers to be solely on the basis of merit and qualifications except in unidenominational schools; and church influence confined to religious education and pastoral care except in unidenominational schools.
At my urging, Premier Tobin indeed pledged to Newfoundlanders and Labradorians that the amendment to Term 17 passed by the House of Assembly will, when implemented, achieve these five measures. Much of the suspicion about the Wells government's intention regarding structural reform is calmed by Premier Tobin's public assertion that any legislation following the Term 17 amendment will be consistent with what people were told and understood they were voting to accept.
While we are concerned that the draft legislation to follow Term 17 remains hidden, we view Premier Tobin's commitment as substantive. Should he break this commitment, he will be held accountable accordingly.
I recognize that the Senate has a limited capacity to deal with Term 17. Other than passing the resolution as is, it can defeat the resolution or amend it. Defeat or amendment would send the resolution back to the Commons which would then have to reconsider the matter and make another decision. The Commons could then simply pass the resolution, again as is, and it would become law, or the Commons could amend the resolution in accordance with the Senate's wishes, thereby forcing the matter back to our House of Assembly.
The Senate has, at most, six months to deal with this issue, the so-called six-month suspensive veto.
Premier Tobin has criticized the Senate for proceeding as it has on Term 17, but clearly the Senate has the right and obligation to deal with this matter carefully. The Commons may have dispensed with this resolution in just two days, but, of course, the Government of Canada had in its possession and refused to deal with the Term 17 amendment for more than six months prior to that, longer than the Senate can suspend the resolution.
Premier Tobin would do well to reflect on the fact that he himself sat at Prime Minister Chrétien's cabinet table during the period that the government refused to deal expeditiously with this resolution. If Premier Tobin insists on criticizing the movement of Term 17 through Ottawa, he should recognize that the burden of responsibility rests in large measure on his own shoulders and on those of his former colleagues in the federal government.
He might also concede that these Senate committee hearings have been very useful and no doubt enlightening for many in our province who, until now, have been denied the opportunity to participate in the debate on this issue.
It is clear that many of the questions raised in this hearing are significant ones which demand thoughtful consideration.
Having said this, I do recognize that delaying a decision beyond this summer may have significant implications. The provincial government has indicated that there are profound consequences of not proceeding this summer with changes which it seems are all but inevitable. They have stated that if the matter is not soon resolved, changes respecting school boards cannot be enacted in time for the start of the 1996-97 school year without those changes being open to constitutional challenge.
They have stated that a delay in making changes respecting school boards would cost our province as much as $10 million. I cannot say whether the government's figure is correct. It has not provided details to back up this figure. However, it is likely that proposed school board reductions would involve millions of dollars.
Before concluding my remarks, I would like to focus on an issue raised in the Term 17 debate which gives me great cause for concern. In attempting to sell others on the merits of amending Term 17, some have resorted to exaggeration and hyperbole in describing the current quality of education in our province. Some have said structural reform is essential because the current system is, for the most part, producing second-rate students. These claims are not only destructive to our reputation and to the morale of students, parents and educators in our province, they are also clearly untrue.
I refer to the government's information brochure distributed just prior to the referendum which stated:
...there has been increasing evidence that students in this province have not been achieving at levels comparable to students in other provinces, or at the levels needed to cope with rapid social and economic change.
This characterization of our education system was reinforced in the Commons by such people as Liberal MP Carolyn Parrish who said:
Newfoundland and Labrador has decided it wants to modernize its education system, bringing it closer to those enjoyed by all the other provinces and territories in Canada.... Newfoundland and Labrador spends the highest amount per capita of any province in Canada and with the poorest results. It has the highest dropout rates, the highest rates of illiteracy and the lowest standardized test scores in math, science and English.
Liberal MP Gar Knutson said:
The Newfoundland school system by many reports which I accept as being factual is below the standards we have come to expect in Canada. I accept, after reviewing the material and also consulting with people who have been through the system, that the quality of education in Newfoundland is not up to Canadian standards.
That is a very serious charge.
I join with Gander--Grand Falls MP George Baker in expressing outrage over the remark made by a member of Parliament that, if you have Grade 12 in Newfoundland, according to a certain standard, you really only have a Grade 8 standard in Ontario.
I object strenuously to members of Parliament who repeatedly use the word "modernize" to describe what they feel needs to happen to education in Newfoundland and Labrador. It is wrong to picture the Newfoundland and Labrador education system as sitting on the edge of a precipice waiting to collapse into ruin. We have been making great strides. While, like all people, I see opportunities for growth, as a former teacher and as a parent I feel very comfortable knowing my children are in the care of this province's education system.
In terms of academic performance, students in Newfoundland and Labrador are comparable with students in all other provinces. In many respects, we perform better than the national average.
In February of 1995, the education minister released the results of the Canadian Test of Basic Skills which had been administered to more than 8,500 Grade 7 students country-wide. This province's students exceeded the national norm in mathematics and work study areas with scores at the 53 and 51 percentiles respectively. In the other three major skill areas, where results were below the national norm, they are considered to be in the normal range. The composite score for the total test was at the 49 percentile, which is essentially at the national norm.
The education minister concluded:
...the results of the recent CTBS --
-- that is, the Canadian Test of Basic Skills --
-- are encouraging. It is comforting to know that Newfoundland students can compete with others from across Canada.
Indeed, the facts will show that the students of our province have been doing better and better consistently over the past couple of decades in relation to their counterparts in other provinces.
As Liberal MP Ron Duhamel pointed out in debate in the House of Common, this province's education department has stated:
The general level of education among all age groups in Newfoundland has risen dramatically since the mid-1970s to where the gap with the rest of Canada has all but closed.
As Independent Liberal MP Dennis Mills pointed out in debate, Premier Tobin's own election red book stated:
Since Confederation we have made tremendous progress in education. Newfoundlanders and Labradorians have built an educational system in which we can all have pride. Our university participation rates are higher than the national average. If the present trend continues, Newfoundland and Labrador will soon have education levels equal to the best in the country.
Mr. Mills also quoted our education minister who said that the percentage of our population attaining less than eight years of schooling has decreased from 24 per cent in 1976 to 5.6 per cent in 1991. This compares to a decrease in the Canadian average from 9.5 per cent in 1976 to 3.8 per cent in 1991.
In other words, the margin of improvement in Newfoundland was far greater than that for Canada as a whole.
Mr. Mills also quoted our education minister as stating:
The numbers of students not graduating from high school in Newfoundland have decreased from 66 per cent in 1976 to 49.9 per cent in 1991. The Canadian average went from 56 per cent to 43 per cent during the same period. The numbers for Newfoundland are much better now than for 1991, the last year statistically compared to Canada.
Students in Newfoundland perform just as well as students in most other provinces and the Canadian average.
These statements can be confirmed in the results of testing of 16 year olds in reading and writing, School Achievements Indicator Project, 1994.
These are quotes from this province's own former education minister. They paint a very different picture from the spurious ones which many people have been using at our expense to make the Term 17 issue seem more cut and dried than it really is. Structural reform of our province's education system is needed, not because the students and the system produce second-rate students, but because declining enrolments and unremitting fiscal restraints present new financial challenges.
Certainly the 1992 royal commission and subsequent studies have identified opportunities for improvement in terms of curriculum, time on task, length of school day and year, and other factors. No doubt, Royal Commissions would make similar findings in all other provinces.
When our students are competing against the best from schools in countries like Germany and Japan, we cannot be complacent but must constantly seek opportunities for growth. Without question, there is room for improvement, but let us also be honest; many of the improvements identified in 1992 currently fall within provincial jurisdiction and can be implemented without constitutional change.
Our people are frustrated that there has been little action on these fronts while the government has pursued structural reform of education. The government has argued that structural reform is necessary to finance other reforms but sometimes they have exaggerated in making that argument.
Exaggerations, unfortunately, have a way of turning into dangerous stereotypes that have no basis in reality. Let us put an end, once and for all, to the myth that this province's school system is inferior or producing inferior students because it is simply not true.
In conclusion, the Progressive Conservative caucus in the House of Assembly is urging the Senate to do what is necessary to facilitate educational reform in Newfoundland and Labrador. We realize the issue is not cut and dried. We ask you to consider our reasons for supporting passage of the revised Term 17.
Whatever happens with respect to Term 17, our first concern is that the necessary reforms to education at the classroom level in Newfoundland and Labrador are implemented properly, swiftly and in accordance with the express wishes of our people. Our children deserve nothing less.
Senator Doody: Welcome. On the question of the unanimous vote in favour of the resolution in the House of Assembly, the unanimous vote was for a request of the Parliament of Canada to act expeditiously on the matter which was then sitting on someone's desk up in Ottawa. Does this indicate that the caucuses on both sides were unanimously in favour of the proposed new Term 17?
Mr. Sullivan: I can only speak for our caucus. Our caucus was unanimously in favour of proceeding as we indicated here today. We voted on May 23 to ask the House of Commons and the Senate to deal expeditiously with this before the summer recess. That was strictly the resolution, in essence, passed on May 23.
Senator Doody: In the proposed new Term 17, there are many commitments to denominational schools and religious involvement in the schools and so on which is all very well and good and very comforting, but it is all subject to provincial legislation which is unique in constitutional terms.
Do you have any idea what provincial legislation will control all of this? Are you privy to the legislation? Can you tell us anything about it? This is very worrying to me. Under legislation, the government can set the standards for schools. For example, it can say how many people of a particular denomination must live within a particular radius of a proposed school in order to qualify for a denominational school.
Has any thought been given to the criteria or standards for establishing these schools? Everything that happens after the resolution is passed and the Constitution is amended by this proposal will be subject to provincial legislation.
Mr. Sullivan: I am not privy to what the government is proposing. I have called in the legislature on several occasions to be allowed to see the legislation, even prior to last October 31. I have called recently, in this session, to be allowed to see the intent of the government for school board election and reduction, et cetera. The government is not prepared to table that legislation because it may raise some undue concerns, the minister indicated in response, in the public forum which might impact on it. That is what I concluded from his answer.
I would like to see the pathway down which government wants to bring us, but I fully know that provincial legislation is subject change on an ongoing basis. What is legislated today may not be law next year, whereas what is constitutionally entrenched is not as easily changed.
Senator Doody: But this proposed new Term 17 is subject to provincial legislation. As you suggest, governments can change the rules and regulations as they go along, as their own whims or financial or political expedients dictate.
I stand to be corrected, but it appears to be a tremendous leap of faith to amend the Constitution subject to provincial legislation.
I doubt neither the morality nor the good intentions of the present administration or the present opposition, but who knows what will happen in five years. That is why we have constitutional protection. It does not appear to me that such protection exists under the proposed new Term 17.
Mr. Sullivan: I look upon the amendment as loosening the shackles to give parents the right to make a choice.
When I was the education critic of our party in February 1993, I was quoted in a major article in a local newspaper as saying that I believe in the right of parents to make that determination. I believe parents should be able to have more control under the education system.
I also stated in that article that parents should be able to choose whether they want their kids to go to a neighbourhood school. The efficiencies which are needed to give our children the best possible education are encumbered in certain ways under the existing Term 17.
Senator Doody: They are encumbered in what ways, Mr. Sullivan? It seems to me that, under the present Term 17, the legislature of Newfoundland can establish a school anywhere it wants to, providing it has the money. I know very well how difficult that is; I have been there. However, the present Term 17 does not hinder or hamper the Government of Newfoundland in establishing a public school, a private school or a denominational school anywhere it wants.
Mr. Sullivan: Assuming there is an unlimited amount of finance resources, that is correct, but there is not an unlimited amount of financial resources in this province.
Senator Doody: I know that. I just said that. I am saying that changing Term 17 will not increase the financial resources of the province. We will be just as shackled in terms of a new school system as we are now.
My point is that we are changing Term 17, which provides constitutional protection for the rights of the minorities in Newfoundland -- and I will speak to that in a moment -- and turning them over to the provincial legislature.
There is an old saying that no man's life, liberty or property is safe while the legislature is in session. Now we will add minority rights to that list.
I am very concerned about that. To learn that no one really knows what the legislature proposes in terms of regulations, standards or criteria, makes it even more worrisome.
There is strange reasoning attached to minority rights. You tell us that majority rights belong to all seven denominations, that although each of these denominations is a minority, in total they comprise a majority. If you take away, erode or diminish the rights of any of these minorities, it really does not affect them because they are all part of the majority. Is that what you said?
Mr. Sullivan: No, I indicated that that is one of the arguments the government has used. I also listed some arguments used by denominations. That was not my statement.
Senator Doody: Yes, you say that the government has countered this claim with several arguments.
Do you believe that minority rights are being eroded?
Mr. Sullivan: I believe there should be provision within the school system for religious education, observances and activities, and that parents should have the right, within the limitation of numbers, to send their children to a school of the denomination they choose.
Within the proposed amended Term 17, there is provision for governance of the system within unidenominational schools. There is a provision for religious involvement in all schools under the proposed amended Term 17.
Senator Doody: Would you feel more comfortable if that protection were enshrined in the Constitution, as is the existing Term 17, or would you be more comfortable having it in the hands of the legislature?
Mr. Sullivan: On an amendment to the Constitution, the legislature can only bring in legislation which moves within the limits set down by the Constitution.
The legislature is restricted to changes within the parameters of this constitutional amendment. Legislation in the province cannot override the Constitution; it must be within the Constitution. In three or four years, there could be changes in legislation, but it cannot conflict with the Constitution.
I am satisfied on balance that there is protection for the people of this province. Parents want the opportunity to decide, but they do not want to forgo religious education in the schools. I see a great difference between what is provided for in this amendment to Term 17 and what we would consider a public school system. There is protection for religious education instruction within this amendment.
Senator Doody: It is subject to provincial legislation which is uniformly applicable to all schools specifying conditions for the establishment or continued operation of schools.
Mr. Sullivan: No, there is protection for all schools, regardless of viability, to have religious education, instruction, observances and events. It is my understanding that it is provided within all schools.
Senator Doody: It is subject to provincial legislation, but I will leave it at that.
Senator Rompkey: Welcome. Congratulations on a very clear and forthright presentation.
I notice, Mr. Sullivan, that you speak not only as Leader of the Official Opposition and for the Progressive Conservative caucus but also as a Catholic teacher and a parent.
I want to ask you to take some time to speak as a Catholic teacher and a parent and to give your point of view in accordance with those responsibilities.
Can you tell us generally how teachers in the province feel about this issue? Can you tell us how parents in the province feel about this?
Mr. Sullivan: First, I taught school for 20 years in a Roman Catholic school. I cannot speak on behalf of teachers as I am not currently a teacher. I can speak from my own personal experience as a teacher and as a parent of children within the system.
I would not want to see a public school system in this province. I do not believe that teachers within the system want to have a public school system in this province. I believe that they want the retention of the right to have religious education, observance and events within a Christian school setting.
This whole issue is about the people in the system and the classes of people. They want to choose for their children the best avenues for the best possible education. I believe that amending Term 17 can take us further than we can get without an amendment, without removing religious instruction from the schools.
I do not believe that this amendment takes religion out of the schools. It takes away certain control over that, but not the religious practice and observances that are fundamental to beliefs in a particular faith.
Senator Rompkey: You have heard from parents in your riding, as have your colleagues. We have heard from parents on both sides; some who want to go ahead, and some who feel threatened and would prefer to keep the status quo.
What is your sense of the general feeling of parents?
Mr. Sullivan: It is my sense that parents want structural reform to the system. They want to make the most efficient use of our dollars in challenging financial times, but they do not want to do it at the expense of the public school system. That is my feeling. They want certain protections for religious education instruction within the system.
Senator Rompkey: On the system itself, you have been very clear with regard to the state of education in Newfoundland and how it compares to education in other parts of the country. I congratulate you for setting the record straight.
You said that the savings to be made -- I think you said something like $14.3 million -- could be spent to make further improvements to the system.
We know that our people can compete. We know that our students can achieve. We also know that this is a province which is struggling for economic survival, where there is still high unemployment, particularly among young people, and where choices are limited. We are moving into a knowledge-based economy. The computer and the satellite have revolutionized the way the world works, the way information is exchanged and the way business is done. If our children are not as skilled as those anywhere else in the world, they will not be able to compete in this global economy.
Could you elaborate on where this province now stands and what it needs in terms of an education system to bring it into the 21st century?
Mr. Sullivan: I used the figure of $14.5 million. People may discuss different figures. The Royal Commission report compares the most efficient denominational system to the most efficient inter- or multi-denominational system. That is where the $14.5 million figure comes from.
There has been an evolution of the current system since the Royal Commission study which has resulted in savings because of cooperation and consolidation. One concern for the future is the urban shift which is happening here, as it is across Canada. Sixty percent of people are moving into urban areas in Canada, a trend which is seen around the world generally. In Newfoundland, that means the right to choose unidenominational schools will be enhanced as there will be the numbers to justify those choices.
Our other serious concern is the net out-migration of 8,000 people per year, mostly from rural communities. The communities are being decimated. The population of one community in my district has dropped from 1,450 to 950 since 1990. Throughout this province there will be many communities with such small populations where it will be difficult to justify systems which are constitutionally protected.
We must distribute funding on a non-discriminatory basis. That can be done with agreement and cooperation. I commend the denominations for the cooperation they have shown over the past number of years in joint schools. We are moving fairly quickly. I referred to the numbers of schools and school boards to show just how quickly we are moving. However, we face declining enrolments at an alarming pace because of a net out-migration in addition to the shifts. We will have difficulty meeting the challenges there unless we move our system forward.
This is solely a financial issue. I do not advocate the elimination of choice and opportunities within viability regulations, whatever they may be. I am as dismayed as anyone about not seeing these. I would like to see the whole set of cards on the table. That has not been the case, but that is no reason to deny the right to achieve efficiencies without dismantling the system which has served us well for many years.
Senator Rompkey: The preamble of the final resolution which was voted upon in the House of Assembly indicated that enactment of a revised Term 17 is essential if the government is to implement necessary and urgently needed changes to the province's educational system. I assume that implicit in the vote was a vote for the preamble, which contained unqualified support for the new Term 17.
Mr. Sullivan: That could certainly be inferred. Our caucus was unanimous in supporting the resolution. We did not look at the preamble separately. The resolution itself is and was not open for interpretation.
Senator Ottenheimer: I commend you, Mr. Sullivan, for dealing so well with the quality of our education system. Newfoundlanders who attend school and who teach here have been subject to many comments showing a great deal of ignorance about Newfoundland, as if we were a backward people doing our very best to be able to catch up to the progressive and enlightened mainland. You handled very well a great deal of misinformation; some of which is rather condescending in nature.
It is fair to say that all of us, whether or not we are in favour of the changes to Term 17, regardless of our political or denominational views and no matter where we come from, are in favour of improvement of the education system in Newfoundland.
I would like to concentrate briefly on the question of minority rights. It is my opinion, shared by some but not all, that the civility of society, the very nature of a pluralist society, requires respect for minority rights. I do not want to get into semantics. We are over that now. One could say that everyone is a minority, I suppose, but it is obvious that 7 per cent of the population, the Pentecostals, are a minority and that the Catholics, at 37 per cent, are a minority.
It is my understanding that the integrated communities are concerned about the protection of the right of the Roman Catholics and the Pentecostals, for instance, to have religious instruction and observances. They do not necessarily wish to exercise the other aspects of governance. I do not argue with that at all.
However, with respect to those minorities who wish to exercise those aspects of governance, the present wording of the proposed new Term 17 makes its exercise exclusively dependent on the provincial legislature. It says "subject to provincial legislation that is uniformally applicable to all schools specifying conditions for the establishment or continued operation of schools."
It is exclusively under the jurisdiction of the province. I am not saying that the province should not be involved, because education is a provincial responsibility, but here it is exclusively the province.
I would strongly urge all of my colleagues to think in terms of having a phrase such as "where numbers warrant". It is vague, but it does have some judicial, constitutional and legal experience and life. Granted, it is in terms of linguistic rights, not in terms of denominational rights, but at least the provincial legislature is not the exclusive authority because there is always the possibility of reference to the courts.
Do you see any merit or are you in any way able to urge the Senate committee to support an amendment exchanging the exclusive dependence on the province for a "where numbers warrant" provision?
Mr. Sullivan: It would be reasonably difficult to build these numbers into the constitution, taking into consideration that what constitutes an appropriate number today, without shifting populations, may not constitute that in four years time, especially considering the rate of net migration out of our province in certain areas. Do we come back for constitutional change every time? Our province is shifting more than other provinces, and there are declining numbers.
The phrase "where numbers warrant" applies to unidenominational schools, as Senator Doody indicated. I do see unidenominational schools being subject to provincial viability regulations. However, it is certainly the intent that there would need to be sufficient numbers and, importantly, that the parents must choose to have a unidenominational school. That is a very important factor. It is not just where numbers warrant, but there must also be a parental desire. Where would that fit into the equation?
That is one of the reasons I would have liked to see what constitutes a viable school. We called for that in the legislature last year. I would like to see the legislation. Numerous figures were tossed around initially, whether it was to be 90 per cent or 50 per cent plus 1. As of now, I do not know. Members of our opposition would very much like to see that, but it has not been presented. It has not been part of the equation.
We dealt with what was there in fact and in essence, and we reached a conclusion based on that. Had it been something different, we would have given it every due consideration.
I see a tremendous amount of merit in what you are saying.
Senator Ottenheimer: I agree with parental preference being a condition as well, and I agree with you that numbers change. However, the purpose is to have some entity outside the provincial legislature. Obviously a decision which a court would give in one year could be quite different five years later as numbers change. I would urge you to consider the importance of having a court reference as a kind of guarantee.
Senator Jessiman: In your brief on page 1, you set out three matters as being key reasons. The second reason reads as follows:
... the Newfoundland government received a mandate in the 1996 election which, in effect, affirmed this course of action.
Was it not because the referendum was 55 per cent and because of that, you thought it was clear that the government had a mandate to pass this kind of legislation?
Mr. Sullivan: No.
Senator Jessiman: You do not think the referendum had anything to do with it.
Mr. Sullivan: I did not say the referendum might have been the reason for the mandate. I gave three reasons for our caucus unanimously supporting it, and the second reason was the 1996 general election.
In the 1993 election, the Term 17 amendment had not yet been provided. Going into that election, on March 12, 1993, in the House of Assembly with the church leaders in the gallery, the premier of the day gave assurances that he had no plan or intention to seek constitutional change that would remove or affect educational reform.
Since 1993, the government did not have any mandate from the people. In fact, they indicated quite specifically going into that election that they would not seek constitutional change.
Going into 1996 general election, Premier Tobin indicated he would pursue the same reform initiatives that his predecessor undertook with this change back in 1995. Premier Wells had changed to a policy of seeking that change, and Premier Tobin indicated they would pursue that specific change. He made reference to the Liberal red book and how the people have spoken.
I cannot say if that is Premier Tobin's reason for doing this, but I can say that we went into the 1996 election with the premier of the day indicating that the government would pursue that course of action, and there was no significant opposition. It did not become a major issue in the 1996 election campaign because of that.
That was only one of the things our caucus considered in arriving at our final decision.
Senator Jessiman: If the referendum were reversed and the "no" side had 55 per cent of the vote, would you agree with me that we would have a different situation today?
Mr. Sullivan: We would then be dealing with something speculative and hypothetical.
Senator Jessiman: I have the document that was sent to each home, and it says this problem can be overcome only if the churches agree to change. The evidence from all the churches, from the heads of the churches -- Integrated, Roman Catholic, Pentecostal, Seventh-day Adventist -- was that they thought they could agree. I will not go further with that one, but it is a surprise to me that they thought they were close and then it all fell apart.
The point is also made in this document in a number of places. I am reading now the last paragraph under the heading, "How will Term 17 be changed?".
... it will provide for schools for the separate denominations where numbers warrant ...
Below that, under the heading "Some Questions and Answers", the last sentence of the last paragraph reads:
However, parents may choose schools of their own denomination where numbers warrant ...
As well, that phrase is used in other parts of this document.
I suggest that the Pentecostals and the Roman Catholics certainly thought that it would be where numbers warrant and where parents' consent is given. The present document as drawn says nothing about "where numbers warrant", and it says nothing about parental consent. It is left to the legislature to determine what that might be. I would think the government, as well as the opposition, would agree that somewhere in this document we should have the words "where numbers warrant" and "subject to parental consent". They are not there.
People are going ahead now, and you are blindly depending on the particular government. One might say, "Well, if they do the wrong thing, we can kick them out next year." However, this will be enshrined in the constitution, and I am concerned.
Mr. Sullivan: It is a very good point and one that has been of some concern to us as well. We had hoped to be able to have specific legislation, but the premier has also indicated "where number warrant" and "parental consent". When I asked for those five points to be confirmed, he responded with "where parents desire and numbers warrant". We still do not know what these numbers are. I would like to know.
We expressed a concern in my presentation about not having this, but we had to deal with the information we had and make our best judgment on what was available. We came unanimously to the point, considering all factors as they were presented.
What you are suggesting has tremendous merit. It makes sense and it is not something that would present a great difficulty. The intent of that was presented in this brochure, and it has been stated in the legislature, is that one of the bases for determining unidenominational schools -- and no one denies it -- is where parents so desire and numbers warrant. That is the whole gist of the process. I do not think that will pose a problem, except with respect to what these numbers will be. That is something I would very much like to know up front.
Senator Jessiman: A number of people in the legislature are hoping that the present government will act reasonably and responsibly. That might be the case, but the difficulty is that another government could, under the present wording, eliminate denominational schools by making numbers too high. That is the position in which we put ourselves by passing this amendment because this is in the constitution. It is not easy to change. Once it is there, it is dynamite.
Mr. Sullivan: There will be public hearings on school viability around the province beginning this fall, I think. I understand legislation will not be enacted until after that. What effect it will have on the process is open to anyone's interpretation and conclusions.
Senator Lewis: Mr. Sullivan, I presume you are a great believer in the democratic system.
Mr. Sullivan: I am.
Senator Lewis: I thought that would be your answer.
The people speak through their elected representatives. The corollary of that is that legislators are sensitive and should be very sensitive to the wishes of the public, the electorate. I presume that applies to yourself as well.
There has been some concern about the phrase "subject to provincial legislation that is uniformly applicable to all schools". Do you have confidence that the legislature will act reasonably and responsibly in exercising those rights?
Mr. Sullivan: I cannot speak for other than our caucus. I can speak for our caucus.
Senator Lewis: You may have reservations with others.
Mr. Sullivan: I cannot speak to what the government will do. I can indicate that things have happened which have not given me great confidence in the government's ability to do as they say they will.
In our caucus, we looked at the substance and tried to avoid speculation as to what may happen. We tried to deal with what was presented. I feel that there is provision for all schools in this province to have religious education, observance and events. There is provision for unidenominational schools, subject of course to provincial legislation. That would be a sticky point. We wanted to see that. However, on balance, we made our decision based upon the total presentation and did not feel that we should delay any process just because we had not seen the particulars.
We did not want to vote for or against the process. We did not like this process from the very beginning. Back on May 31, the House of Assembly abruptly closed. It was a decision that day, actually. The amendment to Term 17 developed during the course of the summer, even before school reconvened and the legislature sat. I stated in the House that I considered that a personal affront in that I was elected to represent the people of my district and was not able to have input into the discussion on the wording of the Term 17 amendment so that the legislature could offer suggestions as to what the wording should be. The National Assembly in Quebec debated their question, and we did not. I did not like the process. We complained about it in the House of Assembly. However, I did not permit myself to be blinded by the process. As much as it is easy to do so, I did not.
I look at this decision based on what will be best for the children of our province in tough financial times, with declining enrolments. We want to deliver the best possible education without stripping away certain religious rights or practices that have developed in our school system over the years. That was the gist of our discussion. We debated this at great length in caucus; I discussed it personally. I have been part of the system for 20 years. I had three kids in the system. I served as our education critic, although I am now in a different capacity. I have looked at this from numerous angles and numerous perspectives.
We are talking about democracy and the democratic manner. Prior to this election, the mandate the government had from 1993 was to have no constitutional change because the premier promised there would be none. Therefore, there was no strong foundation for us to support constitutional change when we went to the electorate in 1993 at a very controversial time in education in our province. In 1996, the government went to the people again when it was not an issue and indicated that they would now pursue constitutional change. I think that is exercising democracy at its finest, and that weighed heavily as one of many factors we discussed in arriving at our decision.
Senator Lewis: Given the reasons you have just stated, you feel that we should go forward with the amendment.
Mr. Sullivan: Yes.
Senator Lewis: And see what comes out of it.
Mr. Sullivan: Well, that is your way of putting it, senator. Our caucus feels we that should proceed and that it is in our best interests. We cannot be blinded by other factors. We must look at the goal, where we need to be and what we need to do, and not become deterred. As much as some people might like to let political or other events influence their final decision, it is important that we not stray from the course because our children will suffer as a result.
The Chair: You have given as one of your reasons the respect for the vote in the 1996 election, and clearly you have differentiated between the mandates of 1993 and 1996. In 1996, was any political party opposed to Term 17?
Mr. Sullivan: It was not a major campaign issue. Initially, our party indicated prior to that election and since 1993 that there should not be constitutional change. The issue should the opportunity to move through the system so that an agreement might be reached. Our party wanted to see structural reform, and we wanted to see classroom centre reform. It never became an issue in my district, which was probably a 97 per cent Roman Catholic district. I may have had two or three calls or representations in the last three years on this issue in my district overall.
There were numerous other issues, and this was well down the list. It was not even a significant issue of discussion during the campaign. For whatever reason, I do not know, but it was not. It seemed that the government was going to pursue a course of action, and it seems that was a fait accompli and that the people were willing to accept it. That is how I read the situation, and that is what happened.
The Chair: Thank you very much, Mr. Sullivan, for your presentation this morning.
Our next presentation will be from Mr. Jack Harris, Leader of the New Democratic Party of Newfoundland and Labrador.
Mr. Jack Harris, Leader of the New Democratic Party of Newfoundland and Labrador: Madam Chair and honourable senators, I welcome this opportunity to speak to you about the issue of education reform in the province of Newfoundland. It is, in a sense, putting the horse well behind the cart. In fact, this process that we have been going through in the last few days is something that really should have taken place prior to the referendum that was held in September of 1995 because there has not been this kind of opportunity for a detailed discussion of the provisions of the new Term 17 in a public forum of this nature. I must echo some of Mr. Sullivan's comments in that the process itself and how we got to where we are today was certainly unsatisfactory.
Ironically and regrettably, my concerns about the process at the time of the referendum were quite similar to former Premier Wells' concerns about the process concerning the Meech Lake Accord in that there was not an adequate level of public discussion and input from the people across this province, and certainly questions about the exact wording were not open to debate prior to the referendum itself. As I say, we are having this debate now as opposed to then.
However, I am very happy to have the Senate here taking an interest in the issue of education reform in Newfoundland. I hope that the Senate will take an equal interest in the consequences of the changes in the Canadian Health and Social Transfer, the decline of the national commitment to regional equity and its effects on education in this province, because we all know that there is a very high degree of relationship between hungry children, poverty, unemployment, and social opportunity and achievement in school. I would look forward to a return of the Senate to look into these issues and to see how changes in the national commitment to regional equality are affecting the ability of provinces such as Newfoundland to provide opportunities for their people.
I wish to say that I think Newfoundland students and the achievements of Newfoundland students, not only within Newfoundland but after, on the national and international level, are second to none. We can cite hundreds and hundreds of examples of excellent contributions made by Newfoundlanders, not only within this province, but in the country and throughout. People who are products of our education system have no reason to feel ashamed of the education that they received and the ability that they brought with them from that.
However, we do have some systemic problems. We spend in this province a greater percentage of our budget on education than any other province, but nevertheless, our per-pupil expenditure is still $1,000 less per pupil than the Canadian average. We can see that we are required to put more of our resources into education. We are still allocating less resources than the national average, so we do have a structural problem in that regard. That is only putting into context some of the problems that we face.
With respect to the proposed Term 17, the New Democratic Party was the first party on record in this province to support educational reform in the sense of changes to the denominational system. We supported it for reasons of economics, of efficiency, of avoiding duplication of efforts and services, but also for reasons of philosophy. There was insufficient provision for non-adherents or for non-Christian peoples to participate, and we felt that it was not necessary to segregate the entire population by religion.
We do have a unique system in Newfoundland, and we do present for your consideration in the proposed new Term 17 a unique set of rights for Newfoundland that are very different than other provinces. When Newfoundland came into Confederation with Canada in 1949, there were no constitutional rights for education in Newfoundland. Statutory provisions were part of the history of Newfoundland.
I venture to say, and it may be a subject of debate, that I do not think Term 17 was negotiated for the purposes of protecting minority rights, at least not in the same sense that the Catholics in Ontario or the Protestants in Quebec, operating a separate system as opposed to a public system, required and sought. Those provinces received the protection of section 93 presumably to avoid the situation which had occurred 100 years earlier in the United States where separate schools were not to receive any public funding whatsoever. I think the great fear was that the coming of Confederation would have the same effect in Canada. In Newfoundland, of course, part of the debate was that Confederation would bring, as opposed to the total denominational system, one where there were Godless schools or public schools. Term 17 sort of froze the status quo for everyone, not for a particular minority seeking protection because it felt that it would lose its rights over its particular schools.
We had a unique situation then and we have a unique situation now. I do not know of any other province or any other country in the world where Roman Catholics, Anglicans, Presbyterians, Salvation Army adherents, the United Church, Pentecostals and Seventh-day Adventists have the constitutional right to teach religion in every single school. That exists in the province of Newfoundland and Labrador. I do not know where that exists anywhere else in the country, indeed, in the world. When this Term 17 is passed, assuming that this eventually takes place, we will still have a unique system in this province.
We have had a referendum. It was not a very enlightening referendum, I will say. It took place over the summer months. There was an attempt by both sides, perhaps, to oversimplify the issue. In other words, if you were in favour of reform, you were supposed to vote "yes", and if you were in favour of the status quo, you were supposed to vote "no". It did not allow room for a lot of subtlety or the kind of debate that we are having right now.
I, for one, voted "no", and I voted "no" for some of the reasons that I stated. I was angry at the process and that there had not been sufficient opportunity for people to debate the merits and the specifics of this issue. I also had some of the concerns that senators have voiced during this session about the effect of the phrase "subject to provincial legislation". What is the effect of that on these rights? Are they real rights? Given our history for the people who wanted to maintain separate schools, particularly the Pentecostals and Roman Catholics, it was appropriate that they have stronger constitutional rights than were contained in the proposed Term 17.
There was no debate until the house was in session in the fall of 1995. I participated in that debate and sought amendments. At the end of the day, we were left with Term 17 as you see it now. I voted, along with the majority of 30 people in the house, in favour of the proposed Term 17.
Since then, the election has taken place and people have made comments on it. I was the leader of a political party. As leader of that party, I was not asked to state a position on whether the proposed Term 17 as passed by the House of Assembly and by the legislature would be implemented fully or not. As others have said, it was not a matter of debate. There was no question about the statement contained quite clearly in the Liberal manifesto. There was no move to stop Term 17 during the election.
Since then, Term 17 has passed the house. I suppose it has given the government a mandate to proceed to the referendum, and I think that overcomes, perhaps politically, the stance taken by Premier Wells in 1993. That is its value politically, not constitutionally. We had an election, and all members of the House of Assembly have an interest in having this matter behind us and proceeding with the proposed Term 17.
I do not think the proposed constitutional amendment will deprive the Roman Catholic people, the Pentecostal people, the United Church people or any of the protected denominations of the right to carry out and conduct their religious activities in all schools, nor to have unidenominational schools in appropriate circumstances. I think, however, that it does involve a shift. It involves a shift from institutional power and control to that of parents, members of the public and members of the class. It involves a shift constitutionally from a system of autocracy to a system of democracy based on what the original Term 17 would freeze in time vis-à-vis 1949. I am not saying that any of the churches operate today in an autocratic fashion vis-à-vis education, nor would they perhaps be able to get away with it. Nevertheless, the new Term 17 makes it clear that the rights held by the class are to be exercised democratically through elections to school boards, and I think that is a welcome and positive change.
There are those who feel hurt by the process, and rightly so. They feel that the process, particularly during the referendum summer, did not provide an adequate expression for opposition and alternatives and that it was damaging to the sensitivities and the legitimate concerns of people who opposed this referendum or this change. However, I hope the process today will help in the understanding and the healing and the coming together afterward.
I do not think this will, in the long run, represent a "disjoining" of our people and a drive to sectarianism. I am very concerned about that, and I am concerned that we get the debate behind us and get on to the process of improving the schools for our children and for the future.
Senator Beaudoin: My concern is about the opening clause of paragraph (b) which states "subject to provincial legislation". This is not the first time in this country that we have had such a constitutional formula.
For over a century in Quebec and Ontario, for a century in Manitoba, and for a century in Saskatchewan and Alberta, it was the reverse. In other words, all provinces have jurisdiction in education. However, where there are denominational rights, each provincial legislature is under the obligation to respect those denominational rights. Now, in this province, you want to do exactly the reverse. You say that denominational rights are protected, but from now on they are subject to provincial legislation of general application. If it is the will of the people to do that, obviously it is perfectly legal.
I come from a province that has problems similar to yours in that the people in Quebec would like to change section 93 to divide the schools according to French schools and English schools, but keeping the denominational schools and the right to denominational schools. Obviously, if there is an amendment in Quebec, it would follow the style of section 93, but the division will no longer be according to religion but according to language.
I say that because it is important. It is the wording of the Constitution, not the wording of a simple statute. Of course, Newfoundland has full jurisdiction in the field of education. You have denominational schools, and you may do what you want with denominational schools. You may amend Term 17 if you follow the amending formula. There is no problem there. However, I have a problem with saying in the Constitution that the right to denominational rights is enshrined subject to the will of a majority in the legislature assembly.
Usually we do the reverse. We protect rights from the changing majorities because we consider that those rights should not vary every year or every four years. In my mind, the protection is completely the opposite. You give carte blanche to the legislative assembly to change a system, but it is more than that. You give a constitutional carte blanche to do so. By a simple statute, they may change the system any way they like, providing the legislation is uniform and has general application.
I repeat, it is perfectly legal to do that, but I am a bit surprised by that because it is the opposite of constitutional protection.
Mr. Harris: Senator, you have crystallized the concern, not only that you and others have, but that I had as well.
I disagree at this stage for the following reasons. The proposed Term 17 provides positive rights as opposed to prohibitions. All the other section 93 type rights, if you want to call them that, do not spell out the rights. It just says that you cannot do anything that will prejudicially affect whatever rights they had at some past point in time. We do not necessarily know what they are until they are tested. In this case, Term 17 is setting forth what are the rights.
I do not think that is a carte blanche to the provincial legislature because not all rights are subject to provincial legislation. It is only the paragraph (b) unidenominational schools. The 17(a) rights are not subject to provincial legislation. In other words, the right to provide for religious education, activities and observances for children of that class in all denominational schools is not subject to provincial legislation once there is a unidenominational school. Paragraph 17(c) is not subject to provincial legislation because once a school is established pursuant to subparagraph (b)(i), the class of persons shall continue to have the right to provide for religious education, activities and observances and direct the teaching of aspects of the curriculum affecting religious beliefs, student admission policy, and the assignment and dismissal of teachers. Once the school is established, the legislature cannot say, "You must exercise those rights in a particular way," or, "We will limit them in a particular way." It is only at the point of entry of the existence of a unidenominational school where the provincial legislature has a right to have a say.
It is easy to jump to the conclusion that the words "subject to provincial legislation" mean that the legislature can do anything it wishes. I think that the legislation is limited in scope. It can only be legislation that specifies conditions for the establishment or operation of schools. The interpretation of that by the courts would have to do with school size and viability, and school size and viability only.
I think your concern, while perfectly legitimate, is circumvented by these particular considerations.
Senator Beaudoin: I am not jumping to any conclusions, nor do I want to jump to any conclusions. I am simply following the text.
In and for the Province of Newfoundland, the Legislature shall have exclusive authority to make laws in relation to education but
(a) except as provided in paragraphs (b) and (c) ...
Subparagraph (b) states:
subject to provincial legislation ...
Obviously the competence of the province in the field of education is paramount. There is no doubt about that. However, it is also paramount for the denominational rights, and this is what worries me a bit.
You say here that they have authority in relation to education except as provided in paragraph (b), and paragraph (b) starts with the words "subject to provincial legislation". Who is supreme? The legislature is supreme, not the Constitution.
Mr. Harris: Once again, I disagree. The only effect of the reference to paragraphs (b) and (c) in paragraph (a) is to say that Seventh-day Adventists would not be allowed to teach religion in a unidenominational or Catholic school. That is the only effect of paragraphs (b) and (c) in Term 17. That is my interpretation, senator. The rights are separate. The 17(a) rights, the 17(c) rights and the (17)(d) rights are all separate.
Senator Jessiman: You are perfectly correct except that subparagraph (b)(i) says, yes, you can have these from (a), talking about (c), but the government does not give you any money. That is what (b)(i) says. Any class of persons referred to shall have the right to a publicly funded denominational school, and they can cut off the funds. That is what it means. Sure, they can go ahead, but subject to the legislation of the province. They could determine, applicable to all, that the figure is 95 per cent of the children in a particular area for a denominational school, or 99 per cent. That is very important. They cannot get funding.
They can proceed. You do not need Term 17. There would not be any difficulty with having a denominational school if they are paying for it. The money part of it is important.
Mr. Harris: My understanding is that the money part is looked after by paragraph 17(d), which requires that all schools established under paragraphs (a) and (b) are entitled to their share of the funds.
Senator Jessiman: They are not by subparagraph (b)(i). It says subject to this, we pay money to have a denominational school. They could enact legislation saying that to have a Roman Catholic school in a particular area, 95 per cent of the people must be Roman Catholic. You know what that would mean. You would have none. If you do not have that number, you do not get the funding. That is what this says. That is the way I read it.
The Chair: I think we have a disagreement on the law here, and I do not think we will resolve it at this particular table.
Senator Lewis: You said in your opening statement that prior to 1949 there were no entrenched rights. The whole system depended on Newfoundland legislation, which of course could be changed at any time. Prior to 1949, the entire system was, you might say, at the mercy of the legislature of Newfoundland or the commission of the government. That system seemed to work well for almost 100 years.
Mr. Harris: It seemed to work well in that all of the denominations had funding and had rights secured and protected. I think that there is a level of sensitivity in this province to denominational problems going back 100 years ago when there were sectarian battles during elections. Newfoundlanders have found an accommodation and tolerance of these problems that has won the respect of others. In fact, I believe the Taoiseach of Ireland was here recently praising Newfoundland for its ability to have a society in which those of different faiths and different cultural extraction and different peoples have been able to live in tolerance and work together. I think that will continue under Term 17 as the proposed amendment has it.
The Chair: Thank you very much, Mr. Harris, for your presentation this morning.
We have with us now the Honourable Roger Grimes, Minister of Education, Government of Newfoundland and Labrador. He has been joined by two members of his staff. Mr. Grimes, if you could identify the staff persons who have accompanied you for our record, that would be appreciated, and then you can begin your presentation.
The Honourable Roger Grimes, Minister of Education, Government of Newfoundland and Labrador: Thank you, chairperson and honourable senators. I appreciate the opportunity to make this presentation on behalf of the Government of Newfoundland and Labrador. I also appreciate the fact that the Senate has taken the time over the last three days here as well as your hearings in Ottawa to hear this issue fully and completely.
I also appreciate the fact that this morning you heard from the two other active political parties in the province, namely Mr. Sullivan from the Progressive Conservative Party, the Official Opposition, and Mr. Harris, Leader of the New Democratic Party.
When we made presentations to the House of Commons and the members of the various parties there, they were enquiring, as were some of the senators this morning, if there was any political division along party lines with respect to whether the amended Term 17 should be passed in the province. The answer is "no". That answer has been given clearly to the senators this morning who are representative of the whole of the Senate.
As a political issue with respect to the people who have made presentations in the last few days and who would like to see a different course of events, if they want to hang their hat with a particular political party in Newfoundland and Labrador and say, "I will side with one party or the other because they will oppose the passage of Term 17," there is not a currently active political party in the province for which anyone could vote. Everyone in the province is clearly on side party-wise and in the legislature as supporting the passage of the amendment to Term 17.
I might point out as well that a written brief on behalf of the Government of Newfoundland and Labrador has been circulated. Rather than read that brief, I will only highlight five or six points from some speaking notes. That will create the spoken record, but the official presentation on behalf of the government is the actual wording that has already been distributed. I will try to be brief because, more than making statements, I would like to engage in questions and commentary.
I am joined by two colleagues, the Deputy Minister of Education in the province, Ms Deborah Fry, who has been working on the file with us since I became Minister of Education some several months ago in the new Liberal administration of Premier Tobin, and also Ms Gail Welsh, a solicitor from the Department of Justice who has worked on this file internally within the government since the beginning of debate over Term 17 some three or four years ago, from the time of the Royal Commission report back in 1992. Our consistent, in-house legal counsel with respect to this matter has been provided by Ms Welsh.
Before I begin with the points in the written brief, one other issue has arisen in discussion in the last few days. The issue was raised this morning as to whether there was some kind of arrangement or deal between the government to be of Premier Tobin and leaders of the different denominations with respect to any need to proceed with the passage of Term 17 during the recent election. Rather than dwell on it, I should like to table the statement by Premier Tobin that was released on July 9, the statement as well from Mr. Fallon on behalf of the Catholic Education Council of the same date, and the relevant references from the Liberal Party Red Book on pages 66, 67, 68 and so on. They have been referenced in our discussion this morning.
I believe the public record was complete in this province in terms of the dialogue, and everyone understands that there was no deal of any nature. The two other party leaders who spoke this morning have given their own reasons as to why they thought this was basically a non-issue in the most recent provincial election. All three parties assumed that, if elected and if they formed the government, they would proceed with the reforms as outlined and as spelled out in the referendum of September, almost a year ago.
Madam Chair, I would like to ensure that those three documents are left with the committee as part of the official record so that issue can be completely clear.
The Chair: We will make them part of your presentation.
Mr. Grimes: During these committee hearings, Madam Chair, you have heard much discussion about the history and evolution of primary, elementary and secondary education in our province and in Canada. It has not been a smooth path here, and in some provinces many issues remain unresolved today. Education of children is a complex process, and the way schools are organized is important to parents, children and members of the public generally. All we ask of you as senators is that you look at our situation in the context of our province because there are very big differences in the provinces. Mr. Harris just pointed out one fundamental difference here in Newfoundland and Labrador in that the starting point for denominational rights is different and unique in this province. There is no comparison anywhere else in the country as to how denominational rights were enshrined in the first instance or maintained today.
Newfoundland and Labrador has a proud history of involvement of the churches in education, and throughout our history we have protected denominational rights in education consistently. In fact, this is the only province which has a truly denominational system of education. There are no public, secular schools. We now want to strike a balance between the exercise of denominational rights and the ability of the province to manage and organize our educational resources, and, at the same time, provide the highest quality education program for the children in our schools.
Some would have us believe that we have gone too far in our plans to alter denominational rights in education. Others tell us that we have not gone far enough and that we should establish a secular school system. A certain segment of the population of the province would prefer that approach.
Throughout the hearings, you have heard numerous technical arguments with respect to the process, denominational rights, the role of government, responsibilities of elected representatives, the fear that rights will be removed, and the fear that changes in the education system in this province will negatively affect the organization of education in other jurisdictions. We feel that the resolution to amend Term 17 strikes a very careful and thoughtful balance with respect to those issues.
As Minister of Education on behalf of the Government of Newfoundland and Labrador, I am concerned with ensuring that the children of the province have the necessary tools to become productive citizens in the future. That means providing a modern, quality education program. The Government has provided you with a comprehensive brief which clearly articulates our intentions in these areas, and please consider the points in the written brief as you make your deliberations over the next few days and weeks.
To put it in context, we point out what the current Term 17 does and provides for in the province. It protects the right to denominational schools based on the law as it was in the province in 1949, which, as one of the senators pointed out earlier, has the same tradition in other areas with respect to section 93. You take a snapshot in time of the rights that are there, and then you enshrine them in the constitution. It prevents the legislature from changing the role of the churches in education in any unilateral way from what it was at that time.
What kinds of powers do the denominations exercise in this province as a result of the situation in 1949? As senators, you may not be fully aware of the extent of the powers currently held by the churches and the denominations in this province because they are different from province to province. Here in Newfoundland and Labrador, the boundaries of school districts cannot be altered without the approval of the denominational education councils. The constitutions of school boards must be approved by the denominational education councils. The school trustees must be recommended by the denominational education councils. The dissolution of a school board or the removal of a trustee must be approved by the denominational education councils. Funding for school construction must be approved and distributed by the denominational education councils. School boards must provide annual statements of accounts to the denominational education councils. Individuals who wish to teach in the province must have the approval of one of the denominational education councils before they can be awarded a teaching certificate that is valid in the province. School boards cannot acquire or dispose of property or borrow anything over $5,000 without approval of the appropriate denominational education council. The rights at this point in time in Newfoundland and Labrador are extensive and exhaustive as compared to other jurisdictions.
Our preferred route, as stated by Premier Wells prior to the election in 1993, was that we could come to some consensus and that we would not need to go through this process of which we are now, hopefully, in the final stages. Has the government been able to come to such consensus and agreement with the denominational representatives? The answer unfortunately is no, we have not, and I think that was supported by Mr. Harrington who spoke here a few days ago and indicated that, in his view, we have come to an impasse. People have different versions of why we are at an impasse, but clearly the political ability to come to an arrangement and a consensus is not here in the province at this point in time.
For almost three years after the royal commission in 1992, the government tried, with the church representatives and the denominational representatives, to reach a consensus position on what kind of changes we would make. That failed, and, as pointed out previously, there then came a referendum.
Following the referendum, we had an election during which, in the rred book as we have tabled the excerpts here, Premier Tobin indicated that if elected as premier and if he was successful in forming the government, we would proceed along the lines of what the referendum had called for in September of 1995, which was to change the constitution and amend Term 17.
After being appointed Minister of Education following the election of the new government, I contacted representatives of the denominational councils and asked them if they would be willing to participate again in one more attempt to reach consensus on the issues. Our position was that, as the government, we would assume that Term 17 at some point would pass, but because there are substantial, significant and continuing denominational rights, that we would still have to work with the denominational representatives to see how their rights would be fundamentally and pragmatically exercised even under the new term 17.
We asked them if they would agree to participate in such an exercise. They agreed and quite clearly pointed out that they would have the discussion but would continue with every effort to ensure that Term 17 did not pass. In any event, they were willing to make some changes, and we had the discussions.
During those recent discussions, a framework was developed. It dealt with two major issues which have been agreed on in the province; that is, we should have 10 interdenominational boards rather than the current 27 separately run denominational school boards, and that a provincial construction board would deal with the needs for construction capital, renovations and repairs on a needs basis rather than on a per capita distribution basis by denomination.
Several key and essential items remain unresolved. Copies of the framework agreement -- which I took back to the government for consideration and approval and the representatives of the different denominational councils took back to their full councils for approval -- pointed out that several key issues were yet to be resolved and needed further discussion. There was a consensus on the major issues. However some issues remained unresolved, such as the designation of a school and whether it would be a unidenominational school or a shared interdenominational school; how parental preference would be exercised; what would be the provincially based transportation policy in the province; and what would be the viability criteria. We were to go back for further discussions.
Before we got back to the discussion of how general governance changes would impact at the school level, a number of churches withdrew their support for the framework because of public pressure exercised by their constituents.
Senator MacDonald: Could you give us a date, please?
Mr. Grimes: I cannot give you the date off the top of my head, but I am sure one of my officials can provide it for you. I have a full package of information here. My deputy will find you the date as to when the churches and the integrated boards in particular expressed publicly that they had difficulties with some of the fundamental provisions of the framework agreement. Unless the government and each of the groups agreed, we could not have an agreement.
The framework attempt did not succeed. No agreement had been reached or signed. The report to the minister was taken to cabinet, and there were some cabinet reservations and some reservations with the integrated group in particular. As a result, we have not been able to get back to the process of further discussions. In the view of the government, agreement between the government and the churches is not possible and is not likely to happen in Newfoundland and Labrador in the foreseeable future.
Senator, May 30 was the date on which the integrated council made an announcement indicating that they had reservations.
Will the schools retain their denominational character under the new term? The answer the government presented was "absolutely yes". Two-thirds of the membership of school boards will be elected to represent denominations which currently have rights under the Constitution and will continue to have them. All schools under the Constitution, those that are unidenominational and those that will be shared as interdenominational, will be mandated to provide for religious education activities and observances.
There will have to be unidenominational schools where parents express a preference and where sufficient numbers of students exist for those unidenominational schools to be viable in the province. The exact conditions under which that will happen are to be set after the public consultation this fall.
I think it was January 3 or January 5 of 1996 when the previous administration of Premier Wells released a set of draft legislation and accompanying regulations dealing with these issues. That was withdrawn by Premier Tobin and the new administration. A new set of regulations and legislation will be introduced after the Parliament of Canada, through this exercise, completes its deliberations with respect to the amendment.
In unidenominational schools, there will be a right under the new term to direct student admission policy, to direct aspects of the curriculum affecting religious beliefs, and to direct assignment and dismissal of teachers, which some people find offensive but in fact is spelled out right in the constitutional term. It will not be in legislation. It is spelled out in the Constitution. The view appears to be that there does not need to be any legislation if it is in the Constitution. The objection of others, particularly the teachers' association, is that they find it unfortunate that the constitutional provision itself states clearly that committees and groups in unidenominational schools will have the right to hire and dismiss teachers in their schools.
Will the amendment affect religious rights in other provinces? I think this Senate committee has been told consistently that no, this will not occur. Education is clearly a provincial jurisdiction. The amendment will not affect denominational schools in other provinces, and each province regulates denominational education differently. We are very different in Newfoundland and Labrador. We are unique, and there will be no impact in other provinces -- legally, definitely not. There is no counterpart to Term 17 in any other province in the country.
Mr. Gibson, when he presented to the committee, talked about whether there would be a precedent. He indicated -- and I think it is on the record -- that he sees no political precedent either.
Mr. Rock, on behalf of the Government of Canada, pointed out that each case to come forward in the future would have to be decided on its own merit based on the rules in that province and that we should deal with Newfoundland in its own context.
The question was raised in discussions as to whether an amendment or two -- one in particular -- might be useful in this exercise. I refer to the amendment to replace "subject to provincial legislation that is uniformly applicable to all schools specifying conditions for establishment or continued operation of schools" with "where numbers warrant".
This issue is the crux of the matter. It dominated debate in the legislature in Newfoundland and Labrador, and amendments were moved and defeated. There is no doubt about that. If an amendment were to remove the clause "subject to provincial legislation that is uniformly applicable to all schools specifying conditions for the establishment or continued operation of schools", then we need not have gone through this exercise in the province; we need not have troubled the legislature with it; we need not have gone through a referendum; we need not have gone to the House of Commons; and we need not be having these hearings. This is the crux of the matter. It would be dishonest for anyone to suggest anything other than that.
The idea of being "subject to provincial legislation that is uniformly applicable" has been debated fully in the province. It has been discussed fully and completely with representatives of the different denominations. This has been the area of contention. They have legal opinions and advice which suggest, as some of the senators say, that this leaves it to the whim of elected politicians. Legal advice from within government and external advice as well has consistently suggested that that is simply not the case.
We have described for you here a new approach. As Mr. Harris says, instead of having a generic statement which states that you cannot prejudicially affect rights that are already in legislation at a point in time -- the point in time being 1949 -- we have taken the approach that we will spell out in a constitutional provision itself what are the rights exactly. The phrase "subject to provincial legislation that is uniformly applicable" does not at all threaten those rights and only leads to a legislature that must, by law and duty bound, provide legislation that ensures people can exercise the rest of the rights in the same term. This is not at all restrictive or dangerous. This is a further protection. For the first time, right in the constitutional provision, the new Term 17 tells us what are the rights. If any legislature now, in 15 years time, 20 years time or 100 years time tries to pass legislation making it virtually impossible to exercise the rights spelled out, it will be stricken down by any court at any time. There is no threat of further entrenchment.
Those people who think we have not gone far enough are offended by the fact that we have put the rights in the Constitution in detail. Instead of having it in legislation with a provision such as the one in the current Term 17, at least they can take some comfort in the fact they can always bring a challenge because it states that it has to be like it was in 1949. They can go back and argue what legislation was in effect then and how it impacted different rights. They would have a field day in court. It has not been challenged in Newfoundland and Labrador.
Here we are taking a new approach by spelling out the rights in the Constitution itself and that the phrase "subject to provincial legislation" constitutionally binds the legislature of the province to produce legislation that is uniformly applicable. That means we cannot demand a different or a higher or a tougher standard for unidenominational schools than we can for shared interdenominational schools. It must be uniform. Everyone has been treated in the same manner. The legislation must do that.
The legal opinion consistently given to the government of this province is that this legislation is an added protection, not a threat. In fact, our legislature is bound to provide legislation that allows for the exercise of those remaining rights spelled out in the new Term 17. Legislation not adhering to these guidelines would surely be stricken down in any court in the province and also in the country. That is our consistent position with respect to "where numbers warrant".
Representatives of the different denominations asked us to discuss and consider the replacement of "where numbers warrant". After full debate and consideration in cabinet, in caucus and in the legislature, and with an attempt at that amendment during the debate in our House of Assembly, it was turned down and defeated primarily because of the fact that the phrase "where numbers warrant" has a legal history all its own. Jurisprudence in the country developed around the issue of language rights under section 23. Differing criteria are applied in each situation because there are no set numbers. Elected politicians in this province did not want to get into that situation with respect to the exercise of denominational rights.
We are now in the process of bringing in legislation to have a francophone school board for the province, a "commission scolaire" for the francophone population of Newfoundland and Labrador, because they want to exercise their rights under section 23.
The debate about "where numbers warrant" has been going on for some time. For years, the province disagreed and indicated that we did not think numbers warranted because that group was so small. Now, rather than be challenged in court, we have agreed to have a "commission scolaire" for the francophones of Newfoundland and Labrador in the not too distant future. We are in discussions with them as to how that would be established and how they will exercise their rights. However, we did not want to be in the position of having jurisprudence on language rights with the phrase "where numbers warrant" as the guiding and driving motivation behind a decision as to whether we should have one or more schools of a denominational ilk in the communities of Newfoundland and Labrador. I think that approach would be wrong. It would not be productive; it would not be helpful to the province at all. In fact, it may frustrate our efforts to go ahead with the reforms we want to achieve.
The government would like to see a political solution to what these criteria are in terms of this provincially and uniformly applicable legislation. We will enter into that discussion this fall. We do not want to go through the exercise of having the courts determine on an individual basis whether numbers warrant for denominational schools in the province. We want to set down a clear and hopefully agreed upon set of provincially based criteria that we will examine in this province in the fall. Decisions will be made on that basis. If any of the denominations feel aggrieved, they can always go to the courts if they think the criteria arrived at in the province are too stringent or make it difficult for them to exercise their rights under the new Term 17.
The first objective with respect to the government is to balance the rights of all interest holders and to ensure equitable treatment for all; and the second objective, clearly, is to keep in the hands of the elected representatives of the people, rather than the courts, the designation to decide how many schools should operate and on what basis. There will be uniformly applied information and regulations with respect to that issue.
Reference has been made to statements in the referendum pamphlet that use the phrase "where numbers warrant". That phrase was used because it is common language. It has been in use and people understand that it means "where you have enough people". Although they understand what it means, no one knows what "enough people" means. The courts decide differently in every case, even with respect to language rights.
Following that statement in the pamphlet, there is a heading outlining which schools students will attend under the new system. It states that parents may choose schools of their own denomination where numbers warrant, but it also goes on to say where it is feasible to establish such schools. That gives rise to the concept of viability criteria. The legal language now before the committee was in the pamphlet as well and indicated there would be uniformly applicable provincial legislation to establish that.
We would like to move to a new system that does not take a snapshot in time but spells out rights in the Constitution and binds and challenges the legislature to produce legislation enabling all groups which have rights and continue to have rights to exercise them under the legislation that comes through the process.
I have some comments with respect to substituting the phrase "determine and direct" in place of the word "direct" because I understand it has been raised with the committee on a number of occasions. Our legal opinion and the discussion we have had with representatives of the denominations is that they mean the same thing. The denominational representatives have indicated to me that if Term 17 is passed and amended as proposed by the government, then they will gladly use the government's argument and say, "Yes, you told us it means `determine and direct', and we will take your legal opinion." This is not, in our opinion, a major point.
I understand that yesterday Mr. Gibson made a scholarly presentation using Black's Law Dictionary and pointed out the explicit definition, saying that it meant order, command or instruct. Other definitions were left out. I think he suggested that they did not mean the same thing. There are three different definitions of "direct" in Black's Law Dictionary. Our conclusion through legal advice internally and externally is that they mean the same thing. You can either put them in or take them out, but they mean the same thing. The reason the government did not agree to a change is because as soon as we indicated any intention to deviate at all from any aspect of Term 17 as presented to the Parliament of Canada -- of which you are a very important part -- there was a political backlash in the province telling us that we were not doing what we said we would do in the red book. They said we were changing now. Well, there is no need to change anything with respect to "determine and direct" because the legal opinion clearly states they mean the same thing. In effect, it would be a very minor amendment that would only put legislatures through a process that would serve no purpose. Denominational representatives in the province are quite willing to accept the government's view that "direct" and "determine and direct" mean the same thing. They will gladly argue that once this process is completed.
I was surprised when Mr. Irving indicated that we have been giving the denominations and the church representatives money unnecessarily. Perhaps I will pass the collection plate afterwards and gladly ask for it back. I am sure they were as surprised and shocked as we were, but the consistent legal advice within government and within every law firm in this province that has advised the denominations is that the prorated dispensation of capital funding in the province since 1949 is the appropriate legal way to dispense the moneys. It can only be done otherwise by agreement. With all due respect, I think all the lawyers who advised the denominational education councils, as well as those who advised the government, disagree totally with Mr. Irving's assessment on that point.
In closing, I would like to summarize these two or three issues again.
We have been attempting to improve the administration of the K to 12 education system in this province for many years. During this time, a royal commission recommended changes to the denominational system of education in 1992. It actually tabled its report in March of 1992, over four years ago. The people have, by a referendum, approved the government's proposed changes. Granted, there was some uncertainty and some confusion, but there was a referendum and it did succeed. It was not a necessary part of the process, but it was used as a political exercise by the government of the day.
The provincial legislature passed a resolution asking the Parliament of Canada to amend Term 17. You have our proposed amendment before you.
The government was re-elected during a provincial election in which education reform, as I tabled with the document from the red book, was clearly a part of this government's election mandate.
The legislature, most recently in May, unanimously reaffirmed the earlier resolution and asked for speedy resolution of this whole issue so we could get on with the rest of the work that needs to be done here in the province.
The state of uncertainty resulting from these protracted discussions has created a high degree of uncertainty within the school system. We are six or seven weeks away now from another school year which will operate on the same basis as the past school year, but there are some lingering questions as to who is in charge at the governance level and what are the rules under which these new school boards will operate.
It is the desire of the elected representatives of the people in this province that the Senate move quickly to approve the resolution as is in order to allow the province to move ahead with a focused educational agenda. It is critical that the legislature of this province have the ability to manage the school system so as to maximize efficiencies and to ensure that the children of our province are provided the best education possible. The focus must always be on the children, their education and their futures, not on the technical matters surrounding the organization and governance of schools. This is where we are hung up at this point in time.
This matter has and continues to consume far too much time and energy of the educators in the province. The uncertainty caused by these distractions is negatively affecting the learning environment in many of our schools, and this we find to be unacceptable at this point in time.
This committee can help prepare the schools in this province for the 21st century by supporting Newfoundland and Labrador's quest to improve our education system for the benefit of our children and future leaders of our province and our country. We ask you, after full and complete consideration, to consider adopting this amendment unamended on behalf of the people of Newfoundland and Labrador.
Senator MacDonald: Mr. Grimes, that was a first-class presentation.
I have been very impressed with the work that you and your department did on the framework. Some call it an agreement. I have the report that was given to you March 28 to 31 and the success of those meetings and then the highlights of a framework for school board consolidation of April 19.
Mr. Grimes, why did you undertake these meetings?
Mr. Grimes: Senator, I appreciate the question because it is a very important question in the province, and I know it is an important question for the Senate as well.
We undertook the meetings because even with the amended Term 17, there are substantial and significant rights for the denominations in Newfoundland and Labrador. The Constitution refers to them in the new Term 17, and we want to get a head start with the denominations on how to practically implement these at the school board level for governance in the first instance and at the school level where the students themselves would be impacted in the second instance. It was on that basis that I invited representatives of the denominations to come forward to see if they could explore how we would actually put this new, revised system into place. I was very pleased that they came forward and agreed to enter into discussions. They have done so in a very upfront and professional manner, and I commend them for their efforts.
As the report pointed out, we reached a complete consensus on the governance issue as to moving from 27 school boards, each with separate denominations, to 10 shared interdenominational boards and a single construction board.
With respect to the report itself, when we returned to cabinet and the different councils -- we were just messengers on behalf of different constituent groups -- we ran into some difficulties. In the end, two parties walked away from the fundamental agreement.
I am not aware of all of what the Integrated Education Council said to your committee yesterday, but their public releases clearly indicate that they found unacceptable some of the things that their representative agreed to in the framework discussions. They did not want to exercise some of those rights. With that kind of resistance, the government could go no further.
Senator MacDonald: You thought it was a useful dress rehearsal for what is to come.
Mr. Grimes: And a very necessary thing in any event when this process is completed and with the government still hoping and assuming -- not precluding the discussion -- from day one that this amendment would pass because the people of the province, by majority, have indicated they want it. The elected politicians have indicated the same. Even with the new amended Term 17, because of the extensive, continuing, remaining rights, we have no alternative but to enter into detailed discussions with denominational representatives as to how we will practically implement them because they will change a little bit from how they are implemented today.
Senator MacDonald: In the brief presented by Mr. Sullivan, he used the word "implied" with respect to the recommendations of the royal commission. A number of people agreed that it was not necessary to have a constitutional amendment to bring about the reforms people obviously wanted, but that it would be necessary to avoid challenges of a constitutional nature. After your work and after the memorandum given to you on May 30 by the integrated school group, you came to the conclusion that the only viable option to achieve educational reform in a timely fashion is a constitutional amendment. Before you entered into these framework meetings, was the policy of the government of Newfoundland to have a constitutional amendment?
Mr. Grimes: Yes, senator. In discussions we had with the denominational representatives, they were quite frank and open with me and I was quite frank and open with them. Our starting point was that we were conducting these discussions assuming that the term had changed and how would we manage the new system. Their starting point, repeatedly expressed at the beginning of every meeting, was that they were there assuming it would not change, but they were still there because they were willing to make some changes. They said, "We know there will be a different system, and we are willing to do some things by agreement." After we said hello and greeted each other, that was how we started each meeting. It was clear that the government was there saying, "Let us assume Term 17 has changed and the process has been completed; now we would like to move ahead quickly with how to implement the new system in the province."
Senator MacDonald: You did not use these framework meetings just to prove that point; you used them, genuinely, as a starter and a precursor to those very important discussions which will tell the people of Newfoundland for the first time what it is they will get.
You sent a letter of June 5 to Senator Fairbairn, the Leader of the Government in the Senate. That was five days after you received the information that the deal was off and that no further discussion was necessary. You stated:
...almost three years of intense discussions between representatives of the government and the denominations have proved futile.
Then you had to go through this three-week period to prove that three years prior had --
Mr. Grimes: What really changed in our three-week exercise of attempting again to reach a consensus was that the dissenters flipped. In the previous two-and-a-half years prior to the election, the people in the province would suggest that with respect to what was coming out of the process of trying to reach consensus rather than have a constitutional amendment, those disagreeing regularly in the public view would have been representatives of probably the Roman Catholic Church and the Pentecostal Church. The integrated group was being fairly quiet on the issue. After our attempts over the three-week period, the Pentecostal group and the Roman Catholic group were seen to be fairly quiet and the integrated group and factions of them became visibly disturbed. They became vocally resistant to the point that there was political innuendo in the province suggesting that we had come to some kind of arrangement and that because of the religious affiliation of the new premier and the new minister, deals were struck with other denominations. It was a very unpleasant period of time.
The difficulty is that seven groups hold rights. The government cannot strike side deals with one or two and not the others. We felt we needed agreement. When we came close to agreement with one, two or more, then we were further apart on agreement with several others.
I fully accepted that representatives of the denominations accepted my invitation to explore this exercise in an effort to make an arrangement, knowing that the government of Newfoundland and Labrador would ask that the referendum and the vote in the house be honoured. We would ask that the Parliament of Canada change Term 17 to give legal standing to whatever new arrangement we came to, but that the legal standing would be the new Term 17, not the existing Term 17. To their credit, they consistently presented the view that they would take every opportunity in the province and across the country to resist the change and prevent it from happening.
Senator Ottenheimer: Mr. Grimes, we all know we are coming close to the end of a long and arduous process. It perhaps makes the little bit of remaining time for consideration even more important than when there is a lot of time ahead of one. I would like to limit my questions and comments to what have been identified as possible amendments.
First, on pages 11 and 12 of your brief, you give your government's position with respect to the "where numbers warrant" amendment. In your oral presentation, you mentioned an argument which is not referred to there. I can only assume that it has become part of the government's position recently. That argument was that the government of Newfoundland and its legal advisors tell them that there is more protection for minorities with your wording of "subject to provincial legislation" than there would be with the wording "where numbers warrant". As you are aware, the submission of Mr. Colin Irving yesterday is to the contrary. I can only assume that the legal opinion given to the Roman Catholic and Pentecostal groups is quite different because, as I understand it, they would be very much in favour of the substitution of a "where numbers warrant" criteria. No legal advice is infallible that I am aware of, but the preponderance of opinion prefers a "where numbers warrant" criteria because it does not leave the entirety within the provincial legislature. As you say, where it has been applied, it is in terms of linguistic minority rights, not confessional rights, and it is difficult to predetermine what it will be. That is true of every kind of court determination of a right. The same was true after 1982 with the Charter of Rights. Many people did not know what specific interpretations would be, but obviously that is why we have courts.
What it comes down to is that those minorities representing 7 per cent and 37 per cent of the population feel strongly that the phrase "where numbers warrant" gives them a higher level of comfort than the wording proposed by the government. I do not think they object either to putting in a reference to "parental preference". Would the government consider this if there could be an agreement?
I am not aware that any of the integrated groups oppose the "where numbers warrant" criteria. I specifically recall asking a Yes Means Yes spokesman if he objected to it, and I think he said, "No, but we would want with it a reference to 'parental preference'." That is fine.
Given the strong feeling of the Pentecostal and Roman Catholic minorities, and given, subject to verification, no objection to that criterion from the integrated groups -- and I know there is no objection from the spokesperson of the Yes Means Yes Committee -- would you consider that alteration as well as an alteration with respect to the phrase "determine and direct", which you say the government regards as being mere vocabulary and not having any substance? It means a lot to minorities. They attach a great deal of importance to it. If the government could, at this late hour, agree to the addition of "determine and direct" and agree to a "where numbers warrant" reference and a "parent preference" reference, there may be agreement where no minority or no substantial minority will feel aggrieved. It may be no one's perfect solution, but it may be something everyone can live with, government and the various denominations.
Mr. Grimes: On page 12, I may have used some different words in my speaking notes. The issue of additional protection is in the last paragraph at the bottom of page 12 of the official government presentation. It reads as follows:
Government's intention was to balance the rights of all interest holders and to ensure equitable treatment for all. Consequently, the right to a uni-denominational school was made "subject to provincial legislation that is uniformly applicable to all schools specifying conditions for the establishment or continued operation of schools".
It goes on to spell out that:
...government is prevented from setting a higher or different standard for a uni-denominational school than would apply to any other publicly funded school.
The legal advice given consistently to the province from our internal sources and external legal counsel is that the "subject to provincial legislation" phrase in fact binds the legislature to produce legislation that enables people to exercise the rights spelled out in the rest of Term 17 rather than put in hard-to-reach standards that would effectively remove the attainment of the rights spelled out in the same constitutional amendment. That was the point I was trying to make.
We have debated that change in cabinet, in caucus and in the legislature. Again, on balance, I would respectfully ask this committee in its report and for the whole Senate to come to the conclusion that the government and legislature in the province have come to. In this province, we do not want to tie the exercise of continuing extensive, substantial, denominational rights to criteria in which the jurisprudence has been around the exercise of language rights. Again, nothing is clear. Some would argue that "where numbers warrant" establishes a clear benchmark. However, there is no benchmark in the jurisprudence. It is different every time. We enter into a process where we are almost mandated each time to have the court decide if the numbers warrant in this instance or the other rather than allow the province, with uniformly applicable legislation, to set the standard. If anyone feels aggrieved that the standard is unapproachable, too hard, too stringent or too lax for whatever reason, they can still appeal to the court. A court challenge is available in any event. However, the process we debated extensively in the province and that we feel is better left without the amendment is that we would set the terms and the criteria in the uniformly applicable legislation. Anyone who feels aggrieved in the attainment of their rights spelled out in the new amendment rather than in the existing legislation can go to the court to plead their case.
In fact, we will go through that exercise in the fall. We have already had preliminary discussions with representatives of the denominations as to what those criteria will be. As the report indicated, some matters remained unresolved at the end of the day. Hopefully they will be resolved in a public exercise in the province in the fall with legislation that will guide the new school boards in their determination of the schools in the province for the school year starting September 1997.
The debate has been substantial in the province with respect to this amendment. The government and the legislature have come down repeatedly on the side of not amending. This has been the matter of personal meetings between myself and representatives of the denominations where they have asked for this consideration. We have taken it back to the cabinet through the government process. Again, on balance, the government of the province sees more inherent flaws in substitution than in any beneficial assistance in terms of proceeding with a new term that will give us a new system that entrenches significant, substantial, denominational rights into the foreseeable future and binds the legislature, duty bound, to produce uniformly applicable legislation that enables people to exercise the rights spelled out in this new Term 17.
Senator Ottenheimer: I am sure you realize that a criterion "where numbers warrant" would not be intended such that for every instance there must a unidenominational school and someone would be asking to go to court to see if numbers warrant. One assumes that there would be agreement on these matters and that the "where numbers warrant" reference would be for extreme circumstances where there can be no agreement. An aggrieved party might wish to exercise that final right. It would not be regarded as something one would be doing all the time.
I think it is still within the power of the government and the province to agree to those two amendments and to have unanimity. Educational aspects are extremely important, obviously, but so is the hope that all minorities in Newfoundland can feel comfort in the fact that their rights have been respected. We do not want them to feel somewhat disenfranchised and alienated. I know you agree that this is an important ideal and that it should be possible to achieve.
Mr. Grimes: The second part of the question was with respect to the phrase "determine and direct". The point I was attempting to make is that while the first one is substantive and is one that the government of Newfoundland and Labrador would ask the Senate not to consider because of the extensive debate we have had, this is the crux of the matter. We feel that the government has been consistent. "Where numbers warrant" has an appeal to it, but it puts us into a different realm where we feel it is not helpful in the province to tie denominational rights to the area of jurisprudence respecting section 23 and to link it in any way to language rights.
With respect to the second issue regarding "determine and direct" versus "direct", if that is the only amendment anyone is going to consider, the insignificance of it is such, in our view, that it is not worth putting the legislatures through an exercise of having to go back to ratify that kind of amendment. The legal advice internally and externally to this government is that they mean the same thing. That is the exactly the way it would be interpreted and used. Denominational representatives have indicated to me in our meetings that they will gladly wave around public statements, letters and so on from the Minister of Education and from the government of the day which say publicly and clearly that the government feels that "determine and direct" means the same as "direct" and vice versa and that there is no difference. That is what the courts will rule anyway if we ever go to court. It is a frivolous amendment in that sense with respect to the issues.
Senator Doody: I gather from your comments to date, Mr. Grimes, that the rules and regulations for the establishment of denominational or non-denominational schools have not yet been finalized or at least they have not been publicized; is that correct? You will go through a process of consultations in the fall, presumably, with the denominations after the hearings.
Mr. Grimes: Yes. The only public indication of the government's intention with respect to these criteria was what was released by the previous administration of Premier Wells on January 3 or January 5. I am not sure of the exact date. In fact, I have now in my possession as Minister of Education a detailed response to that from groups like the Newfoundland and Labrador Teachers' Association. Other groups had been in the public domain. It was withdrawn by the administration of Premier Tobin. We indicated to everyone that once this national agenda item is complete and the full parliamentary process has been exercised, we will bring back some version of those criteria that people are already publicly aware of.
There are three main components. One is that a system for parental preference was laid out to be exercised. Some people disagreed with what was in that legislation. They will get a chance in the public hearings to agree or disagree or suggest a new approach. Clearly, provincial transportation policies were laid out with respect to minimum busing times and whether a school could exist within a certain distance from another school. Clearly, minimum class sizes were laid out in the legislation and regulations, which were publicly available. People know it is there, but it does not have the stamp of approval from this new administration. We will take that or some version of it out for public hearings in the fall during the early part of this next school year once the Parliament of Canada deals with the constitutional amendment that will allow us to give total legal impact to the new changes we wish to propose.
Senator Doody: I presume the procedure would be that after you have had your hearings and the input from the public, you will discuss it with the stakeholders and the various people whose rights are involved. Then if you hit the same hurdles or the same snags you have had in your negotiations to date, is the recourse to go to the legislature? That is the gist of the problem -- if all else fails, you legislate and there is no protection for the minority.
Mr. Grimes: That is the point, senator, but the conclusion we have reached is exactly opposite to the one you just reached.
The stakeholders are the denominations and the public generally. That has been part of the political debate in the province. Some say that perhaps we spent too much time with the denominational stakeholders and their official representatives and not enough time with the public generally. That has been one of the political criticisms of the government in this exercise. However, because denominational rights are so significant and substantial and are spelled out in the amended constitutional provision for the first time, I have been stating publicly and consistently that who else could I, on behalf of the government, discuss denominational rights with other than the people that the denominations send to me? I cannot go out in the street and say, "I know that person over there is a nice Catholic, so I think I will talk to him or her." We must have that exercise; it is very important. We must go through that process.
All stakeholders, including the public, will get an opportunity in the fall to discuss this issue. At the end, we will bring in legislation.
I think it is important that I continue to make this point. The "subject to provincial legislation" provision in the legal opinion given to the government binds us in the legislature to produce legislation that enables the rights in the rest of Term 17 to be exercised. If we attempt to bring in a piece of legislation which is overly prescriptive, overly restrictive and actually frustrates the different denominations in trying to exercise their rights, then we will be challenged in the courts and defeated. That is the advice we are given internally and externally. This provision actually binds the legislation and the legislature to produce terms that enable the rights to be actioned, not to frustrate the exercise of those rights. It is not a matter of not being protected; it is a matter that, yes, they will be protected because the Constitution itself says that the exercise of these rights, which are constitutionally provided for, have been subject to the legislation. However, our lawyers indicate that the reading of that every time clearly suggests that the legislature has no choice but to produce pieces of legislation consistently that provide for and allow for the exercise of those rights, not to frustrate the exercise of them.
Senator Doody: Are copies of that legal opinion available?
Mr. Grimes: I am sure they very well could be, but we could have it researched and give copies to you.
Senator Doody: What I am saying is I would like to have the same feeling of comfort that you do. I do not take the same meaning from it.
Mr. Grimes: Senator, we will provide any written advice we have on that matter to the committee so you can have it for your deliberations. I thank you for the question.
Senator Rompkey: Mr. Minister, you come to the affairs of state from the affairs of the church in the sense that you have been recently married. I am sure members of the committee would want to offer their congratulations.
Senator Doody: I would like to make that unanimous.
Senator Rompkey: That is unanimous, minister, and it is so recorded in the minutes.
Mr. Grimes: Will I get a copy of the record?
Senator Rompkey: You will get a copy of the record, and no amendment or legal opinions will be needed.
Mr. Minister, you come also from a Pentecostal family, a very strong Pentecostal family. You were a teacher. You were certified under the Pentecostal Education Committee. Moreover, you were elected as president of the Newfoundland and Labrador Teachers' Association. We know that once we leave these halls and corridors, we do not maintain intimate contact, but we still maintain a network. You still talk to teachers and parents through this province. I want you to tell us what you hear from those teachers and from those parents. Is it your conclusion that the support for the passage of Term 17 cuts across denominational lines and that the people of this province have spoken clearly across all denominational lines?
Mr. Grimes: Senator, I appreciate the commentary. I might add before I answer your question that while certified and beginning my teaching career in the Pentecostal education system in the province, I spent the bulk of my teaching career in the Catholic education system. I have been in different parts of the system and had quite a teaching experience. I enjoyed every minute of it. I can only wish that the teachers of the province today have as enjoyable a teaching experience. I do not believe, because of many circumstances, that they are enjoying the great pleasures of teaching that I did for almost 20 years.
I am always hesitant to give any kind of a personal opinion, but the government is of the opinion -- and I have been presenting this view to the government consistently as the minister responsible -- that in all regions of the province and across all denominational lines and in all manners, the majority of people in the province believe that we have been at this for a long time. The royal commission reported in March of 1992. We had a referendum almost a year ago now. The legislature has dealt with this matter. The House of Commons has dealt with it. The Senate is dealing with it. Many people would like for this part of the process to be dealt with and finished. They realize, as we indicated when we initiated the discussions with respect to the framework, that a lot of work still must be done in this province because education is a provincial jurisdiction. We have a long way to go to get our new governance structures in place and to get our new school system up and ready and running and designated under the new rules for September of 1997. All educators will tell you that that will be a monumental task in itself, to go through a parental choice exercise, to develop a new set of criteria and to bring in legislation which will form the basis for the new system in which there will be significant, substantial, denominational influence and rights as now spelled out in the new Term 17.
The government is confident that the mood in the province, clearly by the vast majority, is that we should proceed with this part of the process which, in their view, has gone on long enough. We understand that you cannot dictate the time.
Mr. Sullivan indicated this morning that the House of Commons, the Prime Minister and the cabinet had this resolution for several months. It is only now through this stage that there are finally public hearings. The Government of Newfoundland and Labrador wishes we would have gone through this exercise six or seven months ago so that we could be further along in this process.
The greatest comfort we take is that in the last election platform on education issues, no matter how it is characterized, there was no mistaking that the government of Newfoundland and Premier Tobin referenced the referendum and indicated in bold print for everyone to see that the people had spoken and that, if elected as the new government, we would proceed. "Would proceed" means go ahead and ask the Parliament of Canada to deal expeditiously with the passage of the amendment that has been carefully and deliberately thought out and crafted in the province to serve the best interests of the people of Newfoundland and Labrador.
We recognize and understand that there is continuing resistance. Some people will never be satisfied with this process, but we also believe and have great confidence that when this process is complete, the same spirit of cooperation that started in the discussions we had with the denominational representatives in the framework agreement exercise will prevail. We will pull together and work together in the best interests of the students to ensure that the new provisions are enacted in such a way that denominational rights are secured as outlined in the amendment and that the legislation that comes in is not in any way oppressive or in any way offensive or in any way restricts the rights of people as spelled out in the new Term 17. That is the goal and mandate of the government. That is what we intend to do. Again, we would ask this Senate committee to bring forward its report and hopefully take the position that this amendment, as presented by the province, should carry without further amendment.
Senator Rompkey: Mr. Minister, the word that I pulled out of your testimony that struck me was the word "balance". You said that there will be a balance between denominational rights and the rights of the province. We have heard across denominational lines that the denominations want the power to stay with the laity in the denominations. That has been clear to me, that denominational power should be exercised through the laity. However, we further define that. The province has rights too. The legislature has some rights.
My conclusion has been that even with the new Term 17, the rights of denominations in this province -- and I am sure there is agreement on this -- will be at least equal to and perhaps greater than those of the same denominations in any other part of the country. However, there are rights of the legislature as well.
I want to give you an opportunity to elaborate on that question of balance. I think it is important for us as a committee when we are talking about who has what rights to understand that there must be in any law and under any constitution a balance between rights.
Mr. Grimes: I appreciate the opportunity to deal with that issue.
Currently, I think the general public perception of how our system runs in the province is that each of the separate denominational boards has a constitutional right and a legal right in the province, supported by legislation, to make their own decisions as to how many of their schools they decide to operate in different regions of the province at any one time. That is not a decision that the government can have any say in at all. That is a decision basically exercised by the denominations.
The effect of the amendment, which is the crux of the matter, is that the government believes at this point in our history, after several hundred years of tremendously positive church influence in the schools in the province -- which will continue, as Senator Rompkey pointed out, in a manner equal to any other province in the country -- we should give the legislature, through this uniformly applicable legislation, the right to set criteria. The legislature should have the right to say, "Sure, you can exercise your rights, provided they meet this set of criteria, not that you each make up your own criteria." There will be a uniformly applicable set of criteria that says any group that meets this set of criteria at any time can fully exercise every right spelled out in the new Term 17, not in a piece of legislation that existed in 1946 or 1949 or was amended in 1952. It is right in the new constitutional provision. It talks about admission policies; it talks about hiring and dismissing teachers; it talks about all of the religious observances; it talks about religious aspects of curriculum. They can exercise all those rights, provided they meet a standard that is uniformly applicable in the province for every group. That is the change this new amendment puts into effect.
We believe and the debate in the province has been that that change makes sense; it is appropriate. The time is right. The people generally want it to happen. We believe now that we should move to the next stage.
I would ask the Senate to conclude its deliberations and hopefully vote for the passage without further amendment so that we can then continue on with the much needed discussions in the province to deal with those uniformly applicable criteria.
Senator Pearson: My first question was going to be with respect to the French language school board. We have been impressed with the testimony made here. I want to confirm that what I heard you say is that you are in the process of working towards the elaboration of a "commission scolaire français".
Mr. Grimes: Yes, senator. As a matter of fact, the rest of the cabinet is currently meeting in Corner Brook on the west coast of the province. I spoke with Premier Tobin following their session last evening, and it was at the session where cabinet gave approval to the amendment that will be part of the legislation to enable the establishment of a "commission scolaire" for the francophone population of Newfoundland and Labrador.
Senator Pearson: That is very nice.
Mr. Grimes: That is actually not only in the cabinet process, but it has passed the cabinet process. There is authority to bring legislation forward along with other legislation to establish 10 interdenominational school boards and a single construction board.
Senator Pearson: That is good news.
My second question had to do with public education as opposed to unidenominational or interdenominational education. As I have heard the testimony presented here, my understanding is that while nothing under the former Term 17 actually prevented you from establishing a public school in the sense as we know it in Ontario, the complications and financial implications were effectively an impediment in terms of all the permissions you would have had to obtain. I do not know in fact whether this will ever happen because the interdenominational type of school you are suggesting will probably be as welcome as a public school for those who are concerned and are non-confessional or who belong to other faiths and that there will not be the same obligation for them to obtain parental permission not to attend a religion class. I do not know. I would like some comment on that.
I have been involved in the public school system in Ontario for a great many years. I have been working on a primary prevention program in children's mental health. A few comments here seem to suggest that a public school system is somehow devoid of values. I want to say that this is not true. The public school system in Ontario is permeated with some of the best values of the Canadian population -- compassion and concern for children, particularly concern for the most vulnerable children, children who are at risk. Could you comment about the possibility of a public school in that sense?
Mr. Grimes: The language of public schools, public schooling and public education is not language that the Government of Newfoundland and Labrador likes to use because of the history of the development of the system in the province. That was clearly part of the debate with respect to the referendum held a year ago at this time when that was being debated in the province. It is not that I think such a system would be devoid of values. The difficulty is that once you move into that system, the precedent legally has been that in those systems, the practice of religious observances we have always taken for granted and want to continue in the province has been ruled unconstitutional. We do not want any reference in Newfoundland and Labrador under any circumstances to a public education system because of the fact that it could lead to challenges with respect to denominational rights for observances and practices which are spelled out in our new Term 17. We want to continue in all the schools, which is why we have chosen the language "interdenominational" instead of "public schools". We want to consistently point out that the system in Newfoundland and Labrador is unique and different.
All of our publicly funded schools are denominationally based. It only a question of whether a single denomination will be using the school or several denominations together. Given that we keep that in the constitutional language, again our legal advice suggests that in any one of those settings, either a single denominational school or a shared denominational school, no one could challenge the right to say the Lord's Prayer, celebrate Christmas or Easter, or have a first communion. That would be permissible and legally stand any challenge.
The exercise in Newfoundland and Labrador for those people who do not have rights and are not a part of those classes has always been that they have been excused if they find any part of the exercise offensive. That has always been the practice in Newfoundland and Labrador. Students of any non-conforming denomination or non-rights-holding denomination have the right to be excused from any religion classes and any observances that do not conform with their particular way of life and the expression of their religion. That is why the language in this constitutional amendment has not used the notion of public schools.
Could we have public schools? Clearly the new Term 17 would make it a lot easier than under the existing Term 17. We could have them today. It might be more difficult, but we could this develop today. The sense is that the government does not want them. We do not want to talk down that road at all. We are very pleased to continue denominationally based schools. The question is how many will be shared and how many will remain single denominations operating schools for their own purposes very much like they do today? The language that surrounds public schooling, secular schooling and the jurisprudence in the courts surrounding that issue frankly scares the government and scares many of the rights holders in Newfoundland and Labrador with respect to the continued ability to exercise the fundamental rights in all the schools for religious observances, practices and the teaching of different religious denominations.
I hope that answered the question.
Senator Beaudoin: Mr. Minister, I wish to thank you very much for the decision of your cabinet in relation to French schools. I think it is a very important question. That fact is not before the Senate because we are dealing with the proposed Term 17. French in the school is not the same thing as denominational rights in schools, but the same point of view may prevail here. I am glad that the cabinet made such a decision.
I think we have had a fantastic debate on all points dealing with Term 17. I agree with you that the crux of the matter is the phrase "subject to provincial legislation". I agree that the text refers to denominational rights very often. I certainly agree with you that Ian Binnie and Colin Irving disagree. There is no doubt in the world. They are two top lawyers in this country.
Since we are dealing with a constitutional text, every word has its own importance. I do not know if it is your opinion, but I am quite sure that one day we will have a case on the question of the phrase "subject to provincial legislation". I listened very carefully to your interpretation of that phrase. Other people may have another interpretation of that expression. When we have had difficulties like that, as we did with section 93, it is for the Supreme Court of Canada to decide. As an illustrious chief justice of the United States said, the Constitution is what the judges say it is, particularly the Supreme Court of Canada.
I agree that Term 17 is unique and that Newfoundland has a unique problem. There is no doubt about that. However, my impression is that the Supreme Court will interpret this major amendment in the light of previous jurisprudence and will also give effect to each new term. We cannot terminate that debate. It will be terminated in court one day. What is your opinion on that matter?
Mr. Grimes: Perhaps I might reference the French language issue first.
I have appreciated in my meetings with representatives of the francophone community in Newfoundland and Labrador their approach to this issue. This issue has frustrated them for some time and has been around for a number of years. In all fairness to them, they did not want to frustrate the Government of Newfoundland and Labrador or anyone else with respect to dealing with Term 17 and did not want to suggest to anyone that it was linked directly. They seized the political opportunity most appropriately while there was a public debate that involved the Parliament of Canada. They wanted to also bring forward their concern. They had a commentary and discussion with Premier Tobin during the election and after when this issue was referred to me for resolution rather than go through the courts. I am pleased to report, as I did earlier, that cabinet dealt with the issue last night. There will be enabling legislation, and discussions are ongoing as to the details for the structure of the "commission scolaire".
You seem quite content, senator, to suggest that this will end up in court. I have only been in politics a short time, some six or seven years. I am still naive enough to suggest that it will not end up in court. With respect to the new term, I believe the same spirit of cooperation that prevailed in previous meetings with representatives of the denominations will be there. When this new term is passed, I also believe that in the discussions through next fall that lead to uniformly applicable legislation, the people and the rights holders will be satisfied and convinced that their rights are not being seriously infringed or expunged. Their rights are being spelled out in the Constitution. They are being upheld in a piece of legislation. I am not at all sure that it will end up in court at any point in time.
Lawyers will better advise me afterwards, but my understanding is that when pieces of legislation are challenged, even before the Supreme Court of Canada, public statements are admitted into evidence in Hansard, documents from legislatures and commentary from ministers of the Crown, from premiers and from politicians indicating the intent of a piece of legislation. The court decision has hinged upon what the government said it intended to do.
In Newfoundland and Labrador, we lost a famous off-shore case. One of the factors was that the premier of the day indicated what he was intending to do. The court ruled that if that was what he was attempting to do, it was important.
Each of the stakeholders in terms of denominational rights will take great comfort in the fact -- they are very good at taking comments and using them in the appropriate circumstance, which is a proper approach used by us all -- that my comments on the record, as the official representative of the government of the province, are that the "subject to provincial legislation" language binds the legislature to produce legislation that enables them to exercise the rights in the rest of the term rather than enabling the legislature to put in any words at all that make the rest of the term meaningless. It will be one they wave around in court with great effect if it ever goes to court. If the government ever intended to go ahead on the one hand and say, "Here are your rights in the new Term 17, but under this 'subject to' provision, we will make it so tough that you will never exercise them," then I think I will have made the case for them in court and they will win. That is the way it has happened before in the courts. They have admitted evidence when official representatives of the government have interpreted for the official record the intention of the legislation, not only the words.
I am not a lawyer. If you wish to discuss it further, perhaps Ms Welsh will engage in that discussion with you. We have lost significant court cases in this province. The court, in its rulings, has written that the premier of the day or the minister of the day has said the intent is such and such and that is not what the government is doing, which is no good. I think the stakeholders will take great comfort in the fact that the official position of the government is that that critical phrase puts the government in a position where it must produce legislation to enable them to exercise all the rights laid out in the rest of the term.
Senator Jessiman: As you know, paragraph 17(b) states "subject to provincial legislation". I think you said, sir, that some provincial legislation was drawn. Did it go to first reading?
Mr. Grimes: No. The House of Assembly in the province was not in session at the time. It was released publicly by the premier of the day and the minister of education of the day.
Senator Jessiman: Is that available for anyone to get?
Mr. Grimes: Yes, it is. It has been publicly available in the province for some time.
The Chair: We have that, Senator Jessiman.
Senator Jessiman: You can say "yes" or "no" to this, but I am told that there are schools operating now across the province which combine Roman Catholic, Pentecostal and other denominations. In other words, so I am told, these schools are effectively now operating already as the proposed new system envisages; is that correct?
Mr. Grimes: No. I am glad you asked the question, though, because it needs clarification.
The schools you refer to are currently described in the province as joint services schools. In effect, each runs under a separate agreement arranged by the different school boards that agree to share a building. The predominant feature of those schools is that two schools effectively run under one roof. There is a splitting of the school staff; there is an agreement to shared administration, so much from one board, whether it be Roman Catholic, Pentecostal or integrated. They share assignments and split off for certain functions. Many agreements have common features and some have different features.
The concept in the new term of an interdenominational school is that there will not be two different administrations and two different schools just sharing a building; there will be "a school" run for all of the denominations with "a single administration" appointed by the new interdenominational school board. If it is agreed that the principal be Roman Catholic and there is a joint service with the integrated group, the agreement is that the vice-principal must be integrated. None of those features would be in the interdenominational school under the new system. It would be totally open and available to all of the denominations. It is close, but it is not what is envisaged under the new term in interdenominational schools. It is really the convenience of running two separate schools in the same building rather than running two separate schools in two separate buildings. It is done for convenience and by agreement. It is effective. The government agrees it is better than having two separate schools in two separate buildings, but it is not exactly what is envisaged under the new term as an interdenominational school.
Senator Jessiman: I assume that if the parties agreed, you could have that system throughout the whole province for all the schools, with one administration where you have two now, without the necessity of Term 17.
Mr. Grimes: I agree, senator, because there has been movement in that direction over the year. The joint services model has emerged over a number of years by agreement from the boards. They have difficulty running separate schools themselves and still want to maintain their separate denominational rights to a certain degree and find a mechanism to do it in a single building rather than separate buildings. It is not the same model envisaged as a shared interdenominational school under the new term. It is close. It is a movement in the right direction and serves a good purpose in the province today, but it is not the model envisaged.
When we dealt with that issue in the discussions we recently had in the framework exercise with the denominational representatives, one of my statements was that I assumed all joint services schools would be called interdenominational. There was clearly disagreement on that point. They did not degree that each of the joint services schools would automatically become an interdenominational school under the new term. There was to be further discussion of that, and we have not resolved the issue at this point.
Senator Cogger: My questions have been answered. I will just take a minute of the time of the committee, like my colleagues Senator Pearson and Senator Beaudoin, and commend the minister and his colleagues for finally following up on the recommendation of the Norman report of 1993 and creating a francophone board. That is great.
Your government, like most governments, will be judged by the way you treat your minorities. This is very much a step in the right direction. On behalf of the francophones of Newfoundland and Labrador, you ought to be commended.
The Chair: Thank you, Mr. Grimes, for your presentation and for providing us with the information that you did this morning.
Mr. Grimes: I would like to thank the members of this committee for taking on this task on behalf of the Senate. We can only wish you God speed in your final deliberations.
The Chair: We will in fact submit a report to the Senate through the clerk on July 17, which is next Wednesday.
Honourable senators, before we adjourn, I would like all of those who have participated in the hearings, even more so the people who have sat day after day for the last two and a half days. I do not exclude senators from that comment, but I was particularly thinking of members of the audience who have been with us throughout the hearing process. I thank them for their attention and, more importantly, for their compliance with the Rules of the Senate. I very much appreciate the demeanour in which you have conducted yourselves and the obvious concern you have expressed for Term 17 by your presence.
As well, I wish to place on the record my thanks to the staff of the Hotel Newfoundland who have been wonderful.
Finally, and certainly not last and not least, I wish to thank our own Senate staff who have gone above and beyond the duties for which they are paid. I would commend Dr. Heather Lank and the staff she directs for the manner in which these hearings have been conducted.
Also, I have asked Dr. Lank to deposit with members of the committee a one-page document entitled "Options for a Committee Report". I have given you the broad range of options we may wish to deal with in our meeting at 10:30 on Monday, July 15. I look forward to seeing all of you who are responsible for the committee report at that time.
The committee adjourned.