SJNS Committee Meeting

SPECIAL JOINT COMMITTEE ON THE AMENDMENT TO TERM 17 OF THE TERMS OF UNION OF NEWFOUNDLAND

COMITÉ MIXTE SPÉCIAL CONCERNANT LA MODIFICATION À LA CLAUSE 17 DES CONDITIONS DE L'UNION DE TERRE-NEUVE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, November 27, 1997

• 0910

[English]

The Joint Chair (Senator Joyce Fairbairn (Lethbridge, Lib.): Colleagues, welcome back. We have another full and interesting day ahead of us in our deliberations as a joint committee on the amendment to Term 17 of the Terms of Union of Newfoundland, and of course Labrador.

Members and senators will recall that as we adjourned last evening we were missing a document and we undertook to have it produced as quickly as possible. It was delivered to the committee last night. We have Mr. Hutchings, who was one of our witnesses last night, and he has agreed to be here this morning to answer some of the questions we put aside until the receipt of the document.

Mr. Hutchings, we thank you very much for agreeing to come back as promptly as possible.

I would take names from those who have a particular interest in this document. I believe the first was Mr. Schmidt and the second was Senator Kinsella.

Mr. Schmidt, please.

Mr. Werner Schmidt (Kelowna, Ref.): Thank you, Madam Chair.

I have two things, Madam Chair. First of all, thank you for getting the document to us; and I thank the staff who made that possible. I also thank Mr. Hutchings, who extended his stay by a day to be here.

I would like to refer, Mr. Hutchings, to page 5 and paragraph 12. It has to do with religious courses and observances that it is proposed they will be continuing in the proposed amendment.

As time passes and the religious courses that are there today, and the religious observances that would be there—and the key word in here is “all”—all religious observances and so on...over time, is there a chance that these kinds of observances would fall away? The comment you made in the paragraph is that they need to be requested by the parents in order for them to be there. Does this mean, then, that if a request is not formally given by the parents, indeed the school may or may not have the courses or observances, one or the other or both?

Mr. Joseph S. Hutchings (Legal Counsel, Poole, Althouse, Clarke, Thompson & Thomas, Barristers and Solicitors): The way this paragraph is worded, it's triggered by a request from a parent. It only needs to be one parent, the way I read the term. But unless there is a request from the parent, I don't think the term can have any effect. Without that request, the Charter of Rights, in its ordinary application, would prevent any type of religious observance within the school. Without section 93, these schools are the secular type of schools described in the Ontario cases I've referred to, but with the request from a parent, you have the constitutional ability to have a religious observance in the school.

The real difficulty is how that's going to be done. Is it subject to the notion that you can have only a religious observance that won't bother somebody else? Can you have a religious observance, for instance, in the nature of a nativity scene in a classroom if somebody in that classroom objects to that? What is the balance going to be between those who wish to be free from religious observances and those who wish to exercise a right under that term to have a religious observance in a school?

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These are questions that some judge someday will decide. I think the real danger is that people will be afraid to push the notion of religious observances, because they'll be afraid they'll end up in court and won't know where they'll come out at the end.

Mr. Werner Schmidt: There are some very practical questions, and I'm wondering about procedure, Madam Chairman. I have three questions, and this is the first set of them to get this point. Are we going to go back and forth here between Kinsella and me?

The Joint Chair (Senator Joyce Fairbairn): I think the primary interest here is between you and Senator Kinsella.

Senator Noël A. Kinsella (New Brunswick, PC): I would suggest that Mr. Schmidt complete his—

The Joint Chair (Senator Joyce Fairbairn): —and then you do yours. Thank you.

Senator Noël Kinsella: Take your time.

Mr. Werner Schmidt: Thank you very much, Senator and Madam Chair. I very much appreciate the indulgence.

In specific detail, does this mean then that each religious observance would have to be requested, let's say, on an annual basis or on each religious observance? Take some of the ones we all know, such as Easter and Christmas. Would there have to be a request, one for Christmas and another for Easter, and would it have to be done on an annual basis?

Mr. Joseph Hutchings: There's no guidance in the term at all to say that. One would hope that within reason... If a school council, for instance, said they wanted to have a Christmas play every year, then that should be sufficient, at least until at some point an objection is raised.

Now, it may be that someone from another religious group will say, “This is fine, I don't object to you people, if you want to have a Christmas play, having a Christmas play, but don't do it during school hours and don't do it where my child has to see it or be involved in it or be put out on account of it.” Those are the really practical problems.

The implementation of this throws up very many difficulties, and the questions are really unanswerable at this stage.

Mr. Werner Schmidt: It raises the other set of questions, which has to do with the different kinds of religious groups. The Christian group might want Christmas and Easter as the salient observances, but there are others, like the Jewish people, the Muslim people, and a whole host of them, and a parent from any one of these groups could then, according to this paragraph 12, make such a request and the school would then be required to observe those.

Mr. Joseph Hutchings: There is no discretion. It “shall be permitted” where requested by a parent.

This isn't a law that's subject to anything other than the Constitution itself. This is part of the Constitution. It's not as if you can say, well, this obligation is subject to other general laws.

Mr. Werner Schmidt: I understand that. This is a constitutional provision now, which would have this kind of blanket implication.

Mr. Joseph Hutchings: There's no way around it. This is where the buck stops.

Mr. Werner Schmidt: The second question has to do with private schools. I believe the reference here is at the bottom of the same page, paragraph 14, and then going over to the top of page 6, which has to do with the impact of the proposed amendment of Term 17 on private schools.

What happens to private schools, be they a business private school or a religiously oriented private school or any other private school? What is the implication of this amendment for the creation, operation, and management of a private school?

Mr. Joseph Hutchings: This Term 17(3) isn't restricted to publicly funded schools. It says any school.

So if, for instance, one were to start a private Roman Catholic school and, as happens during the course of time, someone other than a Roman Catholic student enrols or a Roman Catholic student who is there decides to convert to another faith, if that person then desires to have a religious observance relative to his or her own faith, there's a constitutional requirement on that school, even though it's a private school, to provide that religious observance, no matter how inconsistent that may be with the beliefs or dogmas of the Roman Catholic group that has started and is operating the school.

Mr. Werner Schmidt: I would like to expand the debate beyond religious private schools. Take a private business school, for example. Or let's say an academically oriented private school was operating a junior high school or a senior high school. How would this amendment affect that kind of institution?

• 0920

Mr. Joseph Hutchings: As I say, the language of the amendment is unlimited. So if a mining company starts a private school in a community in northern Labrador and some person going to that private school comes to the school authority and says, “I want to have this particular religious observance”, I don't see that the mining company has a way out. The Constitution of the country says this parent has the right to require you to provide for that religious observance.

Mr. Werner Schmidt: The third question has to do with the impact of this legislation on future generations, not just the next time. This is something far-reaching that goes not only into the publicly funded institutions, but actually into privately funded institutions, and can have the same impact in either instance. Are we able as a committee to think through all of that right now? What would be the effect of asking for an extension of the date at which this committee is to report?

Mr. Joseph Hutchings: That comes right back to what I said in the introduction to my brief here. With all respect, to think that this committee or anyone can get through all the issues and understand all of the implications of this amendment by December 5 is, frankly, ludicrous. It is simply impossible. It can't be done. The real danger is you're not just amending the taxi regulations here; you are amending the Constitution of Canada. If you get it wrong, it's an awful lot of work to get it right again.

There are a lot of implications within these few words that you're putting into the Constitution of Canada. Frankly, I don't feel you can get a handle on it within the time you've been allowed at this stage. If it's passed into the Constitution of Canada and a court holds that it's been validly done and is now part of the Constitution of Canada, we have to live with that until it goes through the same process again. That's going to be difficult.

Mr. Werner Schmidt: I don't really want to put words in your mouth, but would it be correct to say that the impact of delaying this would be to get as right as possible the implications of a major change like this, which is not something that's just going to affect us today, but will affect our children, our grandchildren, and probably into a third generation?

Mr. Joseph Hutchings: Absolutely. I couldn't agree with you more. I remember saying to Mr. Justice Barry in the first court case that we're talking here about classes of persons, not just the parents who have children in school now. Those children themselves are members of the class and their grandchildren will be members of the class. This is a right that has potential far beyond our lifetimes, and it deserves slow, careful consideration, in my respectful submission to you.

Mr. Werner Schmidt: I have a final question, Madam Chair.

The Joint Chair (Senator Joyce Fairbairn): Quickly, Mr. Schmidt, because we evidently have more than an interest or two here and we have some very important witnesses as well as Mr. Hutchings. We are very pleased he has extended his visit to Ottawa for a brief period of time this morning.

Mr. Werner Schmidt: It has to do with the word “right” he just used. I was wondering whether we could ask the witness to distinguish between a right and an entitlement.

The entitlement to the public purse is one aspect of this amendment that really hasn't been addressed all that much. It's here, but it's not a major issue. The major issue seems to concentrate on the right of a class of people to have certain things. Could we ask the witness, if he feels so inclined, to distinguish between a right and an entitlement?

Mr. Joseph Hutchings: I guess it's a distinction that to this point, with respect to education in Newfoundland, hasn't been a significant one, in that the right has always been to organize the means of education within the schools of the particular denomination, but also the entitlement that came with it to the public funding. As I quoted from the Amulree report, in 1933 schools were run by the churches with money grants from government. That was all part of the same system.

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It is theoretically possible to divide the one from the other, but in practical terms—and Dr. Fagan and Dr. Regular are better able to speak to this than I am—without the entitlement, the right becomes quite hollow.

The Joint Chair (Senator Joyce Fairbairn): Thank you, Mr. Schmidt.

Senator Kinsella is next, followed by Mr. DeVillers, Senator Pearson, Madam Caplan, and Madam Finestone. As I say, we will have to try to, as my co-chair would say, respect each other and also respect our witnesses today.

Carry on, Senator Kinsella.

Senator Noël Kinsella: Thank you, Madam Chair.

I have four little areas that I'd like to delve into, and I think I can do it in the timeline given to my predecessor, who just asked a series of questions.

First, I want to turn to the matter of the action you spoke of with reference to asking the courts whether this resolution requires the imposition of the Great Seal of Canada, if it passes both Houses of Parliament in its present form. Could you explicate that matter a little further?

Mr. Joseph Hutchings: Yes. The amending procedure that's set up in the Constitution Act of 1982 obviously involves the legislative portion, which involves a certain number of Houses of provincial legislatures, and in all cases, the Parliament of Canada, both the House of Commons and the Senate. When that has happened, section 48 of the Constitution Act requires that the Queen's Privy Council for Canada advise the Governor General to issue a proclamation under this part forthwith on the adoption of the resolutions required for an amendment made by proclamation under this part.

What we would have to contemplate, if this passed through the various legislative procedures, is whether or not a court would regard itself as having jurisdiction to prevent the Governor General from issuing that proclamation, if there is a case to be made that the resolutions required for the amendment had not been passed. That is to say, if further resolutions besides that two or three, if you count the Senate and House of Commons separately, were to be required, it may be that a court would say to the Governor General, “No, you don't have their necessary resolutions, so do not issue your proclamation.”

Senator Noël Kinsella: Thank you.

My second point picks up on page 10 of the main brief we now have, around the bilateral amending formula. It's been suggested by the Minister of Education for Newfoundland that should we amend in Parliament the present resolution in one way or another, this would precipitate, in his view, a new round of consultations in Newfoundland and possibly a new referendum. That seems to imply that these two Houses of Parliament would not be free to bring to bear on this resolution in our respective Houses of Parliament a critical analysis and a judicious judgment. To use the words of Senator Murray the other day, it would seem to say that we're faced with a “seamless web”.

What is your view as to what the Constitution of Canada mandates with respect to what these two Houses of Parliament can do, irrespective of this new procedure that seems to be implied by the statement of the Minister of Education of your province?

Mr. Joseph Hutchings: In my view, the Constitution puts no limitation whatsoever on what Parliament can do to a resolution that comes before it from a provincial legislature with a suggested amendment to the Constitution of Canada. The Constitution requires that there be resolutions from the prescribed number of Houses in order to change the Constitution. If those Houses can't all agree on one wording for such a resolution, the Constitution doesn't change.

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The issue of whether or not there would have to be further consultations or another referendum or anything else in the province of Newfoundland, beyond going back to the legislature and asking the Newfoundland legislature to pass the amendment that Parliament suggested, is a political question.

There is no legal requirement for a referendum under the Constitution, no legal requirement for any particular level of consultations, but in the political realm that is something I suspect parliamentarians would want to do, to some extent.

Senator Noël Kinsella: On page 16 of your brief you draw our attention to constitutional conventions respecting minority rights. In the kinds of tests that the Supreme Court of Canada has set out per the Oakes case in determining when a section 1 application under the charter would be applied, one of the principles is the principle of proportionality. Under that principle there's the sub-principle that the legislative means may not be more than what is required in order for the measure under question to achieve the public policy objective.

In light of the constitutional convention respecting minorities that you tell us about, and in light of this principle that you don't use a sledgehammer to kill a mosquito, what would be your reaction to an amendment to Term 17, a Term 17(4), that would say something like this: “Notwithstanding Term 17(2), the province shall permit uni-denominational schools where numbers warrant, as requested by persons who have denominational school rights as of May 31, 1997”? The point would be to not use the sledgehammer, but to respect both principles to achieve the objective.

Mr. Joseph Hutchings: Obviously there would be no legal obstacle to enacting exactly that type of provision. I'd suggest to you, though, that that would essentially leave us back with the existing Term 17, because the rights to uni-denominational schools under that Term 17 are subject to legislation generally applicable, and we generally understand that to mean viability guidelines. Viability where numbers warrant is the same concept.

The problem we are facing here is that the existing Term 17 was not given an opportunity to work itself out. Your amendment would essentially require that we try to work out a workable system under the old Term 17, because your amendment comes back essentially to that point. The government took one crack at making it work. The court said “No, that's not right”, and at that stage we were back into another referendum and walked away from the whole thing.

So I applaud the effort, but I think you get the same result simply by defeating this measure.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much.

I'll turn to the other questioners.

I'm also very conscious that you have a plane to catch, Mr. Hutchings. Thank you.

Mr. DeVillers, Senator Pearson, Madam Caplan.

Mr. Paul DeVillers (Simcoe North, Lib.): Thank you, Madam Chair. I have a couple of brief points.

The first one is on paragraph 14, the application of the amended Term 17 to private schools. I know Term 17(3) isn't restricted to not apply to private schools, but is that not more a theoretical problem than a practical one, in that the administration of private schools can control their admissions and they would be admitting people of their denomination or people they would have a certain degree of control over?

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Mr. Joseph Hutchings: There would presumably be a certain degree of control, except perhaps in the situation we talked about. At a private school in a mining community in northern Labrador, if the children of whoever is working for the mining company are going to go to school, they will have to go to this school. That would give you a broad range of religious types.

Mr. Paul DeVillers: But it would be of no practical consequence in a religious type of private school.

Mr. Joseph Hutchings: In the religious type of private school, no. Obviously you could foresee situations in which faiths would change or something of that nature, so it's not entirely a theoretical problem, but it probably wouldn't be a widespread problem.

Mr. Paul DeVillers: Thank you.

Madam Chair, this is just a last point on paragraph 21.

You make reference to the doctrine of estoppel. The governments of Newfoundland and Canada would be estopped from changing because of the understanding or commitments made at the time of the joining of Confederation. I'm interested in that concept of estoppel, which I'm familiar with in the context of contractual law. In constitutional law, it strikes me that if it applies, then that argument could be raised on any constitutional amendment that was to be proposed. I'm wondering what jurisprudence you've consulted to come to that conclusion.

Mr. Joseph Hutchings: I don't think this notion would be applicable to any sort of constitutional amendment. I think the situation of Newfoundland, with the Terms of Union and the status of Newfoundland prior to its entry into Confederation, makes it unique. We are working on developing the papers that will illustrate the historical facts surrounding the Terms of Union at that time, and we feel those facts will support the applicability of the legal concept of estoppel in this situation.

What we're saying is there is a contractual as well as a constitutional element to the Terms of Union. The Terms of Union are an agreement first, and part of the Constitution later.

Mr. Paul DeVillers: Have you found any legal precedent to that effect?

Mr. Joseph Hutchings: I don't expect to find any specific legal precedent to that effect, because I think it's a unique situation.

Mr. Paul DeVillers: Thank you, Madam Chair.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much.

Senator Pearson.

Senator Landon Pearson (Ontario, Lib.): Thank you, Chair. I'll be very brief.

This is really just a comment in response to your response to Mr. Schmidt. I can only say that I really envy the parents of Newfoundland and the children of Newfoundland, who have a constitutional right to share in the richness and variety of the human condition.

Thank you.

The Joint Chair (Senator Joyce Fairbairn): Thank you.

Madam Caplan.

Ms. Elinor Caplan (Thornhill, Lib.): Thank you very much for a very extensive brief.

The comment I wanted to make was to assure you that as a member of this committee, I for one believe I understand the question before us, the change in the term, and the history and the evolution that has brought us to this point in time. We've heard very passionate presentations from many people who have come before the committee, and I want you to know I understand the controversy as well.

I am struck by the length of the debate, the engagement of the people, and the fact that a unanimous decision has been made by your provincial legislature. My own question as it relates to all of this is whether or not you believe there has finally been an acceptance in Newfoundland that the status quo is not an option.

Mr. Joseph Hutchings: No. My belief is that the status quo, which is the term that was before the Senate committee in 1996, has not been tried.

I agree with you that there has been a very long history and a long debate about the nature of the education system in Newfoundland, but for your purposes, I think what is relevant is what has happened since July 31, 1997. I'm wandering out of the legal field to some extent, but I really do believe that had the previous amendment been this amendment, it wouldn't have passed.

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The last time around, there was a real effort to try to accommodate minority rights and denominational rights, and to take the administration of schools out of the hands of the churches, which were granted to preserve the right to uni-denominational schools.

I don't think that at that stage an amendment to completely wipe out those rights would have gotten by. The question is what has changed since? Really the only thing that has changed is the government has been told they probably didn't properly implement the amended Term 17. Really, it seems that should be given a chance to work.

The eight years previous to that led to the existing Term 17. That's the debate, consultation, referenda, and everything else. The only thing that's happened since is another referendum. You have to look very carefully at that referendum to see if it's a result you can absolutely rely on.

I suggest to you that in terms of the vote in the House of Assembly, you should get the Hansard from the House of Assembly for September 4 and 5 and read it. Most of the members who spoke said they were voting in favour of the resolution because their constituents voted in favour of it in the referendum. If you have doubts about the fairness of that referendum, then you should have equal doubts about the weight to be given to the vote in the House of Assembly.

Ms. Elinor Caplan: Let me, if I could, just make the statement that I have no doubts about the fairness of the referendum. I believe people understood the question. I believe at this point in time that no matter what decision is made by this committee, it will result in additional litigation. This issue has not been finally resolved for those people who do not support the changes that are going forward.

The best thing we can do is act in good faith for what we believe the people of Newfoundland want, as they voted, through their elected representatives, both in the referendum as well as in their legislative assembly. We must respect the tortuous route that the evolution of education has taken in Newfoundland. I'm very sympathetic to the passions we've heard before this committee, but I believe it's time to move on.

Mr. Joseph Hutchings: I would only comment that it would certainly be unfortunate if this committee acted on the basis of the referendum itself and the court later suggested that it was not in fact a fair referendum.

Ms. Elinor Caplan: It should be noted that a referendum is not required as part of this process; therefore the weight it is given by this committee and the courts is not what is most significant. What's most significant is our understanding of whether or not the people of Newfoundland understand what the government is doing and whether the legislators who voted in support of that in the House of Assembly understood the wishes of their constituents. That's the tool the referendum provided, but it was not a requirement for this process.

Mr. Joseph Hutchings: No, it wasn't a requirement. If you read Mr. Tobin's statements, I think the government felt a political need. It wasn't a legal requirement. They felt a political need to go with the referendum, and the legislature relied on the results of the referendum.

If you rely on either the results of the referendum or the legislature vote, and if ultimately the referendum is found not to have been a good one, you then have to ask yourself what you are relying on in making this change.

These are your political decisions. I absolutely respect your right to make them, and legally they can't be challenged.

Ms. Elinor Caplan: I'm speaking as a person who spent 12 years in a provincial assembly. I understand how individual members remain in contact with their constituents. They understand and speak for, as is their obligation, what they believe is in the public interest. They represent the views of their constituents, while recognizing that it's never 100%. There's never unanimity.

Mr. Joseph Hutchings: No, and that's certainly the problem.

The other thing you'll note in the Hansard from the House of Assembly is that there is but one member who mentions the subject of minority rights during the course of the debate.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much.

Colleagues, I neglected to notice that Mr. Goldring wanted a very small question. I assume Mr. Hutchings will probably want a very short answer, because he has a plane to catch.

Mr. Joseph Hutchings: It's not only because I have travel plans, Madam Chair, but the Pentecostal group following me is very important.

The Joint Chair (Senator Joyce Fairbairn): They're breathing down your neck. I know that.

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Mr. Peter Goldring (Edmonton East, Ref.): Thank you, Mr. Hutchings.

I'd like to ask your opinion. Being that the Catholics have expressed their viewpoint by the petition of 50,000 names that was presented yesterday, and they also expressed it again in the registration of 24,000 students, to me that presents a strong indication that they wish to retain denominational schooling.

In regard to the Pentecostals, the newspaper advertising and newspaper articles we received yesterday would indicate that even in the polling they're showing in the papers, only 32% supported the “yes” side of the referendum campaign. Being that they had their rights constitutionally entrenched as recently as 10 years ago, I'd like to ask your opinion: Is it not a near certainty that these statistics would add up to them looking at a successful challenge of this?

Mr. Joseph Hutchings: From the evidence I've seen, I haven't really heard anyone suggest that a majority of the Pentecostal group wish to give up their rights.

Mr. Peter Goldring: That's right.

Mr. Joseph Hutchings: If on that basis there is a constitutional convention, as we have suggested there is, about minority rights, it seems to me most likely that a court will say yes, that constitutional convention would be breached by this amendment that would take away those rights.

That's as short as I can make it.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much, Mr. Hutchings. On behalf of all of the committee, I thank you for your patience with us and appreciate very much your returning this morning.

Mr. Joseph Hutchings: I'm more than happy to do it. I hope I've been of some assistance to you.

The Joint Chair (Senator Joyce Fairbairn): Thank you.

Now colleagues, I'm delighted to welcome—in fact I will let my co-chair welcome—colleagues from Newfoundland.

The Joint Chair (Mr. Gerry Byrne (Humber—St. Barbe—Baie Verte, Lib.)): Thank you; that's very generous of you, Co-Chair.

Ladies and gentlemen and members, we have coming before us this morning, from the Pentecostal Assemblies of Newfoundland and the Pentecostal Education Committee, Mr. Melvin Regular, who is the executive officer; and Pastor Earl Batstone, superintendent of the Pentecostal Assemblies of Newfoundland.

Welcome, gentlemen, and thank you very much for taking the time to appear. Your appearance here is very much appreciated, and we look forward to hearing the full breadth and scope of your presentation, as well as the questions and answers that will follow.

Members, we've had some latitude in the past in terms of our questioning of witnesses and the time that has been allotted to them. Members will probably want to put a number of questions before these respective witnesses. So if you will grant the chair latitude to extend, but as well, the authority to cut off, as usual, we'll continue on with the questions, because I can appreciate we'll have a long list of questioners in a very short period of time.

Gentlemen, thank you again for appearing. The show is yours.

Reverend A. Earl Batstone (General Superintendent, Pentecostal Assemblies of Newfoundland): Mr. Chairman, honourable members of the House of Commons and honourable senators, we are very grateful for the opportunity to make our position on this resolution known to the committee. Dr. Regular will be our presenter this morning, but before he does, I would like to make some comments by way of introduction.

The Pentecostal Assemblies of Newfoundland is a Christian denomination duly established under the laws of the province of Newfoundland and Labrador. It's comprised of 40,552 members, representing 7.1% of the total population of the province.

The Pentecostal Education Committee is a constituent part of the Provincial Denominational Education Commission established under the Education Act of 1996. The PEC is the official voice of the Pentecostal class of persons holding rights in education under Term 17 of the Terms of Union between Newfoundland and Canada. Dr. Melvin Regular is the executive officer of this committee.

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The total student enrolment in the province is approximately 102,000. Approximately 7,600 are Pentecostal, and 5,000 attend uni-Pentecostal schools or joint service schools—that is, schools jointly administered by the Pentecostals in cooperation with one of the other denominations. The remainder are dispersed geographically such that a viable Pentecostal school is not possible. These students attend an integrated or a Roman Catholic school. It has never been the policy of the Pentecostal Assemblies of Newfoundland to proliferate small non-viable schools.

The history of the denomination and its involvement in education goes back only to the early years of this century. Nevertheless it is marked by a passionate commitment to education, and in particular to education that reflects the life view of the parents and honours the choice of the parents. It's also evidenced by the millions of dollars contributed by the parents above and beyond their tax support.

The enshrinement of our rights in the Canadian Constitution was pursued persistently for 20 years. Achieved in 1987, it is celebrated as one of the most significant developments in our short history. Just 10 years later, however, the provincial government, through the resolution before you, will eliminate these rights completely and forever, without our express consent. We have never yielded any of our rights in education, and I believe it is the will of our people never to yield their constitutional rights in education.

The result of this resolution, if passed, will be the elimination of publicly funded Pentecostal schools and joint service schools in favour of a single non-denominational school. It will also mean the elimination of religious education prescribed for Pentecostal children by the Pentecostal Assemblies, in favour of a non-denominational religion course designed, developed, and implemented by the government. We find this intolerable in a constitutional democracy committed to upholding the rights and freedoms of all its citizens.

Mr. Chairman, I'm going to ask Dr. Regular if he would now walk us through the brief. We will then make ourselves available for response to your questions that may flow from his presentation.

The Joint Chair (Mr. Gerry Byrne): Thank you very much.

Mr. Regular.

Mr. Melvin M. Regular (Executive Officer, Pentecostal Education Committee): Mr. Chairman, it's a pleasure indeed for me to be with you.

The Joint Chair (Senator Joyce Fairbairn): You've been with us, Mr. Regular.

Mr. Melvin Regular: I've been with you for a long time, and I've been looking forward to this opportunity. I'm sure you will have some questions for me that were already raised with me as I sat back there, and I'm looking forward to those questions as well. It is a delight to be here.

I'm on the first page of the brief. In preparing what we wanted to say before you, we had to make some assumptions about what the terms of reference of this committee were. We had to think what they might be. I've articulated them there, so you know where we're coming from.

Number one, we feel Parliament has a sacred duty...by the way, you've heard that word, “sacred”, before. If you can't remember, just think about the previous government; that was a very famous word. Parliament has a sacred duty to protect the integrity of the Constitution and the processes employed to amend it, particularly in respect to enshrined rights and freedoms. This is a serious charge on Parliament, and therefore on this committee, to protect the rights of those who come before you as citizens.

Number two, the Committee's mandate is to consider the proposed amendment and the process leading to the formation of the resolution, and to render advice to Parliament on the amendment's merits, its implications for education and other minority rights, the fairness of the referendum process, and the impact of the amendment on the democratic well-being of the country as a whole.

These are the assumptions we made in preparing our brief. I do apologize that in some ways you're going to hear a lot of what you've heard, because I know what you've been listening to. I believe you'll bear with me. We do indeed want to put it on the record.

I'd like to share with you a little of our history and performance. The history of the Pentecostal Assemblies of Newfoundland is a short one.

The beginning was in the first decade of this century. The first school opened in 1931. We were recognized for educational purposes in 1954. The growth was exponential in the 1960s and 1970s. Then there was the request, in the 1960s, for constitutional protection that others had enjoyed since Confederation.

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Finally came the milestone that we're so proud of: the enshrinement in 1987, after 20 years of struggle, in the Constitution.

What has been the performance of the school system? I believe a lot of people would look at us and say we've made exceptional progress, from no schools to being competitive with the best in the province in just 60 years. As you know, we're from the evangelical group, the across-the-tracks people who have come to the other side of the tracks. I don't know if we should be proud of that or not, but I think it's to some extent true.

I would note, in terms of the progress of the St. John's Pentecostal system in my lifetime, that I was one of the first teachers at and the first principal of the high school in St. John's.

In September 1965 we started with four classrooms in the basement of two churches. In September 1995, Eugene Vaters Pentecostal school was declared the first Stellar school in the province, based on its use of technology programming and the use of technology in the administration of the school. It was the first in the province.

Of course, other distinguished gentlemen and ladies have made comments, personal testimony, about the school system. I note that Senator Rompkey is a member of this committee. In 1987, during the enshrinement, he was the member for the federal electoral district of Grand Falls—White Bay—Labrador, the district in Newfoundland that has the largest concentration of Pentecostals in the province.

Speaking to the motion in a House of Commons debate on June 23, 1987, the Hon. Mr. Rompkey stated:

Today, the Pentecostal Assemblies operate some of the most modern, efficient and progressive schools in the province. Those men

—and I assume today he would say “ladies”—

are to be congratulated because they took the Bible seriously when it said, “Go ye into all the world, even unto the remotest parts”.

The largest Pentecostal Assembly in Newfoundland is in Windsor, in my riding. I know they will welcome this amendment today. I say in concert with all my Newfoundland colleagues in the House that today we owe the Pentecostal Assemblies not simply thanks but praise for the work they have done in the spiritual dimension of our Province, and indeed in education in our Province.

At the same time, Premier Peckford, who was the premier of the day, said:

In my experience...the education, academic as well as religious, that the Pentecostal Assemblies of Newfoundland are providing to students who attend their schools is absolutely exemplary...From the point of view

—and this is nice—

of sheer cleanliness and organization, and from the point of view of discipline, when you walk into the doors of a Pentecostal school it is an unbelievable experience...and from the point of view of their broad curriculum, not just academic and religious, but recreational as well. They have done an absolutely excellent job.

Now, in the face of that praise, I'd have to say there are lots of other schools in the province that are not Pentecostal that you would find are similar. I'd have to be very kind and counterbalance the praise he's heaped on us there.

I would say to you, honourable members of Parliament, that the statement is equally true today. A single statistic confirms these personal assessments. The average grade 12 graduation from Pentecostal schools has consistently been above the provincial average for the past six years.

I would also draw your attention to some select statistics about the Newfoundland school system. Bear in mind the demographics with which we struggle in our province. Here are some of the demographic statistics, the context in which what's happening in Newfoundland occurs: a history of persistent underdevelopment; the highest unemployment in the country; the lowest family income in the country; years of net out-migration that you actually could describe as a hemorrhaging of the best and the brightest and the youngest of our population; and the lowest per-pupil expenditure in education.

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Yet, quoting from a document prepared by the Department of Education, we have statistics that show our 13- and 16-year-olds are reading and writing above the national average, as measured in the school achievement indicators program of 1995.

The percentage of students in 1995 who received a rating of 3 in the advanced placement courses, which would qualify students for university courses, was the highest in the country. This is the rating necessary for university credit. On the 1995 third international assessment in math and science, Newfoundland's 13-year-olds performed at the same level as Canada's and ranked third among the five Canadian student populations participating. I won't go on.

The Williams Royal Commission in 1992 recommended further improvements to our schools and we were anxious and willing to cooperate. We want to continue to improve our schools. However, we rejected the report's recommendations that impinged on our constitutional rights.

You heard from the Pentecostal group a couple of days ago. The next topic is philosophy of life and education. Why the resistance of Pentecostals to the elimination of constitutional rights? Why the opposition to a public non-denominational school system? Are Pentecostal people not progressive? Are they interested only in the status quo? Is the Pentecostal Assemblies of Newfoundland more interested in power and control than in their children's education and well-being in the new millennium? Do we really want to separate our children from our children, as we were portrayed during the referendum? The answer is an unequivocal no.

The reason we have to come face to face with is there are separate educational ideologies in the province that are prized dearly and deeply, and they clash and conflict. The answer is no. The reason is one of philosophy and education. Pentecostals are committed to education and to educational excellence. We want no less than the best for our children. There are those among us who don't value this commitment and there are those who do. The best we can do is realize that we're different and respect each other.

The commitment is rooted in the Scriptures. I have some scriptural references there. These are just a few, if you're interested in looking, and I'm sure most of us are familiar with them.

The fundamental motivation of Pentecostals... By the way, I'd just like us to understand this is not to establish Pentecostals as better than anyone else, because that isn't true. That isn't the case and nobody thinks it. I don't think it and the Pentecostal people don't think it. They feel, based on where their philosophy springs from, that the fundamental desire is to glorify God in all aspects of their life. Everything is an act of worship and service to God and to others. Do you live up to it? No; hypocrisy is a problem with every one of us. It's a struggle.

Therefore, if that's the motivation, education is holistic.

It aims to nurture the development of the whole person, spiritually and emotionally as well as intellectually, socially, and physically. It integrates faith and practice and prepares us for work and leisure, citizenship, and service to others, while also attending to transcendent and eternal issues.

The school is considered an extension of the home, providing time and professional expertise to enable parents to carry out their responsibilities. Teachers stand in loco parentis. They stand in the place of the parents, and therefore it's best if their values and their lifestyle and their attitudes are as consistent as possible with the attitudes of the home. The home is choosing, making a choice about their children's education. The teacher embodies in his or her knowledge, character, aspirations, attitudes, and lifestyle the most influential curriculum of all. The content that's selected out from the culture for students to engage is one thing and it's very important, but what's more important is the example.

What I'm articulating is the philosophy that Pentecostal people feel is important to them. Pentecostal people or Pentecostal class members feel they know better than the government does what is best for their children. They're active and informed; they're concerned citizens and taxpayers. When their schools meet approved standards, they feel that as taxpayers they have an absolute right to look to their government and say, “Please provide the kind of education I want, because I only want the best. I'm not looking for anything else.”

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This philosophy is supported, as you know, by other conventions. I won't bother to go into this.

I would say this. Pentecostal people are not wedded to a single administrative structure. It's true we prefer uni-denominational schools where viable. We also would then take interdenominational schools where they are not viable. The bottom line is the maintenance of religious rights in education to ensure effective influence over teaching and learning.

I want to go into the recent events surrounding the referendum. Mr. Chairman, I'll probably shorten it up a bit here, because you've heard a lot of this.

The Joint Chair (Mr. Gerry Byrne): We have a fair bit of latitude. If you want to shorten it up, feel free, but I don't want to restrict your brief in any way.

Mr. Melvin Regular: I really appreciate that. Thank you very much.

Before I get into the events surrounding the referendum, let me, from our point of view—and obviously it's from our point of view; that's what I'm here sharing—paint the context.

The context goes back seven or eight years. It's true to say a new government came in in 1989...and by the way, I happen to be a Liberal. I happen to have been a member of the party. I don't want to hide that from you either.

A new government came in that I disagreed with on the educational side of things. A new government came in in 1989. I think it's fair to say most people looking at the government felt it had a definite agenda, which I suppose they should have had—a definite agenda in education. But we knew, and the Catholics knew, the agenda was really, “We have to eliminate the denominational system if we can”. That was the agenda.

That's not strange, because the premier of the day was the Honourable Clyde Wells. He stood in the House back in the 1960s or the 1970s, I'm not sure which, and advocated a referendum and argued with the Smallwood government at the time that there should be a referendum and he disagreed vehemently with the denominational education system. I don't hold that against him. That's his right. But obviously he came to power and he had it in mind to do this.

From the royal commission on, as you heard yesterday, there was a constant struggle, backs to the wall, knowing that elimination, if possible, of denominational rights was going to take place. There was constant resistance.

You ask, can you cooperate in that kind of situation? Is that facilitative cooperation? It's very much like—I don't want to be too dramatic—a bit of torture and then asking, “Now, will you cooperate with us?” The consultation wasn't really allowing the kind of dialogue where you listen to the other side and try to accommodate them.

I don't really want to paint the picture as being all that bad. What I'm saying is there was a definite agenda to do this, and that's the context in which we've been resisting. We have resisted and resisted over time.

The next topic is recent events leading up to the current Term 17.

The first amendment on Term 17 was in September 1995, only about 2.3 years ago. In May 1996 the resolution was endorsed by the House of Assembly. The amendment was a modified amendment, modifying the rights of the classes and giving more power to the legislature to make laws in education—more power in the sense that, subject to provincial legislation, applicable to all schools, specifying the conditions for the establishment or continued operation of schools, the government would be able to provide schools and maintain schools subject to the legislation they brought in; subject to viability standards, for one thing.

In June 1996 the Commons passed a resolution with a minimum of debate. In June and July the Senate held hearings. In November 1996 there was the Senate amendment. In December 1996 the House rejected the Senate amendment and passed the original resolution.

I think it is somewhat fair to say that because attention wasn't paid to this matter at that time, we find ourselves back today.

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I wish there had been a committee of the House of Commons at the time—a joint committee or separate committees—to really address this.

So, frankly, this committee is pretty important.

The legislation to support Term 17 in 1995... When the amendment was passed, government had prepared legislation to support the amendment. When we saw the draft of the amendment, we met with the government. Michael Harrington was the lawyer at the time, one of the eminent education lawyers in the province. We met with them and outlined to them 25 different major problems with the legislation and indicated to them that there would very likely be court challenges if it was implemented the way it was.

In February we had the school registration process, and you noted the automatic registration of people who didn't register. They may have been sick, or maybe they just didn't get around to sending in the registration form, but it was counted as interdenominational.

In March 1997 we had the registration results: 4,000 Pentecostal and 24,000 Roman Catholic registering.

Then in May 1997 we had the school designations and injustice because of the minister's interference.

The parents were outraged when they saw what had happened in some of the districts. I mention for you one district, that of Baie Verte-Central-Connaigre, which is the district in which we have the largest Pentecostal schools. It has been described as the Bible belt.

What happened in that district is that initially, based on the criterion of putting parent preferences first, there were thirteen Pentecostal schools, and eight of the thirteen were designated Pentecostal. Within three weeks, on the written and verbal advice of the Department of Education, the designations were changed. Those designations were reversed.

We were left with three schools. This was the one district that was, if you like, the lighthouse district for us in the province. We knew that if it went there, the whole thing was gone. We were left with three small schools.

These kinds of decisions in the districts prompted outrage. There were meetings and protests and demands for legal action to try to halt this perceived injustice.

People would still remember the assurances that were given by the minister before the Senate committee the previous July, which were as follows:

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 these rights.

So on May 15, 1997 parents and representatives of the Pentecostal and Roman Catholic churches initiated legal action to challenge the legislation and seek an injunction.

By the way, you know about the results of that injunction and the judge's decision.

I probably should draw attention to it again. On July 8 Justice Barry granted an injunction prohibiting the closure of Pentecostal and Roman Catholic schools without the classes' consent until trial of the case. He concluded that the case represented a triable issue and that the applicants, the parents, as well as the denominational authorities would suffer irreparable harm if the injunction was not granted.

The grounds cited for the decision were that the Schools Act 1996, the school designation regulations 1996, the advice given to the school boards—indeed, the school boards themselves—were probably unconstitutional. I used the word “potentially” unconstitutional. They appeared to be unconstitutional in the judge's opinion.

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By the end of July, we took our responsibilities seriously and we advised the boards of the schools that would be closed, and we ended up closing 13 schools all together as a result of that action.

With reference to the referendum, was the referendum necessary? We all know it wasn't essential, but was it necessary? Before the injunction hearing, the judge heard negotiations between us and said, “You may not like what you get.” But the government showed no interest.

The logical next step, after the injunction was granted, was to revise the legislation, do some negotiations and/or continue on to trial, maybe put in some temporary legislation and continue on to trial so that you could keep things going. Restructuring had only been under way since January 1, beginning with the school boards. In actual fact, at that point the schools had not been restructured. There were no interdenominational schools. No restructuring had taken place. Not enough time had been permitted to allow the structures to become established and take hold.

No, the implementation problems leading to the court challenge had been caused, actually, by the government. They knew the Constitution. They had framed it. They had framed the supporting legislation. They had framed the regulations. As a result, parents had to take their government to court. It's unfortunate, very unfortunate, but do you know that last spring there were three separate court cases initiated by parents in our province, not because of denominational matters, but because schools were being closed without due process and without due notice? They took court action and were successful in their court action.

Was the referendum process fair? No. I suppose you could describe it as blaming the victim. I don't think the implications of the question were as well understood as we think they might be, and I just cite one example of that. When the premier launched the campaign, he stated there would be opportunity for religious education for all students on the basis of a common curriculum. He did state that: “on the basis of a common curriculum”. But he also stated, when he launched the question, that “Schools will continue to operate in accordance with Christian principles, as they now do.” Given these statements and our long history of Christian denominational instruction in schools, it is likely that many voters assumed that Christian denominational instruction could and would continue as in the past.

The text of Term 17 was not unveiled until August 25, and we've heard that before. I would urge the committee to compare the question and the term, and I won't do it for you. In actual fact, I suppose, we were voting on the term. You'll notice that there's a fair difference between the term and the question. I'd like you to take a look at that. You may wish to do that as a committee.

There are a number of other things with respect to the referendum that I would cite. The government mounted an extensive media campaign in support of the term. The figures I have show it costing $350,000 in advertising and so on, and $1.558 million to conduct the vote itself. The Pentecostal Assemblies spent about $60,000. Incidentally, I would indicate to you that the money, that expenditure, didn't come from the Denominational Education Commission; it was borne by the Pentecostal Assemblies of Newfoundland.

Back in January and February, the denominations had cooperated with government in school board restructuring. We had appointed trustees, denominational committees were set up, and policies and procedures had been put in place to enable the new structure to function. Furthermore, the Deputy Minister of Education made it clear to us the kind of authority you had. We weren't quite happy with what she was saying, but nevertheless we operated in accordance with it. Although our role at that time, the role of the church authorities if you want to call them that, was restricted to advising the government and school boards on any matter of concern, we took it seriously and that's how we behaved.

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Yet the thrust of the campaign was to represent the denominational authorities as still in control of the system and as anachronistic, power-hungry autocrats who had no concern for children and for education reform. You've heard about the “no” scrutineers and government's vigorous campaign.

In summary, then, the calling of the referendum, in our view, was not warranted. Adequate time had not been given to implementing the first referendum. The action taken by aggrieved parents through the courts was perfectly legitimate and understandable under the circumstances. The court had agreed that there was sufficient evidence of the alleged injustice to warrant temporary relief by means of an injunction.

The most logical next step was a court trial of the facts or negotiations to avoid trial, not another referendum.

In contrast with the process described above, when a referendum is conducted to assess people's feelings on a question, we believe the process should be fair and democratic and should be seen to be so. This means adequate notice is necessary, releasing the amendment in time for proper assessment is necessary, providing assurance that government can deliver is necessary, and if they can't provide the assurance that they can deliver what is being offered, then a court reference. We urged a court reference throughout the referendum to let the people know what the amendment will provide and also of course to provide adequate funding.

What were the referendum results? We know the result was 73% yes, the voter turnout was 53.4%, and the no vote was 27.3%. The Pentecostal Assemblies of Newfoundland did their own analysis, and, by the way, it is just an analysis done internally by the Pentecostal Assemblies based on our knowledge of our constituents in the district. At first we assessed that it would range between 75% and 83%. At one point we had released a figure of 83%, but there was a range really of 75% to 83%.

You have already been circulated an article by Professor Graesser, who indicates, I believe, that it was at least 68%. Secondly, yesterday the Roman Catholics released another independent analysis—these are all independent analyses—showing that at least 58% of Roman Catholics and Pentecostals together... I'm forgetting the name of that professor of biology from Memorial University.

So in addition to our own assessment, we have at least two independent assessments. The fact of the matter is that in analysis there's no way to know exactly for sure.

What we also know is that during the last week of the referendum, an independent poll was done, again by a Pentecostal group in St. John's. They stayed away from the Pentecostal Education Committee and the Pentecostal Assemblies because they didn't want to be accused of us influencing them. So they commissioned it independently, and the results were that 90% of the Pentecostals supported the continuation of viable Pentecostal schools, 90% disapproved of the constitutional rights being removed by a majority referendum vote, and 95% thought the government and the churches should continue to negotiate education reform.

Two or three days ago, when the Pentecostal group from central Newfoundland was here, they referred to a petition in their area of 4,300 names, and I want to deposit that with the clerk of the committee. These are the names I indicated to you we were having copied. We had them, by the way. This was done around the time of the referendum. There are 4,300 names from that area.

The next topic is the amendment and its implications. The amendment, if passed, will repeal—and I underscore the word “repeal”—and replace existing Term 17. It will extinguish completely the constitutional rights and education of the Pentecostal and other classes of people named in Term 17. It will give to the provincial legislature exclusive authority to make laws in relation to education, except that the legislature shall provide for courses in religion that are not specific to a religious denomination, and the legislature shall permit religious observances in a school where requested by parents.

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I'd like to really draw to this committee's attention, in a dramatic fashion, what we feel is the crux of this amendment. The crux of the issue in this amendment is minority rights and due process for removing them. Section 93 of the Constitution Act, 1867 identifies denominational education rights as minority rights and gives the right of appeal of prejudicial decisions against them to the Parliament of Canada. In the words of the renowned constitutional scholar, Peter Hogg, section 93 is “a small bill of rights for the protection of minority religious groups.” Term 17, of course, is in lieu of section 93, so I guess one would draw the conclusion that, obviously, it too protects minority religious groups.

Term 17 was the subject of extensive debate at the time of Confederation. I don't know if you've gone back to look at those debates, but two important issues came forward. So important was denominational education in the minds of Newfoundlanders at the time that the politicians viewed Term 17 as a condition of the union. They talked about it as such. Secondly, it was understood that denominational rights and the respective groups that had those rights at the time would be protected for as long as they wanted. I read to you a reply from Mr. Smallwood to Mr. Cashin during the national convention talking about the negotiations that were going on here in Ottawa:

I am afraid Section 93 does not cover the points...in our terms. There are two points that seemed and seem to be highly desirable in this country today. One point is this: any denomination that has its own schools must be guaranteed the right to have their schools as long as ever they want them to be so; all the rights they have now must be guaranteed to last forever—to have separate denominational schools and to have them paid for out of the public chest... On the other hand, if any two want to unite their two systems of schools...the right to do that is also in these terms, so that all rights are protected; to stay as they are or to go on to something else.

Ladies and gentlemen, I want to share something with you. We know what the Confederation bargain was. The Confederation bargain provided for Protestants in Quebec and for Catholics in Ontario. That was the bargain. You move to Newfoundland in 1949, and one would logically conclude that the Catholics would get their separate system in Newfoundland. There's no question about that. They were fighting for it, and they would get it. The Protestants were going to get their separate rights as well. but the problem in Newfoundland is that there are x number of the Protestant denominations and they all have their own schools.

Is there really any difference between elsewhere in Canada and Newfoundland, in this argument that this is not really minority rights? As a matter of fact, they're even made more pointed, they're made more fine, and they're given to each denomination.

With respect to the elimination of expressly guaranteed minority rights, mere compliance with the formal requirements of the amending formula is not sufficient. Surely if the informed consent of the minority and/or representatives was required when granting the rights in the first place, the same is necessary when removing them. As already noted, Pentecostals not only gave their consent to obtain their rights, they struggled for twenty years to secure those rights. They have voted in two referenda against modifying or removing these rights. So there can be no question that this committee faces a minority with rights. You have to consider whether you're willing to advise this government to extinguish those rights. That is the problem we face.

The committee should take note, by the way, that I would refer to a constitutional convention. What happened when we were patriating the Constitution? Provincial governments didn't like the unilateral patriation of the Constitution. They referred it to the court. What did the court say? “Well now, you know, you really should consult with the provinces, because this is not the way to conduct business.” Why doesn't the same convention apply in this case?

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Professor Monahan of Osgoode Hall Law School says that in his view:

Parliament should only approve a constitutional amendment affecting Section 93 rights when such an amendment is supported by the majority of the class of persons whose rights are being affected.

And he continues by saying this:

Where it is unclear as to whether a majority of the protected class supports the amendment, it ought not to be enacted.

Honourable parliamentarians, it's wrong to strip rights from a religious minority without their informed consent. How could you?

I said “due process”. Are there ways of improving the process? I have no problem with a majority referendum, but it needs a referendum of the minority as well. You also need to set some limits in terms of what the majority vote should be and what the turnout should be. We do this in church business meetings. We do this in small organizations. We establish what the turnout should be and what the level should be in order to achieve it. In this case we need to do that, and it's worthy of Canada to do it.

Mr. Chairman, I'm going to skip the next section of this presentation, which says the amendment outlaws denominational religious instruction while giving the provincial legislature exclusive control over the religion program in schools. It does, and I just want to make that point. It's enough to say that right now in Canada, if this is approved, if this is passed, we are facing legal action. We've been informed about it. I'm not saying we're doing it. We are facing legal challenges immediately. We are facing charter challenges inevitably. There's another one, but I'll come back to it.

Finally, this amendment completely eliminates Newfoundland parents' constitutional rights to choose publicly funded denominational schools for their children.

Is there a better way? Yes. The elimination of denominational rights in favour of a single secular system may be just the opposite of what is needed. It sounds preposterous to us, because it hasn't been our mindset to consider extending rights to other denominations. It seems preposterous. What we think is we'll take away rights and make everybody equal, based on a limited number of rights.

However, I believe the way Canada ought to be moving—and I believe Newfoundland, being behind the times, is still here, behind the times a little bit, but is catching up—is we probably should be extending those rights.

Lois Sweet recently completed a two-year research project on religion in Canada's schools. In the beginning she believed that religious schools encouraged people not to get along. As her study progressed, however, she changed her mind. She concluded that respect and appreciation of others' religious persuasions is only possible if one is firmly grounded in one's traditions and beliefs.

She says:

When Jewish, Sikh, Muslim, or Christian parents argue that their children can best become fully participating members of society when they are firmly grounded in their own religious traditions, I understand what they're saying. They are talking about identity and empowerment. When you know who you are, you can confront the larger society from a position of strength.

Various ways have emerged in Canada to accommodate religious pluralism. The joint service school in Newfoundland is one of them. It brings us all together on one campus, but we retain our rights and work together.

In Alberta we have had the Logos schools brought together under the public system, where denominational people, Christians and others, are required to live together but can practise their religion. They can not only talk about it; they can be who they really are, because religion is an animating force in our lives.

So by way of summary, I've indicated to you that our philosophy is what's motivating us to resist constitutional change. It springs from a philosophy of life.

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I'd like to draw attention to the core issues for this committee again. I believe the core issues are the elimination of constitutional protection for minorities, which is the issue we face; the absence of a due process in the removal of minority rights; the conflict between this amendment and our charter of freedom of conscience and religion; the need for continued protection of those classes who have not consented to give up their rights; and the need for new approaches in education that are more compatible with Canadians' religious needs and aspirations.

We would recommend to this committee that you consider suggesting to Parliament the following course of action: refer the amendment to the Supreme Court for an interpretation before passage into constitutional law. Or in the alternative, delay consideration of this resolution until the statement of claim recently filed by the Roman Catholics with the trial division of the Supreme Court of Newfoundland has been dealt with by the courts. Or in the alternative, delay passage, allowing time to explore amending the resolution to accommodate the wishes of the majority—those who do not wish the denominational system that we wish—and to protect the minorities who are clinging to their rights and remove any possible offence to freedom of religion. Or ask the Newfoundland government to withdraw the resolution and initiate negotiations.

By the way, there are a couple of other possibilities the committee ought to consider as well, but I'll leave that for now.

Thank you, Mr. Chairman. You've been bearing with me, and I appreciate it so much.

The Joint Chair (Mr. Gerry Byrne): Mr. Regular, you've been bearing with us for a little while; you could say you've become a regular at this committee.

Some hon. members: Oh, oh!

Mr. Melvin Regular: I wondered when it was going to happen.

Some hon. members: Oh, oh!

The Joint Chair (Mr. Gerry Byrne): That was actually my clerk's pun.

We'll now begin with questions and answers.

You're correct; indeed I have taken certain latitudes in your presentation time. It has been now 50 minutes. We do have to move to questions and answers.

Members, in order to facilitate good, solid discussion, I will be quick with you, hoping that the witnesses will be quick as well.

Mr. Goldring, could you lead off the questions, please?

Mr. Peter Goldring: Thank you, Chair.

Thank you very much for your presentation.

Dr. Regular, as a Liberal, you may be pleased to listen to this comment that came from a Liberal statement:

This is why we are prepared to amend such constitutional guarantees, only when there is clear consensus among the citizens affected by such change, including reasonable support of the minorities affected, and the proposed amendment is a good thing for the citizens affected by it.

I tend to agree with that statement.

Your organization demonstrated the desire to retain the denominational education instruction in the February government-requested census that was taken. You also have produced a petition here of some 4,200 names that request this. Could you please comment on the 4,200 names you have? Is that the opinion of the rest of the group? What percentage of your organization would concur with this petition and would concur with the February listing of your wishes? In other words, what do you feel the percentage of your group is that supports your retention of your rights?

Mr. Melvin Regular: The petition you have, Mr. Goldring, is indicating that they are signing saying they do not wish to have their rights removed by means of a majority vote.

With reference to a specific percentage, I don't think I'll get into that, except to say that the referendum result is an indication, and I suppose the best I could say really is that the range we have estimated, from 75% to 83%, may fall in there. There might even be more than that who would not just give up their rights; I don't know. I would say it probably would fall in there.

Mr. Peter Goldring: That's very high, though.

You spoke of Premier Peckford and his glowing address in the legislature about the good qualities of your group, but he went on further in his statements in the legislature, and I'll read just a short section of it:

Now, today, we are going to make sacrosanct, if you will, make guaranteed in the Constitution of Canada the recognition of education rights to the Pentecostal Assemblies of Newfoundland and Labrador...

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What is your opinion of constitutionally specific guarantees in light of the situation of what is happening now? Do you think it's possible to protect minority rights in the future if this majority can remove your minority rights?

Mr. Melvin Regular: Obviously we think this is setting a dangerous precedent. I won't try to talk about legal niceties or anything of that nature, but we know once you have done it and have succeeded, if you've done it once and you've done it twice, it has an impact psychologically on the rest of us—on the rest of the country. So I would suggest to you it's different today for Ontario and the Government of Ontario to contemplate the removal of rights from the way it was before the amendment to the Quebec constitution and if this were passed. From a psychological point of view, I'll just suggest that a precedent is being set and we'll be more comfortable if we can do it.

It's a very serious matter. Goodness, in life, if I make a promise to you—a promise; a constitution is a covenant or a contract—if I unilaterally break my promise to you, won't you feel violated, offended? Would that be good faith? This is the Constitution, and there is a way to do it. There must be due process. We can structure it.

I would love to participate with the government in conducting a referendum that I had a hand in, such that we as a people had a hand in constructing the question, with government, and doing it fairly and getting the opinion. I would like to know exactly what the opinion of our people is. But what we have before us is a majority referendum vote and here we're trying to analyse it to see what it means. We don't know. Then we're prepared to act on it. I mean, really...

The Joint Chair (Mr. Gerry Byrne): Senator Pearson, please.

Senator Landon Pearson: Thank you very much.

I'm conscious of the testimony we had yesterday and several other times in which the rights of children were expressed. I can appreciate very much that within your community you don't want to give up your rights. I'm sure as a parent I would... I understand that. For me that's not really the question. In some ways the question is how within a community you share with people of other faiths you optimize the capacity of the system to respond to the needs of children. In the report that was released this morning, Campaign 2000, which is a report on child poverty, they say Newfoundland now has 36,000 children living in poverty, an increase of 20% since 1989. Some of the parents we've heard speaking to us in testimony have stated that their concern has been the inadequacy of the resources to respond to the needs. I remember when I was reading the Williams commission report that was another one of the problems.

So for me the dilemma is a combination of two kinds of problems. One is your rights issue. The other is how you respond to the needs of all Newfoundland's children. That's where I'm left. I don't know what your response to that is.

Mr. Melvin Regular: Madam Pearson, I appreciate the dilemma, and I'm sincere when I say it's a real one. I believe, and I say this sincerely, we must economize, use our dollars wisely. But we do have the reality that those Pentecostal parents have rights under the Constitution and have a philosophy and are entitled to have their children educated. They want the best for their children. We agree on that, I think. They want the best.

Where they can have a viable school and meet the standards that are acceptable to a society, I don't see any reason, if those parents say we value and want a uni-Pentecostal school, and it meets the standards and is achieving, they can't have them. However, if we can't quite do that because of numbers, then there is no reason, it seems to me, why we can't come together, even on a common campus.

• 1045

I would advocate that, a common campus, continuing to exercise our rights. Respect us just as we are, because we come to school bag and baggage, religion and the whole bit. We practise it wherever we are. It's a part of our identity. Please don't deny it in any way. Allow it to flourish. Let's celebrate it.

Why can't we do that? As a matter of fact, I would suggest to you that maybe, if we give it some time to evolve, that's where we would go for the most part. But what we have in our province is a clash of religious ideologies about education.

I'm not saying—I wouldn't dare—that ours is better than the others', or that the others' are better than ours. But what I have to say is that as a Canadian citizen and as a democrat, I must respect. I should celebrate and foster and encourage. That's what multicultural Canada is about.

Why can't we do it? You say, well, we've tried. But I'm not sure we've really sat down to do this as hard as we might. It means compromise on all sides.

The Joint Chair (Mr. Gerry Byrne): Thank you very much.

Mr. Bélanger, followed by Mr. Doyle.

Mr. Mauril Bélanger (Ottawa—Vanier, Lib.): Thank you, Mr. Chairman. Two things. First, I would put a request, through you, to the research staff of the committee.

I've actually raised this; maybe it's time we get it documented. We've heard about the Supreme Court ruling stating essentially—and I'd like to see if we could get the references on the judgment itself, and an opinion of that, perhaps—that denominational rights and privileges are not to be seen in the same light as fundamental rights. I think this might become important and useful for the committee to have.

Can the research staff so note?

The Joint Chair (Mr. Gerry Byrne): We'll have a chat with them, if need be.

Mr. Mauril Bélanger: Okay.

Reverend Regular, I want to thank you. Your presentation causes a pause for reflection. I want to perhaps, if you would, explore an avenue that I don't think this committee has really explored since it started its hearings.

Suppose for a second that some of the arguments you present in terms of the process of the referendum would sway us, and that indeed there may be a situation where in Newfoundland there are some groups of people who believe, rightly or wrongly, that their rights have been taken away without their consent. They perhaps demonstrate that to a certain extent. Suppose as well that the amendment being asked by Newfoundland, by the assembly, in a unanimous vote is granted bilaterally, with the consent of the two Houses of the Parliament of Canada.

Would you care to comment, please, on the possibility that this situation would not be as permanent as you might believe by the fact that the Government of Newfoundland could invoke the notwithstanding clause of the Constitution—section 33, if I recall—to afford denominational rights; that indeed, the situation would be quite similar to that of Quebec in this instance, in that education would be totally within the realm of the provincial jurisdiction, within the authority of the provincial legislature; and that the same provincial legislature could, if it so wanted, afford denominational education?

• 1050

I'm not certain that I want to be in the situation of advocating the use of the notwithstanding clause. Bear with me. That's a very tricky and very delicate matter. But I think that if we're going to get into situations where there is such serious questioning of the process of that referendum and its results, then we might want to look at “what if” situations.

I understand that it's a “what if” and that you may not want to comment, but I would invite you to comment on that, please.

Mr. Melvin Regular: Obviously, from what I have read and what I have heard as I sat through those and what I heard from constitutional experts, yes, if you move away from the Confederation bargain and eliminate denominational rights, then there's the possibility of charter challenges. I think that's a very real possibility. There is no doubt about that.

Moving to the route that you're suggesting, with the possibility of using the notwithstanding clause, is possible. However, here's the problem. You articulate it yourself. It's complex. I'm not sure I'm advocating it, because Newfoundland is not going to be so proud or any more anxious to use that than, say, Quebec is. We've heard lots of discussion in the country when it has been used.

So that's your problem.

The other problem, of course, is that currently the government has said—and you yourself heard the minister say—there's no way that this government will consider it. Another government might, but we know about the inherent problems with it. It's a far cry from having rights enshrined in the Constitution and government required to provide your schools.

Mr. Mauril Bélanger: I'll let it go, Mr. Chairman.

The Joint Chair (Mr. Gerry Byrne): Mr. Doyle.

Mr. Norman Doyle (St. John's East, PC): I have a couple of questions to Mr. Regular.

You've been here now for about a week, so you have seen a couple of the briefs presented already. I wanted to get your comment on a comment that was made recently by the Newfoundland and Labrador Teachers' Association in their brief.

The NLTA talked about the bumping system with regard to teacher allocation and what have you, and somehow gave the impression that the Pentecostals were part of or provoked the second referendum and the amendment by refusing to permit reassignment of schools last year.

I just wanted to give you the opportunity to comment on what they said. I don't agree with the comment they made, but I do want to give you the opportunity.

Mr. Melvin Regular: Yes, I noted that the NLTA presented that information here. Of course they've articulated that view in the province, that somehow we provoked, maybe even provoked this referendum by what had happened in terms of the reassignment of teachers last spring.

I'll be very happy to share with you and describe from our perspective what the situation was. I have to give you a little bit of background.

On January 1 we started restructuring. There were ten new non-denominational school boards. We'd never had them before. There were 40...members on those school boards. In each of those school boards, there were denominational committees, brand-new for the most part. They were ordinary citizens taken in, now having to deal with the assignment and dismissal of teachers for the first time. They were there in January. We had 500 teachers being laid off in February, March. They had to be laid off before May 17 of that year. We had the restructuring occurring, as I'm saying.

So that's the context. Those committees were really without policies, were in the process of trying to provide... We had no authority, really, to direct committees. We had no authority to direct those committees of the boards, but we could provide them with guidelines. We didn't even have time to provide them with guidelines.

Now let me share with you specifically what happened, because here was the lightning-rod. It's in the Baie Verte/Central/Connaigre school district. That school district had 13 Pentecostal schools. They did their designations, and they retained 8 newly Pentecostal schools, as they should have done based on parent preferences. Within three weeks, they were all reversed. We were back.

We had 160 Pentecostal teaching positions in those schools. Now we were down to 38 teaching positions. Now we're not into a hiring situation. There were 500 teachers being laid off in accordance with a collective agreement, which is automatic.

• 1055

In other words, you move automatically from one school to the other. Never before in the history of our province had there been a reassignment or a bumping from one denominational school to the other—never before. We still have denominational schools, but suddenly because we have non-denominational school boards there's the assumption now that the teachers can automatically just move from one denominational school to another.

We had 160 teaching positions and that committee might have been prepared to accommodate some, but they're down to 38 teaching positions. The board was saying to them... I want to be honest about this; I'm not exactly sure, but I believe the figure was somewhere around 10 or 12 possible teachers bumping into those 38.

The committee was livid because we had lost eight schools. Now they felt they would be participating in our complete demise. In the flagship district of the province we saw the whole system going, and we would be participating in the demise.

In addition to that, of course, we were already in the court and we were afraid of what the court would say to us. You're giving up your rights; what are you coming here for? You're accepting other teachers; what are you coming here for? That was one fear that was in the mind of the committee.

Another fear was that under the Constitution a Pentecostal teacher, whether junior or not, has a right to that position and therefore would initiate legal action against us. The collective agreement doesn't override the Constitution. We were in a no-win situation.

Now we have erupting in the province in the midst of this what was called a bigotry awareness campaign aimed at Pentecostals. My wife, who is a Pentecostal teacher who has been paying her dues, was called a bigot and sent literature and so on.

I want to point out to you, ladies and gentlemen, the irony of what's gone on. We had this anachronistic denominational system for hundreds of years. Sixty or seventy years ago the sectarianism in our province was something to behold. We had our football teams and our hockey teams organized along sectarian lines and fighting each other.

Through this denominational system we came to where we were so proud of our relationships; we were getting along so well. We prided ourselves that the religious bigotry was gone. It was dissipating, it was gone. In the last seven years, when the effort has been to coerce us together in an interdenominational system, the sectarianism has never been as rife.

I mentioned the bigotry awareness campaign. In my assessment, there was fear of violence. Others may not agree with me, but certainly at times I was fearful that we could get into what would be unthinkable. It seems to me an awful price to pay for trying to preserve differences among us, uniqueness. What we have is perhaps the richest and the best in the whole country, with the contribution we're making, this uniqueness, this diversity that we value so and prize so highly. That we would risk that kind of thing is unthinkable.

The Joint Chair (Mr. Gerry Byrne): Thank you very much.

We'll now move to Ms. Folco.

Mr. Norman Doyle: May I have a supplementary, Mr. Byrne?

The Joint Chair (Mr. Gerry Byrne): No, I'm sorry. We really have a long list. On that particular answer we've taken 12 or 14 minutes. If you want to put in a supplementary, Mr. Doyle, we'll have you do so at the end of the list.

I will note we are now 10 minutes over the allotted time. As I stated in my initial introduction to the witnesses, we will be providing some latitude. I would ask members to provide concise questions and Mr. Regular and Mr. Batstone to keep the answers a little tighter.

[Translation]

Ms. Raymonde Folco (Laval West, Lib.): First of all, I would like to congratulate you, Mr. Regular. You are very convincing. I will wait for the translation.

[English]

I just gave you a compliment, so I want you to hear it.

Mr. Melvin Regular: I'd love to hear it.

• 1100

[Translation]

Ms. Raymonde Folco: I think I understand. One does not necessarily go with the other, Senator.

I was saying, Mr. Regular, that you are very convincing in your presentation. I would like to follow a line of thought that has already been presented, and I would like you to elaborate on it.

Mr. Bélanger referred a moment ago to rights protected by legislation and rights protected by the Constitution. If I am not mistaken, Pentecostal rights were education rights, obviously. Pentecostals were protected by law in 1954.

However, your class, as you call it in Newfoundland, estimated that their rights were not guaranteed by the Constitution, and you fought for the protection of your rights and to have them protected under the Constitution. You succeeded in 1987. This is the background.

This brings me to ask you a question on the two types of protection and on the way you perceive them: protection by the Constitution as opposed to protection by legislation. I would like to know how you see the relation between the two, considering that certain people around this table said that the sections on religious education should not be part of the Constitution but should rather be included in a law, that which you refer to as the Schools Act in Newfoundland.

I would like you to elaborate on the type of protection you have under both provisions.

[English]

Mr. Melvin Regular: Madame Folco, the constitutional protection provides for denominational rights in education, which includes the establishment of schools, the hiring of teachers, and so on. It's a very comprehensive right. These rights wouldn't be in the Constitution if there wasn't a need to protect them from the changing whims and wishes of the majority. The majority at times can be very threatened economically, and so on, and feel that it's time to eliminate them. I would imagine that's the reason you put them there, to give them special protection.

So it's a far cry from having legislative provisions, because the legislation will change again as the government changes and the government's political agenda changes. The provincial government naturally responds to the wishes of the majority, and if they put their platform before the people and the people approve it... That's the difference, I think.

[Translation]

Ms. Raymonde Folco: If I am not mistaken, you see this as an additional protection, considering that legislation can be modified by will of the population and that a constitution—we are here to demonstrate this—can also be modified by the will of a majority. For you, however, this protection is an addition to the protection of the province's legislation. Is that correct?

[English]

Mr. Melvin Regular: Yes, I see it as addition protection.

Of course, what I have been advocating before this committee is due process. I'm not saying you can never remove minority rights; I'm just saying in this case we haven't demonstrated due process, adequate process, given the circumstances.

I believe Canada is intelligent enough and able enough and we're co-operative enough to establish a process that people can live with. Just by obtaining the consent of the minority—and it just might be that the minority would want to give up a right at a certain point in time—or combining it with a large percentage of the minority and a certain minimum percentage or 50% of the minority...there are all kinds of ways to do it if we just put our creative minds to it.

• 1105

Mr. Chairman, the Government of Newfoundland, we know, didn't have to have a referendum, but if they did it, they must have done it for a reason: to demonstrate additional fairness. They probably wouldn't have gotten the unanimous vote in the House if they didn't conduct a referendum, that's true, but don't contaminate the process. We are all familiar that the end, a wonderful end, doesn't justify dishonourable means and we need to be circumspect in the means we employ. And if we employ circumspect means to get to the end of eliminating the right, which could be considered a good end, I think it's possible to change the Constitution. I don't think it's there necessarily forever.

I'm going to say this—I hesitate to say it and maybe it's not accurate, but I'm going to say it to make the point—56% of the population apparently accept the referendum result and are prepared to live by it. I'm not sure about that. I say that hesitantly, but at least they're not here screaming and complaining like we are to hold onto a right, I can say that. And so it proves that the population, we can argue, has given it up. That's fine. There may come a time when the Pentecostals would do the same thing. And I think that probably they should have that opportunity at an appropriate point in time. But if we make a promise, there's a human, acceptable, fair way to break or change that, and I'm not sure we followed it.

The Joint Chair (Mr. Gerry Byrne): Thank you very much.

Senator Doody, followed by Mr. Schmidt.

Senator William C. Doody (Harbour Main—Bell Island, PC): Reverend Batstone, Dr. Regular, the RC class of people in Newfoundland have currently brought before the court this matter and they're asking for a judgment on this. In the previous reference to the court, I think the Pentecostal assemblies joined the Roman Catholics in that, but I don't think they've done so this time. Is there a reason you care to share with us for not bringing it forward at this time?

Mr. Regular: Yes. As a matter of fact, Senator, I did write down some answers in anticipation of that question. I've been speaking here and I'm conscious that my boss is sitting by me and he hasn't said very much. So as a courtesy to him—and I didn't mean to be discourteous him at all—would you like to respond to that, Pastor Batstone? If not, I'll pick it up for you.

Rev. Earl Batstone: I'll begin the response, and you may add to the details.

The governing body of the Pentecostal Assemblies of Newfoundland is the General Conference of the Assemblies of Newfoundland, not necessarily, though, members from all of the constituent bodies of the Pentecostal Assemblies of Newfoundland. So the governing body of the assemblies made the decision not to become a second plaintiff in this case. However, it did not rule out the possibility of having intervention status as we see the development in that case. We look to the Parliament of Canada, really, which has the sacred right, we believe, to guard the integrity of the Constitution and to protect us as a minority when our rights are violated, and we believe we ought not to be forced to go to the Supreme Court of Canada against the Government of Newfoundland or the Government of Canada. We are very strong in that point.

So that really is the crux of the whole matter. We would ask this committee to hear us and, indeed, to protect the rights of the minorities so that we are not forced to take the legal route.

And then you're talking about a small minority of 7%. There's the question of your financial ability to engage in a number of legal cases that take you all the way to the Supreme Court of Canada. We've been involved in one litigation, as you know, joining with the Catholics. We've been through two referendums, which has been funded by the small community of Pentecostals, and there comes a point when you no longer have the resources, really, to fight your cause in the Supreme Court of Canada. Therefore, we are saying it is the Government of Canada that has a responsibility to guard our rights under the Constitution.

Senator William Doody: Thank you.

The Joint Chair (Mr. Gerry Byrne): Thank you.

Mr. Regular, did you want to pick up on that point?

Mr. Melvin Regular: No, I'm comfortable with that.

The Joint Chair (Mr. Gerry Byrne): Thank you.

Mr. Schmidt, followed by Mr. DeVillers, followed by Senator Kinsella.

• 1110

But before we carry forward, I want to note that Mr. Todd Russell, from the Labrador Métis Association, is patiently waiting in the wings for us, as is Mr. Mark Graesser, from Memorial University. So we are over our time limit, but we'll carry forward.

Mr. Schmidt.

Mr. Werner Schmidt: Thank you very much, gentlemen, for your presentation this morning.

I was particularly impressed with the obvious learning and the depth of the analysis done by you, Dr. Regular. You should be justly proud of what has been presented here.

You represent only the Pentecostal Assemblies of Newfoundland, and I understand that, but I want to expand on the understanding you obviously have of the educational system, not only in Newfoundland but in the rest of Canada. You did refer to certain other interests you have in other provinces. When we as parliamentarians need to consider constitutional implications... You are appealing—and I think, Reverend Batstone, you did that just a moment ago. We are the guardians, if you will. You have entrusted the Parliament of Canada to look after the integrity of the Constitution of Canada. The Constitution of Canada is here to protect the rights of minorities and the rights of people as individuals, as parents, and so on.

My question to you is this: if this amendment is accepted, what are the implications for minority rights in other provinces?

Mr. Melvin Regular: Mr. Schmidt, I can give only a very general answer to that one. As I indicated before, I think the precedent will be set. I think we will be disposed towards doing that.

I am really concerned about what is happening in the country, and particularly in our willingness to consider touching religious minority rights. I believe it's a serious thing.

You ask yourself where this country is going. My general answer is I think we're setting a precedent. Psychologically, it will be more acceptable to do what has happened here in other parts of the country.

The fact of the matter is, as I think Mr. Hutchings mentioned this morning, if this is passed there are only two provinces so far in which constitutional protections are eliminated—only two. It is still possible for Nova Scotia and others to take advantage of section 93. I'm not sure of what I'm saying, because I'm not a lawyer, but that's what I've understood from some constitutional experts. Surely we are setting out on what is a different course, and one that I think is potentially very dangerous.

Mr. Werner Schmidt: I have a supplementary question. It has to do with the rights of minorities or individuals who are not part of one of the seven denominations listed in the Constitution.

Mr. Melvin Regular: I'm sorry, I didn't quite get your question.

Mr. Werner Schmidt: What are the rights of those who are not members of one of the seven denominations listed in the Constitution?

Mr. Melvin Regular: In our province the rights of the other groups named in the Constitution...of course they can attend any school of their choice. A denominational school cannot refuse the enrolment of a child in the school if it has space to accommodate it, not at all. I personally am not totally comfortable with that. I've always felt rights should be extended to the others.

The Joint Chair (Mr. Gerry Byrne): Mr. DeVillers.

Mr. Paul DeVillers: Dr. Regular, in your brief one of your major points is that you felt the referendum process wasn't clear and therefore it wasn't fair. I have a transcript of the CBC Radio interview you conducted on Radio Noon on August 11, 1997, which would have been three weeks or so before the referendum.

• 1115

I quote here from the transcript, where you're saying:

The clarity of the question makes our task somewhat easier inasmuch as this is a total abolition of denomination rights, and so we are able to declare with great certainty to the general population that any semblance of Christian principles in the classroom will totally erode over time as a result of challenges under the Charter of Rights, and so inasmuch as ninety plus percent of this Province are Christians in persuasion, we deem that to be a very major concern to them and thus they will respond accordingly and say no to this referendum question. Our job is much easier because the question is much clearer.

I grant that in your brief you're not talking about the question, but if, as you indicate, the question is that clear, the general population would have been aware that it was the abolition of denominational rights. Why is it now your position that it was such an unfair process if on August 11 it seemed clear to you that it wasn't?

Mr. Melvin Regular: The question at that time seemed to be clear, and I articulated it as such. I was saying it certainly provided me an opportunity... By the way, I can't remember that interview. I'm really struggling to remember it, but maybe I did say that. I'm trying to remember my thinking at the time the question was released. My thinking at the time was that it was a clear question and would give us an opportunity to explain to our people what was involved. There's no doubt about that.

However, you have to introduce the other factor, that the resolution was introduced during the last week. I think if you take the question and look at the resolution you will begin to see that some confusion emerges. It's too bad we weren't voting on the resolution.

The Joint Chair (Mr. Gerry Byrne): Thank you very much. Senator Kinsella followed by Mr. Doyle.

Senator Noël Kinsella: Thank you, Chair.

I'll thank both of our witnesses for an excellent presentation. It is clear, unequivocal and categorical that the Pentecostal community in Newfoundland does not consent that its minority denominational school rights be extinguished. Am I correct in coming to that conclusion?

Rev. Earl Batstone: Yes, that is correct.

Senator Noël Kinsella: Okay. Colleagues and witnesses, I'm fearful that notwithstanding the clear decision of the Pentecostal assembly or the Roman Catholic community and the Seventh-Day Adventists community who appear before this honourable committee, there is in my mind a distinct possibility that the House of Commons will pass this resolution and extinguish those minority rights, notwithstanding all we've heard. Therefore, I would like to build upon what Madame Folco and Mr. Bélanger raised. It's hypothetical, but the hypothesis I'm dealing with is relative to my fear.

Under the hypothesis that your right has been extinguished and the exclusive jurisdiction for education has been placed in the hands of the House of Assembly of Newfoundland, what would be your reaction, Dr. Regular, to the proposition that we move an amendment? It would be paragraph 17(4) and would say: “pursuant to section 17(2), the classes of persons who have denominational school rights as of May 31, 1997, may be permitted to have unidenominational schools.”

I put the same question to the lawyer, Mr. Hutchings, but the word there was “shall”. I'm putting it to you that it would be discretionary, because I want to build on Madame Folco's question and Mr. Bélanger's question, but rather, as they were suggesting, placing it simply under the Schools Act and being forced, as we're doing with the Quebec resolution, to use the notwithstanding clause of the charter if there's a problem.

• 1120

By putting it into the Constitution as a paragraph 17(4), you would not have to use the notwithstanding clause and it would be discretionary in the hands of the House of Assembly. It would be, to use Madame Folco's terms, a legislative protection of a right and clearly not a constitutional protection. But I place it under that hypothetical situation, which I'm fearful will become the reality.

Rev. Earl Batstone: Senator, we have just had an amendment to Term 17. We opposed it.

There was provision for unidenominational schools in the present Term 17, yet when the government brought out its legislation, it made it practically impossible for viable uni-schools to remain or to be established.

On your suggestion of having it “may” again—the will of the legislature—it doesn't give me much comfort that the legislature would indeed provide for unidenominational schools.

I believe it is very difficult for a minority to have a level of comfort that their rights are at the whim or the wish of the legislature or the majority. Politically, minority rights cannot be protected.

Mr. Melvin Regular: I guess our response would be that if Parliament moves ahead to do as you're suggesting and to even amend it in that way, it might be the best of a couple of evils, but it wouldn't be what we had come here looking for.

The other thing is that in our brief I had indicated that we would certainly be open to... If you delayed this and looked at the possibility of an amendment that would endeavour to accommodate the majority and accommodate the minorities, we'd be very interested in that, but it's not something that you want to give your consent to here. It's a bit too complicated to do that and you would be risking a lot to do that here.

The final answer to that—and I'm picking up on Pastor Batstone's point, which is a good one—is that you know that the existing term provides for—what?—interdenominational schools, unidenominational schools, public schools, a native school, a French school, a school that the government wants to establish that's non-denominational. The present term provides for it. You've got it there.

Sir, we're here because the government doesn't wish... I hate responding and talking about my government in that way.

I come back to another point. As Pentecostal people and a lot of Christians in this country, taking your government to court is not something that you're anxious to do. Can you imagine the division in our communities over that? Imagine the discomfort in the hearts and minds of Pentecostal people because they felt they had to take their government to court, and the division that's occurring in their families and the division in the community and the impact on what the churches are there to do. Our churches are evangelical—evangelize, outreach. Imagine the impact of that on that. What are the chances?

This thing is so divisive and hurtful. That's the reason why a lot of people are really wondering about it. And we didn't achieve anything. We won the court case, but we're going on. You keep going on and on.

Mr. Norman Doyle: I have a very brief question that might require a lengthy answer.

I didn't notice in your brief that it came to any great conclusion as to what the future of Pentecostal education in Newfoundland will be if this particular amendment goes through.

• 1125

Since I won't have the opportunity to have a supplementary question, I want to ask you if you have any confidence that the process that you are going through here today—appearing before this committee and putting your case—will result in any amendments that will satisfy you. Will it have any effect in addressing your concerns?

But what do you feel, first of all, is the future of Pentecostal education in Newfoundland if the amendment goes through?

Mr. Melvin Regular: On the future of Pentecostal education, in terms of public education, it's going to be very difficult for our people to underwrite separate, private schooling for their children. I suspect we'll be part of a system in which parents will be forced to do what they don't want to do.

You know, we have joint service schools all around the province, particularly in the rural areas where the numbers are declining. Here we have Lewisporte, we have Grand Falls-Windsor, we have Springdale crying out, saying that they have these viable schools. Who is going to save them? When we have to, we'll go into a joint service school, into an interdenominational school. But who is going to save what we have? There's no reason to lose it.

You ask me what I think this committee could do. I'm going be to political in my answer. On the one hand, I've watched the committee and I'm not very hopeful. Yet it would be unfair to look into the faces of people, human beings who are struggling with this issue, because I know they're struggling with it. The people around this table are struggling with this real dilemma that we have.

The only thing I can say is, look, we're looking to you. Canada wasn't built in a day. Constitutions don't have to be changed tomorrow. Is delay out of the question? And I know I'm appealing to your emotions in saying that.

The Joint Chair (Mr. Gerry Byrne): Thank you very much.

We will now conclude hearing testimony from these witnesses.

Mr. DeVillers, you had a transcript. There's been a request to table that with the clerk. If you are able to do that, I'd appreciate it.

Dr. Regular and Rev. Batstone, thank you. Thank you very much for taking the time to come here.

Mr. Melvin Regular: Mr. Chair, would you allow me to have one final comment?

The Joint Chair (Mr. Gerry Byrne): I certainly would.

Mr. Melvin Regular: I think it's important that I put this on the record. The Honourable Sheila Finestone is not here, but I noticed that last night, when there was another presentation, the question of the cost and so on of my being here was raised. You've seen me around here and you ask who's paying for this. It doesn't seem quite right that this was the implication. It's understandable, because the Honourable Sheila Finestone doesn't have all the information, so I want to just provide you with a bit of information.

The Joint Chair (Mr. Gerry Byrne): Mr. Regular, I caution you. You're quite right, Ms. Finestone is not here, thus she is not able to defend herself or to put forward her position. I will you allow a comment if you would like, however.

Mr. Melvin Regular: I was just providing some information that you could pass along to her.

The Joint Chair (Mr. Gerry Byrne): Sure, absolutely.

Mr. Melvin Regular: It's just factual information, that's all.

In terms of my salary, this position has existed for decades, whether in the Department of Education or outside the Department of Education, and it's paid out of public funds. I would be getting my salary whether I'm here or there. The responsibility under the legislation is that I be able to advise the government and denominational committees of the boards on any concern in education. In order to advise them and our people on concerns here, it was necessary to be here to monitor what's going on, and to be able to speak intelligently on behalf of our people.

The primary responsibility of this office has to do with rights. The Pentecostal committee can form itself as an attorney at law in order to protect any threats to their rights, and that's the reason I'm here.

Now, just to conclude, what's being paid for is my salary from the government. For the cost of travel, accommodation in the referendum, legal costs, telephone costs in the referendum, what we've done is deliberately had the Pentecostal people pay for this. Pastor Batstone and his office pay all those bills. I submit them to him when I go back to them, and they pay them.

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I just want you to know that because we were afraid we would get this kind of....

By the way, I legitimately feel they could come out of the commission, but so we wouldn't face this, this is what we've done.

The Joint Chair (Mr. Gerry Byrne): Just to clarify, the joint committee is paying for your travel here.

Mr. Melvin Regular: Yes, that's right.

The Joint Chair (Mr. Gerry Byrne): I just wanted to clear that up, because I thought you said the commission was paying for it.

Mr. Melvin Regular: One night in the hotel, and the travel.

The Joint Chair (Mr. Gerry Byrne): Thank you very much. We appreciate it very sincerely.

Mr. Werner Schmidt: I would like to move, Mr. Chairman—

The Joint Chair (Mr. Gerry Byrne): I'm sorry, we're hearing witnesses right now. I'll just confer with my clerk, but I understand that during the hearing of witnesses motions are not to be entertained. I'll just confer procedurally.

Mr. Schmidt, would you like to table your motion?

Mr. Werner Schmidt: I would like to have the committee hear the motion so they know what it is.

The Joint Chair (Mr. Gerry Byrne): Sure. Proceed, please.

Mr. Werner Schmidt: I would like to move that the joint chairs make the strongest possible case to the respective houses of Parliament for an extension of the reporting date for this committee so the committee can deal in a comprehensive manner with the implications of the proposed constitutional amendments to Term 17.

The Joint Chair (Mr. Gerry Byrne): Okay, the motion is put. I would suggest we carry on and hear witnesses before we come to a conclusion.

Mr. Peter Goldring: I second that.

The Joint Chair (Mr. Gerry Byrne): It's noted. Upon the conclusion of the hearing of witnesses' testimony we can deal with the motion. Do members agree to that?

Senator Noël Kinsella: Are you going to put the question?

The Joint Chair (Mr. Gerry Byrne): No, the member has read it to members for their information. He's prepared to table it. I have suggested we conclude hearing witnesses before we come to a conclusion that we don't have enough time.

Hearing no dissent, I will now ask for Mr. Todd Russell, who is the president of the Labrador Métis Association, to take his position at the witness stand. I understand Mr. Russell is joined by Mr. Robert Groves, who is a principal with the Aboriginal Affairs Group, a firm located here in Ottawa.

Mr. Todd Russell (President, Labrador Métis Association): Good morning, ladies and gentlemen. I guess for most of you the Métis in Labrador, or the Métis in the east, are somewhat of an enigma. Some people have never heard of them. We do exist.

There's a little story I wanted to relate. I just want to show you our culture is alive and well in Labrador. This is a parka a lady made in Red Bay, Labrador.

Ms. Elinor Caplan: You need it in Ottawa today.

Mr. Todd Russell: And in Labrador. I'm not fitting into the premier's shoes, Mr. Tobin's shoes, but this is his jacket.

We had planned at some point to make a submission about our land claim and about our people and our communities to Mr. Tobin, and he refused. We were going to give him this jacket as a gift, but unfortunately—it's his loss—he's not going to get this jacket. I'm going to wear it.

I want to thank the committee for this opportunity. This is my second time speaking to the committee on educational amendments in Newfoundland, our home province.

The Joint Chair (Mr. Gerry Byrne): I think you would like to add “and Labrador” to that, wouldn't you?

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Mr. Todd Russell: There's a little separatist movement on the go in Labrador. It's not only geography that divides us sometimes.

The first time I came before you was last July in St. John's, and I made a case at that time for a clear non-derogation clause, whether through a direct change to the Term 17 amendment or through a companion resolution of Parliament. I'm not going to flog that horse again too much, because it is clear to me from what the House did over the past few weeks to Quebec's section 93 amendment that the horse of parliamentary autonomy is mortally wounded, if it is not already dead. MPs are obviously hesitant to take on their responsibilities despite the clearest and plainest evidence of danger to aboriginal interests. I hope the senators can do better and lead by example.

Last year I also tried to give you some sense of who the Labrador Métis people are and what we face as a result of not having any clear relationship with the Crown for the protection of our communities, our aboriginal title and our rights. In this regard, I have had a copy of our booklet made for you. Hopefully you have it. It's not the nice coloured one, but at least the words are there, and the pictures, I think, speak for themselves.

After I appeared last year, this committee recommended that action be taken to recognize the LMA and bring federal-LMA relations into the 20th century. I thank the senate committee for that small measure of comfort. However, shortly after that a conflict broke out over fishing rights that merely highlights why we can no longer wait for Parliament or the government to get off the pot. We can no longer wait for justice.

In September 1996, an outside outfitter who had been granted 300 salmon on one of our rivers and had been strongly opposed for five months by my people finally forced her way into our territory with her camp equipment aboard a ship called Beothuk Venture.

As if that insult was not enough, RCMP riot police in numbers never before seen on the coast of Labrador were called in by an interested party on a trumped-up allegation of Métis shooting at a helicopter. Before you knew it, we had over 300 Métis, 50 police and a coast guard cutter at loggerheads in a 10-day stand-off. In fact, I nearly didn't make it to this committee meeting because I'm up on charges of mischief myself. Fortunately the weather was down in Labrador and the court gets postponed due to weather, so that's a bit of a godsend in some senses.

A voice: I hope it doesn't ease off.

Some hon. members: Oh, oh!

Mr. Todd Russell: We'll never know.

The Joint Chair (Mr. Gerry Byrne): Todd, we really should keep some continuity to this, if we could prevent—

Mr. Todd Russell: Okay. All this because of 300 salmon. All this because the federal fisheries department would not find its way to simply negotiating a fish harvesting agreement with us. All this because a DFO minister, a Newfoundlander whose claim to fame was his daily phone calls from another Newfoundlander, had his arm twisted to deny that the LMA exists, and that if we exist we are not really native, and if we are native we have no rights.

We do exist, despite Clyde and other premiers, and despite the attitude of denial that still manages to reign in St. John's. And we will continue to exist despite the province, despite private vested interests and despite the inaction of this place when we ask for and need your help.

The Eagle River stand-off is just one example of how Parliament's obligation to aboriginal people gets silenced, choked and cut off at the windpipe by provincial interests and lobbying. This has been going on for a long time. We are not unique in having to suffer the slings and arrows of outrageous provinces, but it has to stop. I am asking this committee and Parliament to give more than lip service to your obligations.

The province is asking that you amend the terms of union on education. The proposal, on the face of it, is intended to provide greater protection to religious denominations as the school system is restructured under greater provincial government control. The problem with this year's constitutional amendment, like last year's version, is that there is still no recognition, no guarantee and no non-effect clause when it comes to aboriginal peoples and our right to control the education of our young people.

There have been no negotiations with us to provide any comfort that a new provincially controlled school system will be any better than the old denominational one when it comes to protecting our culture, our language and our society.

As you may know, aboriginal title rights to Labrador have still not been dealt with and that fact is now wiping out investor confidence in the Voisey's Bay project. The province has strong-armed just about everybody to try to get its short-term political needs addressed at the cost of the long-term needs of the communities in Labrador, at the cost of the company that has invested in the project, and at the cost of all Labradorians and all Newfoundlanders.

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It is time for shortsighted thinking to be halted in its tracks, whether driven by the craving for power or for drink. When it comes to these issues, whether it's education reforms or land claims, this chamber's task is to bring second, sober thought to the more hasty and ill-conceived plans of others.

Once again, we are obliged to request that this committee recommend that aboriginal rights be clearly safeguarded by amending the proposed clause or by mounting a companion amendment. Our draft wording we have enclosed, although I think we do have some alterations to make to that.

Our position has not changed. What has changed is that you, as senators and MPs, no longer have the luxury you had last year of expressing fulsome but sometimes ineffectual statements of concern. You did that last year and it went nowhere. Parliament does not have to wait for others to take on its obligations. If you want to be truly relevant to aboriginal people and to Canada, you must accept and act on your own responsibilities.

There are three things this committee can feasibly recommend.

First, you can take action on your own recommendation made last year, when you said, and I quote:

We believe that this may provide an opportunity for aboriginal people to acquire control over their education. We strongly support these efforts. We believe that aboriginal rights must be respected in the restructuring of Newfoundland and Labrador's educational system.

Your recommendation led to nothing. No talks were held with the LMA over the last year and none were held with any other aboriginal group in the province, except in the course of land claims negotiations with the LIA and the Innu Nation. The province, after losing in court on the Voisey's Bay project and after accepting that self-government talks must be held, now insists that all discussions about education control and self-government must be conducted through treaty talks tied to land claims. This is progress for some, but it is certainly not progress for the LMA.

Of course the province has decided that we don't exist, except as an unrepresented majority in land claims talks being held with another group. As a result, you have an obligation to halt all consideration of Term 17 until such time as the province rethinks its position. Otherwise this committee would be aiding and abetting an illegal, undemocratic, and unconstitutional policy of the provincial government.

Let me remind the Senate of where we stand in relation to land claims. We filed supplemental research with Minister Ron Irwin in March 1996, at his request, so that he could respond to our claim before completing talks with the other Inuit group in Labrador, the LIA. In that submission, we made an offer to address interim measures, including talks on education and community services.

However, politics have intervened. Our claim has been held up in a so-called legal review for over 14 months now in the Department of Justice. And why the hold-up? As far as we can tell, the hold-up is that somebody thinks if our claim is responded to, this will throw a wrench into closing a deal on Voisey's Bay and on the LIA and Innu Nation land claims talks. This strategy of delay and denial is wrong-thinking. It's stupid and it's shortsighted. So for us, we naturally think this is a provincial strategy.

Once again, you, as senators and MPs, can simply recommend no action on Term 17 until the province's policy regarding entering into constructive talks on education with all aboriginal groups is changed.

Secondly, if you think you must proceed with the Term 17 amendment, then you must in all conscience have a clear non-derogation clause. While this may unfortunately delay matters, this is a delay caused by the province, not by Parliament.

There's a third measure you can take, and that is to agree to hold a special joint House and Senate committee hearing, perhaps in conjunction with either or both of the parliamentary standing committees on aboriginal affairs. Such a special committee could fully investigate the fact that provinces now seem able to back out of or alter bilaterally their commitments under section 93 of the Constitution—commitments that are reflected uniquely for Newfoundland in the terms of union at Term 17. You, as senators and MPs, owe it to the aboriginal peoples, who have repeatedly appeared before you on education issues over the last year, to hold such a special investigation and committee hearings.

You don't have to wait for the government to respond to the royal commission report, but I know and you know that the government's response is imminent. So if you must wait, then at least agree today, or when you make your recommendations, to launch a new committee process on the matter. From what I hear, I think you can be confident that the government will be as silent on the section 93 and Term 17 issue as they have asked you to be while amending both clauses for Quebec and Newfoundland. Silence is complicity, and you need not be silent.

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In the absence of moving on aboriginal rights and control over education, Term 17 will clear the way for another generation of assimilation for our people under the guise of cost-cutting and consolidation. We have no assurance that the proposed amendment to Term 17 is not aimed at this outcome. We have no commitment to the contrary, no offer from the premier. We have no assurances.

We need a general protection clause added to the terms of union that clearly states that aboriginal rights, including our unique right to have a full say in the education of our children, are not to be affected.

At the very most, all such a clause will give us is some minor leverage to start negotiations on the implementation of our existing rights, rights that are now being ignored and subordinated, especially through plans for so-called “consolidation,” which in our language spells removal, resettlement and assimilation.

Otherwise, we have no assurance that St. John's will implement a new regime and respect aboriginal demands and rights for community control and for the protection of our unique lifestyles and cultures.

This amendment, in our view, is akin to having sex without consent. Education without community control is akin to rape. It's the rape of our culture and of our future.

I know what it is like to grow up in an educational system that is dominated by an institution that demands that you deny who you are as a person. The phrase that “we are all the same; we are all equal under the law” is probably the most subtle yet the boldest cry to have us become white. Why was I not taught my language, the language of my ancestors? Why was I not taught the stories and history of my grandmothers? Why? Because education is about control in Newfoundland. It's control over Labrador and aboriginal people, and it is really about dominance.

There may be some redemption for the churches, but our fate is just as perilous if education is controlled by the state, the province.

Can we as a people trust the government for protection, the same government that denies our very existence, that arrests our people for hunting and fishing, that makes us pay to cut our firewood or draw water from community wells?

We have an administration in Newfoundland that reminds us of the Smallwood years, a man who said that there are no native people in that province, a man who said that there would be lights on every stage head in Newfoundland before one kilowatt of Churchill power ever sees the coast of Labrador. Yet it was our people who had their traplines flooded and our way of life altered forever.

The answer, senators and members, is no! Trust is earned, and the Newfoundland government certainly has its work cut out for it.

Constitutions are as much about the spirit of law and the conventions of decency as they are of the letter of the law and the intent of framers. Words on paper are but a reflection of your intent. We know what the Province of Newfoundland intends, and we cannot trust the government to adhere to the conventions and obligations that bind the Crown in relations with aboriginal people.

You cannot escape meeting your duty by hoping, somehow vainly hoping, that the province will some day do it for you. All that will lead to is a new Beothuk Venture.

Thank you very much.

The Joint Chair (Mr. Gerry Byrne): Thank you very much, Mr. Russell.

Did Mr. Groves have anything to add to the presentation, or will we move immediately to questions and answers?

Mr. Robert Groves (Principal, Aboriginal Affairs Group): I think, Mr. Co-Chair, I will reserve myself to answer some questions about the annexes and the options at suggested option number two in the recommended measures, which is a direct or a companion amendment to the resolution.

The Joint Chair (Mr. Gerry Byrne): Okay, we'll now begin with questions and answers. We have approximately 40 minutes.

Mr. Goldring, would you start off.

Mr. Peter Goldring: Thank you very much, Chair.

Thank you very much for your presentation. I have a question for Mr. Groves. It involves the Rupert's Land land transfer of 1867 and the Senate of Canada, which negotiated for the purchase of the Rupert's Land area, and the promise they made, the condition they made to the Queen of England at the time, that they retain fiduciary responsibility for the aboriginals throughout that territory; and when the land was transferred to the province of Quebec in 1912, they still retained this fiduciary responsibility.

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It appears there is some misunderstanding, certainly on my part, of how that affects the territory of Labrador. I understand certain portions of that are encompassed within the boundaries of today's Labrador. Could you comment on how that fiduciary responsibility retained by the Government of Canada affects the aboriginal rights in the area, particularly as section 25 of the charter specifically says, “any rights and freedoms they now have”. With this application that clearly intends to extinguish some of these rights, is there an extra element here we should be cautious about when we're looking at this application, specifically dealing with Rupert's Land and the aboriginals?

Mr. Robert Groves: Mr. Goldring, as you know from earlier submissions on other matters on this in relation to the section 93 amendment, which has now passed in the House, there is a concern both with the process, the procedure—although we're not addressing that today—and the scope of rights affected. Senator Murray had personal and exhaustive experience in the 1980s during the Meech Lake accord with the concern that the amendment, which otherwise did not appear to affect aboriginal rights, could have; and therefore governments of the day in Quebec, in seven provinces and Parliament agreed to put a non-affect clause in because of an abundant and prudent sense of concern about this.

This is much more obvious in respect of education, particularly because whether in Rupert's Land...and there is of course an argument, which the Quebec government maintains, that Rupert's Land included most of the interior of Labrador by conventional definition. In fact, I think there's a very attractive little brochure floating around to all households in Quebec these days, in French and English, describing the territorial integrity of Quebec, and it includes Labrador. There's a hazy line between Quebec and Labrador, but it is highlighted and it is included, at least symbolically if not explicitly, in the territorial integrity of Quebec. Regardless of what the judicial committee of the Privy Council said in 1927, the issue is still with us.

The boundary issue quite clearly, as you indicate, retained Crown or federal fiduciary obligations for aboriginal peoples above the height of land in 1898 and above the height of land in 1912, that is, all the way to the Ungava, including, arguably, portions of or all of Labrador. Whether or not Quebec is involved as the administrator of Labrador or Newfoundland is seems somewhat irrelevant.

This brings to the fore the question of what was the nature of rights and privileges at union in the province with regard to aboriginal peoples, whether in Quebec in 1867 or in Newfoundland in 1949. Term 17 is identical for all intents and purposes in relation to rights and privileges that existed at union to section 93—it's identical to section 93's provisions.

Basically the answer is that there were denominational, uniquely Indian/Inuit—though less so Métis—unique Labrador school systems uniquely run by the missions, whether Moravian...or I think the Grenfell Mission also ran a school in Charlottetown or Mary's Harbour in the Métis area of Labrador, and of course there were Catholic schools at Davis Inlet and at Sheshatsheits. They were only for the native people, except outside those larger settlements where there was a mixed population, particularly on the straits of Labrador, but it was after 1949, of course, and in 1940-49 with regard to Happy Valley-Goose Bay at the airbase.

But they existed, they were at union, they were uniquely denominational, and they were uniquely delivering educational services at that time through missions to aboriginal communities. It was only in the 1950s, only after union, that the Province of Newfoundland replaced the denominational mission schools with provincially regulated denominational schools. So denominational schools run in effect by Newfoundlanders were brought in and replaced mission schools run by non-Newfoundland missions—that is the Moravians, and that is the Anglicans based in England, not in Newfoundland, and I would think the other one was Catholic based in Quebec. The bishop of Quebec actually had authority over the two mission schools servicing Indians in Labrador; it wasn't even the bishop of Newfoundland.

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So there is a clear and obvious issue here with regard to what is being repealed. This amendment is repealing, of course, all denominational rights that existed in 1995, which refers to all denominational rights that existed in 1949.

Mr. Peter Goldring: Supplemental?

The Joint Chair (Mr. Gerry Byrne): Yes, absolutely.

Mr. Peter Goldring: To make it clear, Mr. Groves, is it your contention that this application would infringe on not only the rights of the people of Labrador but also aboriginal rights? Is it your contention that it would?

As well, what percentage of Labrador do you feel is affected by this Rupert's Land transfer?

Mr. Robert Groves: In terms of the first part of your question, I won't comment on the impact on Labradorians generally. I'll leave that to Mr. Russell.

In terms of aboriginal people, both on the island and in Labrador, they would be directly affected because of the unique denominational nature of schooling systems. They were community-based schooling systems. In the absence of reserves, in the absence of recognition of Indians and Inuit and Métis—and the Senate committee last year recognized quite clearly that there was a problem—if you take the schools away from local communities with populations of 300 or 400 or 150 or 600—and that's what's happening, of course—they cease to be aboriginally controlled schools. Whether they're denominational or not, they cease to be aboriginally controlled. They become integrated public schools, dominated by cities—Corner Brook, Gander, Happy Valley-Goose Bay, or the larger centres.

They're accompanied, as Mr. Russell has indicated, by closure of smaller communities, especially those with populations under 300. That is what is planned, of course, in Labrador.

With regard to your question on the boundary, or how far, the Province of Quebec submitted in the arbitration at the Judicial Committee of the Privy Council in 1927, or leading up to that decision in 1927, various maps. There are various historical maritime British maps of the areas. It would include now, I guess, all of south-central Labrador below the Naskaupi River, all the way up to the coast within 12 miles of the coast, all the way down to the straits.

Quebec has always claimed that there is a strip along the coast that they're not interested in. Interestingly enough, that's where all the settlements are. So they seem to be more interested in the territorial lands and waters than they are in the people. But that's as that is.

So it would include about 50% or 60% of Labrador, and more, I would say, maybe 70%, because of course the bulk of Labrador's territory is below the Naskaupi River. Labrador gets very thin as it goes toward Cape Chidley. It would include most of it, about 70%.

Mr. Peter Goldring: Thank you.

The Joint Chair (Mr. Gerry Byrne): Senator Pearson, followed by Mr. DeVillers, followed by Senator Murray.

Senator Landon Pearson: Thank you.

I'm really interested in your comments. You've raised some very profound questions for us. I'm really grateful that you've been able to come. I'm glad to hear you again, because I did hear you before when I came to Newfoundland.

You say that you have not been consulted on a number of other issues—and I won't bring up education—but in the thinking that the Newfoundland government has done about this generic course on religions or whatever, has your group been consulted at all about the aboriginal aspect, which I would think would be important to have incorporated?

Mr. Todd Russell: No, we haven't been consulted, not in the least, about the educational system from a holistic perspective. I'll give you an example. Traditional life skills, which I guess a lot of our youth lack today, we would like to see integrated into the school system. We would like to see the system changed in a way that is more reflective of our culture and the way we do things on the coast of Labrador.

We had to go out and spend $10,000 of our own training fund that we get from the government to do that, because there is no willingness on the part of the province to provide those types of instruction and to allow for that type thing to take place in our schools.

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There are many hurdles. What we're saying about this whole amendment, and what I was saying this morning, is that it's not so much about the legalities and the technicalities of it; it's about the intent. There's no protection there for us. If you're a person on the coast of Labrador who gets arrested for getting fish to eat, you don't have much confidence that your educational rights are going to be taken care of by the same government that seems to think this is a wonderful thing to do. This is the 20th century. We have to open it up. We have to take the power away from the churches and those types of things.

This whole submission speaks to our lack of confidence in the government and what we feel is the intent. They want us to be white. That's why they arrest for taking fish. It is about sovereignty in some sense and dominance.

Senator Landon Pearson: Equality.

Mr. Todd Russell: Yes.

Senator Landon Pearson: Thanks very much.

The Joint Chair (Senator Joyce Fairbairn): Mr. DeVillers.

Mr. Paul DeVillers: I think my question has been clarified a little bit by Mr. Russell's last explanation there. Just so that I understand it, the committee here is dealing with a resolution to amend Term 17. The aboriginal educational rights are not referred to in Term 17, but I think, Mr. Groves, in your submission you were explaining that there were school systems in existence that were for aboriginal people only at the time of the joining of Confederation.

Mr. Robert Groves: Not merely that. You also have the problem that the provincial government, since it denies the existence of a collective presence of Métis in Labrador as well as Micmacs on the island of Newfoundland, is forced into the necessary position of arguing that there are no such rights, whether they're referred to in Term 17 or not.

If you take the assumption, as Minister Dion did before the section 93 committee, that a clause has to specifically refer to aboriginal peoples in order to affect them, that's not sufficient. Again, I would draw on Senator Murray's experience in this regard. There are many clauses in the Constitution, such as section 109 on natural resources, where there's no reference to aboriginal people.

Again, I'd refer to Senator Murray about bird's eye maple and the decision of the Court of Queen's Bench in New Brunswick. The same day Minister Dion was making his presentation, the court in New Brunswick was arguing section 109, which provides provinces with exclusive jurisdiction for natural resources and also protects aboriginal rights. If it were to be amended, it would irrevocably alter aboriginal rights because of the reference to trusts and interests of a third party and the Supreme Court's ruling that this includes aboriginal people, the trust that Parliament has for aboriginal people regarding the Indian Lands.

As long as the province takes that position, and in fact, as long as the federal Department of Justice takes the position that Métis and non-reserve Indians like the Innu, who are non-status Indians in Labrador, are not within section 91.24, Parliament's exclusive jurisdiction over Indians and lands reserved for Indians, then I don't see how the government can credibly come before you with a proposal that suggests they can't be affected if they're not named. Oh, they're covered under section 91.24, but we denied that they're under section 91.24.

It's impossible for the government to squirrel out of that. They either have to admit that all aboriginal people are under section 91.24 and explicitly say they're not covered by the amendment or they're lying when they say there's no effect on aboriginal interests and rights. I hate to say the government is lying; I have many friends in the government and so do you. But as MPs and senators here, you're not members of the government; you're parliamentarians. All we're asking is that you act as parliamentarians in your duty to aboriginal people.

Mr. Paul DeVillers: Has that position been put forward to the courts? Is that another vehicle that might be available as to judicial interpretation?

Mr. Robert Groves: Yes, of course. The interpretation I've just given you is fully shored up in court judgments going back to 1888. That is not at issue.

Mr. Paul DeVillers: But the inclusion issue is.

Mr. Robert Groves: Well, to argue that you should go to court on section 91.24 is interesting. I believe the royal commission route—

Mr. Paul DeVillers: I'm not arguing; I'm asking.

Mr. Robert Groves: Well, if you can give us the $2 million or $3 million it will take to get it through to the Supreme Court, then we'd be happy to accept the money.

Mr. Paul DeVillers: So it's a resource question.

Mr. Robert Groves: Absolutely. We would prefer to have it referred to the Supreme Court by the federal government or to the appeal courts by provinces, but all of them are hesitant to do so for reasons that are probably obvious once you think about it for a little while.

Mr. Paul DeVillers: On the face of it here, the committee is trying to amend something and we're talking about something that isn't in the terms, so it's difficult to comprehend the amendability of it.

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Mr. Robert Groves: But you don't know, and that's why prudence suggests you add a clause, given the earlier presentation and Senator Kinsella's or Mr. Doyle's suggestion. A new paragraph (4) would read:

Nothing in this section affects the exclusive legislative authority of the Parliament of Canada respecting class 24 of section 91 of the Constitution Act, 1867, section 35 of the Constitution Act, 1982, or section 25 or 27 of the Canadian Charter of Rights and Freedoms.

That would suffice to protect, clearly. It would be available for argument in court whether this group or that group was within section 91.24. But the intent of Parliament would be clear. It would not be sullied by the impossibly contorted argument of the government in moving this bill forward the way it is doing it, and moving the section 93 amendment forward the way it moved it.

The Joint Chair (Senator Joyce Fairbairn): Thank you. Senator Murray.

Senator Lowell Murray (Pakenham, PC): Thank you, Madam Chairman.

You'll have to explain to me again why you believe the amendment before us possibly—not to put it too strongly—prejudices your future legal and constitutional position on those matters on some litigation under the charter.

Mr. Robert Groves: Let's presume the government is right. Let's believe the government that section 91.24 does not cover Métis, let's say. Let's say the court decides that the Labrador Métis, as Inuit Métis as opposed to Indian Métis, are covered under section 92 and not under section 91.24. They may have aboriginal rights, they may have title, but they are not—

Senator Lowell Murray: There's something in the charter about the Métis, though.

Mr. Robert Groves: No, it's not in the charter. It's in section 35.

The aboriginal treaty rights of the aboriginal people, including Métis, are protected in section 35 outside the charter. There is no limitation clause affecting it. However, it is silent about Parliament's jurisdiction versus the jurisdiction of provincial legislatures regarding education or anything else.

Now this is a subtle point, but it's pretty obvious too, that if the government is right and they're not within 91.24 there's nothing you can do about it afterwards. You will have repealed aboriginal rights—probably, since it's without consent, maybe illegally, but you will have done so. You will have repealed them, because this repeals rights and benefits that are now entrenched in the Constitution. It repeals them. It changes them with a much more flexible legislative control. It gives guidance about the nature of that control, about denominational control, but it does not preclude no particular denominational protections. It permits the legislature to do that.

So if the government is right, then you must have a notwithstanding clause tied to section 25 and section 35. If the government is wrong and they're under section 91.24, there's less concern at the end of the day, except for the fact that the government has also taken the position in court that education as such is a section 92 power, not a section 91 power, and Indian education, except for the fact that Indian schools on-reserve are on federal land, would be in the hands of the provinces. That is what led to the denominational schools that were constructed and put under the authority of provincial governments, municipal governments, denominations and churches.

Senator Lowell Murray: The situation now with regard to your people is that the school an aboriginal child in Newfoundland attends depends on that child's religious affiliation now.

Mr. Robert Groves: Yes.

Senator Lowell Murray: Is that the status quo you are trying to maintain?

Mr. Todd Russell: No, it isn't, from our vantage point. I think we have the self-government right to control our own school system. We're trying to come out from under the denominational system as well, to some extent. But as I said in my brief, we're not much more confident in the province than in the denominational school system. We've seen the eradication of our language, Inuktitut. Probably about 1% of our people understand and can speak the language now.

We want some protection in that amendment or through a non-derogation clause that we have the self-government right to control our own school system, and to set it up so it is more reflective of our culture and our heritage.

Senator Lowell Murray: The non-derogation clause could be put in there. It would mention various sections of the Constitution. It could be put in there easily using the bilateral formula. In your view, there's no problem there.

• 1210

Mr. Robert Groves: Well, I have a view on the issue of what formula is used, Senator. If you were to use section 43 and it was valid, it would be a very simple thing to do. It would simply mean that the legislature of Newfoundland would simply re-pass the resolution.

Senator Lowell Murray: I know how it would be done, but that is the formula that could be used with respect to this non-derogation clause.

Mr. Robert Groves: Oh yes. Easily.

Senator Lowell Murray: We couldn't do it unilaterally, could we?

Mr. Robert Groves: No, I don't think a statement, or even a resolution to guide the courts, for example, would be legally effective. The courts have generally said that such preambular language can be dismissed by the judges as being delinked to the language and the wording of the actual schedule.

Senator Lowell Murray: It wouldn't take more than the bilateral formula to do it.

Mr. Robert Groves: No, nothing more.

Senator Lowell Murray: Thank you, Ms. Chair.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much, Senator Murray.

Ms. Caplan, followed by a question from Mr. Goldring.

Ms. Elinor Caplan: I guess the problem I have when I look at Term 17 is that you're not included in any of the language or terminology in Term 17. I just can't understand how the changed Term 17 would have a negative effect on your community.

The question I would ask is whether or not your communities had the opportunity to vote in the referendum. If so, was your riding one of those that voted in the majority? I know the person representing your community in the provincial legislature of Newfoundland and Labrador supported the Term 17. I'm wondering if you made these arguments during the debate that has ensued.

Just to add to that, I understand the conversation that you had with Senator Murray. The concern I have is that your issue, which you say is one of a lack of confidence in future actions of your government, is really different and separate from the issue that is before us today, from the standpoint that we are dealing wholly and completely with the denominational nature of the Newfoundland school system. From what I've seen, I don't believe there's anything to preclude the government from entering into discussions or negotiations with your community as a result of this change.

I wanted you to know my thinking as I asked the question, so that you could address and perhaps tell me why you disagree with my thinking.

Mr. Todd Russell: I don't know that I necessarily disagree with some of your thinking, but in terms of the first part of your question, we didn't do an internal analysis as to how our people voted on Term 17, as some other groups did. I do know that in the majority of the communities that I represent, about 40% of the people actually voted. Out of that 40%, I believe 75% voted in favour. I can't say specifically how many of those were Métis and how many were non-Métis. I'm sure there were some who favoured the reform and some who didn't. How knowledgeable our people were about what they were voting on is a question that's better directed to some of the people at the community level.

Our sense is that there is no specific protection written in. If the government really wants to be inclusive and really wants to fulfil its obligation to aboriginal people, why wasn't that in there? It's not just about the denominational school system; it is about the education system in general that this amendment speaks to. What we're asking is why there was not some protection written in there for our rights as aboriginal people to control our own school systems.

Ms. Elinor Caplan: I guess the point I'm making is that it wasn't written in there before. The question I have is why there would be an expectation that this would change. There wasn't the protection there before as part of the denominational issue, so why would there be the expectation that it would have to be there now, since you could in fact be a beneficiary from this change as a result of the request of parents to include the observances and cultures of your community in the new school system.

• 1215

Mr. Robert Groves: I can answer both those questions in the following way.

First, you're speaking about the Government of Newfoundland not being precluded in any way by this amendment or earlier amendments from arranging with the Métis or the Inuit or the Micmacs on the island with regard to special arrangements for educational control and delivery, particularly curriculum development and language of instruction. You're absolutely right. But there's nothing required, either. In the absence of some compulsion, it would seem the province is very reluctant to do this.

Ms. Elinor Caplan: But I would argue there was nothing to require it before.

Mr. Robert Groves: Yes, there is. Look at the language of the amendment you're repealing. It says right in it that, except as provided under (b) and (c), “schools established, maintained and operated with public funds shall be”—and then it goes on to say denominational schools, which speaks merely to the denomination of delivery—“and any class of persons having rights under this term as it read on January 1, 1995”—that is, before the amendment proposal—“shall continue to have the right”, etc.

The question then is, what is “class of persons” referring to in the Newfoundland Terms of Union. It has never been litigated, except with regard to particular denominations feeling excluded in 1949 because they emerged only afterwards. So this was a bargain to include all of those denominations that were excluded in 1949 as a matter of fact but emerged between 1949 and 1995. You've heard that from other submissions.

That means you're repealing whatever happened in 1949 and whatever happened between 1949 and 1995 in terms of recognized constitutional protection for classes of persons.

Are the Indians, Inuit, and Métis of Labrador or the island classes of persons to whom denominational delivery of education was provided? The answer is yes.

So this is not now in fact recognized by the province. It's not implemented by the province now, but it's only since the 1960s that it hasn't been implemented. Prior to that time, the missions, the denominations, delivered unencumbered by the provincial regulatory system, unencumbered by the Central Avalon-based vision of educational reform, and delivered locally by very small community schools.

So you have a situation in which two things are happening. One is the de-churchification of curriculum and standards, and that I think compels people generally to support the amendment to bring more secular standards. I know that the Newfoundland government is very concerned with the standard of education, and therefore generally everybody supports that principle. I don't think any of the witnesses don't support it.

However, the second thing it does is it consolidates under legislative control the administration and the delivery of education services. What does that mean? It means communities, which are typically native communities...are small, between about 25 in the smallest case and about 600. Nain, which is 1,500, would be the largest community in Newfoundland-Labrador that's native. The smallest would be about 25, Paradise River.

The reason it's ten is because the school was taken away. Everybody had to go for truancy law reasons; they had to move from Paradise River to Cartwright. That was what happened in the 1960s, remember. Nain itself is a large community partly because Okak and Hebron were closed down by the province relating to schools.

Parents have to send their children to schools. It's against the law not to. You have to go because of truancy laws.

So it was only since the 1960s that this really emerged with federal money and assistance, through transfers to the province, but with the province gradually eliminating local control and eliminating church control.

Secularization of the church control over criteria of schooling, over standards, is one thing; local control, community control in the hands of small communities, is another. That is being wiped out.

Ms. Elinor Caplan: Not if you have elected boards that are elected by the people in those communities, and that's what this calls for.

Mr. Robert Groves: Yes. It depends on how you define community and the school board. A school board may service schools...

Well, some of you can tell me what the biggest school board in Newfoundland is likely to be after consolidation. It's going to be huge.

• 1220

For example, I know the island a little better, and I know the Flat Bay East school, which is just about the closest thing to a reserve community you have in Newfoundland outside of Conne River. It's completely Micmac. They have a school, K through 5. With consolidation it's going to be closed. It's going to be incorporated. The kids are going to be bused to St. George's, which is a town of about 6,000 to 8,000 people.

Yes, they are going to have representation on the school board. A community of around 130 people will have representation on a school board representing schools in a community of about 10,000.

That's a problem, and it's a problem in Labrador too.

Mr. Todd Russell: The school board that is set up right now and that runs the majority of our communities...we're about 30% of the population, and we're probably going to be able to elect one or two people to that particular school board. Our influence in the school boards, even if they are an elected body, is going to be very minimal. We certainly don't have a lot of confidence in that either.

Ms. Elinor Caplan: I guess the comfort I take in this discussion with you is that these are issues that are and have been going on for a long time in the province of Labrador and Newfoundland. I don't believe they can be resolved quickly, with the stroke of a pen. I think the participation of the people in your communities in making representations to the provincial government and influencing the leadership of the province is what is ultimately going to make the changes to encourage not only the standards of education, as you have discussed them, but also the cultural security you want.

Mr. Robert Groves: I would simply say while that is good morals and good ethics, it's very bad constitutional law.

The Joint Chair (Senator Joyce Fairbairn): Thank you, Mr. Groves.

Mr. Schmidt.

Mr. Werner Schmidt: Thank you, Madam Chair.

Gentlemen, I would like to thank you for being here and for the way in which you've made your case.

I would like to ask whether the concern is primarily a concern of the aboriginal people as aboriginal people or whether the concern is on the basis of aboriginal concern and the denominations of which the aboriginal people would be adherents.

Mr. Todd Russell: Our concern is as an aboriginal society and about the integrity of that society. I think that's what this calls into question, and the question from the lady up here. Sure enough, these problems will not be resolved by the stroke of a pen, and sure enough the province has a role to play in making sure we're fully involved and fully consulted and our rights and interests are taken into consideration.

As I said, we don't have that confidence, but we also believe you guys have a responsibility to help us in that struggle. We saw and we see an opportunity here to do that. We see an opportunity where it can be explicitly stated that there is some protection for the aboriginal right of self-government, which includes the aboriginal right, as far as we are concerned, to have our own educational system.

So our concern, yes, is as an aboriginal group and as an aboriginal society.

Mr. Robert Groves: Senator, if I may add to that, at the moment I think the Labrador East Integrated School Board—it's an integrated school board—does provide for culturally sensitive curriculum material, but that can change easily with a number of changes. With another Voisey's Bay in the south of Labrador, let's say, it would be very easy to change these things.

Aboriginal is aboriginal. You can distinguish it somehow from wider concerns and considerations if you think of it in this way. Only in Newfoundland, except for one exception in 1984, is there no implementation of subsection 91(24) through the normal policy and laws of this place, which include the Indian Act and other legislation. It's a unique province because of when it came in.

Because of this sense of denial that has fit into it, although just as it's becoming thawed now... It's still only the top of the iceberg that is thawed. You have a long way to go yet. While that's happening, it is very important for Parliament to keep close watch on its duties, separate and apart from the social and political encouragement that you may give to the Newfoundland government.

• 1225

Mr. Werner Schmidt: I think there are two very significant issues here. Mr. Russell, I think you've identified and clarified them very well.

The other question that relates to this, of course, is that even though Newfoundland and Labrador are unique and there's a very specific application—and I quite agree with that—there is the broader principle of the Constitution in Canada as well. Even though you can successfully argue that this is unique, I think the issue does go beyond Newfoundland and Labrador, because as far as the concerns of the aboriginal people, whether it's the Métis Association of Newfoundland and Labrador or whether it's the association in Alberta or British Columbia, it's in principle the same thing.

So what would be the implications, then, for other provinces and for other parts of Canada if this happens?

Mr. Robert Groves: I think the committee might benefit, and certainly you would, Senator, from reading an 18-page legal historical memorandum—Mr. Goldring has seen it, I'm sure—that was tabled in the section 93 joint committee at their request. It's a memorandum of historical law, I believe. It's a short read. It's 18 pages long. It's now with lawyers in terms of getting legal advice on potential court action, and it relates to the Quebec situation.

Quebec, the Atlantic region, and Ontario in particular are all unique with regard to denominational schooling and its delivery to Indians in particular. Not all of those Indians...in fact, many of them have never subsequently been placed on reserves with federal schools that Indians control. Many of them are still in off-reserve communities, non-reserve communities, and are being educated through provincial systems.

But because of the wording of section 93, which is very similar to Term 17 and talks about whatever rights and privileges existed “at union” and then goes on to say parliamentary, remedial power, and the rights of the Governor in Council to order implementation of those rights and privileges with regard to denominational schools, all of that is in place. We know that a lot of Indians “at union” were not on reserves, whether it was in Quebec or Ontario or anywhere else. That's why with respect to aboriginal issues it becomes a general amendment, if not one requiring consent of aboriginal peoples under section 35.1 of the Constitution Act, which requires a first ministers' meeting with aboriginal leaders to go over an amendment that directly affects aboriginal rights.

It's because of that huge potential, given the nature of Canada in 1867 and the nature of Labrador and Newfoundland in 1949 with regard to education, that it is a very clear and present danger for Parliament to simply assume that it's a 43 and simply assume that there are no rights affected because they're not specifically named. It's the nature of Canada. Our history is very subtle.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much, Mr. Groves.

Mr. Goldring will have the last word.

Mr. Peter Goldring: Thank you.

To confirm that, Mr. Groves, you are viewing this request as possibly precedent-setting. Your view is that it could set a precedent for the removal...particularly in the case of the Pentecostals where this is clearly a new entrenchment, a recent entrenchment in 1987, and your view is that this is clearly an extinguishment of those rights that were entrenched. You feel this is the beginning of the slippery slope. Is this what predicates your schedule here that nothing should affect that, that nothing in section 17 should affect the legislative authority?

Mr. Robert Groves: I think subsection (3) of the proposed Term 17 does provide a constitutional protection. It says that “religious observances shall be permitted”.

But that of course is very much less than rights and privileges now protected in the Constitution, because the Constitution is a living thing. It constantly grows and is elaborated upon through practice and convention and the courts take that into account. Because it's a constantly growing and living tree—I think that's how it's referred to colloquially—you can never put closure to or freeze aboriginal or other constitutionally protected rights such as this.

So yes, quite clearly you're replacing constitutionally entrenched rights, which may—many believe this, and I think I would tend to agree—entrench or intrude upon potentially wiser courses of action the schools and the province together could have taken with regard to curriculum. Nevertheless they're there, and if you change them, everybody has to be aware that they're being repealed. They can be repealed, but you have to be aware.

• 1230

But for aboriginal people, there is a special protection against the repeal of rights. Therefore, if it is found in a subsequent court that you didn't take due course with regard to protection of aboriginal rights, then the whole thing is gone; everything you tried to do is back to square one. It's foolish, simply foolish, not to take the measure now.

Mr. Peter Goldring: So would it not be your impression that if the minority's constitutional rights were to be affected, they themselves should be particularly polled to see if they are in favour of that action? Would that not be the prudent way to approach a change to the Constitution that is specific for that minority? Is the minority itself not a minority encompassed in an overall majority?

Mr. Robert Groves: Well, that's separate and apart from aboriginal interests, because they are not, in law or in politics today, treated as minorities; they're treated as unique constituent elements of the Confederation.

But in regard to minority rights, my own feeling—I won't speak for Mr. Russell—is that Canada's distinctness as a compassionate society is rooted in the majority's great respect for minority rights and interests, and in seeking virtual if not absolute consent of minorities when those rights are unalterably altered.

Mr. Peter Goldring: Thank you.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much, Mr. Goldring.

Thank you very much for coming, Mr. Russell and Mr. Groves—who hails, committee members might be interested to know, from Alberta.

Mr. Robert Groves: Thank you, Senator.

The Joint Chair (Senator Joyce Fairbairn): We are very grateful you took the time to come and bring us what always is an extremely important point of view and message on this occasion and other occasions as well.

And thank you very much, Mr. Russell.

Mr. Todd Russell: Thank you, Madam Co-Chair and Mr. Co-Chair, for the opportunity to speak. I guess this is an educational process for you guys as well, and hopefully you will enjoy this. I always invite people to Labrador to see our people, to see our communities.

I did want to bring greetings on behalf of our elder, Ken Mesher, who did appear before the committee in St. John's in July.

I wish you the best of luck and good deliberations, and I hope you take what we had to say into consideration.

Thank you very much.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much.

Mr. Robert Groves: Thank you as well, Senator.

I would just note that the incorrect version of the amendment and the companion resolution version of it were appended to this document in haste this morning. I'll fax over to the clerks this afternoon the correct version.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much.

The Joint Chair (Mr. Gerry Byrne): Just note that it's the correct version, that's all.

Mr. Robert Groves: Yes, I will, absolutely. Thank you so much.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much.

Now, colleagues, we have one more very patient witness who has been with us most of the morning, and I would ask him to come forward, Mr. Mark Graesser from Memorial University.

I know there will be great interest in your presentation, sir. We welcome you here and thank you for coming and for your patience. Please begin.

Professor Mark Graesser (Memorial University): Thank you, Madam Co-Chair.

I understand from remarks I heard earlier this morning that a version of some of the material that I plan to put in evidence has already been circulated in the form of a newspaper article. I should say I had originally thought I would be appearing before the committee last week, when I had submitted that article for publication so that this committee would have the benefit of receiving my evidence directly rather than through that means. However, I will see this perhaps as an opportunity to clarify any points people may have about that.

• 1235

I assume you all have my brief before you. I think I can go through the actual presentation fairly quickly—I have attempted to be as concise as I can—and then allow most of our time for response to questions from the committee.

I am a political scientist at Memorial University, where I have taught since 1970. I am particularly interested in the study of public opinion and elections. I am thus concerned with the thinking of the people at large on public issues and the extent to which public preferences are reflected in public policy.

Long ago, this caused me to ponder the question of whether Newfoundland's unique denominational education system indeed reflected the desires of Newfoundland parents and citizens, as I had been assured it did, despite the fact that in some respects it seemed at odds with the generally secular and tolerant nature of modern Newfoundland society.

Over the years I have conducted a substantial amount of research on this question, including about a dozen public opinion surveys. For the most part this has been purely academic research. I have acted as a consultant on a couple of occasions—once for the Williams Royal Commission on Education in Newfoundland, with which I imagine you are familiar.

I thus come before you not representing any group, but rather as a scholar with some special expertise on the complex issue which after many years of latency has transfixed provincial education policy over the past five years.

I should say at the outset that the overriding conclusion from my research for some time has been that the Newfoundland public has been well ahead of political and church leaders in their readiness for thoroughgoing reform of the denominational system. When I refer here to the Newfoundland public, I mean a broad majority crossing all denominations and classes.

Today my presentation is going to focus on an analysis that I will offer to you as the definitive analysis of how the denominational groups voted in the referendum. I will then add to that some perspective that I think is important to understand why such a high percentage of the public, including all denominations, voted yes in the referendum.

First of all, the referendum vote. As you well know, 73% of the total electorate voted yes in the referendum, with a turnout of I believe about 53% or 54%. The premier and all members of the legislature took this as a strong mandate to move ahead with the amendments in Term 17, which will completely eliminate the role that churches have historically played in education.

However, the validity of the referendum mandate has been challenged, particularly by those who interpret the vote as a case of minority rights being overridden by a tyrannical majority. It has been argued that constitutional rights guaranteed to a minority group cannot be rescinded without the consent of that group.

I do not propose to go into the serious legal, historical, and moral complexities entailed in the minority rights debate. However, I note that those who make this case tend to place a particular construction on the referendum vote. They note that Roman Catholics, for example, comprise a minority of the Newfoundland population, about 37%, which could not possibly override a uniform yes vote among non-Catholics, even if all Catholics voted no. There is then an implication, perhaps unstated, that all—or at least a majority—of Catholics did vote no, only to be overridden by a non-Catholic majority on the other side of the issue.

It thus becomes a matter of more than academic interest to know not only the magnitude of the majority in the overall electorate, but also the denominational breakdown of the vote. In particular, how did Catholics and Pentecostals vote?

On largely impressionistic grounds, many commentators have suggested that the overall majority was so large and so widespread that it probably included a majority of Catholic and perhaps even Pentecostal voters. However, this analysis has been challenged by spokespersons from these groups.

The only certain way to know how Catholics, Pentecostals, or other groups voted would be to have recorded the denomination of the voter on the ballot and then to have done a separate count by religion. Short of that dubious procedure, which I think was wisely not followed, a good post-referendum survey or poll could produce such a breakdown, subject to some margin of error. So far, no such survey has been reported following the September referendum.

• 1240

However, another method known as ecological inference has long been used by political scientists to estimate individual voting behaviour, such as how Catholics voted, from aggregate statistics, which may be more readily available than survey data. For example, by taking the percentage of the yes vote district by district and correlating that with the percentage of Catholics in the district, we can statistically project the correlation between the two variables.

Social scientists have been cautious about using this approach because it often allows for a substantial possibility of uncertainty or error. For example, even if districts with a high proportion of Catholics tended to have a relatively high no vote, it's still mathematically possible that most Catholics within a particular district, voted yes, while most non-Catholics no.

Earlier this year, a political scientist at Harvard University, Gary King, published a book that provides a solution to this problem. King's method has already been recognized as a major breakthrough in social science. The new technique is mathematically complex and uses extensive computer computations to produce precise and reliable estimates of individual voting patterns within each electoral unit.

It has been thoroughly tested for accuracy in situations where the true information about individual voting is available to check the computer projections. The King method has already been used as evidence in several United States courts where estimating minority-group voting patterns is crucial in congressional district boundary challenges under the Voting Rights Act.

You may or may not know that in the United States, courts can order what we might call affirmative gerrymandering if it is shown that a minority group, such as blacks, would elect a Democrat if they could only be concentrated within a district. So for those kinds of considerations, this particular technique has been used in evidence before U.S. courts, including the Supreme Court of the United States.

I have now enlisted the computer program developed by Professor King for an analysis of the Newfoundland referendum vote. Equally important for this exercise, I have obtained accurate census statistics from the Newfoundland government on the denominational breakdown for populations within each provincial district, which can be matched with the official referendum results from the chief electoral officer.

Overall, as I think you are probably aware, 37% of the population in Newfoundland is Catholic, 7% is Pentecostal, 52% is of the various integrated denominations, and 4% is of other denominations or have no religion.

The results of the analysis are summarized in table 1. According to the analysis, the best estimate is that 62% of Catholics in the province as a whole voted yes, as did 32% of Pentecostals and 87% of the others, who are comprised mainly of the integrated Protestant denominations, as well as the 4% who are of other denominations.

Voter turnout in the referendum was 53%. The estimates I have done explicitly take this into consideration.

There's the possibility that the turnout may have differed among religious groups. In fact, this has proven to be true. The best estimate is that 65% of Catholics voted compared with 44% of those in the other categories. The turnout was much higher among Catholics than non-Catholics.

I have not been able to estimate turnout rates among Pentecostals because the numbers are much smaller and much more concentrated within a few districts.

• 1245

This is significant. My estimate of 62% Catholics voting yes is crucially affected by the fact that Catholics did in fact vote in higher numbers. A casual examination of the different districts would show that is evidently the case. Those districts that have the highest proportion of Catholics, particularly on the Avalon Peninsula and in St. John's, had the highest turnout rates. Districts with low turnout rates tended to be in areas on the south coast and the northeast coast, which are almost exclusively non-Catholic. Those districts that had high turnout rates and high percentages of Catholics also had high yes percentages.

There's some margin of error in this that this method can estimate. It's a statistical margin. It's not guesswork. It is analogous to the margin of error you hear from survey results. There's about one chance in six that the Catholic vote was actually less than 51%. In other words, there are five changes in six, or an 83% chance the Catholics voted at least in the majority for yes.

With Pentecostals, with their estimated 32% yes vote or 68% no vote, the margin of error is greater because the number of Pentecostals is smaller. But it would appear there's less than one chance in six that more than 50% of Pentecostals voted yes. The best estimate of how each group voted is the number given in the table, however, that 62% of Catholics voted yes and 32% of Pentecostals voted yes.

I've provided a table similar to the one in the newspaper article, if you saw it, that does a similar breakdown for each district in the province and shows that in only two districts did a majority of Catholics evidently vote no. In all of the other districts a majority of Catholics voted yes, rising to as high as 70% in some districts.

I think my message there is clear, and I'll be happy to elaborate on questions, but I would like to take just a few more minutes to put this into perspective. I went back to the 1995 referendum, which of course was on a different question but the same general issue, and did a similar analysis. I found in that referendum 41% of Catholics and 65% of all others, including Pentecostals, voted yes. I was not able to separate them, thus there is about a 20% lower rate of yes voting for both Catholics and others in 1995. The shift between referendums was substantial and it evidently occurred for all groups.

I provide some evidence in the brief from a relatively small opinion survey done in St. John's after the 1995 referendum that is consistent with this. It reported 48% of Catholics voting yes compared to 81% of Protestants, but I think both of those figures are somewhat overstated because the overall yes vote in the survey was a bit higher than the true yes vote. However, those results are consistent with the results derived from what I call the ecological inference.

Why was there such a large shift between 1995 and 1997? To cut through a lot of material this committee has already heard in evidence over the past two weeks, I would point to two possible explanations, both of which are at work. First are the developments that occurred after the 1995 referendum; the second is the difference in the referendum questions.

On the matter of what happened between September 1995 and September 1997, as you are well aware, the process of finally achieving the constitutional amendment then bringing in a new Schools Act and a new Education Act to give force to this new interdenominational compromise model was fraught with further conflict, with further tension. Some of you sat on the Senate committee in the summer of 1996 and had a feeling for that.

• 1250

The implementation of the new Schools Act, with the process of asking parents to indicate a preference between uni and interdenominational schools was confusing and aroused really terrible feelings of anger and frustration along denominational lines, the sort of which we haven't seen in generations in Newfoundland.

Things had come to a point earlier this summer when Mr. Justice Leo Barry handed down his decision on the injunction. I think the feeling of frustration with the interdenominational model and the difficulties of bringing it about were palpable. There was anger. People had different ideas of what they wanted to see out of it, but there was a widespread sense that the situation as it was, was not acceptable and could not be resolved in the future in any foreseeable way.

However, there's another side to this and that is the nature of the question itself. The question, as you know, in 1997 asked voters, “Do you support a single school system where all children will go to the same school without regard to their denomination?” I think that question by comparison with the 1995 question made a lot of difference. In 1995 some number—I don't know how many but I suggest at least 5% and perhaps 10%—of the voters who voted no did so because they felt what was offered in 1995 did not go far enough.

In the survey I conducted in St. John's, out of the people who voted no, for example, 12% on a separate question said that they favoured a totally non-denominational system without any church involvement. So this suggests that had a question more like the 1997 question been asked in 1995, the yes vote would have been higher than the 55% that was actually achieved.

This idea that a broad majority had anticipated the 1997 question for some time is supported by public opinion survey results. In table 4 on page 9 of the brief I've included several questions that were taken from a 1991 province-wide survey done for the Williams royal commission. This is a large survey with a sample of 1,000 conducted to the highest scientific standards.

What we see here are several questions that show, looking at the first ones, that very large majorities in the range of 80% supported on several different questions the idea that there should be a single school system where all would attend the same school regardless of religion.

On the first question, there should be a single school system for everyone regardless of their religion, 79% of all Newfoundland voters agreed with that, and this included 74% of Catholics and 56% of Pentecostals.

On the question, should all children attend the same school or should they go to separate schools based on religion, 85% said they should attend the same schools. That included 79% of Catholics and 53% of Pentecostals.

A large majority, including all denominations, agreed that denominational schools create divisions between people within the same community.

On another issue that of course was present in the 1997 referendum, should there be some provision for religious teaching in school, again back in 1991 on the question, teaching religion in school gives a better overall education, 77% agreed with that, including 75% of the integrated denominations, 80% of Catholics, and 95% of Pentecostals. So there was a broad consensus.

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On the issue that children should be taught in school about beliefs and practices of all religions, 85% agreed with that: 88% of integrated, 80% of Catholic, and 86% of Pentecostal parents or citizens.

Most disagreed with the proposition that children should be taught only their own religion, and that included majorities across the board. Most agreed they would not object to having a teacher of another religion teach their children religion. There was overwhelming rejection of the idea that teachers should be hired and fired on the basis of religion, which as you know is still the law in Newfoundland even under the revised Term 17 of 1995.

There's much more that could be brought to bear on this. The conclusion I draw from this is that in Newfoundland there has been for some considerable period of time—and I'm thinking decades—a broad consensus that a single, non-sectarian school system, which nonetheless provides for the inclusion of religion in the curriculum and the inclusion of the recognition of holidays that have a religious connotation, has been widely acceptable and deeply desired by some. That has been deeply opposed by a few, many of whom you've heard from.

The 1997 referendum, with the 73% overall majority, including 62% of Catholics but not a majority of Pentecostals by my analysis, was predictable. The question tapped the core feelings of Newfoundland citizens at large much more closely than did the 1995 compromise question, which most people couldn't really understand. Many people read into that a lot more change than was genuinely provided for, legally speaking. That helps to account for some of the shift in the vote.

In conclusion, I think it would be most regrettable if the large, multidenominational majority of the Newfoundland and Labrador public were once again subjected to detours and delays in the implementation of their wishes. The governance issue should at long last be clearly and cleanly settled so that all concerned can get on with the pressing problems of genuine education reform.

I'd be happy to answer any questions.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much, Mr. Graesser.

Mr. Goldring to begin, followed by Ms. Caplan, Mr. Doyle, Senator Gigantes, and Mr. DeVillers.

Mr. Peter Goldring: Thank you very much for your presentation, Mr. Graesser.

You stated in your brief:

It has been argued that constitutional rights guaranteed to a minority group cannot be rescinded without the consent of that group. I do not propose to go into the serious legal, historical, and moral complexities entailed in the minority rights debate.

I submit that's really the heart of the problem here. I do wish for you to explain the difficulties and complexities entailed in the minority rights debate.

I want to add that when the Pentecostal rights were entrenched, it had been mentioned in the legislative assembly in Newfoundland that today we are going to make sacrosanct, if you will, or make guaranteed in the Constitution of Canada the recognition of educational rights to the Pentecostal assemblies. Could you explain why you feel it is a very complex subject and maybe elaborate on it, please?

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Prof. Mark Graesser: I can perhaps begin to do so.

First of all, there's the whole question of whether we're talking about rights or privileges. As you know, the language of the Constitution reads “rights or privileges”. I'm not sure there's a definitive distinction, but one that I would make is the tendency to regard rights as something that universally accrue to all citizens, such as the fundamental rights in the charter, as distinct from privileges, which represent particular benefits going to some but not all groups as a result of historic agreements, essentially political agreements in the past.

When the language of “rights” is used, that word, which has acquired a great cachet in our country, particularly since 1982, carries with it a powerful rhetorical message that I think derives very substantially from people's feelings for individual rights; for example, the fundamental right of freedom of religion and beliefs.

But the rights that are referred to here, of course, are minority rights, that is, group rights, which in this case, as in many cases, fundamentally contradict individual rights. That's why we have the section 29 shield to protect the minority bodies, the Catholic church, the Pentecostal church, and the other churches from being dissuaded from hiring and firing teachers on the grounds of section 15, for example. So that's an area of complexity.

Another one, I think, has to do with this question: To whom do so-called minority rights accrue? Do they accrue to some kind of class, some kind of abstract entity, some corporate body such as the church, or do they accrue to individuals? I've read considerably in the literature of this and I find a lot of disagreement about it.

So those are a couple of the things I'm alluding to when I refer to historical complexities. We heard a bit of this in the previous presentation. What exactly were the rights held by alleged classes in 1949 in Newfoundland? Who were the classes and so on? One has to delve back into the 1927 Education Act and go back to the 1887 Education Act and then begin to interpret the meaning of that. This is not easily or obviously done.

That's all I mean by saying that these are complex issues. I am not proposing to offer a definitive analysis of that. I'm simply saying that to the extent the members of this committee feel it's important to know in their own judgment on that issue—which is very much your issue—what the expressed feelings of the respective groups are and what those views are, I think I can provide some help that is reasonably reliable in that regard.

Mr. Peter Goldring: In a supplemental question, let me point out that this is a fairly recent entrenchment in 1987 for the Pentecostals, and it's very specific too. There is no misunderstanding that.

Given the fact that the Pentecostals have expressed their desire to continue in their denominational fashion in several instances, from the government-arranged census in February of this year to a petition of 4,200 names that they tabled today...and also I refer to your own estimates here, where you're estimating that in the neighbourhood of 29% to 32% of the Pentecostals voted yes, meaning the remainder voted no. In other words, a great majority of that one group voted no. Would it not seem prudent and sensible and right to consult the Pentecostal group about their express wishes in this matter? Should we not respect their express wishes?

Prof. Mark Graesser: It is certainly appropriate to attempt to ascertain their wishes. There remains the question of how you do that.

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I am reasonably confident that leaders of the Pentecostal Assemblies, from whom you have heard, as well as spokespersons from one of the schools in St. John's, probably do a reasonably good job of representing their members. They do mobilize large numbers of names on petitions, for example, which provides reasonable grounds for suggesting they represent their members. But I think one does have to add a note of caution, that the spokespersons for various religious categories within Newfoundland would have to be judged against the evidence those leaders bring forth that their members actually are supporting their position.

For the Pentecostals I would say that is the least in doubt. I would regard them as the most democratic denomination in Newfoundland.

Mr. Peter Goldring: I'm going from your own statistics here, where you indicate it was only a minority of a minority that voted in favour of this motion. Clearly this would indicate, from your own statistics, they were not in favour of this amendment. So my question really is, what does “entrenched constitutional rights” mean? Does it simply mean the next majority can come along and extinguish that minority when they have the wish and will to? In other words, is there any meaning to entrenching minority rights if they can simply be extinguished by a majority?

Prof. Mark Graesser: In my own analysis of this, what you have in Term 17 is a particular configuration of the school system that says certain designated churches shall have the right to operate school boards...and whether children shall be segregated and sent to those different schools. The first part of that was eliminated partially in 1995, but to the extent that there was still the possibility of having so-called unidenominational schools, there was still that element in it.

I am chary of calling that “rights”, other than in the sense that it is a particular beneficial provision. It is not of the same nature, in my view, as entrenched rights freely to practise and believe your religion. It's an organization of the educational system that allowed some groups to have a privileged place and other groups not to have a privileged place. It strikes me that entrenching that, as you say, means... Obviously there is a solemn constitutional guarantee that legislatures cannot overcome that until the Constitution is amended. But if the Constitution is amended by due process...and we finally do have an amending system, since 1982, and in doing that now require, almost by convention, evidence through referenda that this is broadly supported by the public. Nonetheless, it does not freeze it forever in time.

That's my view on it. The arrangement was there. As long as it was there for all other denominations the Pentecostals should certainly have benefit of it. But if it is eliminated for all other denominations, probably the same should be true for them.

Mr. Peter Goldring: I agree that a constitution should be living and breathing and not frozen for all time, but if it is referencing a specific identity—they picked Pentecostal, I believe—would you not believe they should be the ones who should be consulted on whether you thaw out this Constitution; in other words, whether you are going to modify this Constitution? Should they not be the people to be consulted; not the greater majority but the minority that is specifically referenced?

Prof. Mark Graesser: My view on that is yes, they should be consulted by the democratic legislature when it makes its decision on behalf of the society as a whole. Consulted is not the same as having absolute consent or veto. There is a balance that has to work here, and clearly great weight should be given to the express wishes of those affected, but not an absolute veto, as long as it doesn't interfere with what I would regard as their fundamental rights—not their class or group rights to have schools operated at public expense, but rather the right to practice their religion. That's a different matter, as far as I'm concerned.

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Mr. Peter Goldring: I would submit that the last groups that presented themselves, the aboriginal groups, would argue with that quite vehemently. What do you think?

Prof. Mark Graesser: I think there are certain inherent rights that aboriginal people have and that are, as we know, emerging bit by bit in terms of getting greater recognition both in constitutional law and in other law. They come from a somewhat different foundation, but I don't have any question that non-aboriginals are all party to the Constitution of Canada, including its amending formula.

Mr. Peter Goldring: Thank you.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much.

Ms. Caplan.

Ms. Elinor Caplan: Thank you very much for a very interesting presentation.

We've learned a lot about the history and the evolution of this issue in Newfoundland and Labrador. I found the provision of the survey from the 1991 royal commission particularly helpful. In that survey, were people asked to self-identify which of the religious groups they belonged to?

Prof. Mark Graesser: Yes, they were asked what their religion was, and the data from that corresponded precisely with the census.

Ms. Elinor Caplan: Was there an expectation flowing from this that there might be a requirement for a constitutional amendment in order for there to be the kinds of changes that this survey contemplated?

Prof. Mark Graesser: Yes. The Williams royal commission knew full well that bringing about a unified, non-sectarian school system would require either the consent of the churches with rights—that they would go along with this without challenging it under Term 17—or an amendment of Term 17. They state that virtually from the first page.

I know the commission found this to be a terribly difficult thing to deal with, but they had been around the province. They had countless hearings, they had the survey data, and they said this was the only conclusion they could come to, to deal with the declining enrolments, the financial problems, and the fact that most people in Newfoundland—not all; they certainly heard the same submissions you did—seemed to be ready for a single system. They said this was what they were proposing, that the churches could stop this under Term 17 if they wanted to, but that they hoped the churches would agree not to. There it was, and everybody knew this.

Ms. Elinor Caplan: The question of everybody knowing this leads me to my next question. I've been asking numerous presenters about the issue of whether or not the people understood the question. That issue has been raised. Over the course of history, going back to the debate prior to the royal commission, the royal commission itself, and the fact that there have been two referendums, do you believe the people understood what they were voting on in the referendum? That's question one.

Secondly, from your perspective as a professor, do you think the unanimous vote in the Newfoundland and Labrador provincial legislature was a reflection of the legislators believing their people understood the question?

Prof. Mark Graesser: Well, I would say yes to both points.

As I said in my presentation, some people have suggested that the question, “Do you support a single school system where all children, regardless of their religious affiliation, attend the same schools...” was a motherhood question. Who would disagree with that? That was the residual core of what was at issue in Newfoundland. It wasn't the teaching of religion in school. That has not been an issue.

The question of who controlled things wasn't really a very big issue either. The denominational school boards were primarily interested in education, not in fighting denominational battles. For most people, the residual issues were whether or not children would be going to separate schools, and all that followed from that. How do you decide which kind of school—unidenominational, interdenominational? Which town? Do buses cross one another?

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So that was not a PR-type question, as some people have suggested. I think it was a meaningful question. I think people understood it. Whether they understood all of the implications that this will bring, I cannot say, but they certain feel they understood it, I think, much better than the 1995 question.

Ms. Elinor Caplan: Finally, on the question of consultation with the groups affected by this, the debate we're having around this table, the different perspectives and points of view, I would assume have been going on in Newfoundland since the time of the royal commission or before, and each of the members of the provincial legislature who voted in support of the new Term 17 would have had the opportunity to hear all of this debate prior to their vote.

Was there that kind of consultation with the constituents? Were there any other events you know of that would constitute consultation that took place that we should know about?

Prof. Mark Graesser: I think there were three public occasions for consultation in this process, in the recent history of it.

First, the royal commission held in 1991 and 1992 between 60 and 100 hearings around the province. All groups presented briefs.

Second, during the meetings of the Senate justice committee on the first amendment to Term 17, in the summer of 1996—some senators were present at that—there were public hearings.

Then, anticipating the passage of Term 17 in the fall of 1996, the Minister of Education, Mr. Grimes, held a series of about 20 public hearings around the province on how to implement the new thing, on how to go about designating schools and so on.

Those were three public occasions. Of course, the representatives of the denominational education committees, such as Dr. Fagan and Dr. Regular, have had regular access to the government throughout this process. There's always consultation with them. They're the official conduits of advice from the respective churches.

Ms. Elinor Caplan: Thank you.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much.

Mr. Doyle.

Mr. Norman Doyle: Thank you, Madam Chair.

I'm very pleased you came here today, Mr. Graesser, because you're clearing up a little bit of confusion for me. We've been hearing from the Minister of Intergovernmental Affairs in the House, Mr. Dion, who's also president of the Privy Council. When he presented his resolution he said the referendum had a reasonably high level of support among the people of Labrador, including the affected minorities.

Now, Pentecostals and Catholics have been presenting briefs here. They say that on numerous occasions they did not vote to relinquish their rights on education. You have confirmed, at least for the Pentecostal end of it, that 70%, or almost 70%, of these people did not vote to have their rights relinquished in education.

So you're clearing up a little bit of confusion on that end of it for me. I've been chastised, as you know, in my own province about this particular issue. Saying that the Pentecostals didn't vote for it was somehow wrong.

Moving away from that, and getting into another part of it, as a political scientist and as an individual involved in the electoral process you have more than a passing interest in this. What is your opinion with respect to releasing Term 17 just 16 hours before the advance polls opened and one week before the election? Is that a good way to proceed?

Here we are changing the Constitution of Canada; numerous people around the table have indicated it's a very complicated process; and this new term was released 16 hours before the advance polls opened. Is that a good way to proceed?

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It's a very complicated issue. How do you square that with your comments that people actually knew what they were voting on when you had this very complicated term released only 16 hours before the advance polls opened?

We've had people come here to this committee and say it has horrendous implications for the Charter of Rights and Freedoms. We had an individual from the Canadian Civil Liberties Association who said it had horrendous implications for the covenant on political and civil liberties.

So how do you square that with these kinds of comments that people actually knew what they were voting on and this is a good way to proceed? Surely, this is not a good way to proceed when you have such a very complicated issue being released to the public in the middle of the summer, 16 hours before the advance polls opened. As it is, we can barely grapple with this issue around this table, and we've been reading research material on it this high.

Do you think the people of Newfoundland and Labrador actually knew what they were voting on and what implications it would have for the charter and the covenant on civil liberties?

Prof. Mark Graesser: First of all, my feeling is that it would have been much more appropriate for the government to have released the language of the proposed amendment at the same time they announced a referendum and announced the question. That point is well taken. That was my feeling at the time.

That being said, I nonetheless have little doubt that people understood the implications of their vote, because in contrast with 1995, the language of the constitutional amendment really was the crux of the matter, and that language... We know now it was not only not understood by the voters but it was not understood by many lawyers.

Mr. Norman Doyle: You're right.

Prof. Mark Graesser: Then Premier Wells assured me that he understood it, but I think he's had doubts since then, from remarks I've heard.

In 1997, to the credit of the government, I think, the language in the amendment was entirely...well, I shouldn't say entirely—largely consistent with the referendum question. The principal matter that was left a bit uncertain until that constitutional language came out was exactly how religion would be incorporated as a school subject in constitutional language. As you know, that continues to be a difficult issue.

But it was essentially consistent. It said there would no longer be any role for the churches, which was what was promised, but there would be some guarantee of religion and the right to have religious ceremonies.

To that extent, I think the constitutional language was not a surprise to anyone and therefore didn't leave people in doubt as to what they were voting for. But I do concur that it would have been far better to have said at the outset of the announcement that this is the question and this is the constitutional amendment that will follow from this if the majority votes yes.

Mr. Norman Doyle: Exactly. I agree.

The Joint Chair (Senator Joyce Fairbairn): Thank you, Mr. Doyle.

Senator Gigantes, and then Mr. DeVillers.

Senator Philippe Gigantès (De Lorimier, Lib.): Thank you, Madame, and thank you, sir.

Are there any other reputable political scientists, like yourself, who disagree with your view of what the vote was?

Prof. Mark Graesser: Do you mean my view in regard to the—

Senator Philippe Gigantès: In regard to the numbers, and how many of each minority community voted yes and how many voted no.

Prof. Mark Graesser: As far as I know, I am the only person who has done this analysis, and certainly I haven't heard from any others.

Senator Philippe Gigantès: You also talked of ecological inference. Could you enlighten me, please?

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Prof. Mark Graesser: If we do a public opinion poll, for example, on voting, as the 1991 survey indicates, we can ask each person “How did you vote?”, for example, and “What is your religion?” Then we can correlate those one by one and come to a certain conclusion as to what percentage of Catholic individuals voted yes and no, and what percentage of Protestant individuals voted yes and no. Subject to the plus or minus margin of error that comes from survey sampling, we can say for certain how the different groups voted.

Ecological inference means we're going to try to infer what individuals did from... We call it ecological because it's not the information about the individuals one by one. Rather, we have a percentage of people in a district who voted yes; we have a percentage who may be Catholic; and we can see that the higher the percentages of Catholics, for example, perhaps the higher percentages of no. From that we draw conclusions.

People do this all the time in politics. They say, hey, those are rural ridings, those are urban ridings, those are ethnic ridings, those are Catholic ridings. The Liberals do well in the ethnic ridings. The Tories do well in the rural ridings. That's ecological inference, but that's rough and ready. That's crude.

What we have done here is to refine this very substantially so that we can make much more precise calculations about what the proportions are at the individual level, even though what we're working from are these total percentages.

Senator Philippe Gigantès: Thank you, sir. On table 4, question 27 asks:

If a child of yours were to be taught religion by a qualified teacher of another denomination, would you say you would strongly object, mildly object, or not object at all?

Were people informed that there might be some denominations that teach religious beliefs that are contrary to the charter?

Prof. Mark Graesser: People were not told anything, obviously. This was a public opinion survey. They were asked these questions. What was in the mind of the respondent about the possible contingencies, etc., we do not know. We can only guess.

Senator Philippe Gigantès: There is a school in Montreal, an Islamic fundamentalist school, that gives religious teaching in which women are classified—

Prof. Mark Graesser: Yes, I understand.

Senator Philippe Gigantès: —as non-existent, practically, and in which sexual mutilation of women is considered a good religious practice. I have heard two women belonging to that faith, educated in Canada, both with doctorates, argue on CBC that this was one of the religious minority rights and shouldn't be interfered with.

Prof. Mark Graesser: Well, sir, I think it is certain that nobody in Newfoundland who answered this question imagined that possibility. On the other hand, I think what is reasonable to assume is that these people did work from their understanding of how Newfoundland teachers behave and how Newfoundland people behave, and that by and large they are tolerant of one another. By and large they are non-doctrinaire. Some have experienced this, in fact. I've known Protestant teachers who have been employed—and this does exist—in the Catholic system, and they have taught the Catholic religious education course from the materials.

So I think that when people answered that question, it was presumably with the assumption that we're talking about people within a range of experience that is a highly tolerant and liberal one in which people respect one another's views and a qualified teacher can be expected to do a good job.

There is an issue here that maybe arises. To what extent is a religious education course in a school a course in doctrine, and to what extent is it a course in general issues about religion? Again, as a matter of reality, most religious education in Newfoundland has long since stopped being doctrinal. Most of it is about basic Christian values, and even universal values. But it does not incorporate the particular values, I don't think, which that school has.

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Senator Philippe Gigantès: I'm delighted to hear from you, sir. In fact, I already knew the people of Newfoundland are civilized and very nice.

Prof. Mark Graesser: Absolutely.

The Joint Chair (Senator Joyce Fairbairn): Mr. DeVillers.

Mr. Paul DeVillers: Thank you, Madam Chair.

Thank you, Mr. Graesser. It's nice to meet you, finally, because your fame or your infamy has preceded you to this committee. Witnesses on both sides have been referring to your work, the Pentecostal witnesses favourably, because your position supports theirs, and some of the Catholic witnesses less favourably.

On that point, allegations were made about your objectivity, allegations that you're known to be an advocate against denominational schools in the province and therefore impugning them, and therefore they would not accept any of your work or your results as being factual. In fairness, I think you should be afforded an opportunity to respond to that.

Prof. Mark Graesser: I would be curious to know exactly what was said.

First of all, as to my private views, as you can perhaps tell by some of my tone here, I'm inclined to be, shall we say, very skeptical of many of the claims made on behalf of the denominational system. I'm fundamentally a liberal who believes in individual rights. I've seen that this system contradicts individual rights, and that has disturbed me. However, I've never been a public advocate one way or the other. What you've heard from me today is by far the strongest statement I've ever made about any of this, and the leading question brought me out a bit on this.

I've been researching this from an academic and scientific point of view from the sidelines for many years. Fundamentally, what has driven me in this is my interest in... I'm skeptical when spokespersons claim to say what the people believe without checking that out with the people themselves. I have professional expertise there.

Before I sat down here someone handed me a sheet that apparently had been submitted to you by Professor Knoechel of our biology department, commenting on my article in the paper. In my brief to you I've added a methodological appendix. Professor Knoechel never gave me the courtesy of even asking how I did my work. What he has done here, as far as I can see, is taken a crude approach that is totally superseded by the method I've used. I didn't even know he was a social scientist, let alone someone interested in this subject matter.

Everything I've presented here is based on rigorous evidence, either statistical analysis using established procedures or survey research, again using high standards. I have never had anyone contest the validity of any survey I've ever done.

So I guess I just stand on the fact that I'm prepared to deal with a genuine critique of my methodology. I teach students methodology and I say, look, we have to deal with our personal values and discipline ourselves when we're doing scientific work by making our work public, by adhering to the data, whichever way they go.

Who knows? I suppose I would have preferred to see a majority of Pentecostals vote yes too. But it wasn't there. This is what the data show.

Mr. Paul DeVillers: Thank you.

The one question was on the clarity of the question and what people were voting on and what they understood when they were voting. Have you done or are you aware of any follow-up surveys that were done after the holding of the referendum to determine what people thought they were voting on?

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I use the example of the Quebec referendum in 1995. A ton of surveys and polls was done where people were polled and asked what they thought they were voting for and what they understood were the consequences of the vote.

Has that occurred in this situation?

Prof. Mark Graesser: I've done one survey myself and the results of that have only been coming in over the past few days. I haven't seen those results, but there are a number of questions in it about whether people thought the question was clear, etc. I cannot tell you any results from it. Other than that I'm not aware of any.

Mr. Paul DeVillers: In light of the allegations that people did not understand, do you have an explanation as to why none were done until now?

Prof. Mark Graesser: I don't. Special interest groups I suppose would have a motive to do this. My motive to do this within the very limited resources I have is that I continue to be interested in knowing what people think about these matters; it's an academic interest. In due course my survey will be coming out. I wasn't able to do it earlier because I rely on students to do the interviewing and they have to be trained how to do it first. So it's a timing issue for me.

From what I've stated it should be clear I'm confident that people understood the question. That's impressionistic to a degree, but it is informed by my previous extensive surveying asking many questions about the issue.

I think the public had arrived at a point where that was a litmus test of where people stood. Again, while I say the frustration was palpable in July, I think the relief was palpable when this referendum was called. People hardly believed it could happen, but they said “At last now we can clear the air. This we understand is the question, yes or no.”

Mr. Paul DeVillers: Thank you.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much.

We have two remaining questioners and we're in a bit of a battle with the clock.

Senator Pearson and Mr. Schmidt.

Senator Landon Pearson: I'll be quick.

I'd like to make two comments, one about the referendum and one about rights. I'll make them both together and then perhaps you may have a comment in response.

Personally, I think there's nothing like a secret ballot. Petitions and all kinds of other ways of assessing opinion, including questionnaires, to be frank, are probably less reliable than the actual secret ballot where people are under no pressure whatsoever to respond in any particular way. It often takes more courage not to sign a petition than it does to sign one. Petitions and others have been used as evidence of support and so on. I'd like a comment about that.

I understand about the method and I was fascinated by the methodology. I have a lot of respect for it. I'm not really talking about this kind of thing; I'm talking about the other way of surveying public opinion, by petition or whatever. That's one comment.

I'm certain when people voted in Newfoundland on the referendum question they voted on the question. I agree the new term should have been available sooner, but that wasn't actually what was on the ballot. What was on the ballot was the question, right?

Prof. Mark Graesser: Yes.

Senator Landon Pearson: That was with respect to the referendum.

My second comment is that it is my understanding that the Supreme Court has defined a minority right to education as not implying a right to public funds. So when we talk about the denominational rights to education, it doesn't necessarily mean what's happened now has been a diminution of that particular fundamental right. What we're really talking about is the diminution of the right to public funds for denominations.

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Prof. Mark Graesser: I'll deal with the second question first.

For one thing, I won't comment about the jurisprudence, that is to say, what exactly the courts may have declared a minority education right to be. Certainly in Newfoundland what is at issue in part is the public funding of separate denominational schools, but it also had to do with the public regulation of denominational schools. Basically, although the schools, as you've heard from previous speakers, would allow children of other denominations to attend, they were at the end of the list and they have been denied attendance at some programs, and it affected the hiring and firing of teachers.

So there was legal regulation as well as funding. There was an enormous power that was given to the churches, which, to be fair, they exercised, for the most part, at arm's length for a long time now, through proper school boards. That is what is at issue.

What the courts said about that particular issue I can't comment on.

On the first comment, that the vote in the secret ballot has special validity, you're right. I'm not a fan of referendums. I think they're a big source of mischief to a large degree in society, especially for settling complex questions like this one. Most Canadian referendums, fortunately, have been limited to two issues, daylight savings time and the prohibition of liquor. I don't know if the second one is simple, but I think one is.

When we get to something that has so many dimensions to it—and the Charlottetown issue in 1992 was a similar one—it's like six blind people looking at the elephant. I vote no because I want my minority rights; I vote yes because I think we need to save money. I think those things are best dealt with through political compromise, by elected legislators. Be that as it may, it has clearly become politically imperative that constitutional amendments nowadays—I would almost call it a constitutional convention—be supported, although the recent Quebec experience belies that, by referendum vote. I think evidence from a survey is a very useful supplement to a referendum vote. This way you can bring out the different dimensions of the issue that may have resulted in the kind of convergence on a particular yes or no.

I think you're right. In the registration process, in early 1997, there was great pressure applied to Catholic parents in particular to register for unidenominational—very explicit pressure. The same goes with petitions, of course. I think those have to be discounted, to a degree.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much.

Mr. Schmidt.

Mr. Werner Schmidt: Thank you, Madam Chair.

Thank you, Mr. Graesser, for your appearance here this afternoon.

You indicate that you are a professor of political science. In your presentation you make a point about how a question is worded may affect the results, particularly when you compare the 1995 referendum results and the 1997 results. I think you also indicate that this is a particular statistical method you've used in terms of drawing inference from ecological data. I think the methodology there is very interesting. However, I'm not too concerned about the numbers. I think the numbers are all right.

The question I have is about the reliability and the validity of the questions themselves. I refer particularly to your commission survey of 1991. I'd like to refer particularly to question 28. It reads like this:

By and large children now attend schools of their own religion. However, some people believe that all children should attend the same schools. Which do you think is best?

That's an open-ended question. Yet according to your table, you have a response that says “Same”. What does “Same” mean, and what does 86% mean in total? Could you explain that, please?

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Prof. Mark Graesser: It was not an open-ended question. To use technical terminology, it was a “closed-ended” question, where people were in effect forced into two choices. For conciseness, I've given only one of the options.

The first choice they had was that children should continue as they presently are, to attend separate schools, or they should all attend the same schools. Given those two choices, eliminating those who said “Don't know”, which was probably less than 10%, 85% said they should all attend the same schools and 15% said they should continue to attend separate schools of their own religion.

That's what that means. It's compressing it.

Mr. Werner Schmidt: Then, Madam Chairman, I would submit that this table is misleading, false, and inaccurate.

It is an insult to you, as a professor of political science. This should never be accepted. You've given us an explanation, but you have not told us that there was that kind of a division. You have not told us what the respective responses were to those questions. You've indicated now that there were two separate questions. That is not what this table reveals.

Prof. Mark Graesser: With respect, I think you're completely wrong.

Mr. Werner Schmidt: I knew you'd say that, but—

Prof. Mark Graesser: I've precisely quoted the question—the exact wording—and I've stated here responses, all the way up and down. Most of these are agree/disagree choices. I've given the “agree”. The remaining percentage indicates “disagree”.

I accept that perhaps I should have put a note at the bottom to say in all cases to subtract the percentage from 100% to get the alternative response. But I've frequently used this method when I'm summarizing for comparison several questions to allow the reader to see the pattern.

In this case, there were two choices. They're embodied in the question. I've given the percentage of who answered choice “a”, if you like, and the other 15% answered choice “b”.

Mr. Werner Schmidt: I accept the explanation. I have no trouble accepting the explanation. I'm just suggesting to you that in future you not do that, because that can be very misleading. Had you not given this explanation, that conclusion would not have been drawn from that particular summary. That's the only point I'm making here.

I think this raises a whole different issue. To try to reduce something as significant as a constitutional amendment, which will affect not only the province of Newfoundland but also other provinces, to a series of numbers that can be misread, is I think a very dangerous business.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much.

Senator Philippe Gigantès: Supplementary?

The Joint Chair (Senator Joyce Fairbairn): A very short one, Senator Gigantès. We have another issue to raise.

Senator Philippe Gigantès: Would you think a decision leading to a constitutional amendment under article 43 can affect other provinces against their will?

Prof. Mark Graesser: No.

Senator Philippe Gigantès: Thank you.

The Joint Chair (Senator Joyce Fairbairn): Thank you, Senator, and thank you, Mr. Graesser, for your presentation. As has been noted, you have been much on the minds of the committee members over recent days. It's very good of you to be here, and we thank you very much.

Prof. Mark Graesser: Thank you, Madam Chair, and Mr. Chair.

The Joint Chair (Senator Joyce Fairbairn): Colleagues, before we leave I should say that I'm still very cognizant that we have a piece of unfinished business with the amendment suggested earlier today by Mr. Schmidt. It is something we can deal with now or later.

Everyone should have a copy of the motion.

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Ms. Elinor Caplan: I just want to make one short comment, if I may. I've been a member of this committee. I feel we have heard both sides. I'm very aware of the history, and frankly, Chair, I see this motion as just an attempt to delay what I think is the important work of this committee. I object to any delay. I believe any delay would have a negative impact on the people of Newfoundland, who are expecting this committee to complete its work within a reasonable timeframe.

I ask that we put the question to a vote and move ahead. I will not be supporting this motion to delay the proceedings of the committee.

The Joint Chair (Senator Joyce Fairbairn): We are gathering names. We have Madame Folco, Mr. Schmidt, and Mr. DeVillers.

Mr. Paul DeVillers: My comment is more on a point of procedure, on whether the motion is even in order since the House and the Senate would have to pronounce again on the order of reference for the committee at that specific date in it. To ask our chairs to go and make representations to the House and Senate implies that the matter would have to come up again in the House and in the Senate to be voted on.

Mr. Werner Schmidt: I think the mandate has been given by the respective Houses, and I think that's fair and legitimate.

The appeal I have, Madam Chair, is not on the basis of anything other than the implications of the referendum. I agree with Senator Caplan across the way that—

Some hon. members: Oh, oh.

Mr. Werner Schmidt: Oh, I'm going to make you a senator.

Ms. Elinor Caplan: You were made one yourself earlier.

Mr. Werner Schmidt: Madam Chair, I did that deliberately because somebody else made me a senator before, so I thought I had better return the favour.

Some hon. members: Oh, oh.

The Joint Chair (Senator Joyce Fairbairn): We're happy to have you both.

Mr. Werner Schmidt: In a serious vein, the issue here isn't that we don't understand the issues. I agree with the hon. member opposite. I think I understand the issues and I think the committee does. I don't think that's the question. The question as far as I'm concerned and the appeal I'm making to members of the committee is that we clearly understand what the implications are. It's not the issues, but the implications, the legal implications and the implications across Canada. That is a different set of questions.

Madam Chair, it's on that basis that I make this appeal. It's not in any other way. We are dealing with something here that is going to have a long-term impact and is going to affect many people. I don't think we should take a position on something like this of saying that we must force it into a particular timeframe. I think that's where the danger lies, and I would appeal to everybody to look very carefully at this. Can we, in the time allotted to us, come to grips with all the implications, not with the issues but with the implications? That's the concern I have. I don't think we have that kind of time.

The Joint Chair (Senator Joyce Fairbairn): Madam Folco, then Senator Gigantes, Senator Doody, and Mr. Doyle.

[Translation]

Ms. Raymonde Folco: I have just received the motion which, I would like to point out, is in English only. I would like to say before this committee that this proposal presented by Mr. Schmidt, who has been saying for several days that he is concerned with the protection of minority rights across Canada, seems to clash strangely with the views he has been presenting before this committee for several days. I would therefore ask that this proposal be translated into French, please, and I would also like to add that, when the time comes, I will vote against the motion. Thank you.

[English]

Mr. Gerry Byrne (Humber—St. Barbe—Baie Verte, Lib.): I am not acting in the capacity of chair now. Senator Fairbairn is chair for this morning and this afternoon.

We will immediately translate it, because that is in order. First off, the question is whether or not the motion is in order. I think it was a point of order that was raised.

Madam Chair, if I may, I'll offer some suggestions about the point of order that was raised as to whether or not the motion is in order.

In my opinion, Madam Chair, subject to your opinion, the motion is indeed in order. It does not suggest a specific date for the committee to request both Houses to extend. It asks the House to consider. It does not mean that either House has to consider.

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However, I would point out, as a point of information, that it was voted on in each of the respective Houses. That was the resolution passed in both of the respective Houses. That specific resolution specifically stated the December 5 reporting time.

I don't think it's the job or function of this committee to circumvent Parliament. That's in the spirit of what we're trying to do.

With that said, speaking as a member of this committee, I will be voting against this particular motion. I suggest that I have seen no evidence at this time that we have prematurely concluded our deliberations.

The Joint Chair (Senator Joyce Fairbairn): Madame Folco, in the interim, I consulted with our two clerks. They indicated to me that in the circumstances of presenting a motion similar to this within committees, that there is not a requirement to have it translated, rightly or wrongly.

Ms. Raymonde Folco: Thank you.

The Joint Chair (Senator Joyce Fairbairn): Senator Doody.

Senator William Doody: I want to raise a point of order, a point of privilege, or a point of something. When this matter was raised here earlier this morning, Senator Kinsella asked for the question. I think the response from the chair was that there will be no question placed at this point, but it will be placed after we've heard all the witnesses.

Am I to believe now that we have heard all the witnesses? Will the minister from Newfoundland not appear this afternoon?

The Joint Chair (Senator Joyce Fairbairn): Yes, he will, Senator.

Senator William Doody: Then why are we dealing with this? We were given the assurance it would be done after the witnesses were heard. Many of our people are not here now. This is unheard of.

Mr. Gerry Byrne: I was in the capacity as chair at that particular time. Would you care for me to respond?

The question that was put was tabled this morning by Mr. Schmidt. It was put in written form at that point in time. As chair, I specifically asked the committee if they wanted to defer until the conclusion of witnesses. I did not say that it was to be at the conclusion of witnesses for this particular meeting or the conclusion of witnesses for the committee.

Therefore, without prejudicing any of the deliberations of this committee, at the conclusion of hearing witnesses for this particular meeting, the committee was asked whether or not it wanted to deal with the question. This committee decided it wanted to deal with the question. There is no conflict of order in that particular instance, Senator.

Senator William Doody: I beg to disagree. When you say you'll wait to put the question until after the witnesses have been heard, one has to assume you mean witnesses, period.

Mr. Gerry Byrne: Senator, if it's the wish of this committee, we certainly can put it over until the conclusion of all witnesses being heard. This is your committee; this is not my committee. This is not any one individual's committee.

If there's consent from the committee, I suggest that at the conclusion of hearing from all witness testimony, which I understand will be on Monday at approximately 10.30 a.m., which will be Minister Dion, then we will put forward the question and hear it at that time. That's fine, but we are going through due process here. I simply asked the question, do we want to entertain the motion at this time? To this I heard yes.

Senator William Doody: I thank you for that, sir. It gives all senators of the committee a chance to consider it.

The Joint Chair (Senator Joyce Fairbairn): In the collegial nature of this committee, I agree with the wisdom of the committee and do adjourn until 3.30 p.m.

The meeting is adjourned.