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]

Monday, December 1, 1997

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[English]

The Joint Chair (Senator Joyce Fairbairn (Lethbridge, Lib.)): Colleagues, welcome back to our committee, the Special Joint Committee of the House of Commons and the Senate on the Amendment to Term 17 of the Terms of Union of Newfoundland and Labrador.

This morning we have with us as our final witness the Honourable Stéphane Dion, the President of the Privy Council and the Minister of Intergovernmental Affairs, in whose responsibility this question lies. Thank you very much, Mr. Dion, for coming to speak with us again.

At the beginning of our hearings we heard from Mr. Dion and we heard from the Minister of Education from Newfoundland, the Honourable Roger Grimes, with the caveat for both that at the end of our witnesses we would like to hear from them, particularly on any points that may have been raised during the course of our discussions.

We heard from Mr. Grimes last Thursday. He was slotted for a one-hour performance. It turned out to be a little bit longer than that, Mr. Dion, because of the interest around the table, so we may be leaning on your goodwill as members bring their questions forward so we can have a final and thorough discussion with you.

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Having said that, thank you again for coming, and we welcome your views. Please begin.

[Translation]

The Honourable Stéphane Dion (Saint-Laurent—Cartierville, Lib.): Thank you. I have come accompanied by Ms. Dawson, from the Justice Department, and by Mr. de Montigny, from Privy Council.

Madam Chairwoman, Mr. Chairman, Committee members, thank you for inviting me once again to discuss the proposed amendment to Term 17 of Newfoundland's Terms of Union with Canada. I have followed the Committee's proceedings with interest and wish to thank members and the Committee staff for lending their energy and expertise to this process.

Today is the Committee's final day of public hearings, and you are to be commended for the quality and thoroughness of your deliberations. In total, you have heard from 49 witnesses. The list is lengthy and includes: academics who specialize in constitutional affairs; the politicians and officials responsible for designing and governing Newfoundland and Labrador's education system; leaders and educational representatives of the Roman Catholic, Pentecostal and Integrated Churches in Newfoundland; the leadership of the provincial teachers' union; representatives from the provincial Home and School Federation; grassroots organizations interested in education matters; interested Canadians and educators from other provinces; and, most importantly I would argue, the children and parents of Newfoundland and Labrador who will be directly affected by this amendment.

These individuals and organizations, most of whom travelled to Ottawa to make their views known, also deserve the government's gratitude and thanks for their contribution to this process. When the Committee's public hearings began on November 18, I explained that the government of Canada supports the proposed amendment because it conforms to the legal requirements of the Constitution.

It also has merit, and is in the national interest in that it allows for long-sought educational reforms which will benefit the children of Newfoundland. We have endorsed it because it has substantial support from the population of Newfoundland and Labrador, including a reasonable degree of support from the affected minorities.

On this, the final day of the Committee's public hearings, I would like to explain why the Government is still of the view that the proposed amendment deserves your support and should be adopted by the Houses of Parliament. In fact, the quality of your work and your exhaustive deliberations have allowed us to confirm with certainty the merits of the amendment and the substantial degree of support for its adoption.

Today, I will reiterate why the Government supports this amendment. My comments will focus first on the merits of the amendment. Secondly, I will review the support that exists for it in Newfoundland. Third, I will address concerns raised during the hearings regarding the amendment's compatibility with the Canadian Charter of Rights and Freedoms and the International Covenant on Civil and Political Rights.

There are therefore three aspects, the merits of the amendment, the support for it, and its compatibility with the Charter and international obligations.

Let us begin with the merits: the education system in Newfoundland is unique in Canada. The history of the system will demonstrate why I believe the proposed amendment is good for the children and parents of that province. The denominational character of the education system of Newfoundland and Labrador was entrenched in the Terms of Union upon Newfoundland's entry into Confederation in 1949. Term 17 of the Terms of Union gave constitutional guarantees to seven denominations to administer their school systems.

The churches had full control over the education system, administering the schools, deciding how and when to build schools, how to allocate funds and who to hire and fire as teachers. While eventual modifications were instituted resulting in the integration of certain denominations and the rationalization of certain resources, the constitutional guarantees remained. In 1987, these guarantees were extended to the Pentecostal Assemblies.

[English]

There was much debate for many years in Newfoundland regarding the merits of such a system, which in many cases resulted in a less than efficient use of educational resources. This is particularly true now, at a time of financial constraints and decreasing enrolment in the student population in that province.

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More importantly, the former system caused hardship and stress for many students. Many witnesses who came before you testified to the problems of the previous system and explained why they supported the proposed amendment. These problems with the complex denominational system existed prior to adoption of the amendment proclaimed on April 21, and they persisted when the Government of Newfoundland and Labrador sought to implement the new system. The difficulties the government encountered led Justice Barry to state, and I quote:

So one may reasonably conclude that the Legislature has accepted the less than optimal standard of education by opting to preserve at least some of the denominational system of education. This statement is not made as a criticism but as a matter of fact.

In that compelling brief, Education First gave the example of a grade seven student who leaves her house at 7:30 a.m. and buses past three schools before she arrives at her own school one hour later. She must also forego after-school activities unless she can get a ride home. The testimony from Education First suggests that this situation exists throughout the province.

The committee also heard from the Newfoundland and Labrador Human Rights Association, which has advocated a non-denominational public school system for over ten years. Mr. Geoff Buddun, their vice-president, pointed out that the Newfoundland and Labrador Human Rights Association strongly supports the proposed amendment to Term 17 because they “believe the amendment is consistent with our demands that all citizens be treated equally, and we believe that it is consistent as well with the protection of the rights of our Newfoundlanders, including the rights of all religious minorities”. According to him, “we see it essentially as a step that will address injustice, not create injustice”.

Mr. Steve Wolinetz, vice-president of the Newfoundland and Labrador Home and School Federation, an umbrella group for parents from 135 member schools across Newfoundland, explained why his association supports the amendment. He told the committee that their reasons include, first, the unique situation in Newfoundland in which a publicly funded but denominationally controlled school system has led to confusion over responsibilities and the failure to allocate resources according to need; and second, given the little money available, schools are often poorly equipped with few books and supplies, and with parents often having to raise funds for basic needs such as paper and chalk, as well as computers.

Mr. Wolinetz mentioned that he was browsing through the Canadian politics books in his son's high school and found that the most recent one available was published in 1972. Given Newfoundland's declining birth rate, he pointed out that it is becoming harder and harder to deliver any education, let alone quality education, in many parts of the province. This is why the Home and School Federation supported the proposed amendment.

NDP leader Mr. Jack Harris explained why he was so gratified to see the House of Assembly vote on what he saw as such a clearly worded proposition. He welcomed the fact that “after so many years a province-wide consensus had been reached and the needs of the school children and the challenges of maximizing available resources to provide the best education possible to our children, regardless of the religious faiths of their parents, were now to dominate the debate”.

I could give many additional examples that you heard during the committee proceedings. There were, of course, also witnesses who opposed the new system that would be created by the amendment. Advocates for maintaining denominational schools emphasized the belief that their religion should permit every facet of their lives and the lives of their children, saying that a mere course in comparative world religions, for example, would not satisfy that need.

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We heard this from the Pentecostal Parents Action Committee and the Gonzaga High School Parents Association, among others, who look to the school system to supplement the home and the church in instilling in their children the world view of their parents.

Some argue that this amendment would extinguish the parents' right to choose and direct the education of their children. The Most Reverend James MacDonald, Archbishop of St. John's and chair of the Catholic Education Council of Newfoundland and Labrador, declared that “parents have both an obligation and a right to educate their children in schools which reflect their parental religious convictions”. He continued: “Parents therefore must have true freedom in choosing schools for their children”.

No one who supports the amendment wants to remove a parent's right to impart their world view on their children. Many opportunities will continue to be available for this important effort—in the home, in churches, and in school, where religious observance will be allowed at the request of parents and where religious education courses will teach children about the ethics and traditions on which this country is built.

In fact, parents have more power under the proposed amendment than they ever did before. They have the power to elect school boards, to enrol their children in the school of their choice, and the power to withdraw them from classes where there is instruction that they don't wish for their children. They have the right to request religious observances in schools, and the right not to have their children forced to attend those observances.

Many witnesses emphasized that this proposed amendment in no way reduces the parents' right to educate their children in any manor they desire. It does, however, ensure that scare public funds are directed towards the core educational needs of children, while providing for religious influences in a way that will accommodate all. In fact, for many parents who are not members of the designated denominational groups that have special rights under the current Term 17, their capacity to educate their children in accordance with their views will be enhanced. I would point out that parents outside of Newfoundland also have the same objectives for their children's education and they manage to impart their views in a variety of means, despite the lack of a school system run by several particular denominations.

Some critics of the amendment maintain that it isn't necessary to eliminate publicly funded denominational education in order to correct the problems of Newfoundland's school system. Madam Alice Furlong and Madam Helena Bragg of the Newfoundland and Labrador Catholic Education Association spoke eloquently on this point, noting that the denominations had already agreed to some reductions in the number of school boards and schools where necessary, and had entered joint-service agreements allowing children of different faiths to share a school where a single-denominational school was not viable.

It is fairly clear that parents, teachers and both denominational and government education administrators have worked hard and in good faith to resolve the funding and administrative problems of Newfoundland's educational system. This effort has been ongoing for almost ten years and the system is unfortunately more confused than ever. The people of Newfoundland and Labrador have called loudly and clearly for change—change that will allow them to meet the needs of their children as fairly and efficiently as possible.

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Some groups from outside Newfoundland and Labrador expressed concerns about the precedent that this reform would set for denominational schools across the country. As I stated when I first came before this committee, and as was confirmed by the testimony of expert witnesses from across Canada, David Schneiderman, Anne Bayefsky, Ian Binnie, and Mary Dawson, this amendment will have no effect on any other province from its passage or set no legal precedents for orders, except that those who wish to make similar amendments must meet a high standard in affirming the desirability and support for any such change.

Now we will speak about the support. During the committee's hearings, support for the amendment was strongly conveyed by numerous non-governmental organizations, multi-denominational community associations, the teachers' union, the integrated churches, parents, and children.

Mr. Brendan Doyle, president of the provincial teachers association, expressed the membership's support for the amendment. He said that for the past year:

The operative word in Newfoundland respecting education...has been chaos and only the Parliament of Canada can now effectively...provide the framework to end that chaos.

On November 25, Dr. Harry Elliot, executive officer with the Integrated Education Committee and the Reverend Donald Harvey, Anglican Bishop of St. John's, conveyed their support for the proposed amendment.

Dr. Elliott spoke on behalf of the committee that represents the denominational education interests of the Anglican, United, Salvation Army, and Presbyterian churches. He said the integrated committee views religious education as a very important part of the school activities in Newfoundland. He felt that this component of the curriculum could be accommodated under the new term.

Mr. Steve Wolinetz, vice-president of the Newfoundland and Labrador Home and School Federation, said that his membership, which is composed of individuals of all faiths, including those who have no denominational rights under Term 17, is urging Parliament to adopt the amendment. He said the federation does not ordinarily involve itself in politics, however, he argued that the drawn-out power struggle over who controls the province's education system is detracting from that system and the opportunities for children to learn.

His conclusion was that the people have spoken and that we should proceed to adopt the resolution so that educators can get on with the job of teaching in a school environment less fraught with tension and uncertainty and more conducive to learning.

Other grassroots organizations, such as Education First, a multi-denominational group of parents who voluntarily campaigned for the yes side in the referendum, also voiced their approval of the amendment's adoption.

Nevertheless, as committee members are now keenly aware, there is still division in Newfoundland and Labrador with respect to the proposed amendment. Some Roman Catholics, including the bishops, and some Pentecostals, including education leaders, have concerns about the appropriateness of the provincial referendum, the interpretation of its results, and the proposed amendment.

On November 20, Mrs. Alice Furlong, vice-president of the Newfoundland and Labrador Catholic Education Association, appeared before the committee to dispute the contention that the referendum was fair and that affected minorities had consented to the removal of their denominational school rights.

In a joint presentation on November 26, Dr. Bonaventure Fagan, executive officer of the Roman Catholic Education Committee, and the Most Reverend James MacDonald, Archbishop of St. John's, made similar remarks. They testified as to the opposition of the Roman Catholic church to the proposed amendment. They said the referendum process wasn't fair. They pointed to the 24,000 students who were registered last February for uni-denominational schools to claim that their class of persons had already expressed its desire to retain uni-denominational schools.

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As I have explained on several occasions, the Government of Canada based its decision to proceed on several factors and considerations, including the referendum results. Our analysis of the results is not based on improbable statistical assumptions, but on what appears to have happened on the polling date.

It indicates that in heavily Roman Catholic areas, the proposal was supported by a majority. It also indicates that Catholics constitute nearly 50% of the population in a majority of the province's electoral districts, and that the proposal carried in all but one.

With respect to the registration process, it does not necessarily follow that parents registered their children for Catholic schools because they were opposed to integration. In fact, one of the witnesses who testified before you in favour of the amendment indicated that she herself has registered her children for a uni-denominational Catholic school.

Madam Brenda Bryant explained that her primary goal was to ensure that their child was able to attend the school across the street from their home. That school happened to be a Roman Catholic school. She registered as Roman Catholic so that whether the school ended up being designated uni-denominational Catholic or interdenominational, her children would be able to go to that particular school. She told the committee that many other parents had done the same in order to keep their children in a school in close proximity to their home. Thus we cannot legitimately interpret their registration as proof that they wanted to maintain a denominational system.

As I have also said throughout this process, assessing the degree of support for the amendment among the small Pentecostal minority was much more difficult. In fact, Dr. Melvin Regular, executive officer of the Pentecostal Education Committee, readily admitted in his testimony that there is really no way of knowing how the members of his community actually voted.

The only thing we can know with any certainty is that in the four electoral districts with the largest Pentecostal populations, the proposed amendment carried with average majorities of 60 persons.

Concerns have been raised about the fairness and clarity of the referendum question. Let me review the facts. On July 31 Premier Tobin announced in a televised speech that the province-wide referendum would be held on September 2. The question was the following:

Do you support a single school system where all children, regardless of their religious affiliation, attend the same schools where opportunities for a religious education and observances are provided?

For greater clarity in his July 31 television speech, Premier Tobin reiterated that:

Government is seeking a mandate from the people...to end the denominational school system, to eliminate Term 17 as it is currently drafted, and to create a new single school system.

Regarding the content of the religious education courses to be offered under the new term, Premier Tobin clearly stated that it would not be formulated “on a denominational basis, but on the basis of approved curriculum common to all of our students”.

In his first appearance before the committee on November 18, Education Minister Roger Grimes went into great detail about the intended content of these courses The text of the proposed new Term 17 was released to the public on August 25.

The text of the amendment was clear, and consistent with Premier Tobin's July 31 announcement. Its release was a accompanied by legal opinions in plain language by constitutional experts Ian Binnie and former justice minister John Crosbie, explaining the probable impact of the new Term 17.

It must be noted that during the campaign the clarity of the question does not appear to have been an issue. Mrs. Oonagh O'Dea and Mrs. Brenda Bryant of the grassroots group Education First testified before the committee that they felt the question was clear, that the issues were well understood by the people and that the referendum result was a true reflection of the population's wishes.

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Dr. Melvin Regular, executive officer for the Pentecostal Education Committee, also indicated, during an August 11 CBC review interview, and I quote him: “the clarity of the question makes our task somewhat easier in as much as this is a total abolition of denominational rights....”.

As Education Minister Grimes commented before this committee last Thursday, many people, even opponents of the amendment, indicated that this time around the question that was put to Newfoundlanders and Labradorians was absolutely fundamentally clear and the choices before people were fully understood.

That said, given the divergent views the committee heard on the referendum and the amendments, we must be guided by well-established democratic principles and the rules of the applicable amending procedure. The section 43 procedure requires a resolution authorized by the House of Assembly. And when we look at the result of the vote in the House of Assembly, the overwhelming support of the amendment is clear. In the one democratic institution that speaks for all Newfoundlanders and Labradorians there is no division or uncertainty. The House of Assembly voted unanimously to approve the proposed amendment. This included all Catholic and Pentecostal members, as well as the leader of the opposition, Mr. Sullivan, and the NDP leader, Mr. Harris, who urged the committee and Parliament to support the amendment and put to rest a debate that has been going on in Newfoundland and Labrador for decades.

I have reviewed the merits of the amendment, the support for it, and now I will conclude with the compatibility with the charter and the international obligations.

For some witnesses, such as Professor Patrick Malcomson of St. Thomas University, the provisions in Term 17 with respect to religious education and observances appear problematic and inconsistent with the charter. They claim that the proposed Term 17, because it permits religious observances in a school, contravenes the charter's freedom of religion and equality rights guaranteed in sections 2(a) and 15. This argument is based on Ontario Court of Appeal decisions ruling that observances such as the Lord's Prayer and nativity scenes cannot be held in public schools.

It has also been alleged that the proposed courses in religion will in fact be based largely on Christian values and thus constitute religious indoctrination or that there will be some form of state religion. This clearly will not be the case. The Government of Newfoundland has indicated that the religious education courses to be offered will not be specific to any particular denomination and will in no way constitute state religion.

Some committee members have suggested amendments that would remove the last part of subsection (2), the provision for religion courses not specific to a denomination, and subsection (3), the provision for religious observances.

The Government of Canada disagrees with this proposal. It would be incorrect to conclude that these rulings would necessarily apply to the implementation and operation of the proposed Term 17. Legislative jurisdiction for education in Ontario is set out in section 93 of the Constitution Act, 1867, which, unlike the proposed term, does not make explicit provisions for religious courses and religious observances in public schools.

If enacted, Term 17 will become part of the Constitution of Canada, thus it will be shielded by the well-established principle that one part of the Constitution, let's say the charter, cannot be used to invalidate or repeal another part of the Constitution. As a result, the provisions in subsection (2) and subsection (3) will enjoy a measure of charter immunity.

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This principle is grounded in Supreme Court case law and clearly stated in connection with educational rights in the 1987 reference case on the amendment to Ontario's Education Act. On this occasion the Supreme Court explicitly stated:

The role of the Charter is not envisaged in our jurisprudence as providing for the automatic repeal of any provisions of the Constitution of Canada, which includes all of the documents enumerated in Section 52 of the Constitution Act, 1982.

With respect to section 93, the court said:

This legislative power in the province is not subject to regulation by other parts of the Constitution in any way which would be tantamount to its repeal.

This principle, which was reiterated in the Adler decision last year, would apply with equal force to the proposed Term 17.

Now I would like to speak about the international charter. In his testimony on November 25, 1997, Professor Donald Fleming of the University of New Brunswick's faculty of law raised concerns about the term's compatibility with the International Convenant on Civil and Political Rights. In particular, he cited potential violations of the right to freedom of religion under article 18.

The first three paragraphs of article 18 relate to freedom of religion in the context of choosing and practising a religion. They are designed to protect individuals from religiously based discriminations. The proposed Term 17 will not hamper an individual's freedom to choose or to practise their religion.

It's the fourth paragraph we must work on more. The fourth paragraph deals more directly with education. It's based on the liberty of parents “to ensure the religious and moral education of their children in conformity with their own convictions”. This liberty does not imply or require the state to fund denominational schools. The convenant's protection of freedom of religion does not prohibit states from offering non-mandatory religion courses.

The United Nations Human Rights Committee, which is responsible for administering the convenant, has published a general comment on article 18. It says that article 18 permits religious instruction, even instruction that is specific to one denomination, in public schools. However, provision must be made for non-discriminatory exemptions or alternatives where requested by parents.

I note that the proposed Term 17 specifies that the government “shall provide for courses in religion that are not specific to a religious denomination”, but nowhere does Term 17 say that children must attend them. Furthermore, the Government of Newfoundland has indicated that children will not be required to take religion courses or to participate in religious observances if the parents object. I must therefore conclude that it is in compliance with the convenant.

[Translation]

In conclusion, given the strong and widespread support for the amendment, and in the absence of obvious legal shortcomings, it would be difficult to justify a rejection of Newfoundland's proposal. Indeed, it is apparent that Newfoundland has spent a great deal of time, effort and resources in developing this amendment and seeking to ensure that it can be implemented to give effect to changes endorsed by the people and the House of Assembly.

Furthermore, it should be noted that any alteration to the proposed amendment would mean that the Government of Newfoundland and Labrador could only achieve reform by restarting the process in the House of Assembly. This would be tantamount to having the federal Parliament initiate a change to a Term of Union in a field entirely within provincial jurisdiction. In light of this we would have to have very compelling reasons even to justify altering the proposed amendment.

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I hope that I have demonstrated why the Government of Canada believes the proposed amendment to Term 17 has merit, is strongly supported by the people of Newfoundland and Labrador, and has a reasonable degree of support from the affected religious minorities.

As I have said before, given this amendment's impact on minority rights, a mere 50 + 1 referendum majority would not have been sufficient in measuring the degree of consensus among those affected. But the referendum did not result in a narrow majority: it was an overwhelming majority of 73%, which provided evidence of minorities' support. The proposal carried in 47 of Newfoundland's 48 electoral districts. It was also adopted unanimously in the House of Assembly.

I do not wish to downplay the concerns raised by dissenting Pentecostals and Roman Catholics, which are sincere and heartfelt. However, I would ask that they consider the overtures the Government of Newfoundland and Labrador is making with respect to their role in developing a new religion curriculum.

In his testimony on November 27, Newfoundland's Education Minister, Mr. Roger Grimes, invited Roman Catholic and Pentecostal leaders to participate in the province's consultations and efforts to implement the new system. In a province where 95% of the residents are Christian, I believe that they will discover a great deal of common ground upon which to build and carry on their respective traditions.

With that, members of the Committee, I conclude my formal remarks and welcome any additional questions you may have.

[English]

The Joint Chair (Senator Joyce Fairbairn): Thank you very much, Mr. Dion. We very much appreciate your brief.

I will now open this up for questions. So far I have two indicators. One is Mr. Schmidt and the second is Monsieur Brien.

Please begin, Mr. Schmidt.

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

Thank you, Mr. Minister, for appearing before the committee. It's good to see you this morning. I have a couple of rather simple kinds of technical questions first, and then I have a perhaps more far-reaching type of question.

On page 7, just after the centre of the page, the reference is made to how it is much more difficult to determine the support of the Pentecostal minority. In the last sentence, I believe, you said: “The only thing we can know with any certainty is that in the four electoral districts with the largest Pentecostal populations....” My question to you, Mr. Minister, is what proportion of the population in those constituencies is Pentecostal?

Mr. Yves de Montigny (Director General, Constitutional Affairs, Department of Intergovernmental Affairs): I don't have the exact figure, but it's between 25% and 30%, if I remember correctly. I have it somewhere.

Mr. Werner Schmidt: I think, Madam Chair, it would be very significant if this number were to be included in the brief, because the implication of the sentence is that notwithstanding the fact that those constituencies have the largest Pentecostal population, it still remains that in fact less than half of the people in those constituencies are Pentecostal.

The Hon. Stéphane Dion: Yes.

Mr. Werner Schmidt: So the conclusion that is drawn from that is in fact perhaps to be questioned. I think it it's only fair that this number be stated accurately so that we could draw a good conclusion from that particular observation.

The other point, Mr. Minister, has to do with the use of the word “precedent”. You refer to the fact that this particular amendment will not create a precedent. That's on page 5 in the third paragraph. At the beginning of the paragraph you refer to concerns being expressed that it would be a precedent and then later on in the same paragraph you suggest that its passage sets no “legal precedent”.

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I wonder, Mr. Minister, if you could explain why in the first instance the word “legal” is left out, and in the second instance it's added. It seems to me there is a significant difference by adding that adjective before the word “precedent.”

The Hon. Stéphane Dion: I'm not sure it's so important, but the point is, without the support and without strong justification, the Parliament of Canada, or at least the current Government of Canada, is not likely to and would not in effect support a change that has no support and that has no justification.

Mr. Werner Schmidt: That's not my question. The concern is that this would form a precedent. Yet you assure us, and so does the Minister of Education, that this creates no legal precedent, and I would agree.

It's very significant whether it's a precedent or a legal precedent, because we know, in the way in which law is practised in this country, a legal precedent sort of sets certain obligations on the court or on the judge to look at the precedent that has been set by other cases preceding a particular case where similar arguments have been used. To simply suggest that a precedent is the same as a legal precedent I think is misleading.

A precedent means something has happened before that is similar to this situation. It has no legal binding thing, but is definitely a guide to further decisions or implications, particularly in the case of politics. The legal situation constrains that considerably. So I think it's a very significant difference.

Was that word deliberately left out? Do you consider these things to be the same, or are they indeed different, as I've indicated?

The Hon. Stéphane Dion: To me, it does not create a political precedent or a legal precedent. We are a federation. Each province has its specificities, and each province must be looked at as such.

The fact that we have accepted this in Quebec is not a reason to accept it in Newfoundland, and the reverse is true. That's why it was important not to mix the two debates.

Mr. Werner Schmidt: Here is not the point perhaps to debate that particular thing with you. I happen to disagree with you.

I think strictly speaking, legally, there is no connection; I quite agree. This is a discreet privilege given to the Province of Newfoundland. But I submit to you as well that if this goes ahead, that argument or this can be used as an example in future arguments for other provinces to follow a particular pursuit.

I would like to ask one further question, which refers to Minister Grimes, the Minister of Education, when he appeared before this committee, and he agreed that indeed the amendment to Term 17 does prejudicially affect the minority right of denominations. Do you believe prejudicial effect on minority groups is something the Government of Canada should support?

The Hon. Stéphane Dion: First, I repeat about the precedent that for the Government of Canada, any province will have to show merit and support. Without merit, without support, we will not support the change. I hope this is very clear. It is very important to have the same criteria for everyone. Beyond that, each province must be looked at on its own merits.

The second point was the fact that we will affect some denominational rights, certainly; it is the purpose of the amendment. The question is that those rights are not fundamental rights, according to the court, and that observance for religions will still be possible in schools and it's not incompatible with the Canadian charter or international charters.

Mr. Werner Schmidt: But I think that is precisely the crux of the matter.

Ten years ago, when the right was given to the Pentecostal Assemblies to set up their schools, by being specific, a minority right was established. Whether in your opinion it should have been granted or not is irrelevant. It was done, and that is now being prejudicially affected.

The Hon. Stéphane Dion: If you are saying that since this right is in the Constitution it cannot be removed from the Constitution, tell me why we have section 43 that allows a bilateral change. The Constitution would say this right is so sacred that it cannot be removed from the Constitution by any means. That is not what the Constitution says. So we have to take into account the whole picture, the whole situation in the province. Then you'll see how much, for the reasons I gave, this amendment has merit.

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Mr. Werner Schmidt: But, Madam Chairman, Mr. Minister, the—

The Joint Chair (Senator Joyce Fairbairn): Mr. Schmidt, we have a fairly long list. I've been pretty generous.

Mr. Werner Schmidt: Yes, you have. I thank you.

The Joint Chair (Senator Joyce Fairbairn): Could I put you down for another round, if that's agreeable?

Mr. Werner Schmidt: Yes, that's fine.

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

I have on the list, at the moment, Monsieur Brien, Madam Caplan, Senator Rompkey, Madam Finestone, Senator Pearson, and Madam Folco.

[Translation]

Mr. Pierre Brien (Témiscamingue, BQ): Mr. Minister, I must tell you that if I had to base myself solely on your presentation to support the Newfoundland amendment, I would be facing a few problems.

Thankfully, there was a referendum and the presentation made by the Newfoundland Government was, to my mind, much more convincing. Let me explain. You refer to numerous subjective but non-verifiable notions such as value, merit, reasonable support, all sorts of rather imprecise and vague words, and I am convinced that floating in the back of your mind is a series of precedents that you do not want to create, no matter what answers you give to the questions that have been asked.

Allow me to quote from your first presentation. You stated that:

...the proposed amendment is supported by a substantial majority of the province's population and enjoys a fair degree of support from affected minorities.

We encountered numerous problems during our hearings because of this statement. The Pentecostals, for example, came here to tell us that this support, that you find reasonable, is not reasonable in their opinion and, using your own numbers, you are unable to conclude that there is significant support on the part of the Pentecostals. What then does reasonable support mean for the federal Government?

The Hon. Stéphane Dion: In the case of the Pentecostals, it is indeed difficult to establish, since they only account for 7% of the population. We know that in the House of Representatives, the Pentecostal members voted in favour of the amendment and that there were signs that Pentecostals were not speaking with one and the same voice regarding this issue. We have here the statistics for the four electoral districts with the highest concentration of Pentecostals.

In Baie Verte, they account for 25% of the population. Support for the amendment was at 58% and voter participation—we get some indication when people do not pounce on the opportunity to go and vote—was at 45%. In Exploits, Pentecostals make up 26% of the population; support for the proposal was 64% and the total participation of voters was at 53%. In Lewisporte, they make up 34% of the electorate; support was at 60% and the participation rate was 57%. And in Windsor-Springdale, they make up 33% of the electorate; support there was at 57% and the participation rate was 56%. These numbers indicate clearly that there is not massive opposition on the part of the Pentecostals.

Mr. Pierre Brien: Allow me to disagree with what you have just stated. This takes nothing away from the fact that there is or is not support for the Newfoundland amendment, but to say that they abstained or not, or how they voted or not, is based upon an extremely subjective evaluation. There is not a single serious analyst who would state that what you have just said is true.

I would like you to explain this to me. What allows you to believe that it is Pentecostals who went out to vote or who did not go out to vote. Overall, let us not kid ourselves: participation rates were not very high for all of Newfoundlanders. Therefore, what you have just said does not convince me in the least.

The Hon. Stéphane Dion: Once again, as many witnesses have said, it is very difficult to know how Pentecostals voted. What we do know, is that the Pentecostal members voted in favour at the House of Assembly.

Mr. Pierre Brien: This is all we know.

The Hon. Stéphane Dion: We know that if support had been massive, there would have been signs, and there are none.

Mr. Pierre Brien: That works both ways.

The Hon. Stéphane Dion: No, because if support had been massive, we would have seen it in the numbers, and that is not the case.

Mr. Pierre Brien: I would like to come back to another element. You know, these hearings have often brought a smile to my face. I would like to list a series of arguments that opponents of the amendment came here to make in the context of the referendum debate. The question was not clear; there were irregularities, there was manipulation of the process by the Government; the majority was in their opinion insufficient because 73% of the people voted yes, whereas barely 50% of the population voted. In absolute terms, this is not a very solid majority.

Some people did not have the means to be heard, especially if they were against. There was no referendum act laying out the framework for the process, etc. There was much criticism about the process.

• 1025

We often hear you talk about your concerns regarding consultation processes elsewhere. Did the Government of Canada have prior consultations on the process that the Government of Newfoundland was going to go ahead with?

The Hon. Stéphane Dion: Not at all.

Mr. Pierre Brien: Not at all. Perfect, that is extremely reassuring for me. I would like to make a small comment before asking my final question. When you state that a majority of 50 + 1 in the referendum was neither sufficient nor adequate to measure support, it seems to me that this is faulty logic on the part of the federal Government that supported the first constitutional amendment which had garnered 54% of popular support, whereas, once again, only 50% of the people voted. It therefore seems that at the federal level the criteria regarding what is sufficient and what is adequate, to quote you directly, vary from situation to situation, depending on the circumstances.

As I told you the first time, this sentence sounds to me like it has been taken out of another context, that you would like to apply to another reality than that of Newfoundland. I know that you are going to react to my comments. My question however relates to the process.

The text of the constitutional amendment per se was made known a week before the referendum. Here again, was the federal Government consulted on the constitutional text that was submitted to Newfoundlanders? And if so, why did it take so long for it to come out in the campaign? Why did so much time elapse between the announcement of the referendum and the publication of the constitutional text, that was made known the day before advance polling and only a week before the referendum in Newfoundland?

The Hon. Stéphane Dion: As to your second question, we were consulted. Why did it take so long? I do not have that information.

[English]

Ms. Mary Dawson (Assistant Deputy Minister, Department of Justice): It all happened quite quickly, because of course from the time of the judgment that precipitated this proposal to the time of the referendum there was not a lot of time. So I can't talk to the actual time Newfoundland took to do various things, but the consultation with the federal government was during a very small period of time during the summer after the court judgment.

I don't know if that helps, but there wasn't much time involved, in any event.

[Translation]

The Hon. Stéphane Dion: Indeed. Concerning the first aspect, we must remember that the first amendment did not abolish minority rights so radically. We must take into account the issues to evaluate what majority is required, and I have already given examples that I could repeat here.

If ever a Government of New Brunswick were to table a motion requesting the abolition of official bilingualism in New Brunswick...

Mr. Pierre Brien: You believe that it would be possible?

The Hon. Stéphane Dion: Let us just suppose.

Mr. Pierre Brien: Very well.

The Hon. Stéphane Dion: ...with massive and clear opposition on the part of the Acadian population, I would recommend to my Government that it not even allow the messenger of such a motion to climb the very first step on the stairs to Parliament...

Mr. Pierre Brien: You will agree that there would be other problems if such a situation were to present itself.

The Hon. Stéphane Dion: Of course. As a matter of fact, if we had more assurances regarding support and the Pentecostals, we would have fewer problems today. Therefore, there must obviously be an evaluation; one must take into account the issue, the type of support and, the more the issue is serious, the more it is important for society, the more we must be assured of the type of support there is.

Mr. Pierre Brien: Briefly, admit that what you are saying is very subjective and that, according to the circumstances, you adjust your levels, depending on whether or not you are in agreement.

The Hon. Stéphane Dion: This is a matter that must be discussed between democrats, because the 50 + 1 rule does not apply to all decisions in democracy. Numerous decisions cannot be made with a simple majority, because they deal with issues that are fundamental to life in society and to citizens' rights.

Mr. Pierre Brien: Agreed.

The Hon. Stéphane Dion: This is why there are constitutions and charters of rights, is that not so?

Mr. Pierre Brien: Mr. Minister, we will not agree any more on this following your presentation.

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

The Hon. Stéphane Dion: I could add another example and I am sure that your political party would be the first one to protest. If the Prime Minister of Canada were to hold a referendum demanding the abolition of provinces and won with a 50 + 1 vote, that would not grant him the right to abolish the province of Quebec.

Mr. Pierre Brien: Mr. Minister, it would be an extremely interesting campaign.

The Hon. Stéphane Dion: No, but even...

Mr. Pierre Brien: I defy you to do it.

The Hon. Stéphane Dion: But, listen, let us say, for argument's sake, that the Government won elsewhere in the country; that would not give it the right to abolish the province of Quebec. You do not acquire rights through majority referendums when these rights do not exist.

Mr. Pierre Brien: If the popular will were there, Mr. Minister, there would nevertheless be a major problem and, that being said...

• 1030

The Hon. Stéphane Dion: The member is right. A referendum is the opportunity to seek out moral weight for a decision. It is then a matter of evaluating that moral weight.

[English]

The Joint Chair (Senator Joyce Fairbairn): Thank you very much, Monsieur Dion and Monsieur Brien.

Colleagues, this is a very interesting debate, but we also have a number of questioners here who want to speak with our witness.

Thank you, sir. I turn to Madam Caplan, followed by Senator Rompkey.

Ms. Elinor Caplan (Thornhill, Lib.): Thank you very much.

I wanted to ask you if you could address in more detail the impact of any attempt to change or amend the proposal from Newfoundland and Labrador from their House of Assembly, given the fact that education is entirely in provincial jurisdiction. I think it's a very important part for this committee to understand. The original proposal came from the House of Assembly. As I understand your argument, if we were to make any changes here, it would be as though the Parliament of Canada was proposing a change in an area of constitutional jurisdiction that is entirely provincial. What do you believe the effect of doing that would be on federal-provincial relations?

The Hon. Stéphane Dion: The constitutional change we will do is bilateral, so you need the legislative assembly of the province and the Parliament of Canada. Since it is bilateral, both have to think about it.

So we have not only the right, but the duty to be sure that the amendment has merits and support. So we have to make this assessment. Since it is provincial jurisdiction, we need to have very good reasons not to support the change. According to the government, those reasons don't exist.

Ms. Elinor Caplan: Are there any other examples of changes that have been initiated by the federal Parliament in areas where there is no provincial jurisdiction? Have there been any examples of that, other than the big ones we know about?

The Hon. Stéphane Dion: Under section 43, all demands coming from the provinces have been accepted up to now.

Mr. Yves de Montigny: There have been four bilateral amendments up to now. They've all been initiated by the provinces, and they've all been agreed to by the federal Parliament.

Ms. Elinor Caplan: And it would be impossible under section 43 for the federal Parliament to initiate a change?

The Hon. Stéphane Dion: No, it's quite possible.

Ms. Elinor Caplan: But not in the area of provincial jurisdiction?

The Hon. Stéphane Dion: Yes, sure.

Ms. Elinor Caplan: Interesting.

The Hon. Stéphane Dion: But the question is whether it's appropriate. Education is provincial jurisdiction, but constitutional change in education of that kind needs the support of the Parliament of Canada. So as a member of Parliament, you have the duty to think about whether it is good, whether it is necessary, and that's it.

Because it is provincial jurisdiction, you must have good reasons to stop the change. According to us, the reasons don't exist.

Ms. Elinor Caplan: And is it your view, Minister, that an amendment...? You've said here that any change, any alteration to the proposal, would require the Government of Newfoundland and Labrador to restart the process in their House of Assembly. Is it your view—

The Hon. Stéphane Dion: Yes.

Ms. Elinor Caplan: —that effectively changing this would be the same as rejection?

The Hon. Stéphane Dion: They would have to start again.

Ms. Elinor Caplan: Thank you.

The Joint Chair (Senator Joyce Fairbairn): Thank you, Madam Caplan. The next speaker is Senator Rompkey, followed by Madam Finestone.

Senator William Rompkey (North West River, Labrador, Lib.): Thank you, Madam Chairman. I just wanted to ask the minister if he might want to elaborate again on that part of his testimony that dealt with the possibility of the term's compatibility with the International Covenant on Civil and Political Rights, and particularly with that part of article 18 that deals more directly with education.

The minister said “it”, meaning the fourth paragraph, speaks to

...the liberty of parents “to ensure the religious and moral education of their children in conformity with their own convictions”. This liberty does not imply or require the state to fund denominational schools.

Then he goes on to talk about the comments of the United Nations Human Rights Committee, which is responsible for administering the covenant. I wonder if he might want to elaborate on that, because that has been a point of debate here—whether the last part of Term 17(2) does in fact contradict in some way the International Covenant on Civil and Political Rights.

• 1035

The Hon. Stéphane Dion: To elaborate, I think the point is clear, but I will repeat it. The fourth paragraph of article 18 is the sole one that is relevant to our point of view. No one is trying to stop liberty of religion in this country. It's about what will happen in the relationship between churches and schools. What this fourth paragraph said is

(4) The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

Term 17 is completely consistent with paragraph (4) of this covenant, because to the extent that parents wish that their children may take advantage of the courses in religion and religious observances that will be available in the schools, the choice is theirs. There is no interference with freedom of religion. In this way, there is no problem between Term 17 and its compatibility with this covenant.

Mr. Yves de Montigny: Maybe we could add that there is no requirement, explicit or implicit, that the state fund public denominational schools. This is Mr. Binnie's opinion as well, as you've seen, probably—it has been distributed to the committee.

Ms. Mary Dawson: Perhaps I could add one other point, as well. In response to Mrs. Finestone's request about a week ago to pull some cases together, I had started that. It became unnecessary because there were a number of them filed, but in the course of doing that we did unearth one case under the United Nations Human Rights Committee called Hartikainen v. Finland. That case basically held that the legislation requiring religious instruction in Finnish schools was valid so long as some children were allowed to be exempted from it. So there's actually a case right under that treaty that shows that there is no problem with having religious instruction in schools.

The Joint Chair (Senator Joyce Fairbairn): Thank you. Next, Madam Finestone.

Mrs. Sheila Finestone (Mount Royal, Lib.): Thank you very much, Madam Chair.

Mr. Minister, I'm quite comfortable with moving this amendment. However, I can tell you there are a lot of people that still have some questions. Although I do believe that if your text is carefully read and followed, and if the cases referred to are examined closely—some of which I have done in the past, and some I've just been verifying—I think there would be a sense of comfort that we have reached a reasonable solution.

The question of minority rights is the major question facing many Canadians, particularly in Quebec as a result of section 93, and whether or not they could ever come back, because you say you can always refer back to the courts, and also on this Term 17.

Mr. Minister, I feel very strongly that when you're dealing with minority rights in the Canadian picture, would you not agree that pluralism, diversity and section 27 multicultural reality of Canada has a primary role in any decisions a government would take in coming to ask for any kind of amendment?

The Hon. Stéphane Dion: Those are important values that we have to weigh with other values. We have to understand the concerns that some members of the committee have, and other parliamentarians. If we had to add a new right to the Constitution, as we have done for New Brunswick, it would be easier than to come now and to say, for example, that these rights were given for the Pentecostals ten years ago, and now we need to remove them. So we need to be cautious. It's certainly the case. I understand the concerns that many parliamentarians have.

• 1040

The Government of Canada said that we need to do it for many reasons, which I have listed in my presentation, and which you've had from many people's testimony before you. We have to take into account that these are not fundamental rights. No majority would convince me that we may remove liberty of religion, for instance, and that there is strong support among the population, including reasonable support among affected minorities.

Mrs. Sheila Finestone: Would you not agree, Mr. Minister, that Canada may have two official languages, but it has no official religion?

The Hon. Stéphane Dion: Canada doesn't have any official religion.

Mrs. Sheila Finestone: Therefore in looking to the education of our children, who are the future of our country and its values, it would be vital that they understand the diversity in which they live—that's what you said—and it would be important that not only they understand it but they would respect the difference and that this is what is reflected and this is what is meant by the change to Term 17.

The Hon. Stéphane Dion: Term 17 has merits from this point of view and will allow parents to keep observance for their kids in the schools.

Mrs. Sheila Finestone: I think one of the concerns that has been expressed to me and to a number of the constituents is that you don't determine minority rights or majority rights based on cost in education. One of the first things that was brought to our attention in many cases was that this was a less than efficient use of educational resources.

I think that it's an abuse of the children's time and energy to have to sit on a bus for one and a half to two hours, in fact up to three hours in a day, to get their education. I think that's an abuse. I think it's an abuse to go by a school and say that's not mine, I'll go to a different one. It's like I'll go to a different church, thank you very much. I think that's an abuse.

So in that light, Mr. Minister, I'd really like you to be able to assure the people of Canada and the people of Newfoundland that the goal was not only and certainly is not guided by money. It's not dictated by money, but it is dictated by a more efficient service in the best interests of the child.

The Hon. Stéphane Dion: Yes. I have taken a lot of time to explain to you the practical problems for the kids. The kinds of books they have and the fact that there are fewer students than before adds to the pressure on the system for change. You take into account yourself the value of pluralism as an additional reason and an important one to support the current change. The country has changed. Values change. The Constitution must be able to be flexible enough to take into account those changes.

The Newfoundland of 1949 is not the same as the Newfoundland of today. That is what they are saying to us very strongly.

Mrs. Sheila Finestone: Mr. Minister, I really think, as I say, a careful read of this.... If you put this beside the questions that arose in Quebec, a careful reading of that analysis indicates very flexible federalism with one gap still remaining, and that's access for English to English schools. I won't raise that with you now, but I want to put it on record, as I will raise it later.

Mrs. Stéphane Dion: Not for Newfoundland.

Mrs. Sheila Finestone: No, I said that. Thank you.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much, Madam Finestone. Senator Pearson.

Senator Landon Pearson (Ontario, Lib.): Thank you, Madam Chair.

I'm not entirely certain how to phrase this question. One of the witnesses or sets of witnesses in front of us, who you don't mention in your report, were the representatives from the Labrador Métis Association. In view of the comment that you can't use one part of the Constitution to trump another, do you think that there are going to be adequate protections for the aboriginals in Newfoundland under this new Term 17? For example, for the Micmacs, and so on, on the island of Newfoundland, the Ministry of Education has been making a great deal of effort. But this is a more tenuous group, who are up and down the coast of Labrador. I would be interested in your comments.

• 1045

The Hon. Stéphane Dion: It's true that I didn't cite many witnesses. I didn't want to be too long, but I may have quoted a lot of them.

Term 17 said nothing about aboriginal rights. Those are two different topics. You may ask the Government of Newfoundland to add new rights and new recognition for aboriginals and Métis. It's a debate, but it's another debate. There is nothing about that in Term 17.

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

Ms. Folco, then Mr. Bélanger. Then, having seen no further hands, Mr. Schmidt will have a final question.

[Translation]

Ms. Raymonde Folco (Laval West, Lib.): Mr. Minister, I would like to come back to two points brought up by Senator Pearson and Mrs. Finestone regarding the 5% of the population of Newfoundland and Labrador which, according to your report, are not Christian. You state that 95% of the population is Christian. I therefore suppose that 5% of the population is not Christian or belongs to no religion. I say this rather generally, and this could even include aboriginal people as well as the Metis, although I believe that these groups have a tendency to be Christian.

I questioned the Minister of Education on the minorities that are not Christian. I asked him what the response of the Department of Education would be if more than a minority in a given school asked for religious instruction or observance? The answer he gave me, twice, was that the criterion would be administrative. Are they able to pay? Is there room, etc.?

Therefore, what protection would Term 17 or the Charter grant such groups that would be minorities within a school?

The Hon. Stéphane Dion: First of all, people will not be forced to register their children for religious classes, unless it is their wish.

Mr. Yves de Montigny: In fact, I believe that the best protection is that these courses will be courses on religion but not religion courses. Therefore, these are courses that, in principle, must be neutral as far denominations go.

I believe that Mr. Grimes has already stated that it is perfectly possible that, in a given community, the minorities might be sufficiently homogeneous to demand courses for a given denomination, and it would be up to the Department of Education to decide, but it is not a right, and the Charter would, of course, apply. If we were to go beyond what is provided for in Term 17 as proposed, then the Charter would apply in any event.

Ms. Raymonde Folco: Thank you.

[English]

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

[Translation]

Mr. Mauril Bélanger: Since you represent the federal Government, I would like to ask you two theoretical or perhaps hypothetical questions, dealing with the support of the Canadian Government for this request. If the situation in Newfoundland had not been corrected relating to clause 23 of the Charter, would the Government of Canada have supported, or would it have felt required to support such a request for an amendment?

The Hon. Stéphane Dion: If the amendment had not been corrected?

Mr. Mauril Bélanger: If Newfoundland had not committed itself to respecting clause 23 of the Charter by offering to the francophone community of Newfoundland French-language education, French-language schools and control over education, would the federal Government have supported the request that is before us now or the preceding one?

The Hon. Stéphane Dion: That is really hypothetical. I do not know what to say, because the Government would have to say that it does not care about the Charter. That is the issue, because you know that it cannot invoke the notwithstanding clause regarding clause 23.

Mr. Mauril Bélanger: Yes, I understand that.

• 1050

The Hon. Stéphane Dion: Therefore, we would not have been very well disposed towards this Government or towards any Government that would have said that it does not wish to apply the Charter.

Mr. Mauril Bélanger: There were two referendums in Newfoundland and Labrador. In the case of both, the majority was in favour of amendments to Term 17. If the result had been the reverse, if there had been two referendums in Newfoundland and Labrador and the majority had not said that they were in agreement, first of all, would the Government of Labrador have been entitled to ask for the amendment and would the federal Government have supported it?

The Hon. Stéphane Dion: I would remind you that there is no constitutional obligation to hold a referendum.

Mr. Mauril Bélanger: I understand that.

The Hon. Stéphane Dion: It is a decision that was made by the Government of Newfoundland.

Mr. Mauril Bélanger: I understand that it was consultative, but once the population has been consulted, if there is no majority, then...

The Hon. Stéphane Dion: There are constitutional amendments, that are of a rather technical nature, and that could be made without all these precautionary measures. Here, the precautions that we are taking result from the fact that we are dealing here with minority rights that are written into the Constitution. We are not dealing with them to reinforce them, but to remove them. This is why we are taking these precautions and this is why the Government of Newfoundland wanted in this instance to hold a referendum.

And this is why the Prime Minister, Mr. Chrétien, informed Mr. Tobin that with a slim majority, and clear opposition by the minorities, firstly by the Catholics—because in their case it is easier to verify—we would not have advised him to present himself before the Parliament of Canada. But here, the majority is clear and there is reasonable support on the part of affected minorities, but it is easier to verify in the case of the Roman Catholics. There is more of a problem with the Pentecostals, it is true, and therefore we must give more importance to the fact that the Pentecostal MLAs supported the change when the vote was held in the Legislative Assembly.

[English]

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

Mr. Schmidt, please.

Mr. Werner Schmidt: Thank you, Madam Chair.

I have two questions. The first one I would like to ask the minister.

I refer to page seven of his brief. I'd like to read into the record, Madam Chair, the official plebiscite results and the population composition based on the Statistics Canada 1991.... It reads that in the particular constituencies referred to, in Baie Verte the yes vote was 57.9% and the Pentecostal population was 25%; in Exploits the yes vote was 63.7%, the Pentecostal population was 26%; at Lewisport the yes vote was 59.9%, and the Pentecostal population was 34%; in Windsor a yes vote was 56.8%, and the Pentecostal population was 32%.

Madam Chair, I would like to respectfully ask the minister to please correct the implication that is left by the statement that suggests that in these particular constituencies it could well be assumed that the Pentecostals voted in favour of the resolution. Madam Chair, the answer is that cannot be assumed based on the percentage of the population or on the percentage of the yes vote. I would ask the minister respectfully to please adjust his report so that in fact it does reflect what actually happened.

The Hon. Stéphane Dion: We cannot assume with certainty that there has been support; we cannot assume with certainty that there was no support. It's difficult to know about the Pentecostal vote from the results. What we may say with certainty is that the members of the legislative assembly that are of Pentecostal faith support the amendment.

Mr. Werner Schmidt: Madam Chair, that's precisely the point. The implication is made that these constituencies, because they have the largest percentage population.... It's that part that is in error. So I respectfully insist.... The minister may choose not to do it, Madam Chair, but I want it on the record that if he does not do it, he is misleading the people. That's the point I'm trying to make.

The Hon. Stéphane Dion: The point I'm trying to make is that it's very difficult to know how the Pentecostals voted since there are so few. What is important in their case is to look at the support in the legislative assembly especially.

Mr. Werner Schmidt: Well, Madam Chair, with all due respect, it could well be that the legislator voted quite differently from what the people wanted. We don't know that for sure. The point is the conclusion drawn here isn't supported by the numbers.

I'd like to move on to my next question, which has to do with the bottom of page 9 and the top of page 10. I'd like to read these two paragraphs. They say:

If enacted, Term 17 will become part of the Constitution of Canada. Thus, it will be shielded by the well established principle that one part of the Constitution (i.e. the Charter) cannot be used to invalidate or repeal another. As a result, the provisions in subsection 2 and subsection 3 will enjoy a measure of Charter immunity.

• 1055

This principle is grounded in Supreme Court case law and was clearly stated in connection with the educational rights and the 1987 reference case on the amendment of Ontario's education act. On this occasion the Supreme Court explicitly stated that the role of the charter is not envisioned in our jurisprudence as providing for the automatic repeal of any provisions of the Constitution of Canada, which includes all the documents enumerated in section 52 of the Constitution Act, 1982.

The question to the minister is this: does this include any contradiction that might exist between one section of the Constitution or charter and another one?

The Hon. Stéphane Dion: I want to come back to the first point. I will read what is written in the speech, because I don't see where it is not accurate. The only thing we can know with any certainty is that in the four electoral districts with the largest Pentecostal populations, the amendment proposed was carried with average majorities of 60%. It's the only thing we may say with certainty.

Mr. Werner Schmidt: The implication of that statement is that the Pentecostals voted in favour.

The Hon. Stéphane Dion: No, that's not written in the speech. I said in the speech that it is very difficult to know how the Pentecostals voted. We don't have any strong evidence that there is massive opposition to the change—among this small population that is very difficult to assess. And the support we have in the legislative assembly is a key one to knowing about the situation.

The other point is that it's not a fundamental right. We have to take that into account. According to the other point....

Mr. Yves de Montigny: With respect to your second question, if I may quote again from the Supreme Court judgment in the Ontario Education Act—it's on page 1206, if you have that excerpt on hand—it says:

...the role of the Charter is not envisaged in our jurisprudence as providing for the automatic repeal of any provisions of the Constitution of Canada, which includes all of the documents enumerated in Section 52....

If you look at subsection 52(2) of the Constitution, it says quite clearly that the Constitution of Canada includes the Canada Act 1982, the acts and orders referred to in the schedule, which means Term 17 and the terms of union, and any amendment to any act or order referred to in paragraphs (a) or (b), which includes the proposed amendment we're dealing with today.

Mr. Werner Schmidt: Even in the event that such a proposed amendment might be in conflict or contradict another section?

Mr. Yves de Montigny: One part of the Constitution cannot contradict another. The charter doesn't override other parts of the Constitution. That's what the Supreme Court said quite clearly.

Mr. Werner Schmidt: I just—

The Hon. Stéphane Dion: That's why section 93 was not eliminated by the Constitution, about the rights of Protestants and Catholics...by the charter. It was the point of—

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

Mr. Dion, I've been asked by Mr. Brien whether he could have a small word.

[Translation]

Mr. Pierre Brien: I have always had a difficulty with your argument regarding Pentecostal MLAs, because these members represent a riding that does not have only Pentecostal voters and they, therefore, have a real political problem that you know as well as I do—i.e. the fact that their constituents have supported the amendment. But their Pentecostal constituents could very well have voted against. The demonstrations seem to show that there is a very strong opposition from Pentecostals. It is impossible to quantify.

Therefore, these members had a dilemma between their personal convictions and representing their constituents. Their vote for the amendment in the House of Assembly was much more a vote that represented their constituents' views than a vote expressing their personal convictions. So you cannot say that Pentecostals are likely to be supportive of the amendment because the MLAs who share the same faith voted in support in the legislature.

The Hon. Stéphane Dion: But they are themselves Pentecostals and if they had held very strong views they would likely have voted against. They did not necessarily have to cast the same vote as their riding. Nothing compelled them to vote the same way as their riding. On moral issues, very often elected representatives do not vote the same way as the majority of their constituents. This happens very often and these members voted for the amendment.

Mr. Pierre Brien: So this would mean that they would have put their religious views ahead of their role as members, is that what you are saying?

The Hon. Stéphane Dion: But it happens... no? My role as an MP is not necessarily... it depends. There is nothing in the Constitution that compels you, as a member of Parliament, to vote according to the majority view in your riding. Let's say you are opposed to the death penalty and that public opinion polls in your riding show majority support for the death penalty; you are not required to vote the same way as your riding, it is up to you, your choice is a matter of values.

You can vote according to the opinion of your constituents or you can vote according to your conscience. It is a perennial issue in democracy.

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Mr. Pierre Brien: I am not saying it is a legal requirement. I am simply talking about the dilemma that those members have between their need to represent their riding and their own religious convictions. So we must be careful. It is not that clear. We did not have these members before us. Maybe we should have asked them why they supported this amendment in the House of Assembly. They had this dilemma.

Therefore, we cannot systematically interpret their vote. They could have taken this position because they knew their constituents were in favour. I am saying this to emphasize the fact that the government of Newfoundland never tried to break down the vote to say that such or such a community voted in any given way. For them, 73% of people voted yes and they are not trying to say which denomination voted yes or no. What you are doing at the federal level, they are not doing at all at the provincial government level.

The Hon. Stéphane Dion: The government of Newfoundland was very happy to get 73%. They tried to get the strongest possible majority and it was very important for them. They very well realize that attempting such a change—maybe they would have gone ahead anyway but the government of Canada would have had great difficulty—with a small majority would have been much more difficult.

Mr. Pierre Brien: We will not get into that discussion again.

[English]

The Joint Chair (Senator Joyce Fairbairn): Colleagues, with the last two words from this side, Madam Caplan would like a last word from that side. If that's agreeable, go right ahead.

Ms. Elinor Caplan: Thank you, Senator.

The last questioner reminded me in his questioning about the unprecedented unanimous vote from three parties and one independent member. It seems to me that this is extremely important from the aspect of the political reality of Newfoundland and Labrador. We heard from the leader of the NDP.

I believe it would have been extremely easy and more probable to see one of the opposition parties take up the cause of the Pentecostal minority if they truly believed that in fact there was no support and that the traditional role of opposition party is to naturally oppose.

When you have a unanimous vote, Minister, don't you agree that the non-partisan nature of that vote is significant in determining the will of the people of Newfoundland and Labrador?

The Hon. Stéphane Dion: Yes, it has been key. The fact that we had unanimous support is something very important.

I don't say it's enough. If the Government of Newfoundland and Labrador had thought it would have been enough, they would not have taken the pains to have a referendum. They were aware of that.

I think we have strong support among the population, and reasonable support within minorities, especially clearly so among Catholics. It's much more difficult to know about Pentecostals because they are not unanimous in their support in the legislative assembly for a change that does not affect fundamental rights.

If it was fundamental rights, let me tell you, it would be completely different. It's not something automatic. We have to take into account all those aspects when we, as parliamentarians of Canada, think that this change is good or not. We also have to take into account the merits of that change. For many reasons that you heard during the hearings, this change is welcome.

Mr. Yves de Montigny: We could also add that it was a free vote in the assembly.

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

Mr. Werner Schmidt: Can I ask a question of clarification, Madam Chairman?

The Joint Chair (Senator Joyce Fairbairn): A clarification from Mr. Schmidt.

Mr. Werner Schmidt: Could the minister tell us what he means by a “fundamental right”?

The Hon. Stéphane Dion: The Supreme Court has said that in this case it's not a fundamental right. But it's very easy to see that freedom or liberty is a fundamental right. It's something that exists in any liberal democracy that I know.

The control of schools by the churches or the right to hire or fire professors is not a fundamental right. It does not exist in most democracies of the world, including Canada.

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

Mr. Werner Schmidt: I give up. That's unbelievable.

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The Joint Chair (Senator Joyce Fairbairn): Thank you very much. We've had a full discussion. We're very grateful for Mr. Dion's attendance here and we thank him for his time.

Colleagues, we'll just wait a minute for the witnesses to depart.

[Translation]

The Hon. Stéphane Dion: Goodbye. Thank you.

[English]

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

Colleagues, we now are moving into another phase. We still have some time this morning, and I would suggest that we move in camera for a discussion on our future business. Our first piece of business would include the motion of—

Mr. Werner Schmidt: But that's not in camera. The motion was made in a public meeting, and it should be dealt with in a public meeting. It cannot be dealt with in camera.

The Joint Chair (Senator Joyce Fairbairn): All right, Mr. Schmidt. You're right.

This is the motion, and indeed, we have it typed out and we have it translated, so we will pass it around. Mr. Schmidt is quite right. It was raised in a public meeting. We had a preliminary discussion, and we will deal with it as our first order going into our other sessions.

Colleagues, as you will recall, Mr. Schmidt introduced his motion last week and we had a flurry of a few remarks in the beginning. I suggest that we deal with this motion now. I will ask Mr. Schmidt to present it, with any comments you wish to make, sir, and then we will proceed.

Mr. Werner Schmidt: Thank you, Madam Chair.

I'll read the motion first and then make some comments about why I proposed the motion, if I might.

I would move that the co-chairs make the strongest possible case to the respective Houses of Parliament for the extension of the reporting date for the Committee, so that it can deal in a comprehensive manner with the implications of the proposed constitutional amendments to Term 17.

The reason for doing this is not to suggest that we shouldn't move ahead expeditiously. I think the intent of the motion is to be sure that having heard a number of witnesses, some 49, I understand.... It's not to add to the number of witnesses to come before the committee. I believe we've heard the issues clearly expressed. I think we know what they are, but I'm not at all convinced that indeed all of the implications have been thought through to the point at which we can either support or not support the particular amendment.

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With all due respect, I think the reason is not at all to delay, as somebody has imputed. That is not what's going on at all. I want to appeal to everyone in this committee to make sure that the implications of doing this are in fact what we want to have affect Canada. This is not something that's going to affect us only tomorrow morning. It's going to affect us for years, and it will go forward to a large degree.

Because of the significance of this motion, this amendment, I'm appealing to you to at least delay it for a week, perhaps even beyond the Christmas break. This is not something that ought to be hurried through, because this is a constitutional issue. It's one that has longevity. It has long-term implications. It will affect many people, not only in this generation but also in future ones. For that primary reason I believe we ought to take sufficient time so as to feel comfortable with the implications of this particular amendment. That's the real reason, the only reason, for doing this.

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

I have an indication that Senator Rompkey would like to have a word and that Mrs. Finestone would too.

Senator William Rompkey: I will vote against the motion, Madam Chair, and I will encourage the committee to vote against the motion for two primary reasons.

We have acknowledged time after time that this is a debate that has been going on in our province for years. We haven't been studying this for weeks; we have been studying the denominational system for years. People in the province have made up their minds, and they're tired of the debate. They want to get on with their lives. I think the committee should allow them the opportunity to do that.

We have had a royal commission. We have had two separate referenda. We have had two sets of hearings. We went through all this a year ago, the whole thing. We had a Senate committee studying all of these arguments. I've heard nothing new in this round of hearings, and that's because we have been studying this for the last 10 years.

The first reason for defeating the motion is that I think it has not only had enough debate, it's also had a surfeit of debate, hearing, and examination. I think now the time has come to put the question.

The second reason for defeating the motion is a practical one. If Newfoundland is to have an educational system next year, in which children go to schools that are organized, teachers are hired, texts are in the classroom, the curriculum is established, buses are in place—if that is to happen next September, you don't start planning in March or April. You start planning in January and February.

The point is if we don't defeat this amendment now—and this is not the primary reason for defeating the amendment, but it is a reason—Newfoundland will not be able to put the necessary plans in place to have a working, effective school system next year.

For those two reasons I would advocate the defeat of the motion.

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

Madam Finestone and then Madam Caplan, please.

Mrs. Sheila Finestone: Thank you, Madam Chair.

I want to say Mr. Schmidt that I have listened to him and I can hear a very deep sense of commitment and serious concern on the part of the people he is speaking for, the Pentecostals. I think they should be very proud of the advocacy and the work he has done and the thought he has given to his observations.

Notwithstanding that, I don't agree with and I will not vote to support your amendment, Mr. Schmidt. I do believe the minister gave a very fulsome response today, this morning in particular. As a minority myself, I can sense your concern, but I can tell you that as a minority of a different minority—if I could put it that way—I think it's just about about time that we got rid of religion in the schools and had a far broader stroke and a far broader brush that would lead to a much better understanding and appreciation of the differences in our society.

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Lord only knows that if you just take a look at the world map, that should teach us that we need to get religion out of our lives, except on a personal basis and with a personal approach within our own society with respect the church, synagogue, mosque, or temple. That should be outside of the general schooling we give our children, outside of an appreciation for those differences. If we don't do that, we'll also be having an awful lot of trouble right here in this country.

As I say, I appreciate what you've done, but I think the minister has given us the fulsome response. I think the world has taught us a great lesson. We ought to remember it and work with it, because special rights on a religious basis are not in the best interests of any country.

The Joint Chair (Senator Joyce Fairbairn): Thank you, Madam Finestone. Ms. Caplan.

Ms. Elinor Caplan: Thank you very much, Senator.

I feel very strongly that we should proceed so that Newfoundland can end the chaos we heard about. We heard words like “torture” and “tortuous route” from presenters before this committee. We also heard about the thoughtful consideration and debate that has been going on in the province of Newfoundland and Labrador and in their House of Assembly.

I'm a little surprised at this kind of motion coming before this committee, because we know that there has been this thoughtful debate and consideration going on in that province for some ten years. We know there has been a royal commission. We know that there were two referendums. The last one was supported by 73% of the people who went out to vote. We saw and heard today the reaffirmation that not only was there a unanimous vote in the Newfoundland and Labrador House of Assembly, but that it was a free vote.

I'm satisfied that with the presentations we've had before this committee, we understand the implications for Newfoundland and Labrador. I'm also satisfied that there are no precedents that will affect other provinces across this country.

So I would hope that people will allow the chaos and that need to let Newfoundland and Labrador get on with doing what they have told us that they want to do. They believe this is in the interest of quality student education.

I believe that we have had not only due process, but a really thoughtful consideration of the implications. I'm quite surprised to see this amendment, which would delay implementation.

Similarly, I have heard the concerns of those who would try to amend this proposal from the Newfoundland and Labrador House of Assembly. I hope that they will reconsider, because we've also heard that this would only prolong the debate and the chaos, and that is not in the interest of student education. Certainly it's not in the interest of the people of Newfoundland and Labrador, who I believe have spoken very clearly, Senator.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much, Madam Caplan. At the moment, as we all appreciate, the one we have in front of us is Mr. Schmidt's proposal.

Next on my list is Monsieur Brien, then Mr. Goldring and Mr. Bélanger.

[Translation]

Mr. Pierre Brien: I would just like to say a few words because I would not want people to think that I will vote against the motion before us for necessarily the same reasons as the people who spoke before me. I understand the concern of people who would like more time to reflect on the meaning of this amendment. However, I do not think we will hear anything new and I think we should get down to our initial mandate. In my speech in the House of Commons I had even cast doubt on our ability to come up with anything new in our examination here, in this committee.

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Since the government of Newfoundland has thoroughly examined the issue, consulted its people who have democratically decided to approve this constitutional amendment, our role becomes very limited and, indeed, boils down to ensuring that the constitutional amendment is indeed consistent with the will expressed in the referendum. At any rate, voters knew the text of the amendment before the referendum.

Therefore, this brings us back to the fact that the role of the committee is very limited in this sense and that our real ability to change things, in political terms, is very limited. This is why I will vote against this motion because the people of Newfoundland have expressed their will in a referendum, in a very democratic fashion, and I believe we must respect their will and proceed as quickly as possible.

[English]

The Joint Chair (Senator Joyce Fairbairn): Thank you, Monsieur Brien. Mr. Goldring.

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

With all due respect to the minister, it's my belief that the figures on page 7 of his report indicate that the Pentecostals are not as supportive as might be indicated. The figures indicate an average of 60% support, where the average throughout the province was 73%. So that number alone, considering 25% of the population in those areas is Pentecostal, supports the other polls. And it supports another poll that was done by Education First, which was on the yes committee and indicated that 83% of the Pentecostals voted no.

So with all due respect, in the interest of the minority rights of the Pentecostals, which were entrenched only in 1987, 10 years ago, and the constitutional certainty of entrenchment, I believe it's incumbent upon us to investigate that further so we can determine this, because there are serious doubts that the Pentecostals were in favour of this motion.

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

Mr. Mauril Bélanger: Madam Chairman, I would move that the question now be put.

The Joint Chair (Senator Joyce Fairbairn): Hearing no further comments, I would therefore put the question. It is moved by Mr. Schmidt that the co-chairs make the strongest possible case to the respective Houses of Parliament for the extension of the reporting date for the committee so that it can deal in a comprehensive manner with the implications of the proposed constitutional amendments to Term 17.

(Motion negatived: nays 9; yeas 3)

Mr. Paul DeVillers (Simcoe North, Lib.): Madam Chair, in light of that motion I move that we now conclude and that the committee move on from hearing witnesses to consideration of its report at this point.

The Joint Chair (Senate Joyce Fairbairn): I will entertain that motion. Do I hear concurrence around the table for this?

Some hon. members: Agreed.

The Joint Chair (Senate Joyce Fairbairn): Therefore, colleagues, we will move in camera, which means that those who are not directly associated with members or senators will be asked to leave the room. We certainly thank them for their interest.

[Proceedings continue in camera]