SJNS Committee Meeting

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

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

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, November 20, 1997

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[English]

The Joint Chair (Senator Joyce Fairbairn (Lethbridge, Lib.): Good morning, colleagues, and welcome back. We got off to a good start on Wednesday and this morning we have a panel of two witnesses, who will discuss a variety of points of constitutional human rights.

I would like to begin, if I might, right away with the introduction of Anne Bayefsky. Anne is the director of the Centre for Refugee Studies at York University and is a member of the department of political science. She formerly was in the faculty of law here at the University of Ottawa. She is the author of a number of publications in the fields of international protection of human rights, international law, constitutional law, civil liberties, anti-discrimination law, women's rights, and jurisprudence. She has been a member of various Canadian delegations to the United Nations Human Rights Commission and the General Assembly over the last 10 years. She also continues to practise law.

With Ms. Bayefsky is David Schneiderman from my province of Alberta. He is the executive director of the Centre for Constitutional Studies at the University of Alberta. He has held that position over the last eight years. He has taught courses in constitutional law and history, as well as law theory and politics of the charter at the faculty of law at the University of Alberta. His publications and involvement as an editor in various books on legal and constitutional issues is longer than your arm, so I won't go into it today. However, he does have several works in progress, including a reader in constitutional theory. We welcome both of our witnesses. They will each make a presentation, and then, colleagues, we will welcome your questioning.

Ms. Bayefsky, would you like to begin.

Ms. Anne Bayefsky (Director, Centre for Refugee Studies, York University): Thank you very much, and thank you very much for asking me. I consider it a privilege to be asked to provide some information to the Senate in these hearings and I'm at your service with respect to the question period. I'll therefore only provide you with a very brief commentary at the beginning and welcome your questions in response.

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First of all, it should be said that the proposed new Term 17 in the Constitution Act would be carried out through an amendment by way of section 43 of the 1982 Constitution Act. Therefore, it is a bilateral amendment process that requires the approval of Newfoundland and also the Parliament of Canada. In that process the question then is, now that it has proceeded through the Newfoundland legislature and comes to Parliament, what is Parliament's role?

First, Parliament has a responsibility to take a considered view to make its own assessment of the legitimacy and the advisability of the amendment. It's not a rubber stamp. It needs to take its time and consider, in the light of various factors, whether the proposed amendment meets with parliamentary approval. What are some of the factors that Parliament should consider in deciding this issue?

The first factor is the necessity of a flexible Constitution, the recognition that the Constitution is a living tree and needs to be modernized and responsive to the needs of the community over time. Secondly, there is a responsibility of Parliament, and I think the Senate is particularly well suited to this responsibility, of considering the protection and the human rights of those affected by the amendment. That includes the minorities who potentially would not have been considered or given their full due through the legislative or provincial process. The federal responsibility, it seems to me, entails a consideration of the effect on minority rights and whether or not it's consistent with Canadian values, the rest of the Constitution and the Canadian Charter of Rights and Freedoms.

In addition, in asking how those minority rights have been affected and whether they have been affected in a way that is consistent and compatible with the rest of the Constitution, there are a number of questions that might be asked. What has been the process of the passage of the amendment and has it been a democratic process? Secondly, what have been the goals of the amendment, are they laudable, are they xenophobic? What state is the minority left with in terms of their rights following the amendment? Have they been oppressed or have they been involved in the process? What have been their views? What is the extent of the disadvantage? Is it significant? Is the change to minority rights consistent with the Canadian Charter of Rights and Freedoms?

At the end of the day it seems to me that it's important to recognize that there's a balancing of rights involved in the process and that one has to take account therefore of a multitude of different rights and interests of various groups in the province concerned.

In addition, I would point to the potential for problems with the amendment with the Canadian Charter of Rights and Freedoms—not a necessity, but a potential. In the requirement that religious observances be permitted in a school where requested by parents, one is left with a number of questions. How many parents count? What kind of observances, in what form, and how many? It would appear that all religions are placed on an equal footing, that this request can come from any denomination, but the concept of having to exempt children whose parents find the religious observance that a school may take incompatible with their particular religion is probably inconsistent with the Canadian Charter of Rights and Freedoms, since the exemption, according to the Ontario Court of Appeal, would not put children on an equal footing. The exemption itself may inhibit the parents of some children from asking for exemptions, and in some certain circumstances it may isolate children from their peers.

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I raise those questions. It's possible that as it's applied it may run into conflict in that respect with the charter. It may be suggested that a conflict between the other parts of the Constitution Act and the charter would be resolved in favour of this proposed amendment, like the Bill 30 case in the Supreme Court of Canada, and the Constitution Act would prevail. I'm not as sanguine about that result.

It seems to me the Supreme Court of Canada, in that particular case, took account of the fact that it was an 1867 constitutional provision. It had a long, established history, and a conflict with the charter coming much later would not affect the original constitutional bargain.

But the proposed new Term 17 is not the original constitutional bargain, and therefore a conflict with the charter, which after all came first, would not obviously be resolved in favour of this proposed new term.

Last, I would simply point to the fact that the whole issue of how to judge the acceptability of proposed constitutional amendments in Canada is at a fairly unsatisfactory stage of understanding. The Constitution is really silent on how to determine the acceptability of proposed constitutional amendments. It's dealt with on an ad hoc basis, one by one, as proposals come forth. Since we know the possibility of future constitutional amendments continues to lie before us, we ought to address in the longer term the need to develop and define a process of constitutional amendment that is clearly understood and available to all Canadians.

Thank you. I'd very much welcome your questions in due course.

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

If it's the agreement of the committee, could we now have the benefit of Mr. Schneiderman's views as well, and then ask questions of both? Thank you.

Mr. Schneiderman.

Mr. David Schneiderman (Executive Director, Centre for Constitutional Studies, University of Alberta): Thank you very much. I'm delighted to be here today and hope I can be of some assistance to the committee.

I'd like to briefly outline my views about the section 43 amending formula, which is applicable in this instance, talk about it at a high level of abstraction, and then talk particularly about the proposal before this committee.

Let me say that when I began thinking about the process and what kinds of considerations this committee should take into account in these kinds of deliberations, I was assisted greatly by Professor Bayefsky's testimony before the Senate standing committee the last time a proposal not quite like this one was before Parliament. I found that my own views, which I developed over the weekend, were very much in accordance with the views she put to the committee, as I learned when I read the testimony afterwards.

In any event, it's reasonably clear that the section 43 amending formula applies in this instance. The amendment concerns a provision applying to one province and therefore requires the consent of both the province affected and resolutions issuing from Parliament.

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Gleaning from the very scant commentary that's available on the section 43 amending formula, the intention of the framers appears to have been to set a reasonably less difficult threshold for those amendments that do not apply generally to the provinces, yet a somewhat more difficult process than that which would be required, for instance, under an amendment to the provincial constitution, which is simply a unilateral move on the part of a province.

Section 43 matters, then, are those of national concern such as to justify participation of Parliament in the process, and indeed, I think this is underscored by the examples that are provided in section 43 itself, the use of the French and English languages and provincial borders. And of course, by those enumerations it's also reasonably clear that minority rights can be affected by a section 43 amendment.

All of this suggests, as Professor Bayefsky just stated, that in these instances of section 43 amendments, the Senate and House of Commons are required to deliberate and apply their independent judgment to proposed amendments. Section 43 amendments call on Parliament to participate in the process of statecraft, a duty that requires Parliament to act independently of the provinces; nor can it be bound by provincial requests.

But at the same time, section 43 amendments provide an important opportunity for flexibility and growth in the Constitution. Amendments issuing under this process encourage and indeed mandate federal-provincial co-operation.

Having established that the amendments fall under the scope of section 43, let me turn to the kinds of considerations that the committee might want to take into account in its deliberations.

Briefly, they would concern, first, the subject matter of the amendment; second, the purpose or object of the amendment; third, the process by which the amendment arrived before Parliament; and fourth, the national interest that might be at stake.

First, what is the subject matter of the amendment? In these kinds of instances, the committee might want to consider whether the subject matter would ordinarily lie within provincial or federal jurisdiction. If the subject matter ordinarily falls within exclusive provincial jurisdiction—as would education ordinarily—then absent other concerns, a degree of deference to a provincial request may be appropriate.

Second, moving to the question of what the purpose or object of the proposed amendment might be, the committee might want to consider whether it's merely an administrative or housekeeping amendment or a highly politically charged amendment. Is the objective of the amendment consistent with the principles of a democratic society, the values articulated in the Canadian Charter of Rights and Freedoms or those found elsewhere in the Constitution, or is the objective a suspect or a colourable one?

Third, the process: how has the resolution arrived before Parliament? Keeping in mind that we operate under a parliamentary system of government, Canadians increasingly are comfortable with the idea of popular sovereignty, I believe. As a result, in the ordinary case some meaningful consultative process should have been employed. Was there an opportunity for public consultation and input? Was there opportunity for debate and deliberation not only in the legislative assembly but amongst the general public?

Could the same result have been achieved through non-Constitutional means? Was the subject matter of the amendment the subject of an election or a referendum?

More particularly, were those communities of interest that may be most directly affected by the proposal consulted and given an opportunity for meaningful participation in the deliberative process? So if the rights of minorities or other vulnerable groups are either positively or prejudicially affected by the proposed amendment, were they in fact consulted?

In other words, was the process fair, given all of these circumstances?

In those instances where minority rights may be prejudicially affected, Parliament has a particular duty to strictly scrutinize the proposed amendment, in my view. This may be characterized as an important component of the national interest that Parliament is being asked to take into account. Of course, there are other components of the national interest, those being the precedential value of the amendment and also the impact of the amendment on federal-provincial relations.

History has shown that the protection of minority rights often is best secured by insulating those interests from the vicissitudes of ordinary politics, hence, Parliament's role. This is usually accomplished by requiring the use of an extraordinary process, such as the amending formula under section 43, so that the interests of vulnerable groups adversely affected by an amendment are taken into account.

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I do not mean to suggest that in every case where a minority interest is implicated, the consent of that adversely affected minority is required for an amendment to proceed. There are a range of relevant considerations Parliament might want to take into account in those circumstances. By what process were those vulnerable or minority groups consulted? Were they provided with adequate resources to participate in public debate? Have they consented to the proposed amendment, and if not, was that consent unreasonably withheld? In what circumstances was the constitutional protection affected by the resolution originally secured by the minority? Are there other statutory or constitutional protections available, as in human rights instruments and the Charter of Rights and Freedoms? As Professor Bayefsky just put it, are minorities being oppressed by the proposed amendment or are they merely being affected?

Let me now turn to how you might apply some of these considerations to the specific proposal before you. My intention here is only to suggest lines of inquiry, rather than provide a definitive opinion.

First, the subject matter of the amendment concerns education, which is a matter otherwise exclusively assigned to the provinces, according to Term 17 and section 93. Moreover, Parliament does not have a specific role to protect denominational education in Newfoundland as it does under section 93.

Second, the stated object or purpose of the proposal is to make the Government of Newfoundland responsible for the administration of the schools of the province. The new term is intended to rationalize and make more efficient the educational system. It also has the effect of removing constitutional privileges that have been available to particular denominations but that also have not been available to all religions. In this way, the state does not appear to be endorsing any particular religion, an objective consistent with the Supreme Court's interpretation of the guarantee of freedom of religion. That's leaving aside, though, the question of religious instruction and observance.

Third, the process by which the resolution was adopted appears to have been supported by an open, meaningful consultation. As the Senate standing committee noted, the process has been ongoing for some time. Most recently, the process included a referendum. In Newfoundland, this was a second attempt at reform. A more modest set of reforms was approved by a referendum the year before. The question before the people of Newfoundland in the second referendum was different, of course, from the first, and I think the committee has a responsibility to satisfy itself that people were not approving the second referendum based on the question in the first.

What of minority rights, or the interests of vulnerable groups that may be adversely affected by the proposal? As some of the representative groups who have benefited by Term 17 opposed the resolution, this committee must satisfy itself that both the process and substance of the resolution fairly took into account their concerns. In contrast, other affected groups have expressed their support for the resolution, and this committee should, as a consequence, consider the reasons for these differing positions.

The committee could also take note that these groups differentiated on the grounds of religion or religious creed are protected by both the charter guarantee of freedom of religion and equality rights, and also by Newfoundland's human rights code.

Other minorities may be adversely affected by these reforms, either intentionally or unintentionally. The proposed amendment to Term 17, for instance, provides for non-sectarian religious education and religious observance where desired by parents.

The first qualification of religious instruction is less likely to offend religious freedom if the teaching were done in a non-sectarian way by qualified public school teachers. It seems to me this is the likely intention of the Government of Newfoundland and Labrador. The minister's brief, however, which I had a chance to review, makes reference to Revelation and God and has language that suggests that religious instruction will advance the views of particular denominations and to that extent might slip into what has been called religious indoctrination by the courts. I think the fact that the government is contemplating an exemption for students from religious instruction signals even more the potentially indoctrinational nature of religious education.

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The term itself, of course, is silent in regard to exemptions, and on its face, then, appears neutral with regard to religious instruction as opposed to indoctrination. Similarly, the provision for religious observance I think signals a serious concern in terms of charter rights and freedoms.

There's no provision here for exemption on the face of the term itself. Religious observance, though, more so than instruction about religion, suggests particular denominational support by the state. Religious observance might include things like nativity scenes, but it might also include things like opening exercises. Certainly the latter have been of concern to the courts in the application of the Canadian Charter of Rights and Freedoms.

Because of these concerns, I think this committee should satisfy itself that the terms are consistent with the supreme law of the land, those rights and freedoms articulated in the charter, particularly because Newfoundland is now moving to a system of non-denominational education.

Previously section 29 of the charter was available to shield the educational system in Newfoundland from charter review. By moving to a non-denominational system, section 29 does not apply any more, in my view. The charter potentially then can be used to test both the language of Term 17 as well as the practices in the province of Newfoundland.

This committee has to determine, then, to what extent it wishes to perhaps perpetuate distinctions and differences along religious lines. Now, to be sure, the proposal here is very unique, and the educational system in Newfoundland is very unique in this country. So the committee could legitimately view this proposal as not having a lot of precedential value, and approving the proposal will advance the interests of federal-provincial relations and evolution and change in our constitutional structure.

At the same time, I want to again underscore the importance of taking into account these charter concerns. Whether or not the charter applies is not really the primary issue; rather, it's whether the terms are consistent with the values and spirit as well as the text of the Constitution of Canada.

Thank you very much.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much, Mr. Schneiderman, and Ms. Bayefsky.

We'll now start our questioning with Madame Folco.

[Translation]

Ms. Raymonde Folco (Laval West, Lib.): I want to welcome both of our witnesses.

When Minister Grimes made his presentation before us two days ago, I asked him about making a commitment that there would still be three options for religious instruction, whether denominational or non-denominational, in a school board or in a school. The first option is very general moral and religious education that could be offered to all students. The second option is specific denominational education when requested by the parents. You were mentioning this earlier. The third option is that upon the parents' request, the students can be excluded from this second type of religious education. There are thus three options for the children's religious education.

My first question is about the possibility to produce a micro- situation within a theoretical school that would re-create the situation as it is right now throughout the province of Newfoundland and Labrador. I would like to hear your comments about this possibility.

My second question is the same I asked the Minister. I wanted to know whether his department or his government could give assurances to the parents and the people of Newfoundland and Labrador that these three possibilities will remain. The Minister answered that he could not give us any assurances whatsoever.

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According to him, we could use the example of a school board that would approve the request of parents wishing for a Roman Catholic religious education in a particular school, as long as that request is administratively feasible. Those were the Minister's own words.

I seriously wonder. I can imagine that a school board could potentially decide not to grant the request for other maybe more personal reasons, and use that motive as a justification for its refusal, absent other valid rationale. I would like to hear your comments on both issues. Thank you.

[English]

Mr. David Schneiderman: It's clear that the three possibilities you outline are ones that will be available to the government. I'm not sure whether I understood the two questions, but it seems to me the three possibilities are all open to the government, according to the terms in front of you, and there's nothing on the face of them that would suggest any one particular option needs to be followed.

I think that may have answered your first question.

Ms. Raymonde Folco: Really what I wanted is an opinion from you and from Madame Bayefsky regarding the other possibilities or other constitutional avenues where the population of Newfoundland and Labrador would not be going into a micro-situation that seems to me to be the parallel of something that was going on across the school boards of that province. I'm wondering whether there might not be any other avenues possible.

Mr. David Schneiderman: Other avenues being non-constitutional avenues?

Ms. Raymonde Folco: Constitutional or non-constitutional, in order not to reproduce that model, the model of having this complexity of religious and non-religious options to the students within one school. I could see some kids going off to Roman Catholic religion, other kids going off to some of the Protestant religions, and other kids not going to religions at all.

Administratively, is it feasible? This is my second question. I could see how this would cause an administrative problem and then the minorities would be the ones left with the answer, “Well, we can't really afford to do this, so we'll let you go. We're not going to give you the advantage of giving that particular religious instruction to your children.”

Mr. David Schneiderman: There's nothing in the term itself that would prevent that kind of conflict from occurring, even within a singular school. The objective, it seems to me, of the Government of Newfoundland is to take control of curriculum all the way down to religious education and even, to some extent, religious observance. Although, again, the deference here to parents could raise the problems you have just raised in your question.

The intention of the government seems to be to take control of the curriculum. Whether parents might not be able to also take advantage of the term to enforce, in fact, their rights.... Term 17 suggests there will be some rights for parents that would be enforceable. To that extent, it is possible that you will have interdenominational conflict, even within a singular school system, at least in regard to religious observance, because there you have reference to parents' wishes being deferred to.

It's appropriate to draw attention to that problem or potential.

Ms. Anne Bayefsky: I would simply add that indeed, as I was attempting to point out in my opening remarks, Term 17(3) does give rise to the possibility of complexities and the possibility of inconsistent implementation with the spirit of the Charter of Rights and Freedoms. It isn't necessary, it isn't required, it isn't an inevitable result. It does open the door, it does leave open the possibility of an inconsistency with the charter in a way that minorities are in fact not treated fairly and equally in terms of requests for religious observances in the school system.

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One assumes that this kind of very broad statement in the Constitution will inevitably have to give rise to some sort of administrative guideline for how it is to operate. In the absence of some kind of detailed guideline by which school boards are to apply this constitutional provision, it would seem to be quite right to observe that there would be a degree of incoherence that would be unsatisfactory to the proper and sensible application of the Constitution in the school system.

The Joint Chair (Senator Joyce Fairbairn): I'm accumulating a growing list here, so can we move along as succinctly as possible with our questions, please. Next on my list, I have Senator Doody followed, by Monsieur Brien.

Senator William C. Doody (Harbour Main—Bell Island, PC): My question is really a request for clarification. I'm not quite sure I understood what Madame Bayefsky meant when she said something to the effect—and I don't have a copy of the text, unfortunately—that Term 17 was not part of the original constitutional bargain. Did I hear you properly?

Ms. Anne Bayefsky: I'm sorry, I can't hear you.

Senator William Doody: Did you say something to the effect that Term 17 was not part of the original constitutional bargain?

Ms. Anne Bayefsky: No, the proposed new Term 17, since it's presently before us.

Senator William Doody: Yes, that's where the confusion is. It's not the Term 17, it's the proposed Term 17.

Ms. Anne Bayefsky: No, it's the amended one.

Senator William Doody: The question I have really flows from the exchange recently on the choice of systems of religious education, or the possible choice of systems.

Paragraph (2) of the proposed new term quite clearly says it “shall provide for courses in religion that are not specific to a religious denomination”. There will be no denominational religious instructions in any of the schools.

Ms. Anne Bayefsky: Observances are in paragraph (3), which is separate from paragraph (2).

Senator William Doody: Isn't there a contradiction there?

Ms. Anne Bayefsky: Between paragraphs (2) and (3)?

Senator William Doody: Yes.

Ms. Anne Bayefsky: Well, certainly paragraph (3) doesn't specify. Religious observances by their very nature are going to be specific to a religious denomination.

Senator William Doody: Yes, but isn't that forbidden by paragraph (2)?

Ms. Anne Bayefsky: No, because one deals with observances and one deals with courses.

Senator William Doody: I see. So there's a difference between an observance and a course.

Ms. Anne Bayefsky: Yes, I think so.

Senator William Doody: Will that be clarified, or do you know?

Ms. Anne Bayefsky: I might point to article 18 of the International Covenant on Civil and Political Rights, which talks about freedom of religion, including the freedom to have or adopt a religion, and to manifest one's religion in worship, observance, practice and teaching. So it seems to me that there are different kinds of categories of manifesting and practising the right to freedom of religion.

Senator William Doody: I gather that a Christmas nativity scene would be permissible, then, but there would be no commentary. Is that what we're saying?

Ms. Anne Bayefsky: No, I think the decision as to what will count and whether or not an observance is in fact an indoctrination is something that will have to inevitably be litigated and will come up. One must keep in mind that the point of Term 17(3) presumably is to allow for some parental infusion into the nature of what goes on in the public schools, so there's a degree of parental responsibility with observances that is not the case with respect to courses that are taught in the schools by professional teachers.

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Senator William Doody: So it's quite possible that this rather concise proposed amendment may not be the end of the matter at all. Does this—

Ms. Anne Bayefsky: I don't think any part of our Constitution has ever been the end of the matter.

Senator William Doody: I should say the end of the school problem in Newfoundland. The government will not have solved all its problems by putting this—-

Ms. Anne Bayefsky: Constitutions rarely solve all one's problems.

Senator William Doody: That's right, except the legal professions.

The Joint Chair (Senator Joyce Fairbairn): On that note, I will move to Monsieur Brien.

[Translation]

Mr. Pierre Brien (Témiscamingue, BQ): I would appreciate getting an answer from Ms. Bayefsky to the question she herself raised about the constitutional amendment process. Mr. Schneiderman raised the same question but he did give an answer.

You said that we should ask ourselves questions about the objectives, minority rights and the process used for the proposed amendment, but you didn't give us an answer to these questions. You said that we should ask ourselves these questions. I would like to know what your answer is on the process itself.

[English]

Ms. Anne Bayefsky: I think the process question has to be asked from the point of view of whether or not it's democratic. How was the proposed amendment generated?

The amendment was generated in a way that consulted the people of Newfoundland. There were public hearings. There was a referendum. There were even two referendums in the relatively near past. There was an election that in part turned on knowing what the government's agenda was. There were specific processes by which the people were consulted. The minorities themselves were also consulted. They had opportunities to express themselves. They participated in these various stages of the process. Therefore, on the process issue, it would seem to me that I would answer the question by saying that the process had been fair.

That doesn't end the questions I asked. I think the second question is substantive. What about the goals of the legislation? Are they consistent with the Canadian Charter of Rights and Freedoms, its spirit? Are they consistent with the goals of equality, multiculturalism, and freedom of conscience and religion, or, as I say, potentially xenophobic?

If I look at the goals that have been articulated by the government and through the legislature and put to the people of Newfoundland in terms of the referendum, in terms of a reform of an educational system, in terms of the desirability of a single public school system that would have equal access to all denominations to certain religious observances, I think the goals in general are compatible with the Charter of Rights and Freedoms, while some of the caveats I've suggested are potentially pitfalls down the road.

With respect to the issue of whether or not minorities have not only been consulted but adequately protected and whether the change in terms of minority rights has in fact been done in a manner that continues to take account of their needs and sensitivities, I think the answer is also yes. It seems to me that the minority itself is not clearly and unequivocally opposed to the change. Their own reaction has been at least mixed, if not clearly on one side or the other. The minorities are not disadvantaged in the sense that there's a preclusion for now or forever of denominational and private education in terms of one's own religious experience, so there's no effort on the part of the government to somehow deny people an opportunity to educate the children in the manner they see fit, as long as they pay for it, which would be compatible with almost every other province in Canada in terms of its orientation towards the separation of church and state.

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It even goes farther than many of the other provisions in other provinces by permitting specifically religious observances in schools when requested by parents. In many of the provinces of Canada that would not be permitted, certainly not by the Constitution.

For all those reasons, on the issue of minority rights, the process has been fair, the substance protects them in essence, and the goals are essentially compatible with the charter.

[Translation]

Mr. Pierre Brien: I will ask one last question. You have mentioned a potential conflict with the Charter; you talked about a potential conflict. I would like you to give me an example of circumstances where such a conflict could happen, of a situation that could lead to a court challenge by a particular group.

[English]

Ms. Anne Bayefsky: I'm thinking of a case in the Ontario Court of Appeal about allowing prayers and introductory exercises in public schools, and the notion that to exempt students would be sufficient, because they weren't required to attend those religious observances. The Ontario Court of Appeal said the exemption in itself would not be sufficient, because it isolates children, it stigmatizes them in a way that is not compatible with freedom of religion and freedom of conscience.

So if religious observances were to be of such an extent in the schools of Newfoundland that individual students were isolated from their peers through those religious observances when their parents did not want them to attend, it seems to me there's a potential violation of the charter.

[Translation]

Mr. Brien: Thank you.

[English]

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

Colleagues, as you will notice, I'm being reasonably generous with supplementaries rather than splitting the train of thought into two rounds. Again, could we keep our questions as brief as possible and the answers, while comprehensive, also.

Senator Pearson is next and then we'll go to Ms. Caplan and Senator Murray.

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

It's a great treat to have two such able commentators on constitutional rights issues. The question I'm posing is one that did strike me in the terms, which is the understanding that we're talking about parental rights, maybe, as opposed to the students' rights. The way it's written, it's if the parents require a religious observance; it doesn't say anything about whether a student asked.

I remember that when we met in Newfoundland, one of the students explained to us that there were problems, in his view, about whether or not he attended a class. He had to get parental permission not to attend a class. At a certain age that became rather onerous.

So in your definitions of minorities and your understandings of what minorities represent, how do you place, in the context of a religious minority, the choice of children? Their parents will say they're such-and-such, but how do they define themselves? I'm not sure my question is clear.

Mr. David Schneiderman: I'll try in a preliminary way to answer and then Professor Bayefsky can pick up, I'm sure, on this.

I think you're asking in what way children are factored into this equation.

Senator Landon Pearson: Yes.

Mr. David Schneiderman: Parents seem to have a right to demand religious observance. What about the interests of the child?

Well, there's nothing expressly in here about children. In fact section 93 rights, the denominational education rights, which are still in Ontario and most recently were in Quebec, have been considered by courts to be rights held by parents. Those are rights to be exercised by parents on behalf of their children, who are considered essentially not competent to exercise those kinds of rights.

Times have changed. The charter perhaps suggests that children's interests and rights can be taken into account in this context. Certainly the interests of children were taken into account in the Ontario Court of Appeal decision that Professor Bayefsky refers to. The fact that children were required to stand up and leave a classroom during opening exercises was of great concern to the court, because it was traumatic for the children. It sniffed them out as minorities. And clearly that should be of concern to the committee.

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Ms. Anne Bayefsky: I would simply add that the Convention on the Rights of the Child, to which Canada is bound and which it has ratified, would provide some guidance in this respect. It suggests that in fact the rights of the children to an educational experience that conforms with their understandings, needs and interests is in fact something that has to be factored into any interpretation of the rights and interests of the parents. Primarily, it is the parents who have responsibility, and the article of the Covenant on Civil and Political Rights does say that the states parties, which include Canada, “undertake to have respect for the liberty of parents...to ensure the religious and moral education of their children in conformity with their own convictions”.

So, yes, primarily it is seen and understood to be the responsibility of parents to provide more religious, moral, and educational opportunities in conformity with the parents' convictions, but I would think that has to be weighed against and together with the Convention on the Rights of the Child, which was passed of course some 20 years perhaps later and does make us more sensitive by obligation to the needs and interests of children.

Senator Landon Pearson: Thank you.

The Joint Chairman (Senator Joyce Fairbairn): Thank you. Ms. Caplan.

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

I want to deal with the issue of precedents. You mentioned that, and I agree with you. I think this situation is unique and that the reason the Constitution allows for bilateral change and the development of the kind of flexibility in its constitutional development allows for this kind of change without the establishment of precedents that may have an unconsidered impact on other provinces. So I'd like you to, if you could, expand on why you believe this is not precedent setting as it relates to other provinces and the uniqueness of the Newfoundland situation, if you would. You did mention that. I then have a second question that may not be quite supplementary. Shall I pose it now or wait until the answers?

The Joint Chairman (Senator Joyce Fairbairn): Why don't we wait until the answer.

Ms. Elinor Caplan: Thank you.

Mr. David Schneiderman: I did say that it did not have great precedential value, absent concerns about religious instruction and religious observance, because of the unique situation in Newfoundland. It's the only province in the country that does not have a public school system. And clearly what the Province of Newfoundland and Labrador is trying to do now is, interestingly, bring itself up to the situation of other provinces in the country. It's essentially trying to do what Alberta and Saskatchewan did in 1901—or I should say the Northwest Territories before they were the provinces of Alberta and Saskatchewan—that is, essentially remove religion from the classroom but for a half hour of religious instruction at the end of the school day, and the possibility of opening exercises, and so secularize the school system. So I think the province in that way is moving in a direction consistent with the rest of the country. In that way it will not set great precedent.

On the other hand, I think the concerns we've raised about paragraphs (2) and (3) suggest that it could have some precedential value. It could be a signal, for instance, in interpretation of the charter. It's unclear what the scope of 17 is in Alberta and Saskatchewan. Does it include religious instruction, religious education, does it include the Lord's Prayer? It's not exactly clear, and approval of this term could signal that this kind of provision is essentially approved by Parliament and should be shielded from the charter, because it is constitutional text.

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Ms. Anne Bayefsky: I might add that I do think there is a question...and I'm not sure I said it had no precedential value.

It seems to me that in general, when we're dealing with constitutional amendments and the issue is raised on what is the impact of the treatment of minorities by a particular constitutional amendment, and how do we deal with the process of amendment where that issue is raised, this has broader implications for the rest of the country. It's one of the reasons why one ought to take great care in determining what the minority rights are here, and how they're factored in and protected and dealt with fairly and reasonably.

The Joint Chair (Senator Joyce Fairbairn): Thank you, Ms. Caplan. We have about five more interventions. Could we give perhaps the others an opportunity?

Ms. Elinor Caplan: Sure.

The Joint Chair (Senator Joyce Fairbairn): I should draw it to the attention of the committee that it had been our suggestion that we conclude within an hour. Clearly the subject is a little broader than that. We will carry on with the considerations that I indicated before.

Senator Murray.

Senator Lowell Murray (Pakenham, PC): Thank you, Madam Chairman. I think I will put all my questions at the same time. They are all on the same subject.

Professor Bayefsky, do I correctly take your position to be that there is nothing in the proposed new Term 17 that is per se in contravention of the charter, but that its implementation could cause problems and the road would be open for a successful charter challenge because the charter predates the proposed new Term 17? If that is your position, do you think there is any remedy in advance that we could bring by way of additions or subtractions to the proposed new Term 17?

As well, I would like to ask Professor Schneiderman if he is of the same view as you on that question.

Finally, with regard to the section 29 exemption, when you mentioned it I went around the table looking for a copy of the Constitution. I'm mortified to say that neither I nor anybody I asked has a copy of it. If you have, I would appreciate it if you would read it into the record, or perhaps recite it from memory, if you can do that.

Okay. I now have a copy. Senator Kinsella—thank you—did bring a copy with him.

Those were my questions, Madam Chairman.

Ms. Anne Bayefsky: On the first point, I think you have accurately stated what my views would be, that there isn't on its face a necessary conflict with the charter, but in its implementation it may very well give rise to respective charter challenges.

It seems to me that although the answer from the Supreme Court could not be predicted with certainty that it wouldn't have the same outcome as the Bill 30 case, which said that the 1867 Constitution Act took priority over the charter so that the “earlier in time” was the only factor to be considered, I think there would be other factors they would consider, but it would certainly at least raise the possibility that the outcome would be very different than that case. They stressed heavily the original constitutional bargain, the nature of Canada, the historical bargain and so on. This would not carry with it that kind of sense of history and weight, which may make a conflict with the charter less determinative in terms of its outcome.

If on balance, however, there is at least a potential for losing a direct conflict between the charter and the Constitution, how would one respond to it in the drafting stages? It would seem to me that first of all, it would be better to put things into the Constitution that didn't conflict with the charter, or didn't even strongly potentially conflict with the charter.

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I think in all of our constitutional amendments from 1982 on we ought to be mindful of the charter and take it into consideration. We, as a country, shouldn't be drafting constitutional amendments that we know full well bring conflict with the charter into full view and risk.

So as a point of principle, I don't think one should adopt an answer to your question of how we can get around the charter, if that was the point. It's really how we can make sure that whatever we do draft isn't inconsistent with the charter.

Senator Lowell Murray: Well, can you suggest some change to this?

The Joint Chair (Senator Joyce Fairbairn): Maybe, Senator Murray, we could ask Ms. Bayefsky to consider that and perhaps get back to us.

Mr. David Schneiderman: I could just add a few things.

First, on its face, I would think that Term 17(2) does not pose any serious problems with the language and values in the charter, but I think Term 17(3) potentially does. Religious education prescribed by the education minister of the Government of Newfoundland is one thing, religious observances desired by parents is another matter.

I think this signals a particular sectarian point of view in that class time and school facilities will be used for that purpose. Of course, opening exercises potentially fall within the scope of religious observance. It's opening exercises, such as the Lord's Prayer at the beginning of the school day, that have given rise to a series of charter challenges. So that paragraph does, on its face, raise constitutional concerns.

As for section 29, I can read that into the record, if you like.

Senator Lowell Murray: Yes, I've seen it now. I think you're absolutely right.

Mr. David Schneiderman: I'll just underscore then what section 29 does:

29. Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.

Now the Government of Newfoundland is moving into new, uncharted waters as far as this is concerned. It's abandoning the denominational aspect of the school system. As a result, it's releasing itself from this protection.

So clearly, then, the textual conflict will arise. The question is, what will take precedence over the other? Professor Bayefsky is trying to read the tea leaves about what a court would do in these circumstances. It's hard to tell.

We should underline that in the Bill 30 case, which she made reference to and which is the extension of funding to Roman Catholic schools in Ontario, Justice Wilson said that no one provision in the Constitution could be used to overrule another, right? They had to be right together. She said in what's called the obiter dictum that it was not actually central to the judgment itself. It was a view that she was extending should the relevant provision she was looking at and applying not have been relevant.

The Adler case most recently was decided by the Supreme Court of Canada. I think that will be important for your deliberations. In the Adler case, non-Roman Catholic parents were seeking funding equal to that available to denominationally protected religions in Ontario. Again, the court said that you can't use one section of the charter to bootstrap your argument that you've been discriminated against. But again, there was no conclusive ruling about how to read conflicting sections in the Constitution.

Ms. Anne Bayefsky: There are four possibilities in response to your question, Senator Murray. These are just possibilities.

The first possibility is to delete paragraph (3).

The second possibility is to add something like “where unanimously approved by parents”. This means in a that you would have some sort of unanimity requirement among the parents in a certain school. Of course, this would be extremely difficult. It would make you have to change from year to year, and from parent to parent.

The third possibility would be to add some caveat such as that “all religious denominations will be treated equally in this respect”.

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The fourth possibility would be to add some paragraph like, a comma after “parents,” and “in conformity with the Canadian Charter of Rights and Freedoms.”

Senator Lowell Murray: That's helpful. Thank you, Madam Chair.

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

Now we will move to Mr. Pagtakhan, followed by Mr. Inky, Mr. DeVillers, and Senator Kinsella.

Mr. Rey D. Pagtakhan (Winnipeg North—St. Paul, Lib.): Thank you, Madam Chair.

To both of the presenters, where two parents either from one family or one each from two families, at the minimum, request, as is now proposed, religious observance and claim the statement “I recognize as a Canadian the supremacy of God” as part of my religious observance, how would you look at that as a request in light of the Constitution? Would it be unconstitutional or not?

Ms. Anne Bayefsky: What would be the specific observance requested?

Mr. Rey Pagtakhan: They would raise their hands and say “As a Canadian, I recognize the supremacy of God”.

Ms. Anne Bayefsky: But in what context?

Mr. Rey Pagtakhan: During the opening ceremonies.

Ms. Anne Bayefsky: Do you mean students would be permitted to make a statement?

Mr. Rey Pagtakhan: Yes.

Ms. Anne Bayefsky: Well, as we all know, the charter starts off “Whereas Canada is founded upon principles that recognize the supremacy of God....” So repeating the charter of rights and freedoms would hardly be inconsistent.

Mr. Rey Pagtakhan: That's the point I'm trying to make, because as you rightly indicated, the Constitution opens precisely with that whereas statement.

The second question is to Mr. Schneiderman. You indicated in your presentation that an exception or an opt-out provision from courses in religion could be construed or could signal that in fact there is a feeling that such courses could be religious indoctrination.

The alternative explanation is that it is giving an extra assurance to parents that citizens of Newfoundland would be respected in whatever anxiety they might have. In other words, it would be construed as there being precisely no intent at religious indoctrination, the opposite interpretation to what you presented.

Mr. David Schneiderman: In terms of respecting the religious minority rights of all Newfoundlanders, that does signal that intention. But what I'm suggesting is that more could and perhaps should be done in light of the charter, that it's simply not good enough to signal that we as the Government of Newfoundland and Labrador are respecting minority religions. That's simply not good enough—and I refer you to Ontario Court of Appeal jurisprudence on this point. That isn't good enough. What it does is sniff out religious minorities. It isolates them.

As for the first question you put to Professor Bayefsky, just to comment on that and perhaps put a different slant on it, reciting the terms of the Constitution, of course, would not presumably offend the religious guarantees in the charter. However, I think it depends on the intention or context in which one wants to recite the terms of the Constitution. If the intention is to use the opening language, the preamble, for the purposes of an opening exercise that bears allegiance to a particular Judeo-Christian outlook, that perhaps might pose a problem. So it depends on the context, then, or the intention behind the proposal.

Mr. Rey Pagtakhan: My last point, Madam Chair, is this: “courses in religion that are not specific to a religious denomination” is the phrase used in proposed paragraph (2). When courses in religion encompass more than one specific religious denomination, it would not be then a contravention of this particular proposal.

Mr. David Schneiderman: I think the way it's drafted, on its face it suggests that the section will not be used for the purposes of religious indoctrination, that there will be course materials, that there will be trained teachers teaching these courses. I suggested, and you pointed out, that when you have an exemption from what would otherwise be required curriculum, this signals that the intention here is to pursue a particular religious point of view, so it raises the concern.

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I'm simply quoting Justice Mackay. In his report to the Ontario government, he raised similar concerns in regard to Ontario's system of religious education at the time. Simply by having an exemption, you raise the concern—I'm not saying that it certainly would be the case—or the suspicion that specific religious points of view will be offered as the truth because, of course, students otherwise aren't entitled to exempt themselves from the required curriculum.

Mr. Rey Pagtakhan: Does Ms. Bayefsky share the same view?

The Joint Chair (Senator Joyce Fairbairn): Very quickly.

Ms. Anne Bayefsky: Yes, I do.

Mr. Rey Pagtakhan: Thank you, Madam Chair.

The Joint Chair (Senator Joyce Fairbairn): Mr. Inky Mark.

Mr. Inky Mark (Dauphin—Swan River, Ref.): Thank you, Madam Chair.

First, let me apologize to both the chair and my colleagues for my tardiness.

One of my concerns is a long-term ulterior motive for a lot of these changes that are coming to the federal system. I know education is really the mandate of the provinces. I missed the witnesses' presentation, so you may have addressed the Newfoundland Supreme Court decision that was handed down on July 8, 1997. Did you relate that at all?

Mr. David Schneiderman: Neither of us actually addressed that decision. Is there a particular question may have of that?

Mr. Inky Mark: The question I have on that relates to unidenominational schools and the funding for them. The injunction that was granted was in part restraining the public school boards from closing rival schools that had been operated as Roman Catholic or Pentecostal in 1996-97. One of my concerns is the commentary that was made on this case.

Talk about the economic viability really shouldn't be the predominating purpose for not providing fiscal assistance to denominational schools. Realizing that, I personally believe the long-term motive for a lot of this has to do with fiscal restraint. There's no doubt about it.

In my own province of Manitoba, I know the separate school system has a lot less funding than the public school system. I know the government well because I worked with it. I realize it continues to fund the school system even though I believe it doesn't have the obligation to do so.

So my question to the witnesses is this: how will the change proposed by the Newfoundland government affect this decision of July of this year, or will it?

Mr. David Schneiderman: Very briefly, I think the decision really does not bring a lot to bear on this proposal. The decision had to do with the implementation of the earlier amendment. This is an entirely new amendment before the committee, and Justice Barry's decision really doesn't have much to say about this particular proposal.

Ms. Anne Bayefsky: On the issue of the economic considerations, the International Covenant on Civil and Political Rights does not say, in terms of freedom of religion, that this means every state party to the treaty is required to provide public funding for denominational schools. It specifically recognizes that human rights can be protected adequately without saying there are unlimited amounts of funds available to public authorities that require doing more than ensuring access to and freedom of religion, and the ability to disseminate one's parental views to one's children as appropriate. That does not entail public financing of denominational schools, so the economic issue is one that is fully compatible with adequate protection of human rights, and it's something that governments should and ought to take into account.

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Mr. Inky Mark: Thank you.

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

Mr. DeVillers and then Senator Kinsella.

Mr. Paul DeVillers (Simcoe North, Lib.): Thank you, Madam Chair.

My question is on paragraph (3) of the proposed amendments, dealing with the requests from parents, and Professor Bayefsky's concern that this could lead to the opportunity or the possibility of charter challenges, etc. As I look at it, I put it into the context that constitutional writing is an imperfect science, that legislators are fallible.

Is it not the usual case that once constitutional amendments are drafted, our courts are there to interpret the implementation of these measures and determine if they are being implemented in accordance with the intention of the legislators? Since the courts are there, and the Constitution is the supreme law and is the only thing that governs the legislators of the country, this is the usual practice and in fact our system.

I even noticed in Professor Bayefsky's fourth option, she adds the words “in conformity with the Canadian Charter of Rights”. Well, the courts would still be there to see if the implementation were in accordance with the charter, would they not?

Basically, how out of the ordinary is this? That's what I'm asking.

Ms. Anne Bayefsky: The question is, in putting this proposal forward, is the intention of the Government of Newfoundland to put forward a proposal that they know and expect will come into conflict with the charter in due course, and therefore would suggest and encourage constitutional challenges on that basis?

All I was suggesting in response to Senator Murray's question was if that's not the intention, then one doesn't preclude litigation, but one can at least make explicit, as opposed to implicit, an intention not to act in a way that is inconsistent with the charter. I am not suggesting that all further constitutional litigation will therefore be avoided.

Mr. Paul DeVillers: As a supplemental to that, I don't see the words “where requested by parents” as an expression of an intention of the legislature of Newfoundland that the parents act in a way that is going to encourage constitutional challenge. I read that to mean they're going to make legitimate requests, and the legislature is trying to accommodate the parents in that way. Does it necessarily follow that there would need to be constitutional challenges from that wording?

Ms. Anne Bayefsky: No. When I answered Senator Murray, I did say that on its face it need not be inconsistent with the charter. The only question is, if the implementation is likely to raise those kinds of questions, then one can at least begin to address that problem by foreclosing that possibility, by making clear from the outset the legislative intention not to have an inconsistency.

Mr. Paul DeVillers: Thank you.

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

Senator Kinsella, and then if it's agreed, we could take a final brief moment for Ms. Caplan's second question, seeing as everybody else has had seconds, if not thirds or fourths.

Senator Noel A. Kinsella (Fredericton-York-Sunbury, PC): Thank you, Senator Fairbairn.

I'd like to get a little further explication on two points. Number one, do the witnesses recognize a distinction between Term 17(2), dealing with government religious education, and Term 17(3), religious observances? In terms of this amendment giving power or jurisdiction, in the case of the government, of course, in religious education, that power is going to the government, whereas in Term 17(3), religious observances, the power or the right is going to the people.

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Do you see that distinction?

Second, in light of the testimony this morning, am I correct in understanding that you certainly see more problems with religious observances with Term 17(3), which, if my initial comment is correct, is where the people are acquiring a right? If there are problems with it, then that is where putting it in the Constitution would be providing a necessary shield in light of what Senator Murray has pointed out, and confirmed by the witnesses, that section 29 of the charter is no longer a shield. If we are protecting the desire of the people of Newfoundland...and in the national interest, that this right of parents be protected is one consideration.

With reference to Term 17(2), providing the Province of Newfoundland and Labrador with exclusive jurisdiction in the matters of education—which I think should conclude with a full stop—it goes on to say that there are going to be government courses in religious education.

Now, colleagues, the Minister of Education, in a very up-front, clear presentation the other evening, explained that the government course in education was not religious education in the traditional sense.

Do the witnesses not see that kind of religious education as being more of a multifaith education, as maybe something quite important in our multicultural society? If the Province of Newfoundland sees no problem with it—it's not religious education in the traditional sense; if it were religious education in the traditional sense I'd have problems with it, but it's not, according to the words of Minister Grimes—then there's no need for a shield.

Therefore, would the witnesses think that if there's no shield necessary you don't put in the shield to protect the government in case some others feel there is a problem with it in terms of rights? That would be able to be assessed if the province puts it in the Schools Act—or I believe it's a matter of curriculum, if we accept what the Minister of Education says—and therefore it ought not to be in the Constitution.

Ms. Anne Bayefsky: It seems to me your analysis in terms of Term 17(2) being government-oriented, because it says the government “shall provide”, and Term 17(3) being people-oriented, since it says “requested by parents”, is correct. The question is, though, in Term 17(3) it's clearly not subject to the proviso that it be all denominations. All denominations apparently may be treated equally, but that's why the application of that section—its interpretation, how it's perceived in practise—will be important in terms of evaluating its relationship to the charter itself. By definition, religious observances will not be non-denominational. So whereas the non-denominational character, or at least the lack of specific reference to a particular religious denomination exclusively, is foreclosed from Term 17(2), it's not foreclosed from Term 17(3).

With respect to the question of whether or not Term 17(3) is actually acting as a shield, a shield for whom? It may be a shield only for a select group of people, only those who request. Only those who request may be self-selected. It may be too embarrassing for one child's parents to actually request a school system to behave in a way that would subject the vast majority to their particular religious observances, yet their own child may be subjected to those observances if they don't exempt themselves. It's not a sufficient shield in the sense that it doesn't say specifically that it will be treating all denominations equally. It provides for that possibility, but it may not work that way in practice.

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In terms of not needing the shield in Term 17(2), it would seem that you may be correct in suggesting that this goes into a level of detail as to what will be taught and not taught in the schools, which is not generally done in the rest of Canada. So insofar as it's not necessary because it's truly multifaith, interdenominational, it's doesn't give rise to the possibility of charter challenges, and therefore it would be allowed without constitutional protection. That would seem to be not necessary but obviously included for the sake of providing comfort for those who think religion may no longer be taught in the school system in the future.

Mr. David Schneiderman: I'll just very briefly add to that.

The distinction you pose between Terms 17(2) and (3) captures an element of it. I think you have to emphasize as well the fact that both terms impose obligations on government; that is, government “shall provide for courses in religion”, and it shall be permitted to have religious observance where requested by parents. Term 17(3) is simply triggered by parents, but both pose obligations on the Government of Newfoundland.

In regard to Term 17(3), keeping in mind of course that this term is a compromise of sorts, the thing I want to emphasize is that if what's being proposed to you is brought into the Constitution as drafted here, we will be constitutionalizing the right of religious observance, which is generally understood to include opening exercises. I want to emphasize that point, because it goes against the grain of charter jurisprudence and, I think, the spirit of the charter as it's applied in provinces across the country—leaving aside Alberta and Saskatchewan, where there's some question about whether or not the Lord's Prayer is constitutionalized. I just want to underscore the direction in which the term is headed.

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

Ms. Caplan.

Ms. Elinor Caplan: Thank you very much.

The second question that I have really does relate to the discussion, but it also relates back to precedents.

When we come to this place, we all bring our experiences. Many years ago, I was one of those children who experienced exclusion. I know that the courts and court decisions over the years, along with the implementation of the charter, have dealt with this so that no other child—certainly in Ontario, and I think across the country—will have to deal with that embarrassing experience of having to leave a classroom.

Since we understand that the difficulties with this proposal may come in implementation, will those precedents from across the country, and the experience we have had in dealing with those issues, ensure that the communities in Newfoundland will have those precedents to draw on as experience during implementation? Or should they ignore them? Do they then do so at their peril? Will those precedents from across the country have an effect of protection?

Mr. David Schneiderman: I have a brief answer.

Simply put, it's unclear to what extent the charter will guide Term 17 or can have precedence over Term 17. One of the proposals Professor Bayefsky put to the committee was to add the language of the Charter of Rights and Freedoms in order to signal that that part of the Constitution will take precedence. Absent that kind of signal, it's not entirely clear what our courts will do in that instance. They might very well effectively shield Term 17 because it's in another part of the Constitution, and the charter can't overrule another part.

Ms. Elinor Caplan: Thank you.

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Ms. Anne Bayefsky: My short answer is that I was also one of those children who were excluded from the classroom, and I remember the whole experience very well. However, since we were banished to the library and that was where I learned to read, I think in the end it did me some good. But I wouldn't recommend it.

The short answer to your question is, no, in the absence of that kind of explicit language, the precedents from across the country would not ensure the non-applicability of exclusion-type potential solutions for Newfoundland.

Ms. Elinor Caplan: Thank you.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much, Ms. Bayefsky and Mr. Schneiderman. We're very grateful that you took the time to come here today. This has been a very interesting session.

I thank my colleagues. We had a little extra time today, so there was a little lenience on the part of the chair. This afternoon we will gather again here at 3.30. We have two sets of presentations. It would be our desire to deal with each of them separately, with an hour for presentation and questions for each.

Thank you very much.