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]

Friday, November 21, 1997

• 0904

[English]

The Joint Chair (Senator Joyce Fairbairn (Lethbridge, Lib.)): Good morning.

This morning, colleagues, we will be hearing, as we did yesterday, legal and constitutional perspectives on this proposed resolution on the proposed Newfoundland amendment to Term 17 of the Terms of Union.

We have with us today people who will be no strangers to the committee.

• 0905

We have Ms. Gale Welsh, who is a solicitor with the Newfoundland Department of Justice. She has been an adviser on constitutional law for over 10 years, and she has been involved very closely as an adviser on this particular file since it began, back in 1992.

We also have and welcome Mr. Ian Binnie, who is a partner with McCarthy Tétrault in Toronto. He has appeared as counsel in constitutional cases before the Supreme Court of Canada on many occasions, he has represented Canada at the World Court, and he was Associate Deputy Minister of Justice for Canada from 1982 to 1986.

We're very grateful that you have taken the time from your schedules to be here with us today, because this is a very important issue on which we all need your guidance.

We will hear both of you with brief opening statements and then have questions, and we would hope to be able to do this within the hour. I say that to colleagues. These are always interesting witnesses. We'll have to be very tight in our questions and our answers. Thank you very much.

Ms. Welsh, would you care to start?

Ms. Gale Welsh (Solicitor, Department of Justice, Government of Newfoundland and Labrador): Thank you.

I intend to limit my submission this morning to just a couple of issues that seem to be of particular concern to the committee, and then I'll turn it over to Mr. Binnie to make a few submissions before we proceed to questions.

The issues I want to talk about this morning relate to suggestions that an amendment of the resolution on Term 17 may be an appropriate or acceptable response by Parliament to the request by Newfoundland and Labrador.

The question of a possible amendment of the resolution has two components to be considered: first, the process side of it, and second, the substance side of it. I'll deal very briefly with the process side, and I believe what I have to say on this point is consistent with what you heard yesterday from Professors Bayefsky and Schneiderman.

It clearly is the responsibility of Parliament to give independent and careful consideration to an amendment that is proposed by a province under section 43 of the Constitution Act. However, it's the view of the province that both houses of Parliament should either endorse the resolution as presented or reject it. Amendment is not an appropriate option. There is no halfway house.

Why do we say this? First, the resolution originates in the province, and that is where it properly originates. It has been developed as a result of events that have transpired within the province over the years. The decision to amend Term 17 did not come lightly, and the particular language used to express the will of the people in the Constitution was not drafted overnight. It was the result of consultation, argument, discussion, and debate. In fact, in this case it was supported by a 73% vote in favour in the referendum. And I would emphasize that the language was chosen very carefully in the context of the situation in the province, a situation best understood by those who actually live in the province.

If the houses of Parliament cannot endorse the resolution as submitted by the province, the proper course of action is to reject it. Amendment is an improper interference in a matter falling within provincial jurisdiction. It must be for the province to fashion the appropriate resolution.

Those are my submissions on the process side. Now I'll turn to the second part of this issue, which is the substantive issue.

It's important to understand that the proposed term puts into constitutional or legal language what the people voted on in the referendum. To illustrate, let me deal with a couple of amendments that have been suggested in this room.

• 0910

First, dealing with Term 17(2), the suggestion has been made to remove the second half of that paragraph, the part that says the legislature must provide “for courses in religion that are not specific to a religious denomination”. Before deciding to remove that language, it is important to understand why it was there in the first place.

It is there to ensure that the province will have both the ability and the responsibility to provide for courses in religion. It is a constitutional obligation placed on the legislature. The people of the province can rely on it; it was guaranteed to them. If the guarantee was not there in the Constitution, the people could not be certain of their right to courses in religion in the future.

The language in paragraph (2) is essential to give to the people of Newfoundland and Labrador the right they voted for in the referendum, an entrenched right to courses in religion in the public schools, a right that the legislature cannot, in the future, deny or abrogate.

The second example of a possible amendment of the resolution relates to paragraph (3) of the proposed term, which guarantees that religious observances must be permitted in a school where requested by parents.

Professor Bayefsky made four suggestions yesterday that she thought would perhaps improve this paragraph. Her first suggestion was to delete the right. Alternatively, she suggested the language may be changed so that the right should only be available if the parents of the children in the school unanimously approved, or that language should be added to make it subject to the charter.

The problem with all of these suggestions is that they alter the nature of the right that was endorsed by the people during the referendum.

What exactly is the right that was meant to be guaranteed? It is the right of parents to request a religious observance to be held in a school. There is no requirement such as where numbers warrant. A single parent could exercise the right, a single parent of any denomination. However, if parents do not want their child to participate, they are free to make that choice. Their children do not have to participate. These are the two fundamental propositions that flow from proposed Term 17(3).

It's important to note that the right not to participate cannot override or interfere with the right to request to have a religious observance. In other words, the right that is guaranteed is the right to have a religious observance. Lack of participation by others cannot defeat that right. If a decision not to participate could defeat the right to hold a religious observance, then the right in paragraph (3) would be a hollow and empty right. It would not be a guaranteed right at all.

It's true that such a system may not be desirable in other provinces, but the proposed term must be assessed in light of the unique situation and history in Newfoundland and Labrador. The new term represents an evolution from a denominationally based system to a single school system attended by all children, regardless of denomination. But the move is not to a completely secular system. There was a compromise in moving to a single school system. Two religious components would be retained—courses in religion and religious observances, as requested by parents of any denomination.

It may not be the system desired or accepted in other provinces, but it is the system desired and accepted in Newfoundland and Labrador.

I'd like to turn it over now to Mr. Binnie to make some further submissions on a couple of the other issues.

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

• 0915

Mr. Ian Binnie (Solicitor, McCarthy Tétrault): Thank you, Madam Chair. First of all, I appreciate the invitation to appear this morning and I will respond to your generous invitation by being brief.

I have prepared a couple of letters for the Minister of Education in Newfoundland. One is dated August 21 and the other was just put together yesterday in response to some questions that have arisen under the international covenant. Perhaps the members of the committee can either ask questions or look at that material at their leisure if they wish to do so. What I would propose to address in the very short compass is the relationship between Term 17 as proposed and the charter, as I understand that is a focus of some concern.

The fundamental relationship is reflected on page 4 of the August 21 letter—that is, for a rule of law that reaches back as far as the legal system, if there is an enactment all parts of the enactment are read together and made sense of. So applying that to the Constitution as the courts have, it produces the rule that all parts of the Constitution have to be read together, no part of the Constitution can be used to trump, invalidate or nullify the effect of any other part of the Constitution. That's a provision that goes back to 1867. It did not emerge just with the charter.

But what does that mean in this case? It does not mean that Term 17 is to be read in isolation from the charter any more than it means the charter is to apply in isolation of Term 17. The courts have an obligation to read the two together. How does that apply here?

The specific question has arisen in the Ontario school reference case and in a later case called Adler, where independent schools were attempting to get state funding. In each case, the court reaffirmed the principle I've just mentioned. The principle was fundamental to the decision that was reached. It was certainly not obiter or a passing observation. Had the courts not expressed the view that the charter could not be used to nullify a provision of the Constitution—in that case section 93—the outcome of the appeals would have been different.

The second point is that I gather it was suggested to you yesterday that because the charter is earlier than the amended Term 17, whereas section 93 was earlier than the charter, somehow the timing of these provisions is important. This is not a principle that has ever been recognized in the interpretation of the Constitution, and if it was, then the charter would be read down to give effect to the 1867 Constitution. For example, when Parliament was authorized to legislate in relation to Indians in a discriminatory fashion, that would prevail over the equality provisions of the charter if the earlier in time prevailed. The reality is that the Constitution is a fundamental document and all parts will be read together irrespective of the timing.

With respect to paragraph (2) of the proposed Term 17, I gather concern has been raised about the obligation of the legislature to provide for courses in religion that are not specific. Quite apart from the element of a compromise that is reflected in this provision, and that has been accepted by the courts, the point I would like to make is that this provision is content neutral. It does not in any way dictate to the government or to the people of Newfoundland the content of those courses except for the limitation that they are not to be specific to a religious denomination.

• 0920

What then, if the legislature of the province of Newfoundland were to dictate in a narrow way content of the course in such a way as to infringe either the beliefs or the right of expression of Newfoundlanders? Well, because Term 17 does not mandate content, content continues to be subject to the rights of the charter having to do with the freedom of belief and religion and freedom of expression.

As you know, freedom of expression includes the right to receive information as well as to express information. If there were a concern that the content was not appropriate in light of the charter, that could be corrected by the courts.

The second aspect of the interplay between the charter and Term 17 would be in proposed Term 17(3), where religious observances are permitted. Because the observances are permitted, it does not say that observances can be imposed in a school on parents or children who do not wish to participate. Once again, because Term 17 doesn't mandate participation, the charter is free and will operate to ensure there is freedom of conscience and religion to children in the Newfoundland school system.

The relationship between Term 17 and the charter is fairly straightforward. I think those members of the committee who have concerns should be reassured on that point, and I would certainly be glad to answer any questions.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much, Mr. Binnie. We'll get right to those questions, starting with Mr. Goldring.

Mr. Peter Goldring (Edmonton East, Ref.): Thank you very much, Madam Chair, and thank you very much for your presentation.

On that last note, Mr. Binnie, could you explain to me how the courts could correct any inconsistencies in this statement when the Constitution itself, section 52, states that the law would have no force or effect? Will the courts be able to modify or correct what the public has voted on in a referendum, or if it were found to be inconsistent, would the entire section be rendered null and void by section 52? Does section 52 have any basis for voiding that section, if it's found to be inconsistent?

Mr. Ian Binnie: Section 52 certainly applies to any provision of the Constitution, but when you say the Constitution and when section 52 refers to the Constitution, it refers to the combined effect of Term 17 and the charter. That is why the two have to be read together.

The people of Newfoundland, as you put it, have voted on Term 17, but what they have voted for is that the legislature provide courses not specific to a denomination. So to the extent that the charter says that the freedom of expression in the marketplace of ideas continues to flourish in that area, it is not inconsistent with what was voted on.

Mr. Peter Goldring: I am to understand, then, that they could make some modifications to Term 17, if it were found to be inconsistent, to bring it in line with that belief.

Mr. Ian Binnie: Could I correct that? They can't modify Term 17. What they will do is say Term 17 only covers a small element of the requirement, and the charter supplies the rest of it. Again, one doesn't overrule the other; they're read together.

Mr. Peter Goldring: Thank you very much.

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

We have Senator Kinsella and Mr. Pagtakhan.

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

I have two questions. First, generally, with reference to—and thank you very much for it—the advice concerning the international covenant and its application, specifically around article 18 of the International Covenant on Civil and Political Rights, could you refer any of the covenant jurisprudence to this committee, or any of the literature around the interpretation of article 18 either by the human rights committee that administers the covenant or by the decisions of the European Commission of Human Rights, or by any other international tribunal, to sustain your interpretation?

• 0925

Mr. Ian Binnie: I have not brought it with me, but I can certainly provide it to the committee for your consideration. As you know, the European Court of Human Rights deals with the European convention of human rights. Many of these terms are found in different places and have been interpreted, but I'm not aware of any interpretation that is inconsistent with what I've set out in the letter.

Senator Noel Kinsella: I think it would be very helpful, Madam Chair, if we could receive that information.

If your view is correct, that there is not a problem with either the religious education provision or the religious observance provision as far as human rights standards are concerned, why would you need to have this shield put into the Constitution, to have the Parliament of Canada enter into this? Why not simply have the Parliament of Canada accept an amendment to the effect that we give exclusive jurisdiction to the House of Assembly of Newfoundland in matters of education, period, and let the House of Assembly of Newfoundland deal with religious education or any other curriculum matter or religious observances? If there's no human rights problem, why do we need those two shields?

Mr. Ian Binnie: I would not describe Term 17 as a shield. As you know, the courts, the Supreme Court of Canada in particular, in interpreting the charter have emphasized the need to consider the context in which human rights issues arise. In the case of Newfoundland you are moving from a system that was wholly denominational, in which religious rights were paramount, to a system that is more secular in nature. In that transition from a religious system to a secular system the people of Newfoundland have made a compromise which is reflected in Term 17.

I haven't suggested to the committee that Term 17 adds nothing to the legislative power. Clearly there are limits on the legislative power imposed by the language in Term 17, other than the conferral of legislative jurisdiction. What I'm suggesting is that the effect of those additional provisions is extremely limited, is historically based, has been approved by the people of Newfoundland, and should not be overstated in your consideration of the effect of the amendment.

The Joint Chair (Senator Joyce Fairbairn): Thank you, Mr. Binnie and Mr. Kinsella. We will certainly circulate the information you will provide to the committee.

Mr. Pagtakhan.

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

I will pursue it further for greater clarification. The passage or inclusion of Term 17 in a very real sense constitutionalizes a commitment. Is that right as I have stated it?

Mr. Ian Binnie: It constitutionalizes an obligation on the legislature to see that non-denominational courses in religion are provided. If they fail to do that, then the courts would enforce it. The other thing it constitutionalizes is the observances in proposed paragraph (3).

But equally constitutionalized is the freedom of religion and the freedom of expression of the individual. Those rights, being equally part of the Constitution, have to be read with the two items identified in Term 17.

• 0930

Mr. Rey Pagtakhan: A very good reassurance, Mr. Binnie.

On proposed paragraph (2), “not specific to a religious denomination”, the question I would like to pose is what if the courses in religion are encompassed by more than one religious denomination? Would it be consistent with the spirit of proposed paragraph (2)?

Mr. Ian Binnie: I think what is contemplated here is that the schools continue to address the spiritual side of education; that the courses in education could certainly address a range of beliefs and religious principles without being offensive to the term. What would be offensive is if the legislature mandated a specific Pentecostal course.

Mr. Rey Pagtakhan: To Ms. Welsh, on proposed paragraph (3), you indicated in your presentation that even one parent may request and shall be permitted for that request, but paragraph (3) states “parents”, in a plural sense. Would it still be correct to say that with even a single parent the province would then be required to permit such a request?

Ms. Gale Welsh: Yes. In constitutional language the singular is read as the plural and vice versa, so it's written that way because it's understood better that way. We could have used “a parent”, but it's understood better to say “parents”. But the right is available to a single parent.

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

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

First I have a comment. Ms. Welsh has cautioned us that we may vote the amendment up or we may vote it down, but we ought not to amend it. This is the concept of the seamless web, first promulgated ten years ago and shot down in flames at the time of Meech Lake, when my friends were on the rampage to amend Meech Lake, which at least had been negotiated among 11 governments. These section 43 amendments provide for a double veto. I have to respond to Ms. Welsh that she's not going to get very far with her admonition to us not to try to amend.

I was not here when Mr. Grimes appeared the other day, but I have a copy of the brief from him and the government on education reform in Newfoundland and Labrador. He describes the religious education program that would be provided in accordance with Term 17 as being designed to help students understand the interdependence of one's self, society, and all of creation with God, understand revelation through God's creation, understand God's word and human history as key elements, understand religious traditions, and so forth.

I interject here to say that if he thinks he can find a way to do that which is acceptable to children of all denominations and children of no denominations, I have news for him. These are very highly charged issues. I would dearly love to see the curriculum plan in which he is going to do that in a non-denominational way.

Then he goes on—and this is my concern and the question I have for you—and he says that:

While not guaranteed under the proposed new Term, there is provision for locally developed religious education courses under the Department of Education's current local course policy. Where the school board determines that such a local course would be desirable, there can be locally developed, denominationally specific religious education courses offered in a school.

As a result, there are two ways in which parents can have their children receive specific religious instruction in their faith: through local churches, or through local courses offered at the school.

Am I missing something? How is he going to get by the charter with these denominationally specific religious education courses offered in his public schools, especially as the regime does not now say by section 29? Your regime will now be explicitly non-denominational.

• 0935

Ms. Gale Welsh: There are three points I'd like to respond to here.

First of all, on the question of amendment, I wasn't suggesting certainly that the houses of Parliament don't have the power to amend. What I was suggesting is, because the resolution to amend Term 17 arises in the province and is fundamentally of provincial concern, that's where it should arise, and if there is a problem seen by these houses, then it should be up to the province to make the alteration.

Secondly, on the question of a religion course that would be acceptable to everyone, the point here is that this is a course in religion that is not specific to a denomination, but it does not mean that everybody necessarily is going to take it. If a parent says this program doesn't conform to his or her beliefs or if a parent has no belief in God, then the appropriate response will be to withdraw the child from participation. The withdrawal from participation is available under either proposed paragraph (2) or (3). It's consistent with what has happened in the province over many years, and it continues to be the case and will continue to be the case under the new term, once passed.

It probably would be impossible to develop a course in religion that would be acceptable to absolutely everybody, because some people don't have any religious belief, in the sense that they don't believe in God. Those people, as Mr. Binnie alluded, will not be required to have their children attend those classes. The courses in religion will be offered to those who want to avail themselves of them. The imposition that's set out in the Constitution is that government, the legislature, must provide a course. But it does not say that the parents have to participate in it if they find it offensive or unacceptable.

The last question is the question on locally developed courses. I think this has created some confusion amongst the committee members, and I think, as Mr. Grimes tried to identify the other day, the course in religion that is constitutionally protected and, I submit, would not be interfered with by the charter, subject to what Mr. Binnie has told you this morning, is the right to the course that is developed by government that is not specific to a religious denomination.

What Mr. Grimes was indicating was that if a group of parents—because there are areas in Newfoundland where...there's a small place called Conche, which is 100% Catholic, probably. Well, if the people in that school want to have a course that is a Catholic religion course, then all they have to do is ask the school board and the school board will decide if that's appropriate and proceed with it.

Senator Lowell Murray: What if it's only 99% Catholic, Ms. Welsh?

Ms. Gale Welsh: If there's nobody who objects, then there's certainly no problem.

But the other thing to remember is that the course that is available to everybody, or the non-denominational course, must also be provided. So it may be that in some schools there will be two different religion courses available. Again, this is not offensive, because in that way everybody has the right to choose what's appropriate for them.

I agree that the denominational one is not constitutionally protected; it is subject to review under the charter. But I would submit that it would be reviewed by the courts in the whole context, which is that there is another option available and that the option is also available to the parents to withdraw their child from participation.

Senator Lowell Murray: Thank you, Madam Chairman.

It's no time for levity. But it's hard enough to get kids interested in religion, and I think these state courses and the possibility of local courses should be enough to turn off a whole generation of Newfoundlanders from church.

The Joint Chair (Senator Joyce Fairbairn): We'll mull your observation, Senator Murray.

Senator Rompkey.

Senator William Rompkey (N.W. River Labrador, Lib.): Thank you.

I wonder if Mr. Binnie would go over again the point that Senator Kinsella raised with regard to proposed Term 17(2) and the last phrase: “but shall provide for courses in religion that are not specific to a religious denomination”. The question really is, is there a need for a constitutional guarantee that that will happen, and if so, why?

• 0940

Mr. Ian Binnie: The answer is twofold. One, there is a constitutional need because that is the basis on which the people of Newfoundland accepted the package. To take that out would mean they would receive something other than what was voted on. Two, on a legal basis, any course in any school can offend somebody and result in a charter challenge. The charter has spread throughout the legal system and will continue to be active on all fronts.

What was intended here was to say that insofar as Newfoundland is concerned, the balance that has been struck is between the legislature's obligation to satisfy those who do not think the education system should ignore spiritual development and the legislature's obligation to those who do not want any particular religious doctrine promoted. So it is a compromise that is in the Constitution.

If it were not in the Constitution, you'd then get back to Senator Murray's question, which is, how does a specific denominational course stand by the charter? It stands or falls according to the extent to which the courts view it as a violation of the charter. Such a course would not be protected.

Senator William Rompkey: But getting back to Senator Murray's question, then, if there were a locally developed course for a specific denomination... I know Conche very well; I represented it for 16 years. I don't know what the percentage is, whether it's 90% or—

Senator Lowell Murray: You're certainly a very liberal Catholic if that's the case.

Voices: Oh, oh!

Senator William Rompkey: There are a lot of far-sighted, liberal Catholics in Newfoundland, and we hope there are more of them in future.

You mentioned Conche. Suppose the parents of Conche want a course in Catholic education in the school. The first point to be made about that is that it's a departure in terms of parents' rights. I made the point yesterday that parents have more rights under this term than they did before. The power, it seems to me—and this is something we shouldn't lose—has been transferred, not necessarily to the legislature but to the parents. The parents will vote for the board, the parents will have the right to send students or to withdraw students from courses, and now you're telling me parents will have the right to ask the board to institute courses relevant to a specific denomination.

The question for Mr. Binnie is, could that be challenged in the courts, and if so, how and with what success?

Mr. Ian Binnie: It could be challenged in the courts. If it's a course, as suggested here, of specific religious education, it is not protected under Term 17(2), because it is not non-denominational. But simply because there is a course taught with religious content does not automatically put it offside the charter. It would be open to the school board to craft a course and to balance the interests of the children who subscribed and the children who did not subscribe, to endeavour to pass muster with the charter.

To the extent that a course interfered with freedom of religion on the part of the children or violated the wishes of parents of children who were in a minority, that would be dealt with under the charter. There's no immunity for those courses. But to say there's no immunity is not to suggest they're automatically offside. It would depend on the specifics of the situation.

• 0945

Senator William Rompkey: But if the 5% who were not Catholic in Conche had the right not to go to those courses of religion, would that satisfy their rights or is there any other way that it could be challenged?

Mr. Ian Binnie: I think in that case you would look to the Newfoundland context. In the case called Zylberberg, which was decided in Ontario, there was a suggestion that children being removed from class or opting out somehow feel ostracized and that this is not desirable. It is hard to believe that this would apply in Newfoundland because of the tradition in Newfoundland of having to accommodate strongly held religious beliefs within the same school system. A judge in Newfoundland would have to determine whether a course that was specific to a religion subscribed to, as you suggest, by 95% of the population would be offensive, either under section 15 of the charter or section 2 of the charter, to the religious beliefs or the equality rights of the children who chose not to participate.

I think one can say clearly that Term 17 does not cast constitutional protection around the course you're suggesting. The charter does apply, but there is no basis to suggest that there is, in the terms you put it, a charter violation. That would have to be determined by the courts on the facts.

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

Colleagues, we have 15 minutes and I have those who have not had a chance to ask a question yet. These are always lively considerations.

After Mr. Bélanger, Madame Finestone and Senator Pearson have an opportunity, and Mr. Goldring would like a word towards the end. If we can move along quickly everybody will be accommodated.

Mr. Bélanger.

Mr. Mauril Bélanger (Ottawa—Vanier, Lib.): Thank you, Madam Chair.

I have a couple of comments first to Madame Welsh on her admonitions of not amending. I think it's important to remind ourselves that section 43 calls for a bilateral formula to amend the Constitution. It is not a unilateral formula. As much as the amendment may be requested—and should I think be requested—from a province, it does not belittle the responsibility of the houses of Parliament to assure themselves and satisfy themselves that the amendment is proper and supported. If in its judgment it should seek an amendment to it, I believe it has full responsibility, legal and moral, to do so. I think we should keep this in mind, that it is a bilateral process.

Number two, you say that the people of Newfoundland made that decision in full knowledge of the text of Term 17. I might disagree a little bit with that and I'd like to tell you why.

The chronology of what we've being presented with is that on July 31 the premier called for the referendum and at that time the text of the question was made available, but it was only on August 25 that the text of the new Term 17 was made available. So the debate on the text of Term 17 itself, I would put to you, was considerably shorter than the debate on the question put to the people.

Perhaps you can answer as to whether or not the text of the Term 17 itself, while being released on August 25, was sent to everyone in Newfoundland.

These are a couple of the comments I want to address to you.

I would comment to Mr. Binnie that, with all due respect, a judge in Newfoundland might indeed have to determine based on the deep religious tradition in Newfoundland, but I would argue that it is also the Supreme Court justices who might have to make a ruling on that particular judge's ruling as well, and that might affect the ruling itself.

I've been listening rather carefully here this morning on this non-denominational course that will be offered and I have a simple question. In effect, would we be marginalizing this course by virtue of the fact that anybody could opt out and therefore it could not be included in a core curriculum, could not be accredited? Someone graduating from his or her class could not be dependent on that course, because one could opt in or out. So what indeed will be the effect of that course by having anybody able to opt out at any time?

• 0950

Ms. Gale Welsh: Perhaps I could deal with a couple of the issues first and then turn it over to Mr. Binnie.

Your first question was about the language in the question as opposed to the language in the term that was released about a week before the referendum.

I think it would have been necessary almost to have been in Newfoundland to realize what happened. As Minister Grimes pointed out the other day, the day the premier released the question, which was July 31, he indicated very clearly what was meant. For example, he said it would be a course in religion that was not specific to a denomination. You were referred to a copy of his speech.

From that point on, there was a tremendous amount of news coverage. I have a file in my office of news clippings this thick. The debate carried on in the province. It was very specifically dealing with all of these issues. The fact that it might not have been written down at that time does not indicate that it was suddenly sprung on the people on August 25, 1997. That date was simply part of the legal language that was used. Over the week prior to that, it had been well debated among the citizenry.

The second question you asked was this: if people could opt out of the course in religion, would this marginalize it in some way?

The Constitution is intended to make sure, as I said earlier, that there is a guarantee to people that the legislature will be required to provide courses in religion. That's what is guaranteed, and that's what the people want guaranteed. They don't want the legislature to be able to decide down the road that they're not going to have courses in religion.

But as with anything, such as mathematics or social studies, all sorts of courses are offered. Whether or not they're participated in by the students depends on the circumstances of the students and the parents.

Therefore, this will be a part of the curriculum offered, but because it would be offensive, certainly, to require everybody to take the course, then the option is there to not take the course, just as it is with other courses offered in the province.

Mr. Mauril Bélanger: Whether one is for freedom of religion or freedom from religion is another story. Would this, in effect, confirm that this course could not be in the core curriculum?

Ms. Gale Welsh: No, the course will be in the core curriculum, but whether or not somebody takes advantage... I suppose it depends on what you mean by the core curriculum.

Mr. Mauril Bélanger: Compulsory.

Ms. Gale Welsh: Compulsory? No. I understand “core” to be something that's valid and presented. So it's just a matter of what we mean by core curriculum.

Mr. Mauril Bélanger: Thank you.

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

Madame Finestone and Senator Pearson. Then we'll see whether we have some moments for Mr. Goldring and Mr. Pagtakhan.

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

Senator Pearson and I were just exchanging an expression that was used in a school of which she was aware: “Old Testament boys, please stand down”. Well, an Old Testament child, or an Old Testament girl, knows all about standing down.

I do believe that in a civil society today, with such diversity in our populations, I'm particularly pleased to hear about this course of comparative religion. I think it's not only warranted but welcome. So for my money, in listening to this, I'm quite comfortable with what you're expressing.

However, I wanted to ask you something, Mr. Binnie. We heard from Colin Irving during the section 93 hearings on the Quebec constitutional change. I wondered if one might suggest that the difference between what we're doing with this Term 17 and that which we did for Quebec on Bill 107 and Bill 109 doesn't in a sense reflect the true diversity of Canada and an accommodation through federal-provincial adjustments that recognizes our differences across this land in our provinces.

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For instance, I think it was quite clear that Quebec wanted a clear and unequivocal understanding that they were fully responsible and they would make decisions on the curriculum and the manner in which non-denominational secular schooling would take place in the public sector. The question of access was not allowed to be dealt with, as much I personally would have loved to deal with the question of English children's access, no matter where they come from, whatever country of origin. That was not an allowable process.

Within what is happening in Newfoundland, the court of Newfoundland has recognized that it's in a different position from Quebec, that it has a different tradition from Quebec, and that it wishes to take a different route as a province with quite a distinctive personality. Therefore it has chosen to look at Term 17 in this way. Otherwise they could have used just the opening line of section 93 and been done with it. They would have looked at this through their own bill to direct their school system. But they would have been in contravention of court rulings, because there, religious understanding and understanding of religious diversity are the wish of the government.

Have I, in my own simplistic way, with no legal background and no puzzle to try to figure out, other than what you have been saying—and I'm listening to Kinsella and laughing with you, Murray... Would that be fair?

Mr. Ian Binnie: Yes, I agree with you entirely. I would just add that the Constitution recognizes the need for diversity in the very amending formula that is being used here, because it identifies that there can be provisions in the Constitution applicable to one part of the country but not acceptable to people in other parts of the country.

The other thing is that not only does the Constitution confirm the sentiment you've expressed but the Supreme Court has continually looked at the background and the context in which these issues arise to give a decision. The Quebec Protestant school board case is a very good example. They reached back to the origins of the system in Quebec and gave effect to the views of Quebec.

Mrs. Sheila Finestone: I hope they give effect to the views of the English-speaking people in Quebec some day.

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

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

My question also is really to you, and it's not surprisingly about the evolving capacities of young people to make decisions on their own, because in the term it's the rights of parents that are guaranteed but not the rights of children. If a young person, 16 or 17 or 18—and then you have a question about the age of maturity—asked for a particular practice in his school, there is no guarantee it would be accorded. There's nothing in this to suggest they themselves could initiate such a request. There's nothing to suggest they couldn't if they got their parents' consent, but...

Ms. Gale Welsh: That's right. The guarantee is for the parents, or it rolls to the parent on behalf of their children. But as was stated yesterday by some of the witnesses, the views of the children will not be ignored. They are members of the school council, so they will have a voice in that way. They certainly have a voice with their parents and so on. But because of the tender age of a lot of the children—and you have to remember this term applies to very young children as well—traditionally it has always been the parents we've had to look to. Somebody has to speak for the children, and in this case it's the parents, in the guaranteed right.

However, in practice, in the implementation, certainly I would assume the children will be very much involved. As I said, in the school councils the high school children are in fact members participating.

Senator Landon Pearson: On the second question, which was about opting out of a course, is that in practice at the moment? Does the young person have to produce a letter from the parent?

Ms. Gale Welsh: Yes, there has to be a letter from the—

Senator Landon Pearson: Until the age of 18?

Ms. Gale Welsh: Yes, in Newfoundland the age of majority is 18.

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

Mr. Peter Goldring: Thank you, Madam Chair.

Ms. Welsh, I would like to refer to the speech made by Brian Tobin. In my review of the speech the only mention made in it of “denominational school”...it makes a reference to “system” behind every reference to “denominational”. To my mind it gives the impression that they intend to end the denominational school system but they are not being specific about ending denominational teaching.

In the only reference I find, on page 6, where it says “not on a denominational basis”, it also says in the same sentence, “for all of our students”. Would this not have been giving the impression to parents that yes, they were ending the denominational school system, but they were not ending denominational teaching on the parents' request?

Ms. Gale Welsh: I think if Premier Tobin had made that speech in Ontario or New Brunswick or Alberta that might have been a problem, but you have to remember he was making that speech in the context of Newfoundland. Newfoundlanders do understand the system, and he was speaking, I would submit, in terms Newfoundlanders would clearly understand.

Mr. Peter Goldring: Thank you very much.

The Joint Chair (Senator Joyce Fairbairn): Now a very fast question and a very cryptic answer and we can satisfy everybody's concerns today.

Mr. Pagtakhan.

Mr. Rey Pagtakhan: I have a question just for greater clarification on terminology and phraseology. In paragraph (2), “not specific to a religious denomination”, versus not unidenominational, non-denominational, it may be multi-denominational.

Mr. Ian Binnie: I'm not sure I entirely—

Mr. Rey Pagtakhan: The equivalents of the phraseology “not specific to a religious denomination”: can we say it means it should be non-denominational or should we say it means it ought to be non-unidenominational?

Mr. Ian Binnie: No, non-denominational.

The Joint Chair (Senator Joyce Fairbairn): Thank you, colleagues, and thank you so much, Ms. Welsh and Mr. Binnie. It's been a very interesting, informative morning.

Now, colleagues, I'm ever mindful of a clock with the House of Commons question period at 11 a.m., so we will move very quickly to our next witness, Mr. Steve Wolinetz, who is the vice-president of the Newfoundland and Labrador School Federation.

We are very pleased to have you here, Mr. Wolinetz. We have until just before 11 a.m., so if you could give us your presentation within a brief period of time, we have a very inquisitive group here who would like to ask questions. Thank you for coming. We are open to hearing your comments.

Mr. Steve Wolinetz (First Vice-President, Newfoundland and Labrador Home and School Federation): Thank you very much.

I'll try to be as brief as possible, with very freshly written comments. I'm not sure of their timing, but I'm sure we can accelerate as need be.

First, I would like to thank you for the opportunity to come here and present the views of the Newfoundland and Labrador Home and School Federation on the Province of Newfoundland and Labrador's historic request to amend Term 17 of the Terms of Union.

Let me begin by conveying the regrets of our president, Ms. Cathy LeBlanc, that she is unable to be here with me. However, the demands of parenting young children make it difficult to get away on short notice. My sons are older and my job more flexible, making it easier for me to come.

I'm a professor of political science at Memorial University. That entails two risks you should be aware of. First, professors have a bad habit of talking for 50 minutes. My wife and others have cautioned me about that and I promise not to do so.

Second, as I told the Senate committee in which many of you were present two years ago—or was it one—investigating the previous amendment, I find it difficult to separate the two roles. I've been a professor for 27 years but vice-president of the federation for only 4. That said, I should point out that I teach and write about European politics but can't help knowing a good deal about Canadian politics and the Canadian Constitution.

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I'm here not to tell you about that but to present the views of the Newfoundland and Labrador Home and School Federation on amending Term 17.

Let me begin by telling you about the federation. We're a fledgling organization, a mere 16 years old—the Canadian parent is 101, I believe, founded by Alexander Graham Bell—we're the principal organization representing parents in the province of Newfoundland and Labrador.

As the information sheet, which may or may not be before you, indicates, we are an umbrella group for home and school associations, PTAs, and more recently, school councils in the province. Our current membership includes 135 of the 450 schools in Newfoundland and Labrador, including 50 schools currently designated Catholic or Pentecostal schools. We've doubled our membership in the last year, and we hope to do so again this year. This is not unrealistic. Membership renewals are coming in more rapidly than in previous years.

Our primary activities are not overtly political, but providing services to our members and speaking for them on educational issues. However, because government is the principal provider of education in the province, we are in regular contact with the Department of Education and its officials about classroom issues.

Questions about who should govern schools concern us. We believe parents should have a clear voice in our children's education, and we have been strong supporters of the introduction of school councils, now coming onstream. Denominational education, however, has been a difficult issue for us.

We have been aware and remain aware that we represent parents with very different views. That meant that until September 1995, the date of the first referendum on amending Term 17, we did not take a position but urged a greater sharing and more effective use of resources.

We remained neutral during the 1995 referendum campaign, but indicated that we would endorse whatever position parents and voters opted for in the referendum. Despite a very active and well-organized no campaign—54% of the public voted yes—for amending Term 17, we and many others thought to allow most schools in Newfoundland and Labrador to become interdenominational schools.

As a representative of parents, we closely monitored the process of preparing a new Schools Act and reorganizing the system, while an apparently controversial amendment was debated here in Ottawa. We were surprised and chagrined to learn in the spring of 1996 that implementing this amendment—essentially embodying a compromise position preserving denominational features—required elaborate denominational committees within revised boards and cumbersome processes to determine whether schools should be designated inter- or unidenominational.

Nevertheless, we endorsed the new system and were determined to make it work, because the education of our children was at stake. We were sure the changes, however painful, would facilitate a more extensive use of extremely scarce resources. I'll comment more about this later. You will find comments to this effect in Hansard, in our then president, Marie Law's, brief to the Senate committee that held hearings in Newfoundland in July 1996.

The eventual approval of the current Term 17 a year ago permitted the passage of a new Schools Act and the start of a process in which parents were asked to indicate, through a registration procedure, whether they wanted their children to attend interdenominational schools or unidenominational schools—that is, uni-Catholic, uni-Pentecostal, or uni-integrated schools. Ten interdenominational boards assumed operational authority and were asked to designate schools on the basis of preferences indicated in the registration process. A bare majority of registrations in a community with a single school was sufficient to designate that school as unidenominational, but boards had to determine whether schools were viable and had to consider how schools in larger communities, that is, with more than one school, should be designated.

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It would be an understatement to say that this resulted in considerable confusion and controversy. Many people—and even one judge—thought the registration process was a vote, though a most unusual one because if you had seven children you had seven votes, which is I believe not the norm in the way some of you came here.

Many parents were unhappy with the board's designations. This was not surprising. Nobody wants to see their children's or their community's school closed. Advocates of interdenominational schools were unhappy about the number of denominational schools retained, while some Catholics and Pentecostals—I stress the some—were unhappy because in their view too few denominational schools were retained. Both of these denominations asked for and secured a court injunction staying the redesignation process. Mr. Justice Leo Barry granted that injunction on July 9, 1997, two months before schools were to reopen, and gave interim authority to determine whether Catholic or Pentecostal schools would remain open to the respective denominational committees of the denominational committee under the new schools act. That in turn triggered the Government of Newfoundland and Labrador's decision to hold another referendum on the amendment to Term 17, which you are now considering.

Regarding our position, as you know, the Newfoundland and Labrador Home and School Federation endorsed the yes position in the September 2 referendum. I am here on behalf of our executive and the federation to urge you to approve the province's request for an amendment.

We endorse the yes position for a number of reasons.

First, members of our associations, home and schools, school councils, whatever, had expressed considerable frustration with the process and indicated to us that they wanted change.

Second, it had become clear that the compromise essentially imposed by the previous provincial government under Clyde Wells was not working. We were painfully aware of shortcomings in our schools and the need for change, for a larger process of educational reform well beyond governance, but this process, launched seven years ago, was stalled. Boards such as the Avalon East school board, with a quarter of the teachers in the province, a fifth of the schools and a third of the pupils, essentially were tied in knots dealing with designation. They had little time to actually discuss education. Real educational issues, and very real educational problems, were being neglected.

Third, we felt and still feel that rights were in balance. Part of this debate hinges on minorities versus majorities, but in some instances small minorities, minorities within minorities, were insisting on what they termed their rights.

What was happening was a power struggle in which the most important group, children, were being neglected. We feel the children have a right to the best education possible. That was being forgotten. We felt, as representatives of parents who in turn represent children, that we had to speak up and endorse the single school system in which children of all faiths and persuasions could feel at home.

We opted for yes with some trepidation. We knew and know that not everyone agreed with us. Our provincial secretary, a Pentecostal whom we respect and agree with in almost all educational issues, resigned. However, we did not receive a barrage of complaints from parents. No member association sent in an angry letter of resignation.

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I was the federation's principal spokesperson on this issue. The only criticism I received was one e-mail message from a woman in Goose Bay, complaining that I should indicate that I did not represent all parents. I accepted her criticism and have acknowledged yet again that we do not represent everyone's view on this issue. However, we do represent the views of many—indeed, I think, most—parents. Our membership is going up, not down, as we feared.

I realize that in outlining how we came to our positions, I'm probably on the verge of speaking longer than I said I would. However, in doing so, I hope I've indicated some of the reasons that you, as members of the House of Commons or the Senate, should approve the Province of Newfoundland and Labrador's request for a further, and I hope final, amendment to Term 17 of the Terms of Union.

Essentially I have argued that the system, apparently required by the previous amendment and thus the Canadian Constitution, has not worked. That will not, however, convince someone who is opposed to vote for passage. Constitutions should not be amended lightly, and rights are in balance. There are some who say the new system should have been given more time.

In concluding, allow me to indicate other reasons, even if you're philosophically opposed, that this amendment should be passed, and passed without undue delay.

Let me begin by putting this in context. Most of you, and most of the Parliament, are not from Newfoundland and Labrador. You may have visited—and if you haven't, I hope you will—but you probably have had difficulty in understanding how schools were governed either before the current Term 17 was put in place or since then.

You're not alone. Parents and citizens are and have been confused, because the system, in the past church-controlled, has been anything but transparent. Responsibility was diffused and hidden, for example by giving control of school construction and school repair to separate denominational committees so it could be proportionally allocated, not according to need. And to the greatest confusion of the rest of Canada, there were no public schools as such, but rather publicly funded, denominationally controlled schools. That's very difficult to understand if you have the Ontario model or someone else's before your eyes.

Second, there is and has been little money available. Schools are often bare, poorly equipped, and poorly landscaped. Libraries, even in better schools, have few books; in some, a book cart will suffice. Bored at a meeting, I looked in my son's high school library, browsed the Canadian politics books, and found the most recent one was from 1972. I think you understand the problem. Supplies are scarce, and parents often have to raise funds for basic needs, such as paper and chalk, as well as computers.

Birth rates have declined and there are fewer and fewer children entering schools. Whole families, generations, are leaving rural areas. It's becoming harder and harder to deliver any education, let alone a modern curriculum, let alone quality education, in many parts of the province.

The province of Newfoundland and Labrador cannot afford separate schools or separate school systems for a province with a population of 550,000, going down—less than the cities of Winnipeg and Hamilton, but more than London, Ontario. It is absolutely imperative that diminishing resources be consolidated and used as effectively as possible if children are to receive, as is their right, the best education possible.

Third, and perhaps most important, not only have the people of Newfoundland and Labrador spoken decisively, with 73% supporting change in a non-binding referendum on September 2, but the House of Assembly of the Province of Newfoundland and Labrador has unanimously requested the Parliament of Canada to grant a bilateral amendment under section 43 of the Constitution Act.

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This committee, the House of Commons, and the Senate have the duty to satisfy themselves that this amendment is justified and that it deals fairly with groups that might be affected.

But I would ask you to consider what the consequences might be of denying a request for a bilateral amendment. Would denial on the basis that it might have consequences for other provinces—remote consequences in my view, particularly after the passage of a recent amendment on Quebec schools—not make a mockery of section 43? In addition, you might also consider that under the Constitution Act, and the BNA Act before it, education is a provincial responsibility.

I'm sure that many of you have already thought of these considerations, yet you still have reservations. Minority rights, some claim, are at stake. Indeed, they are, but before you refuse passage on that basis, please remember that there are different kinds of minorities and rights, and that majorities also have rights.

Those who object to changes in Term 17 have styled themselves as a minority, although they are from the largest religious denomination in the province.

I am from a very small denomination, with 14 families in my synagogue. I would suggest that I have a better idea of what it is to be a minority. I would also suggest my colleague Mark Graesser, who I believe will be testifying before you next week, can confirm that those who object the most vocally are indeed a minority, but they are from a different kind of minority. This is a minority among the minority they purport to represent. They defend, in my view, not a right as such, but a privilege established for other reasons. I submit there is a considerable difference.

Basic rights under the Charter of Rights and Freedoms, such as freedom of religion, are not at stake. Privileges and power, I think, are what's involved, but that's the political scientist speaking.

The rights of children to have the best education possible is involved. I urge you to pass this amendment, and do so as soon as possible.

Thank you.

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

Now we'll go to our questioning. The first questioners who have indicated that desire are Mr. Goldring and Senator Kinsella.

Mr. Peter Goldring: Thank you, Madam Chair.

Thank you for your presentation. I have a question. It has been suggested by other witnesses that there had been confusion, or that of the two questions asked, the first question was slightly different from the second one, which was finally presented on August 25.

It had been mentioned by one of the other members that perhaps if Term 17(2) was to be modified to allow for denominational teaching, specific teaching in specific schools, if parents were behind the request, would you think that would be fair and reasonable to do, or do you think that would be possible to do within the school structure?

Mr. Steve Wolinetz: Senator, everything is possible. Is it reasonable? I don't think so. We have already seen that entrenching denominational rights has caused a nightmare by entrenching groups with a variety of privileges.

The whole amendment you are considering is permissive. It gives the House of Assembly, the legislature of the province... We deal in a parliamentary system in which legislatures generally have the authority within charter boundaries in the Constitution to make such provisions. Entrenching denominational rights entrenches denominational committees and leaves a system that's fundamentally confusing.

I'm speaking for parents. Parents have only recently gained any control of the system.

Mr. Peter Goldring: Perhaps I should explain it better. It was more a matter of deleting the reference to it: “but shall provide for courses in religion that are not specific to a religious denomination”. Therefore, if specific parents—a number of them—in a particular school had a request for a fashion of religious teaching, then they could make the case to the board for religious teaching in their school of their specific denomination or their specific religious wishes.

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Mr. Steve Wolinetz: That sounds very good in principle. The practice is extremely difficult. Who would have these rights, which groups? Why can't such teaching be delivered after school in a friendly accommodation? I cannot speak to legal language—I'm not a lawyer—although I'm familiar with the general terminology.

The province quite deliberately and the public approved, I think with very little confusion on the issue, a series of proposals, two of which would allow for teaching about religion. I know questions have been raised here about that, but I see very little difficulty in children receiving a course about religion that is not religious instruction in a particular denomination. It happens all over the province of Newfoundland and Labrador under the integrated school boards. It was difficult at first. It works reasonably well.

But I do not think entrenching rights is a good idea. It diminishes the province's and boards' control of the schools, and that is where control belongs.

Mr. Peter Goldring: Thank you.

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

Our next questioner is Senator Kinsella, followed by Senator Carstairs and Senator Doody.

Senator Noel Kinsella: Thank you, Chair.

Let's see whether we can walk through the exact terms. Do you have a copy of Term 17 that we're dealing with here?

Mr. Steve Wolinetz: Somewhere.

Senator Noel Kinsella: It seems to me we probably have unanimity in this committee and abroad in supporting Term 17(1), in other words, that we're going to make the substitution of Term 17 for section 93 and changing Term 17. And in Term 17(2) we probably also agree unanimously that: “In and for the Province of Newfoundland, the Legislature shall have exclusive authority to make laws in relation to education”.

You want to have both of those for sure, correct?

Mr. Steve Wolinetz: Yes.

Senator Noel Kinsella: If you have those two, and the Province of Newfoundland would have exclusive jurisdiction in matters of education, and the Parliament of Canada did not adjudicate on this issue of what we're told is a unique experiment—a challenge, as the minister said, never done anywhere else, but they'd like to do it for a government-sponsored religious education course...

Even if you didn't get the approval of Parliament on the latter part of Term 17(2), because you have the exclusive jurisdiction in education in Newfoundland, you could do it in Newfoundland. Indeed there's a certain contradiction: if we're going to give the exclusive authority to Newfoundland, then why not have Newfoundland assume the responsibility of doing whatever it wants to do, including this kind of course, which is very interesting, in religious education?

Would you be satisfied that if you want to do this in Newfoundland, you would then have the exclusive jurisdiction to be able to do it, for example through the Schools Act or whatever other means the House of Assembly decided upon?

Mr. Steve Wolinetz: Senator, you're asking legal questions to a person who is not a lawyer, but I can answer nevertheless.

Senator Noel Kinsella: Okay, good.

Mr. Steve Wolinetz: Would I be satisfied? Personally, yes. Would the people of Newfoundland and Labrador be satisfied? Some yes, some no.

The issue here, and the reason I believe this wording has been put here—but I state “believe”—is that there is a body of law that has developed under charter challenges about what kinds of teaching of religion may take place, and the attempt here was to provide for an exception.

It is fairly well known that people have wanted teaching about religion in their schools. They have wanted religious observances. In fact, Christmas concerts seem to be more important than religion, which is an interesting statement. But people do want teaching of religion.

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I have no objections to that. I grew up in the United States, although I'm now a Canadian citizen. We could not bring in a man of the cloth to talk about development because it would violate the separation of church and state. It was downright silly. This is an attempt to circumvent the parades of horrors that opponents brought up that might occur under the charter, therefore respecting the wishes of the people of Newfoundland and Labrador, as I hope Parliament will do. I think the people would not be satisfied.

Senator Noel Kinsella: The point is that this is going to be a unique experiment. We've heard testimony to the effect that because of the social and political dynamics in Newfoundland and Labrador, it is desired that this approach be taken. Can you appreciate how some of us in the House of Commons and the Senate might see this business as being a matter of detail, as a matter that is the responsibility of the House of Assembly if the House of Assembly has the exclusive jurisdiction, and that for those of us who are uncomfortable with it in principle, not wanting to apply our principles to a domestic situation in that province? Can you appreciate why Parliament's assessment on this might be one where we would not want to get into the detail of what more typically would be under a provincial schools act, and so that we would be more inclined to go as far as meeting the request to put education under exclusive jurisdiction of the province and let the province determine these things? Can you—

Mr. Steve Wolinetz: I can see why you might want to do it. I have no difficulty with that. But this is what the legislature has requested. It doesn't say everyone shall receive this course, it says they shall be provided for. The legislature is free to exercise its jurisdiction as to how students may opt out of established practices. I can see why you might think it is a good idea to do it, but I would also think that if you reflect in your greater wisdom, perhaps it would be a good idea not to do it, because there is the difficulty—this is the lawyers' view, as I understand it—of the charter and whatever considerations that might produce if the legislature, without this clause, simply provided for such courses. I believe that is the only reason it is there. It is not an attempt to impose religion.

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

Senator Carstairs and then Senator Doody.

Senator Sharon Carstairs (Manitoba, Lib.): Thank you.

This particular phrase that Senator Kinsella has raised I assume to some degree isn't presently in force in the so-called consolidated schools. They are offering a curriculum, but because there are many religious groups within that curriculum, they don't focus on particular denominational views, be they Salvation Army, Presbyterian or United. Can you tell us a little bit about that curriculum as it exists now?

Mr. Steve Wolinetz: I can tell you a little bit about it because I have two sons who have gone through it. I think it's a reasonably good curriculum, certainly more important than the religious observance I tried to get a handle on when my sons were small. They said, “Reverend So-and-so compares our lives to candles. Why does he do that?” The sense of relief when the reverend walked off the stage was greater than the impact.

By the time the course reaches junior high school in grade 8, it will teach not only about Protestant denominations and how they developed and how they differ from Catholicism, but about points of Buddhism or other faiths. It is a very open course.

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I have a young son, still in school, who is incredibly bored. If he enjoys school I ask him where he was during the day, because I assume it wasn't school. The course he enjoyed the most in grade 8 was religion. He was taught by the physical education teacher—teachers do a lot of doubling in Newfoundland and Labrador—with great enthusiasm and no attempt to impose any view. I believe she was a practising Baptist, but it was an open course and delved into ideas in ways that my son and his classmates appreciated.

Generally speaking it is what you might call comparative religion. Obviously how you do that in grade 1 is different from how you would do it in grade 8, as are a lot of other things. But it need not impose a particular teaching. What it does do is make children aware of differences in belief. It is a very useful bit of knowledge.

Personally I don't believe that forms of segregation—which really don't exist in Newfoundland and Labrador because the schools themselves have become quite heterogeneous—are desirable. We need to understand these things. Anyone today needs to understand Islam a lot better than most of us do in order to deal with the larger world.

Senator Sharon Carstairs: Thank you.

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

Senator Doody.

Senator William C. Doody (Harbour Main-Bell Island, PC): Thank you, Madam Chair.

The witness made a couple of statements during his presentation that I feel I have to talk about for a moment. I think some of the language was a bit strong and a little too inflammatory.

I really don't think the word “nightmare” properly describes the state of the religious denominational education system in Newfoundland. I was there in 1949 when the Confederation debates were taking place, and I remember them well. If you want to see a real nightmare, imagine the state of Newfoundland if Term 17 had not been included in the Terms of Union. Even with the guarantee of religious rights they had at the time, only 51% of the population favoured Confederation. Where the province of Newfoundland would be without that is open to conjecture, but the word “nightmare” is a little strong for this.

I also feel that it was not necessary to say this is all about the retention of power by various people. I don't think it is fair to question the motives of people who devote their lives to teaching kids. It is time to have a look at the educational system. It is being changed and will be changed, and this may be the way to do it, but in so doing I don't think it is necessary to say these people are anxious to hold onto their power. They may have honest, sincere opinions about trying to teach these principles, morals and values that they think are appropriate.

So while respecting your position and the people you represent, I felt I should get some of that on the record for the sake of people who might be reading the minutes and thinking about the nightmare that was created in Newfoundland. It wasn't a nightmare, but it could have been.

Mr. Steve Wolinetz: Senator, I cannot speak to 1949. I was six years old and somewhere else at the time, and I didn't arrive until 1971. If I used the term “nightmare”, it was not to describe the system as a whole or to criticize the motives of most people in the system. People give an awful lot under conditions that are not very good. I teach in university classrooms to students who want to be there. I don't try to police classes of 40, trying to get something across without the necessary support and all the rest.

If I used the term “nightmare”, I was referring to the last month of the discussion. I have had more recent experience observing the Avalon East school board. That board has worked with great difficulty, extraordinary effort, from volunteers kept on year after year trying to solve these problems. They were not able to deal effectively with designation. Neither Avalon East nor its predecessors could resolve the problem of Bell Island to mutual advantage. I won't go into the detail—

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Senator William Doody: I represented Bell Island in the local legislature, and I couldn't resolve the problems either.

Mr. Steve Wolinetz: I can sympathize with that fact, but in the last designation they ended up with more schools and fewer teachers and less programming, which is clearly, at best, suboptimal. In Conception Bay South and Mount Pearl parents' wishes were disregarded. Busing problems in CBS, which I think you also represented—

Senator William Doody: That's right.

Mr. Steve Wolinetz: —were not resolved; buses were passing each other.

I attended with one reporter the September meeting of Avalon East and was—

Senator William Doody: I wasn't questioning the fact that there was confusion under the present system.

Mr. Steve Wolinetz: Not confusion, sir.

Senator William Doody: I just wanted to get it on the record and give you an opportunity—

Mr. Steve Wolinetz: I respect that, but let me conclude.

At the September meeting of the Avalon East school board, they discussed education. It was quite remarkable. I believe it got a headline in the Evening Telegram. Now, that says something very interesting. This was a nightmarish situation because of the problems that were not dealt with. We can disagree on power considerations. I know some people feel very deeply.

I've debated this longer than I'd like to remember, but I think there are other considerations to this issues. I would stick to that, and I guess we'll disagree.

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

Senator Murray.

Senator Lowell Murray: Thank you, Madam Chairman. I'm afraid I must continue in the same vein as Senator Doody.

First of all, let me say that I think we have to give considerable weight to the views that you have expressed in favour of the proposed amendment on behalf of an organization such as yours. For my part, I certainly do.

That being said, I don't think we get very far in this country by characterizing as special privileges what some people consider their rights. You know that denominational educational rights were protected in 1867. Religion was perhaps a more important factor in society then than it is now, but that was part of the Confederation bargain in 1867. It is in the Canadian tradition to protect what I would describe—others would not—as collective rights, as well as individual rights. Even Mr. Trudeau, who was very strong on individual rights, goes so far as to describe these as the collective aspects of individual rights.

We have a Charter of Rights and Freedoms in this country that explicitly saves denominational school systems. We have an Official Languages Act and a Charter of Rights and Freedoms that protect linguistic official language minorities across the country and gives them certain educational rights. I have heard it said more than once in the last 30 years that in certain parts of the country the rights that pertain to francophones are simply privileges because the francophones in that province or that region do not constitute a significant enough minority.

The case I want to make is that there are collective rights or the collective aspects of individual rights, that they are in the Canadian tradition and have been, and that I do not think we get very far by describing as special privileges what are incontestably, have been incontestably, the rights that some Canadians enjoy under our Constitution and our constitutional tradition.

I think you are in principle opposed to constitutionally guaranteed denominational education rights. Perhaps there's no point asking you this question, but I put it yesterday to the Catholics who were here from Newfoundland. It has to do partly with the low turnout of Catholics in the referendum. I would have thought if they were serious, they would have turned out in greater numbers to vote no. But there is a minority. You say you know what it's like to be a minority, and I appreciate that—16 families.

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There's a Pentecostal minority in Newfoundland. I think it is 6% or 7% of the population. The statistic we were given yesterday indicates that 70.3% of them turned out to vote in that referendum, which is a much higher percentage than the provincial average, and that almost 83% of them voted no.

That gives me pause on the question of minority rights, because I think section 43 with the double veto is there precisely to put these rights beyond the reach of the majority, acting unilaterally, and to ensure that those rights would not be abrogated without the consent of the minority affected. So I think they have a very strong case in the Canadian tradition in the spirit of—

Mr. Steve Wolinetz: Let me respond. I think my personal views, whether I prefer non-denominational or some religious component, are not really the issue here. The question of rights and balance is much more important and it's an extremely difficult question.

You've talked about the Canadian tradition. I think that's important. There were certain accommodations maintained and retained, but invariably rights conflict with other rights. You can't get into any real discussion about rights without considering what you do when there is a conflict.

Newfoundland had certain solutions for that. In the Newfoundland tradition you could opt out. You were respected. Minorities, the real minorities, have been respected in Newfoundland schools and I think treated on the whole quite tolerantly. That is not—repeat, is not—an issue. What is an issue is how you balance different kinds of rights and considerations.

You spoke about Catholics. The turnout in Catholic districts in fact was higher than the average. Catholic districts are also more urban districts, and there could be a variety of reasons sociologically to explain that. But I think it was higher in particular than in the previous referendum.

Let us look at rights and balance when you have very limited resources. Take the single school community. A bare majority could make the school denominational—50% plus 1—even if a substantial minority didn't want it. What about their rights? Well, they'd have to swallow. One kind of right becomes privileged over another. That is how the system worked unless you could provide separate schools.

In Newfoundland, if you really consolidated schools without regard to the distances children would travel, you might get by with 100—not 300 or 350—remaining and delivering better education, except everyone would have to board and you would intervene in major ways in other things.

There are balances of rights. You might say one should accommodate minorities if numbers warrant. That was the debate before. However, there are situations where perhaps the minority doesn't want it.

The situation of Pentecostals, I think, is rather different from the situation of Catholics. As for Pentecostals, I disagree with your number, but I would not disagree that a majority supported Pentecostal schools. But often their delivery, implementing the schools, was at the expense of the right of people under the interim present system to interdenominational schools, because if you took away sufficient kids you didn't have enough left over for the other schools.

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There is nothing in this amendment that prohibits a group that wants to establish its own school from doing so. The Schools Act has always provided for private schools. There is one operating in the province, but there could be more. There is nothing prohibiting the House of Assembly and the Government of Newfoundland and Labrador from funding such a school. Requiring them to do so is, I think, a different issue.

I think there is a situation in which one can say that there are different orders of rights. You may not like the term “privilege”, but the original Term 17 said—I can't remember the exact language—that classes of people shall have the right to operate a school. It's from this that all of this derives. It did not say complete control of the educational system, and it did not originally define a stake. There are legal understandings and interpretations that perhaps build that up.

I think one can balance on this, but there are questions. At times when you balance out rights, I think you have to see what it takes to make them effective, because I believe jurisprudence is a right. If a right is without the supports or whatever it needs to make it effective, it is no right at all. That was part of the basis of Leo Barry's decision. It becomes “not a right”. There are others who have rights, and it's the balance of those rights against rights or privileges.

It's a matter of language. I know language can make a good deal of difference, which I think is the problem that you have to consider. There are many large numbers who have said they no longer want a system with these entrenchments. That is the issue.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much. This has been a very interesting morning. And I also thank my colleagues.

Mr. Wolinetz, thank you so much for taking the time to come here to share your views with us.

Question period awaits. We will declare this meeting adjourned, and we will meet again on Monday at 9.30 a.m. in room 237-C.

The meeting is adjourned.