SJQS Committee Meeting

SPECIAL JOINT COMMITTEE TO AMEND SECTION 93 OF THE CONSTITUTION ACT, 1867 CONCERNING THE QUEBEC SCHOOL SYSTEM

COMITÉ MIXTE SPÉCIAL POUR MODIFIER L'ARTICLE 93 DE LA LOI CONSTITUTIONNELLE DE 1867 CONCERNANT LE SYSTÈME SCOLAIRE AU QUÉBEC

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, October 29, 1997

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[Translation]

The Joint Chair (Mr. Denis Paradis (Brome—Missisquoi, Lib.)): We are resuming the hearings of the Special Joint Committee to amend section 93 of the Constitution Act of 1867 concerning the Quebec School System, in accordance with the order of reference of October 1, 1997.

Before starting and hearing our expert witnesses, I will immediately give the floor to our Joint Chair.

The Joint Chair (Senator Lucie Pépin (Shawinigan, Lib.)): I just wanted to tell committee members that a copy of Mr. Monahan's brief was sent to all their offices. We should be getting extra copies within the next few minutes.

The Joint Chair (Mr. Denis Paradis): Thank you. We are ready to start. I would like to welcome professors Patrick Monahan and Colin Irving. Thank you for making yourselves available to the committee.

Perhaps we should start with Mr. Irving. You could give us a short six or seven minute summary, after which we will hear from Mr. Monahan. Then members of the committee will ask you questions.

You have the floor, Mr. Irving.

[English]

Mr. Colin Irving (Individual Presentation): Thank you, Mr. Chairman.

I should introduce myself. I'm a lawyer from Montreal. I practise in Quebec and in Toronto. By a series of circumstances, I have been involved in most of the major court cases concerning section 93 over the last 15 years or so, mostly as the lawyer for the Quebec Association of Protestant School Boards. But I appear today simply at the invitation of the committee, and I don't represent anyone at all. That's a rare and lovely moment for a lawyer. I can say anything I like.

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As a brief introduction, let me say this: Section 93, which, as you all know, dates back to the last century, protects denominational school rights as they existed in provincial law at the time of Confederation. Up to recent times, the courts in this country gave a very broad and generous interpretation to section 93. It was long thought the Supreme Court of Canada very clearly said that section 93 guaranteed, for example, to the Protestant minority in Quebec a virtually complete control over their schools, financial control, academic control and local management and control.

Similar things were said about schools elsewhere, but I must say, mostly the context was the Protestant school system in Quebec. It could be seen as being a very important guarantee of minority rights, but for some years now that has no longer been true. Ever since the Canadian charter was adopted and section 23 involving linguistic schools came into being, the Supreme Court of Canada has done a complete turnaround and has retreated totally from everything it said about section 93. It's only fair to say now that there is almost nothing left of the guarantees of section 93.

There is no longer any control over the curriculum. There is virtually no management and control at the local level. There is no degree of control over financing at all. So we're speaking about rights that, for the most part, existed a century ago but don't exist at all any more.

I think it's fair to say, and it's certainly my opinion, that as far as minority rights in Quebec are concerned, the absence of section 93 doesn't make any difference. I don't think you're dealing here with an amendment that could affect the minority. I think, for reasons I'll explain in a moment, it may very well affect the majority because all that is really left of section 93 now is the right to give a denominational cast to the schools.

So it is still possible to have a Roman Catholic school in Ontario, for example, because of section 93, and it is possible in Quebec today, and under the present legislation the Quebec Education Act envisages schools becoming Catholic schools on a sort of local option basis, although the school boards will be linguistic.

All of that is possible because of section 93. When section 93 goes, that will no longer be possible. There is not going to be a right to create Catholic schools. And it's really the Catholics who are the ones who are most seriously concerned, I think it's fair to say, about that.

It will not be possible to do that. The Quebec Education Act now, I believe, recognizes that fact because it uses the override clause, and it's only if you override the Canadian charter that you can create denominational schools in the absence of section 93. It is a surprise to me that Quebec would wish to simply eliminate section 93 if it wants to preserve the right to create denominational schools. It would seem to me more in keeping with that aim to provide that although section 93 will no longer apply, the Government of Quebec will have the right to create or to permit denominational aspects in the schools, in any event. Perhaps we can get to that later.

That, in general, is my overall view—that this is not a minority rights question. The minority rights have been eviscerated by the Supreme Court of Canada. I've really never seen them so totally reject earlier decisions, usually without even explaining why. So there isn't much left, and what you are being asked to bury does not have very much content, in my view.

The Joint Chair (Senator Lucie Pepin): Mr. Monahan.

Professor Patrick Monahan (Individual Presentation): As you mentioned, Madam Chair, I have submitted a brief, setting out some comments with respect to the proposed amendment, and I am not going to comment on the merits of whether the amendment should be adopted or not. I want to address my remarks to three specific issues. From what I've been told by the staff of the committee, I understand there had been some discussion of them in previous meetings.

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The first issue is whether or not the amendment is in fact under section 43 of the Constitution Act, 1982. In looking at my brief, I notice that there is a typographical error in paragraph one, because I refer to section 43 of the Constitution Act, 1867. I apologize for that. It should read “Constitution Act, 1982”.

The second matter I want to discuss briefly is the test that I believe Parliament should apply in relation to section 43 matters, whether it's for this amendment or other amendments. Of course we know there is another amendment coming forward from Newfoundland, and of course Parliament dealt with an amendment from Newfoundland earlier this year.

Thirdly, I want to address some comments to the point that was just made by Mr. Irving on the effect of the amendment if adopted, on the ability of the province of Quebec to provide for denominational schools or denominational education or religious education in publicly funded schools in the province.

On the first issue, I don't think there is any doubt that this matter falls under section 43 of the Constitution Act, 1982, and that it's subject to a bilateral procedure. That is to say, the only requirement here is for the approval of the National Assembly of Quebec and of the two houses of the federal Parliament, followed by the proclamation of an amendment by the Governor General. This is because section 43 only requires the approval of provinces to which an amendment applies; that is to say, an amendment that falls under section 43, and this one clearly does. It would amend subsections 93(1) to (4). That amendment only has effect in Quebec. In my view, it therefore falls under section 43.

I've attached to my brief, or imposed on you, some pages from a recent book I published discussing section 43. There are those among you—and I notice Senator Beaudoin is here—who are interested in the finer points of section 43, so I've left that for you to review should you care to do so.

The second matter is the test that should be applied by Parliament in approving amendments under section 43 that would affect section 93 rights. It would be my view that the test that should be applied is: Does the proposed amendment enjoy support of the minority that is to be affected by the amendment? In effect, I would propose that a majority of the minority rule. I regard that as appropriate because the protection in section 93 extends to a class of persons and/or classes of persons. That is to say, classes of persons who enjoyed rights to denominational schools at the time of Confederation. In my view, before you can remove those rights, there must be evidence to support the view that a majority of this class, when taken as a whole—recognizing that some members of the class will be opposed—approves that amendment.

I would go further to say that the burden of establishing that approval has been obtained, is present, should rest on those proposing the amendment. In other words, the minority should not have the burden of demonstrating that it does not support the amendment. Rather, those who are proposing the amendment should demonstrate that the minority does support it. In other words, it seems to me that Parliament's role here is as a protector of minority rights.

The legislature in the province, or the National Assembly of Quebec as the case may be, will reflect the majority view. Therefore, while the role of the legislature is to get effect also to minority interests, having gained support in the legislature, we can take it that the majority in the province is in support. Parliament's role is to stand for the minority, and to ensure that the minority has approved the amendment or is in favour of the amendment.

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You have two classes of persons here, the Protestant and the Roman Catholic, both enjoying protections under the 1867 Constitution in Quebec. I make no comment here because I have no knowledge of whether or not the minority there has supported it. I simply propose this as a test that should be applied generally to these kinds of amendments.

Thirdly, I agree with Mr. Irving's comments, and in my brief I've outlined some of the Ontario cases that have held that you may not, for example, have religious exercises at the opening of a school day; that you may not have religious education that is of an “indoctrinational nature” within the normal school day. There have been Ontario Court of Appeal rulings stating that this kind of instruction is unconstitutional because it violates paragraph 2(a) and section 15 of the Charter of Rights.

I was surprised at the wording of the amendment, because the wording of the amendment would not only effectively take away the rights that previously existed, but would in fact make it unconstitutional to offer denominational schools. In other words, if you conceive of three possible positions, the strongest position would be to guarantee a minority denominational school rights. The second or middle position would be to simply say that it is permissible to offer denominational or confessional education, but not prohibit it. And the third position would be to prohibit, as a matter of the Constitution, the offering of denominational education.

This amendment goes from position one, which was to offer the guarantees, immediately to position three. It skips position two, which is simply to permit it. Because of these Ontario cases to which I've referred you, it now would say that you could not have religious education in the schools.

Now, I understand that the proposed way around this is to use the notwithstanding clause, section 33 of the charter, to override these guarantees of paragraph 2(a) and section 15. I regard that as a very curious way to go about writing the Constitution, because the position you want to have is the middle position. As I understand it, the middle position is to permit but not require the offering of denominational schools. Rather than write the Constitution in that way, however, you are in effect prohibiting the offering of denominational schools, and then you have to use this notwithstanding clause in order to allow you to override these guarantees in the charter.

I regard that as an unsatisfactory approach for two reasons. First, the use of the notwithstanding clause may be overly broad, because it prevents any attack on these provisions for breach of the charter. It also requires the legislature to re-enact a notwithstanding clause every five years, so that the opportunity to provide this kind of education depends upon a re-enactment of a notwithstanding clause on a five-year basis. I regard that as a very unusual way to go about structuring a constitution. Having looked at it, I regard this as a curiosity about this amendment.

Those are the three remarks that I'd like to offer to the committee.

The Joint Chair (Mr. Denis Paradis): Thank you very much, Mr. Monahan.

We'll now proceed to a question period, and we will start with Val Meredith.

Ms. Val Meredith (South Surrey—White Rock—Langley, Ref.): Thank you, Mr. Chair.

Thank you for coming. It's interesting to have people who understand constitutional law explaining some of these things to us.

Mr. Irving, I am interested in your comments that it would no longer be possible to have Catholic schools, and that we are now prohibiting religious teachings in school. That was also supported by Mr. Monahan. Does that mean we couldn't have a private school system that offers religious schooling, or are we talking about public funded schools?

Mr. Colin Irving: No, we're talking about the public school system.

Ms. Val Meredith: So what we're basically talking about with these amendments is removing public funds for denominational schools, but not preventing them from occurring.

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Mr. Colin Irving: No, you wouldn't be stopping the creation of private schools, but you would be doing something that I think is absolutely unprecedented. I've never heard of a province asking to have its own powers reduced. I mean, in the way in which Quebec has done this amendment, it actually takes away power from the Quebec National Assembly. There's no need to take that away, because Quebec has expressed the view that it wants to keep on doing the very thing it will no longer have the power to do. It's incomprehensible.

Ms. Val Meredith: For a lay person, maybe you're going to have to explain that. In what way is Quebec giving up control?

Mr. Colin Irving: Section 93 is the section dealing with education. Quebec has said it intends to continue to permit the creation of Catholic schools and Protestant schools, although the Protestants frankly don't much care any more. And I should say right away that Quebec no longer permits non-Protestants to go to Protestant schools. The law now makes the schools exclusive to Protestants and to Catholics. The Protestant school system always had a huge percentage of people who were not Protestants, and that clause destroys the Protestant school system.

Ms. Val Meredith: Section 93 does.

Mr. Colin Irving: No, the Education Act provision that denies the right of the Jewish population to go to the Protestant schools ends the Protestant school system. It brought it to an end. There is no more.

The point is that the law—the Education Act—does provide for schools becoming Catholic or Protestant schools as a local option thing. If this amendment goes through as is, that will be unconstitutional unless Quebec keeps putting in the notwithstanding clause every five years. So from Quebec's point of view, the declared aim to allow Catholic schools or other kinds of schools where the parents want them would be much better served by reserving to the Quebec National Assembly the right to do that. This amendment would take that away. I think that's all Professor Monahan and I are both saying.

And I've never heard of a province refusing a grant of extra powers. I don't think such an amendment would be unwelcome to anybody, and it would solve a lot of problems.

Prof. Patrick Monahan: Can I just add a comment to that in order to respond to your question of why this is so? The reason this is so is that there have been challenges brought to the Roman Catholic system of education in Ontario, on the basis that providing to Roman Catholic schools and not to other schools is an infringement of the rights of non-Catholics of other religious groups.

The courts have said Ontario can have the Roman Catholic system, or Quebec can have the Roman Catholic and Protestant system, because section 93 specifically requires them to have it. They've said that absent these guarantees in section 93, there would be a violation of paragraph 2(a), which is freedom of religion, and section 15 of the charter. But because we have these section 93 provisions, there is no violation of the charter. Once you take away those provisions, the charter then has full force and would not allow religious education in the publicly funded system.

[Translation]

The Joint Chair (Mr. Denis Paradis): Thank you. We will now move on to Senator Beaudoin.

[English]

Senator Gérald-A. Beaudoin (Rigaud, PC): The two of you agree that section 43 of the act of 1982 does apply. It's clear-cut. Second, you agree that it is bilateral, not trilateral. There's no problem there. That's what I think, too. I don't have any problem with that.

The difficulty here for the past week has been this: If subsections 93(1) to (4) are set aside or do not apply to Quebec, the Charter of Rights will apply, of course. Some people around the table here are raising two cases from Ontario, but that's the Court of Appeal, not the Supreme Court of Canada. I would like to be sure of that: it's the Court of Appeal.

Mr. Colin Irving: What we're talking about is the Court of Appeal, yes.

Senator Gérald Beaudoin: Okay, but there is also the other problem. If the denominational structures become impossible, you of course have to find a way to reach the teaching of religion in the school. Some people have concern with that here around the table. How can it be done, in your opinion? Is the notwithstanding clause mandatory to achieve such a result, or may it be done in another way?

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Mr. Colin Irving: I would think that there are only two possibilities: either in lieu of section 93 the Constitution says that the province may in the exercise of its overall jurisdiction over education provide for denominational teaching or denominational schools, or whatever language you want to use....

That in this day and age would not be restricted just to Catholics and Protestants, so it gets away from the other terrible problem with section 93, that it only protects Catholics and Protestants. It's clearly out of date totally and it has no current relevance in this kind of debate. It would not be discriminatory in that sense. And then say in Quebec, where outside Montreal and Quebec City the schools were always non-denominational in law but since all the people were Catholic the schools were Catholic, it allows for the creation of schools that suit the parents in each area.

So you could do that, which would then be in the Constitution and couldn't be attacked under another section of the Constitution.

Senator Gérald Beaudoin: That's right.

Mr. Colin Irving: The only other possibility, which is the line Quebec has taken for the moment, is to say we are going to provide for Catholic schools and Protestant schools but we're invoking the notwithstanding clause. But that is no basis for rights in the future, surely. It means that successive governments have to keep on invoking the notwithstanding clause. It is part of the Constitution, but to very many people it's something to be avoided if it's at all possible. It's a strange way to give a guarantee if the province wants to give the guarantee.

It must be that or the other, because otherwise teaching of any denomination is not going to be permitted.

Senator Gérald Beaudoin: Yes. We cannot build a system of teaching of religion on the perpetual use of the notwithstanding clause.

Mr. Colin Irving: I don't think so.

Senator Gérald Beaudoin: I am inclined to agree with that.

Mr. Colin Irving: Governments don't always agree with each other forever. I don't know too much in the way of precedent to say that successive governments in this country always agree with what the other one did. I think the Parti Québécois voted against the notwithstanding clause when this bill came through because it was a Liberal bill. So for sure the right is going to be lost at some time if it depends on that.

Senator Gérald Beaudoin: Yes, but what do you think of section 41 of the Quebec charter, which allows the teaching of religion? It's quasi-constitutional protection.

Mr. Colin Irving: It doesn't override the Canadian charter.

Senator Gérald Beaudoin: No, of course not. But it is still there.

[Translation]

The Joint Chair (Mr. Denis Paradis): We have a long list of people who want to be heard. I now give the floor to Mr. Monahan.

[English]

Prof. Patrick Monahan: I want to say that the Quebec charter cannot provide an answer if the Charter of Rights prohibits the provision of religious education, and these two Ontario Court of Appeal decisions are very persuasive.

I think, to my view, the answer is that you should write, in addition to the existing wording of the amendment, a second clause that says nothing in this clause—I haven't worked out the exact wording—restricts the legislative power of the Province of Quebec to provide for denominational education in the publicly funded system. Something like that. It would be something like a model on section 29 of the Charter of Rights, which says that the charter doesn't affect existing rights that are guaranteed.

The problem now is section 29 no longer will apply because we're taking out section 93 in Quebec. But I think you would need something like this so that you would get to the middle position, as I described the three positions, which is where you want to be to have the power to do it without being required to do it.

[Translation]

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Monahan.

Mr. Ménard.

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): Mr. Chairman, I am not sure I understand our witnesses' point of view. Since this is an important issue, I would ask them to be patient and explain things in very clear terms to me.

What you are saying is that contrary to what we may have thought, without section 93, denominational schools may not be guaranteed. This committee has always made three distinctions: school boards, schools, whose denominational status is given by one of the committees that reports to the Department of Education, and religious instruction.

You are going to tell me that some schools that currently do not have any denominational status do provide religious instruction in Quebec.

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My basic understanding of section 93 is that it creates two obligations: one was for Montreal and Quebec City to provide denominational structures—the jurisprudence says that a structure means a school board and a school—as well as the right to dissent for those who are a religious minority outside those two cities.

What you are telling us is that without section 93 schools cannot be given a denominational status, and this will certainly cause a jolt, one you no doubt except.

Could you explain that to me as if I were taking political science 101, because that really shook me.

Mr. Colin Irving: I am not guaranteeing you a simple answer because it isn't always simple.

Mr. Réal Ménard: Make an effort.

Mr. Colin Irving: The Canadian Charter restricts the powers of both the federal and provincial governments. That is why it has never been well received in Quebec, as you know. The Canadian Charter says that everyone is entitled to freedom of thought and freedom of religion, and section 15 of the Charter bans discrimination.

Mr. Réal Ménard: Fair treatment.

Mr. Colin Irving: Fair treatment. Now you have a network of public schools, and one particular denominational school wants to teach the Catholic religion. But what happens to the students who are not Catholic? They will say it is their tax dollars that are paying for the school that has become Catholic and they are not Catholic. So that immediately creates a rift between the Catholic students and the others.

Mr. Réal Ménard: That already happens.

Mr. Colin Irving: Yes, but without section 93, a law that provides for such a situation would violate the Charter. The only reason that is legally possible today is because of section 93. So the Canadian Charter does not apply. If section 93 is repealed, we have a legislature, the National Assembly, that has full power over education. It can do what it wants, except that it is bound by the Canadian Charter. As soon as denominational schools are created, there is a problem with the Charter. That is what happens in Ontario.

Mr. Réal Ménard: Just a moment, I want to make sure I understand.

The Joint Chair (Mr. Denis Paradis): You can come back to it with a supplementary question, Mr. Ménard.

Mr. Réal Ménard: Mr. Chairman, it's important. I must make sure I understand.

The Joint Chair (Mr. Denis Paradis): Supplementary, Mr. Ménard.

Mr. Réal Ménard: So, if subsections 93(1) to 93(4) are repealed, Bill 109, the Education Act, will have to contain provisions for linguistic school boards and the right to denominational status for schools. Without section 93, a different provision would have to be in violation of the Charter. Which one? It cannot be section 15.

Mr. Colin Irving: Paragraph 2(a), which is on religious freedom.

Mr. Réal Ménard: So because of section 2, you say that people could go to court claiming their right to religious freedom was violated.

Mr. Colin Irving: Yes.

Mr. Réal Ménard: That is a totally different matter, not on the basis of denominational rights of schools, because the denominational rights of schools will be provided for and maintained by the laws of the National Assembly.

Mr. Colin Irving: Yes, but without section 93, the laws of the National Assembly would violate the Canadian Charter. That is the problem. You cannot...

Mr. Réal Ménard: I see.

Mr. Colin Irving: Now, if you add the amendment being requested and stipulate that section 93 no longer applies in Quebec, nothing in the legislation will restrict the powers of the National Assembly to create denominational schools or to provide religious instruction in schools. I am not in a position right now to tell you exactly what to do, but if Quebec really wants to continue having denominational schools, the amendment must be changed or the notwithstanding clause must be used.

Mr. Réal Ménard: In other words, the message you are sending to the Quebec government is that there must be a consequential amendment to be compatible with section 2 if you want to guard against law-suits.

Mr. Colin Irving: That's right.

Mr. Réal Ménard: You see I do have some constitutional talent.

Mr. Colin Irving: Yes, indeed.

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Ménard.

We will now move on to the next questioner, Senator Grafstein.

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[English]

Senator Jerahmiel S. Grafstein (Metro Toronto, Lib.): Let me first of all thank you witnesses for this. This is another fascinating and complex insight into the same question.

Let me suggest a model that I understand Quebec is presenting and was accepted unanimously by the Quebec legislature. The model is—and I'm trying to use the words of the legislature and the speeches of the ministers, and so on—that we in Quebec are trying to establish an effective, modern system that provides parent choice, whether it be public school or denominational school, and in order for us to facilitate that we have established a series of rights, first of all, under the Quebec charter. The federal charter doesn't prevent, it encourages, the practice of religion on a free basis, so we have the charter right, we have the Quebec charter right, and then we have the legislature talking through the school system and the various educational acts.

Let me suggest a model to see if it would overcome the notwithstanding issue, and so on. That is, that Quebec says—as I understand it will do, and we'll hear from the ministers tomorrow to see if this is correct—we are prepared to present the most progressive model in Canada. What we're going to do is offer parents their choice as to whether they choose to have a public school education, free of religion, or a denominational school, and we're going to offer, where numbers warrant, which is an acceptable constitutional test, religious training to those parents who can concentrate in a particular area.

In Montreal, as an example, where there are Greek Orthodox, Jewish, Muslims, Catholics, and a number of Protestant communities, if in fact in a particular area there happens to be a given number of Muslims, or Greek Orthodox, or Roman Catholics, or Jews, parents can come together, and assuming it's cost efficient, ask for a school and a denomination, provided they are entitled to an equal right to the public purse.

Tell me what court, provincial, federal, or superior, would deny the parents that right under the proposed legislation we have before us.

Mr. Colin Irving: Under the legislation you have before you?

Senator Jerahmiel Grafstein: I'm talking about the Quebec legislation as we know it, free and clear of section 93.

Mr. Colin Irving: Without any protection from section 93?

Senator Jerahmiel Grafstein: Section 93.

Mr. Colin Irving: I don't think you'd be able to do any of those things.

Senator Jerahmiel Grafstein: Why not?

Mr. Colin Irving: All that sounds very good, but what happens in reality is you get into a particular school and 42% of the parents who happen to be whatever denomination say we'd like to have this a denominational school, and 27% are quite opposed to it. You can get a fairly chaotic situation fairly quickly doing that.

Senator Jerahmiel Grafstein: Right.

Mr. Colin Irving: If you want to provide on a simply parent-choice basis for schools of that kind, you are going to end up in a situation where parents of children in schools declared to be Greek, or Jewish, or Catholic, or whatever, are going to feel that they are left out of things.

That is what led to the Ontario cases Professor Monahan is talking about. There were kids who said, “Look, my only choice is to leave while they go through these Christian prayers, and I don't want to leave. I have to sit out in the corridor. What am I going to do?” The court said that is to stigmatize people; it's not acceptable.

The trouble with what you're suggesting is there's going to be a lot of that kind of problem, a lot. I don't think the courts would allow it.

Prof. Patrick Monahan: What you have now in Ontario, and there's a recent Court of Appeal decision that's approved this, is education about religion, but it can't be of a doctrinational nature.

You're saying that anyone of any religion—

Senator Jerahmiel Grafstein: Where numbers warrant. We have to be practical.

Prof. Patrick Monahan: —where numbers warrant, would have access to a denominational school.

I wouldn't necessarily say they couldn't do that as long as you could show that you had absolute equality of access, and any religious group that wanted to have that type of system would have access to it on an equal basis. That's not the situation we have in Ontario.

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Senator Jerahmiel Grafstein: No, I'm not suggesting—

Prof. Patrick Monahan: I'd be amazed if any government was prepared to actually do that. I think what would happen is in practice there would be barriers and there would be situations where certain minority groups would say “I don't have access, as a practical matter, to the school of my choice, and I'm being restricted in this other system”. Even in the public system there was a challenge brought in the Adler case to the fact that they didn't want to be in a public system.

So I have a hard time imagining that you would be able to design a system that would not offend either paragraph 2(a) or section 15.

Senator Jerahmiel Grafstein: But on the principle....

The Joint Chair (Mr. Denis Paradis): I would like to explain that the following people have the right to ask questions: Paul DeVillers; Senator Lavoie-Roux; Senator Lynch-Staunton; Senator Dalia Wood; Sheila Finestone; Nick Discepola; Marlene Jennings; Mauril Bélanger; Mr. Goldring; and Mme Gagnon. So I'm trying to proceed with this.

Senator Jerahmiel Grafstein: Can I reserve for the second round, if there is one, Mr. Chairman?

The Joint Chair (Mr. Denis Paradis): Thank you, Senator. We will proceed now with Paul DeVillers.

Mr. Paul DeVillers (Simcoe North, Lib.): Thank you, gentlemen. In answering Senator Beaudoin's questions, then, I understand that both of you are of the opinion that section 43, and using it bilaterally, is the proper procedure to use.

Section 93 deals with both Ontario and Quebec. There has been concern expressed from groups in Ontario that there might be some implication on the proposed amendment going through on denominational rights in Ontario. I would be interested in your legal opinion, whether there is any precedent-setting nature here that could affect denominational rights in Ontario.

Prof. Patrick Monahan: I wouldn't think so. Assuming the test that I propose is adhered to, namely that the minority or the class of persons affected is in favour of the amendment. If it were not so, then it would open the door potentially to an Ontario government saying we want to take away these minority rights and we have the support of the majority of the legislature, and you'd have to pass it.

But assuming that the protected class of persons, or protected classes in this case, are themselves in favour of that, then I don't think it would establish a precedent for Ontario.

Mr. Paul DeVillers: Mr. Irving.

Mr. Colin Irving: I agree. I don't think it establishes a legal precedent. As a political matter, I think one has to consider that if there becomes a bandwagon effect—Newfoundland, Quebec—it's certainly going to be more difficult to turn it down.

Mr. Paul DeVillers: In the future.

Mr. Colin Irving: Sure. If Professor Monahan's standard was applied, then I don't think you'd be in any difficulty. It's not, however, always easy to tell whether the minority is entirely in favour or not. In fact, I tread on somewhere where I was acting for someone, but I think in the case of the first Newfoundland amendment, the minority clearly showed they were not in favour, and this House passed the amendment anyway.

Mr. Paul DeVillers: I have one other short question, on whether section 1 of the charter would be of any use in coming up with other arrangements, perhaps to create denominational confessional schools.

Mr. Colin Irving: The Ontario courts didn't want to look at section 1 at all. They said it can't be justified under section 1, but even if it could, it isn't—

Mr. Paul DeVillers: Professor Monahan, do you have—

Prof. Patrick Monahan: That's right. I think the Ontario cases are very clear. I think the result would be what you have now in Ontario, which is you may have indoctrinational education, religious education of an indoctrinational nature only under very limited circumstances—for example, after the school day is over, and it can't be done under the auspices of the school board.

I discussed that. There is a recent Ontario Court of Appeal case that's about three months old that I reference in my brief. It discusses the current situation, and that's been approved by our court of appeal.

Mr. Paul DeVillers: So it would be applicable but limited. Is that what you're saying?

Prof. Patrick Monahan: Yes. During the school day you can only have education about religion. It's a kind of religions-of-the-world type of course. You can talk about the different religions, but you can't give primacy to any particular religion.

[Translation]

The Joint Chair (Senator Lucie Pépin): Thank you, Mr. DeVillers.

Senator Lavoie-Roux.

Senator Thérèse Lavoie-Roux (Québec, PC): Our distinguished guests are very knowledgeable. Can you assure us that if section 93 were abolished as suggested, this would have no impact whatsoever on other provinces?

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Some witnesses have told us that it is not that clear and mentioned Manitoba and Ontario. Do you think this is a completely separate issue, or do you think there could be some repercussions elsewhere?

Mr. Colin Irving: Section 93 does not grant any rights. It protects those that existed in provincial laws at the time of Confederation. To simply say that section 93 no longer applies to Quebec would not affect the rights that are protected in other provinces, even those in Ontario because subsection 93(2), if I'm not mistaken, would give Ontario Catholics the same rights as Protestants in Quebec had.

Reference is always made to Quebec legislation, as it was in 1867. That will never change. This would not have any effect on the right of minorities in Ontario.

Senator Thérèse Lavoie-Roux: Could Ontario, which has French Catholic schools, come here and ask for an amendment based on the fact that in Quebec people said that

[English]

you can do away with section 93?

[Translation]

Could Ontario ask for the same thing for French Catholic schools, claiming that it is a little expensive and that in any case everyone should be in the same school?

Mr. Colin Irving: The Ontario government could indeed come here at some point. Catholics are a very large minority in Ontario.

Senator Thérèse Lavoie-Roux: Francophone and anglophone Catholics as well.

Mr. Colin Irving: The protection of francophone schools in Ontario is guaranteed under section 23 of the Canadian Charter, and not under section 93. Indeed, in the only decision, which goes back to 1918, that deals with the Ottawa schools during the First World War with respect to Ontario's regulations requiring that English be the language of instruction and invoking section 93, the courts ruled that section 93 applied to religion and not to language.

French schools are protected in Ontario under the Canadian Charter. A school can be both denominational and language-based. Indeed, most of the French schools in Ontario are separate schools; they are both Catholic and French.

The Joint Chair (Senator Lucie Pépin): Thank you, Senator Lavoie-Roux.

Senator Thérèse Lavoie-Roux: I want to make sure that I have understood your comments properly. I thought that if we repealed section 93 without making any change whatsoever, we ran the risk of hurting the existence of denominational schools by not making a reference to the Canadian Charter.

[English]

You said you haven't thought about it, but you tried to say what kind of an amendment.... But there should be an amendment, and not just “God bless you and go with this”.

Mr. Colin Irving: I think all we're both trying to suggest is that if the Quebec government wants to have the right to allow the continuance of Catholic or whatever kinds of schools, then they would be very well advised to have the amendment altered to give them that right specifically. Otherwise they are not going to have it and they are going to be obliged to use the nothwithstanding clause all the time.

Senator John Lynch-Staunton (Grandville, PC): Along those lines, then, does Quebec really need to be exempted from section 93 to introduce linguistic school boards?

Mr. Colin Irving: No. Linguistic school boards can be introduced—

Senator John Lynch-Staunton: Well, they have been. They were introduced in Ontario.

Mr. Colin Irving: You can have both together. But I think there was a real problem in Quebec, Senator. We may all be aware of it. The school system was a double system. In the two cities Catholic schools and Protestant schools had to be provided for. Outside the two cities there was a common school system.

When the new education act came in and when the linguistic school boards were being set up, it became very clear that in Montreal the Protestant side of the system was quite willing to abolish itself. They changed their own name right away. They didn't want to be Protestant any more, they wanted to be English, because they were losing half their students anyway.

• 1620

On the Catholic side, it was a little different, because the Montreal Catholic School Commission is a big school commission. It could survive as a purely Catholic school system. I think we all know that there has been a considerable battle between the Quebec government and the Montreal Catholic board, which is attempting to keep a Catholic imprint on the schools.

Now, under Quebec law, non-Catholics won't be permitted to go there. So a great deal of the immigrant population is going to be shoved out into the linguistic boards, and the local population, who are all mostly Catholic, at least officially, are going to stay in the Catholic board.

So it was really a fight between the Montreal Catholic board and the government, I think, that has led to this. This is why I said originally that I don't think is a minority question; I think this is a fight between the remaining Catholic board that is viable, which is the Montreal one. It has a lot to do with where immigrant kids are going to go to school.

Senator John Lynch-Staunton: I don't agree with your earlier comment that section 93 has no current relevance, because after all, it was reconfirmed in 1982 and made exempt from the charter. So for something that happened 15 years ago when they were—

Mr. Colin Irving: But since that time, just to give you one simple example, in the mid-1980s, the Supreme Court of Canada confirmed the right of Ontario to fund the Catholic school system up to the high school level. At the same time, they pointed out that they had a broad degree of control over those schools, including curriculum control.

Two years later, when the Quebec group came to the Supreme Court of Canada on the same issue of the curriculum, they reversed themselves and said there is no control over the curriculum. So all of those rights, which are in the judgments, have been taken away. There is virtually nothing left.

Senator John Lynch-Staunton: Well there is still—

Mr. Colin Irving: Well, there's a right to create Catholic schools—

Senator John Lynch-Staunton: There's a right to create Catholic schools. That's right.

Mr. Colin Irving: —but that's all.

Senator John Lynch-Staunton: But I want to get to a point that Professor Monahan raised and that you commented on too, Mr. Irving. This is what we're struggling with.

We know that we're being asked to take some protection away from the Constitution. Whether it's empty, over-exaggerated, or strong, we're going to take something out of the Constitution.

How can we gauge the feelings of those who are affected by the removal of those rights and that protection? Can you do it numerically, quantitatively? Who are the leaders? Who are the spokesmen? This is what you tell us in your brief, Professor Monahan.

I know that in Newfoundland, the first referendum was not decisive. The second one appears to be decisive, at least from the Catholic point of view, but the Pentecostals will tell you that they still voted. But there must be a point at which we have to say that enough is enough. We have enough evidence on the table, so it's either yes or no. What is the evidence? How do we gauge it? That's the question. This is a conundrum, but I'm not the only one faced with it.

Prof. Patrick Monahan: I would just say that it's for that reason that I think the burden has to be put on proponents of the amendment to bring forward satisfactory evidence to show that there is support in the protected class.

That would mean that as for the religious leaders, leaders of the community, and perhaps the school boards themselves, there would have to be evidence to show that they were, on the whole, by a majority, I would say, in favour of it. If you don't have a referendum, then it's difficult to get evidence. Even if you do have a referendum, it's difficult, because people don't vote, or aren't voting, by religious class.

So in the first Newfoundland case, I think there were some serious questions in my mind as to whether, with that type of rather narrow majority, the groups that were affected were all in favour of it. But that's not the amendment you're now being asked to consider.

[Translation]

The Joint Chair (Senator Lucie Pépin): Thank you, Mr. Monahan.

Mrs. Sheila Finestone.

[English]

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

I must say that listening to you has raised many questions. The first and fundamental question I want to ask you is this, Mr. Irving and Mr. Monahan. I have every sense that the Quebec government was not careful about going to legal counsel for the full implication of the request for the total removal of section 93. Would it suggest to you that the goal is the total separation of church and state?

Mr. Colin Irving: I think there's a pretty good separation between church and state already, but yes, the nature of the amendment doesn't correspond with the stated intention of the Quebec government about how the schools are to be run.

Mrs. Sheila Finestone: My second question relates to the fact that Claude Ryan designed Bill 107, which was modified by the present minister to become Bill 109. But Mr. Ryan, as a full democrat and a believer in the Canadian Constitution, took that test to the Supreme Court of Canada.

• 1625

I'm sorry, but I left the document somewhere else.

The Supreme Court of Canada gave them the go-ahead to carry out, as I understand it—if I'm wrong, I really would like to be corrected—that you don't have to do it, but you may do it. I'm paraphrasing. In essence, you may do it if you wish, but you're not obliged to do it.

It doesn't say you can't go ahead with this reform. It didn't say you must use the notwithstanding clause, although they went ahead and used the notwithstanding clause.

I find that I'm totally confused now with both of your presentations. I understood your whole approach with respect to majority rights and minority rights, who said what, and whether they were happy with the way the issue is going, but I'm not very satisfied now. I have asked every single witness here, practically very witness who has some legal background, whether they were of the view that this change....

I believe this to be a removal of the protection of a discriminatory religious right in a society that has evolved and is pluralistic. It has no place in today's modern Quebec. What we're really doing is removing restrictive rights and enlarging the rights of minorities. So the minority right will now be better reflected in the approach of schools and the parental right to a choice.

But now you tell me that parents are not going to have any rights to a choice. And further, I hear that Jewish students, who make up almost 40% of the population of the Protestant schools, won't be able to go to the Protestant schools. So who's going to go to the Protestant schools?

Mr. Colin Irving: Nobody.

Mrs. Sheila Finestone: Second, English people coming to Canada and to Quebec who speak English and are of English culture, but who may want to learn French, can't go into the English system if they come from outside the walls of Canada. So there's something screwy going on somewhere.

My question to you really is what is the bottom-line goal of this government? I don't think Mr. Ryan wanted to destroy the school system nor the right to a certain choice by parents.

Mr. Colin Irving: You're perfectly correct. It was Mr. Ryan who enacted Bill 107, which went to the Supreme Court of Canada. I represented the Protestant boards in that case. They and the Catholic boards contested the validity of the law.

I have to say that we mostly lost. The court said that Bill 107 was fine, but in one major respect, the government lost. The court said that the government could not touch the denominational boards in Montreal and Quebec City. You can restrict the area to the actual city of Montreal, not to greater Montreal, but you can't get rid of them.

So the government never proclaimed the bill in force because it saw—I must say that I have a lot of sympathy with the Government of Quebec on this issue—that in Montreal they were going to have to put a French-language school board on top of the Montreal Catholic School Commission. Then what? For various reasons that I can't comment on—I wasn't involved—discussions between the government and the Montreal Catholic School Commission went nowhere.

I think this amendment arises out of the frustration of not being able to put a reform bill into force. This, as you describe it, is one that, from the minority point of view, is fine given that section 23 is there. They can't do it because of this mess in Montreal.

I think perhaps the government has over-reacted while wishing effectively to get rid of the Montreal Catholic School Commission, which is what they want to do. In the process, they're giving away their right to do all the other things that made the compromise possible.

Mrs. Sheila Finestone: Well, Mr. Irving—

Mr. Colin Irving: I know that hasn't answered all your questions, Mrs. Finestone.

Mrs. Sheila Finestone: I know. It's only making life a little more complicated.

Mr. Colin Irving: I know. I'm sorry about that.

Mrs. Sheila Finestone: Quite frankly, Mr. Irving, I like the project. I think that allowing parental choice—by the way, it's parental choice in either English or French systems—for me would be the right way to go. I wish that the dollar could follow the child and therefore you would have the choice. That's not going to happen.

• 1630

I'd like to ask you if you can recall section 16, which was put in this charter by New Brunswick to ensure that both equal access and equal rights were given to English and French, linguistic. Or section 29, if it were broadened.... Could either of those be used? I ask this because the way section 93 is presently written it doesn't please me one bit. It is a privileged right for a minority in this country.

Mr. Colin Irving: I'm not sure I have a very good answer for you. I agree.

Section 93, as we all said earlier, is a protection really for Catholics and Protestants. Section 29 doesn't have any effect if there's nothing there to preserve. So section 29 is not going to have any impact once you get rid of section 93.

I don't have section 16 in front of me. New Brunswick is officially bilingual, so....

Mrs. Sheila Finestone: I don't think it's all the language, but it's the concept behind the language.

The Joint Chair (Mr. Denis Paradis): Next intervention.

Mrs. Sheila Finestone: He's trying to answer on section 16. Do you mind? I said I don't want the language. It's the concept that I was asking about.

The Joint Chair (Mr. Denis Paradis): Go ahead, Mr. Irving.

Mr. Colin Irving: The preamble adopted by the National Assembly uses some of this language and does talk about the English community of Quebec and offers, if not a legal guarantee in the strictest sense, some degree of comfort. But you're never going to get in Quebec something equivalent to 16(1).

Prof. Patrick Monahan: Section 16 doesn't deal with denominational rights, confessional rights. It deals with language.

The Joint Chair (Mr. Denis Paradis): Mr. Discepola.

Mr. Nick Discepola (Vaudreuil—Soulanges, Lib.): I thought I had a good handle on this, but every day I see a new twist in it.

I want to understand very clearly. What you are saying is that, even if we repeal section 93 for Quebec's purposes, if it wants to introduce religious or confessional schools it will not be able to unless it continues to reinvoke the notwithstanding clause every five years.

Mr. Colin Irving: Yes. Exactly that.

Mr. Nick Discepola: Oh, my God!

Okay. I understood correctly then.

Mr. Monahan, I concur that it has to be a bilateral negotiation, an amendment bilaterally.

Prof. Patrick Monahan: Yes.

Mr. Nick Discepola: But you are also implying that what should be done is that the National Assembly, since they are the requesting party, should have sought the majority consensus among the minorities that were affected.

Prof. Patrick Monahan: I have no knowledge of whether there's the support or not. I don't know.

Mr. Nick Discepola: But as one of the tests, that's what you're saying—

Prof. Patrick Monahan: Yes.

Mr. Nick Discepola: —should have been done. They refused to hold public hearings and they're relying on the consensus through the National Assembly unanimous vote to infer that there was a consensus.

We seem to have the consensus of the Catholic bishops, which by the way in Quebec is the majority. Right? We seem to have the consensus of the Protestant school board and teachers. In your mind, is that sufficient, even though it's not the governing body that did it, it's the House of Commons in this case? Does it meet your test?

Prof. Patrick Monahan: No. My test would be that you look at the protected classes. Here you have two protected classes. So within each of those protected classes you have to show that they each by a majority or on some notion.... It won't be 50% plus one, because you don't have a referendum. You don't have to have a referendum—I'm not saying that—but you have to show that within each community there is a preponderance of support for the proposal.

I have no knowledge of what the views are. I've was asked only three days ago to appear, so I have no knowledge of what the views are amongst the communities in Quebec.

Mr. Nick Discepola: Then that leaves this committee—

Prof. Patrick Monahan: Yes, that's for this committee to decide.

Mr. Nick Discepola: So we have served some useful purposes, even though the Quebec government might not agree.

Prof. Patrick Monahan: I think that Parliament has a responsibility to protect the minority. That's why we have bilateral and not simply.... That's why we require Parliament to concur.

The Joint Chair (Mr. Denis Paradis): Senator Wood.

Senator Dalia Wood: I have a short question for Professor Monahan and two short ones for Mr. Irving.

Mr. Monahan, if the Quebec legislature does not use the notwithstanding clause in two years' time, what will happen to the majority and minority rights?

Prof. Patrick Monahan: If they do not use the notwithstanding clause, they will not be able to have denominational schools or education, not even confessional schools. You will not be able to offer religious classes in the schools that are of an indoctrinational nature; i.e., from an internal perspective on the religion as opposed to an external perspective.

• 1635

An external perspective is like this: “Here are all these different religions, and today we'll study the Roman Catholic religion, tomorrow the Hindu, the Sikh and so on”. That is permissible. But you could not say “We are studying as Roman Catholics or as Protestants and this is our doctrine”. That would not be possible.

Senator Dalia Wood (Montarville, Lib.): In other words, the religious schools would in effect be gone.

Prof. Patrick Monahan: Except for private schools.

Senator Dalia Wood: Not—

Prof. Patrick Monahan: In the public system, yes.

Senator Dalia Wood: In the public system.

Mr. Irving, if the right of section 93 is empty, as you said before, why did we provide for its protection in section 29?

Mr. Colin Irving: It wasn't empty then. It's only been emptied out by a series of judgments from the Supreme Court of Canada. It was always understood to be a very valuable right, as Senator Lynch-Staunton points out. It's not totally empty because it still allows you to create a Catholic or a Protestant school, but it doesn't give you any control over what happens in that school.

Prof. Patrick Monahan: I'm not sure that's totally right. I think there's still some substance to the right. I haven't commented on that, but I don't want to be taken to be in agreement with that. I think that's an extreme characterization of the court's judgment.

The Joint Chair (Mr. Denis Paradis): Senator Wood, your last question, please.

Senator Dalia Wood: If section 93 doesn't exist, would Jewish schools be publicly funded?

Mr. Colin Irving: No.

Senator Dalia Wood: Thank you.

The Joint Chair (Mr. Denis Paradis): Marlene Jennings.

Ms. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): Thank you. I'm listening with much interest.

I think I've understood what you had to say, which is that if section 93 is amended to repeal the application of subsections (1) through (4) in Quebec, the Quebec government will not constitutionally be permitted to allow denominational schools unless it invokes the notwithstanding clause. Great.

Mr. Colin Irving: [Editor's Note: Inaudible].

Ms. Marlene Jennings: I think the equal treatment would be kind of difficult.

Mr. Colin Irving: I think the Quebec government recognizes that Bill 107 does override the charter.

Ms. Marlene Jennings: Exactly. And even if the Supreme Court of Canada, in its opinion of Bill 107, stated that nothing in section 93 precludes the Quebec government from instituting linguistic school boards as long as section 93 continued to apply in Quebec, which means denominational school boards in Montreal and in Quebec could go ahead...as you so clearly pointed out, that would have meant that the Catholic schools and school board would have returned to its past behaviour, pre-Bill 101. Only Catholics could go to the school—

Mr. Colin Irving: But now it's by law, you see.

Ms. Marlene Jennings: Right. Just so I'm clear on that, my question is one you haven't dealt with and I'm wondering if as constitutional experts you have given any thought to it. We've had two presentations here, one by the Native Alliance of Québec and the other one by the Congress of Aboriginal Peoples...I believe that's the correct name. Both have presented their position that repealing subsections (1) through (4) of section 93 would in fact put aboriginal rights in danger in terms of education. They ask that either the resolution be amended or that Parliament adopt a companion resolution that would state that nothing in the abrogation of section 93, the application in Quebec, affects in any way aboriginal rights to self-government and rights in education.

Have you given any thought whatsoever to the potential impact or possible impact?

Mrs. Sheila Finestone: Both on reserve and off.

Ms. Marlene Jennings: Both on reserve and off. Let me qualify that for you. I'm sorry. The real issue for them was specifically Indians who live off reserve, status and non-status Indians and Métis.

Mrs. Sheila Finestone: And it doesn't touch the Inuit.

Ms. Marlene Jennings: That's right.

Mr. Coling Irving: I must say I hadn't thought of that. I don't see how aboriginal rights would be affected by the absence of section 93.

• 1640

Prof. Patrick Monahan: They're not protected by section 93. They don't depend upon section 93, so my view would be that the repeal of section 93 cannot negatively affect them. You also have section 25 of the charter, which specifically says that the charter does not derogate from aboriginal rights. I would find it difficult to see how the repeal of section 93 would affect aboriginal rights.

The Joint Chair (Mr. Denis Paradis): Mauril Bélanger.

Mrs. Sheila Finestone: I find that interesting in light of the fact that the first observation they brought to our attention is that Mohawks who are working and have children in New York, although they come from Kahnawake or from Akwesasne, can't go to school in English when they come back here because they are from out of the country.

Mr. Colin Irving: Section 93 doesn't give anyone a right to go to school in English.

Mrs. Sheila Finestone: You're right.

Ms. Marlene Jennings: One point raised was the fact that at the time of Confederation there were denominational schools that were being run by aboriginal nations in Quebec, both on and off reserve.

Mr. Colin Irving: I didn't know that. Are there any now? I'm not sure there are. There are special provisions for aboriginal schools and what not in Quebec, which derogates from the usual Bill 101 provisions to some extent too, but I don't think they're protected by section 93. I can understand how people who are worried about their rights anyway are always worried when something is taken away, because what's next?

Ms. Marlene Jennings: Thank you.

The Joint Chair (Mr. Denis Paradis): The last question will be from Peter Goldring.

Mr. Peter Goldring (Edmonton East, Ref.): I have a question first of all on this Court of Appeal of Ontario. Section 24 states that a remedy can be effected by a court of competent jurisdiction. It had been suggested that there was the Supreme Court. But what level is considered competent jurisdiction to give an effect to this?

Mr. Colin Irving: Any level. Any superior court can give a remedy. The real courts in this country are the superior courts, like the Ontario Trial Division. The rest are just courts of appeal, which review it. Any court can give a remedy. It doesn't have to be the Supreme Court of Canada.

Mr. Peter Goldring: That's right.

My supplemental question deals with the concerns of the aboriginals. Included in the Quebec boundaries extension of 1912 is of course that the trusteeship of the Indians, the fiduciary responsibility for them, will be retained by Ottawa. Again, in section 25, we have here, “or other rights or freedoms”.

The suggestion is that if subsections (1) to (4) of section 93 are removed or repealed, it definitely seems to be affecting other rights. Further, it goes on to suggest that if this is happening the question should be taken to a constitutional conference with the Prime Minister of Canada and the first ministers under 35(1)(a). Definitely it seems to be a concern of the aboriginal people. Part of their concern is the Quebec Boundaries Extension Act as well as their existing guarantees under subsection 93(1) to 93(4).

Could you comment on that?

Prof. Patrick Monahan: I don't see how section 93 guarantees aboriginals' rights. It certainly doesn't guarantee them as aboriginals. I don't know the situation. There was some comment to the effect that there may have been aboriginal groups that were providing religious education. They may not be able to offer religious education.

But section 93 does not guarantee aboriginal peoples the right to have aboriginal schools. Nor does it affect them in any way. That's a matter for the Indian Act and for provincial law to the extent it would permit aboriginal peoples to have schools. I would have thought that they could claim that those were protected from the charter if there was a claim that they violated the charter by either section 25 or section 35.

• 1645

Mr. Peter Goldring: My point is that it is affected under section 25—their rights or other rights or freedoms they have. In other words, a right or freedom they have, one of the rights they have, is under section 93.

Mr. Colin Irving: But they don't. They don't have any rights under section 93. Roman Catholics have rights under section 93. Protestants may have rights under section 93. Aboriginal people don't, unless they happen to be Roman Catholic.

Mr. Peter Goldring: Or Protestant.

Mr. Colin Irving: Your ethnic origin has nothing to do with section 93.

The Joint Chair (Mr. Denis Paradis): Mr. Irving, Mr. Monahan, I would like to thank you very much on behalf of the members of this committee.

There will be a one-minute recess.

• 1646

• 1649

[Translation]

The Joint Chair (Mr. Denis Paradis): We are resuming hearings of the Special Joint Committee to amend section 93 of the Constitutional Act of 1967 concerning the Quebec school system, pursuant to the Order of Reference dated October 1, 1997.

[English]

It's our pleasure to have with us as witnesses the Canadian Jewish Congress, represented by Joe Rabinovich, the education committee chair—welcome; Frank Schlesinger, the national secretary—welcome; Eric Vernon, Ottawa advocacy director—welcome; and David Sultan, community relations director.

• 1650

Please proceed, Mr. Rabinovich.

Mr. Joe Rabinovich (Education Committee Chair, Canadian Jewish Congress (Quebec Region)): Thank you for permitting us to be here today.

I'll start off with a little anecdote. The presentation just preceding us was made by Mr. Colin Irving. Mr. Irving worked for me when I was the director general of the PSBGM. He argued our cases before the Supreme Court of Canada, and we lost both.

Ms. Marlene Jennings: We'll take what he says with a grain of salt.

Mr. Joe Rabinovich: No, he's a very erudite individual. I just wanted to introduce that by way of background.

I'm going to talk about our submission, but I just want to give you my background because it may add some dimension to what we're talking about.

I was involved in education as the director general of the Protestant School Board of Greater Montreal. It was during my time that the cases on Bill 107 and the régime pédigogique were presented to the Supreme Court of Canada. So I was intimately involved with that. I was also closely involved with Mr. Ryan in the development of Bill 107. These discussions have been going on for I don't know how many years.

After that I became the director general of the Association of Jewish Day Schools in Montreal, which dealt with Jewish schools in the private sector. After that I moved on to another position. Now I'm the chair of the education committee of the Canadian Jewish Congress Quebec region.

I'm giving you that as a background because I'm coming here with many hats but the hat I'm going to wear today is that of the Canadian Jewish Congress Quebec region. When the floor is open for questions we'll put on any hat that's appropriate.

By means of introduction, we find ourselves here in a conundrum, I would say, because we're presented with a proposal to amend the Canadian constitution, section 93, dealing with structure in education, whereas at the same time education is a provincial jurisdiction. Almost every comment I've heard around the table even this afternoon deals with powers Quebec has and not Ottawa. So we're faced with the position, and you'll see it in our position too, that whereas we might argue in favour of something, the quid pro quo is Quebec's authority to do it, which you have no authority over in any case.

To focus on what we're going to talk about today, we're talking about structure, because the BNA Act section 93 deals with structure in terms of school boards, not schools, because schools devolve to the Quebec authorities for regulation and other issues. What do we mean by structure? In the BNA Act section 93 sets up and protects the rights of Catholics and Protestants to public funding for education in Quebec City and Montreal and gives these two groups the right to dissent if it's outside the island of Montreal. This is all done and education is provided at public expense.

What is the position of the Canadian Jewish Congress on the amendment proposed? It's twofold, and one is connected to the other. In principle we are in agreement with the attempt or the desire of the Quebec government to amend the constitution as proposed, provided that if they extend the rights of confessionality at the school level to Catholics and Protestants, these same rights must be extended to other religious minorities.

This has been our position from day one. As we move toward the 21st century.... The BNA Act of 1867 reflected what were the standards in 1867. The 21st century in Quebec is not what it was in 1867. The school system in Quebec must reflect the new Quebec in terms of the changing face of Quebec. We believe one step towards this is the amendment of this section to remove what I'll call a privilege of Protestants and Catholics which must have been needed in 1867. It's not now.

• 1655

At the same time, Bill 107, or now Bill 109 in education, removes confessionality from the school board and brings it down to the school level, because under this legislation a school can be declared Catholic or Protestant.

When we talk about Catholic or Protestant, it's more than just giving religious instruction for Catholics and Protestants. Those of you who have gone to a Catholic school in Quebec know there's a certain aura about a Catholic school. It's not just the religion. It gives a whole aura, just as if you were to visit a Jewish day school, you would know it's a Jewish day school as soon as you stepped in.

This is what Bill 109 does. It gives the right to Catholics and Protestants to have that aura, I'll call it, in terms of their old school system. We're not against that, provided that these same rights and privileges are extended to other religious minorities.

Let me talk about the Jewish community in Montreal. Some of you might not be aware. I won't talk about the history; it's in our brief that we've been present in Quebec for over 250 years and we've fought for educational rights for the last 220 years.

When I went to school—and I went to the Protestant School Board of Greater Montreal—each day in my school was 99% Jewish. Those of you who went to Baron Byng—maybe there are some who have—know it was 99% Jewish. Every day it was started off with the Lord's Prayer, and I learned how to sing “Jesus Loves Me, This I Know” and “Onward Christian Soldiers”. This was in a class of 99% Jewish students.

This shouldn't be allowed to happen again. It's not going to happen again. This amendment is one step toward modernizing the Quebec educational system.

In the Jewish day school system, we have over 7,000 children attending Jewish day schools in Montreal. The Jewish day school system in Montreal is under the Private Education Act and is funded at approximately 50% of the public school system. But the Jewish day school system is a quasi-public school system, because no child is refused the right to attend a Jewish day school if the parents can't afford to pay. The Jewish community injects close to $2 million annually in subsidies for these children.

No Jewish child is denied the right to enter a Jewish day school because of ability to learn. We have special programs for special education. And our system is both English and French, because we follow Bill 101 in terms of who is eligible for English education and who is eligible for French education.

So we fulfil all the requirements of a public school system, yet, since the privilege of confessionality is restricted only to Catholics and Protestants, we do not have the right that is enjoyed by Protestants and Catholics. That is unacceptable in today's age.

Therefore, we, the Canadian Jewish Congress, are in favour of this move by the Quebec government to amend the BNA Act, with this major proviso that if rights are extended to Catholics and Protestants, it's a sine qua non that the same rights have to be extended to other religious minorities.

I can argue the other side of the coin, which is if these rights are not extended to anyone, then we can't argue. Then everybody is treated equally, and if we want to have religious schools, then the community is responsible to bear the financial burden of these schools. But as long as Protestants and Catholics have these privileges, they have to be privileges for everyone else who wants that type of privilege.

Thank you.

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Rabinovich.

Does somebody else want to complete? Then we'll proceed with the question period. The first intervention will be from Val Meredith.

Ms. Val Meredith: Thank you.

I gather from your comments that you don't have any problem with removing section 93, provided that in the school act, Bill 109, the provisions given to the Catholics and Protestants are also given to your organization.

Previous witnesses said if we remove section 93, then religious schools will not be allowed, period, unless the notwithstanding clause is initiated. They also said there needs to be an amendment, either in Bill 109 or in section 93, to acknowledge that all denominations should be allowed this privilege.

Mr. Joe Rabinovich: I will accept that interpretation.

Ms. Val Meredith: Okay, so you feel that if the existing school act or Education Act, Bill 109, provided that all religious minorities were included, it would suffice?

• 1700

Mr. Joe Rabinovich: As long as under the Canadian Charter of Rights it can be demonstrated that no community is disadvantaged in terms of their religious orientation, then that is correct. For those rights, we would not need to use the notwithstanding clause.

Ms. Val Meredith: So you are not really arguing for the taxpayer to pay for religious schools, be they Protestant, Catholic, Jewish, Muslim, or whatever. You don't feel that's necessarily what you want?

Mr. Joe Rabinovich: No, that's not what I said. The way it is now in Quebec, Protestant schools and Catholic schools, as defined, get public funding. These rights are protected by section 93 of the BNA Act.

I'm saying if this section is amended and if the Quebec government extends rights only to Catholics and Protestants, they'll have to use the notwithstanding clause, because the Jewish community will demand those same rights.

Ms. Val Meredith: But that doesn't make it right.

Mr. Joe Rabinovich: No.

Ms. Val Meredith: Even using the notwithstanding clause, do you feel that's right?

Mr. Joe Rabinovich: No, absolutely not. Absolutely not.

Ms. Val Meredith: Okay.

Mr. Joe Rabinovich: My point and our point is that any rights or privileges extended to any religious community should be extended to all religious communities where numbers warrant. I think somebody mentioned that before. You're not going to establish a Buddhist school with eight children.

Ms. Val Meredith: Okay, but you said you don't buy the argument that removing Quebec from section 93 is going to prohibit Quebec from giving religious instruction in a school.

Mr. Frank Schlesinger (National Secretary, Canadian Jewish Congress (Quebec Region)): What we're trying to get across is that as long as it is not discriminatory vis-à-vis one group or another group, then the notwithstanding clause is not required.

If the Education Act will allow any religious grouping to apply for the same public funding and the same status, regardless of whether they're Catholic, Protestant, Sikh, Hindu, Jewish, or whatever, there's no need for a notwithstanding clause, because there's no discrimination. If all are going to have access to public funding, there's no discrimination. Otherwise, no one should have access to public funding, and it becomes all private education. You can't have one or the other; it has to be either all yes or all no.

Ms. Val Meredith: Does Bill 109 give that guarantee or that provision?

Mr. Joe Rabinovich: No, it doesn't; that's the problem.

Ms. Val Meredith: Would that be amended?

Mr. Joe Rabinovich: Yes, Bill 109, absolutely.

The Joint Chair (Mr. Denis Paradis): We'll go now to Senator Lynch-Staunton.

Senator John Lynch-Staunton: Do you think there should be state-supported schools with a religious content, that the state has an obligation to support schools and any denomination where numbers warrant? Or should the state stay out of that and let the parents attend to the religious needs of their children?

Mr. Joe Rabinovich: It's a fundamental question. I don't want to borrow the American model, because perhaps the question is predicated on what exists in the United States.

In Quebec, polls have shown that over 80% of parents want religious instruction in schools. If schools are to reflect the wishes of the parents, and they should to a large degree, then if the majority—and 80% is a very strong majority—feel religion has a place in the schools, the state should support it.

Senator John Lynch-Staunton: I wanted to know what your view was.

Mr. Joe Rabinovich: What my view is?

Senator John Lynch-Staunton: What is the view of the Canadian Jewish Congress? Should the state support public schools and see that religious education of the majority is respected, no matter what it is? I agree with you that it's all or nothing, but is that the state's role if it's going to be all?

Mr. Frank Schlesinger: I don't know that we've actually debated this issue. The Canadian Jewish Congress, as a defender of human rights and of the Jewish community, has always taken the position that if rights are granted to one group, they should be granted to everyone.

Senator John Lynch-Staunton: Okay, I go along with that.

Mr. Frank Schlesinger: I don't think we're in a position to take that—

Senator John Lynch-Staunton: You mentioned, Mr. Rabinovich, having to say the Lord's Prayer and learning these hymns. What is the status of a Jewish student in the Protestant school system today in Montreal?

Mr. Joe Rabinovich: In the Protestant school system of greater Montreal, the name “Protestant” is an anomaly, because it is really the common school board of greater Montreal; it has English schools and it has French schools. So the term “Protestant” now does not apply.

Senator John Lynch-Staunton: But for the Jewish student, it's more of a linguistic school now than a religious school?

Mr. Joe Rabinovich: Absolutely.

Senator John Lynch-Staunton: In certain public schools, the Jewish content is extremely high. Is there any provision for religious education or any religious instruction of any sort?

Mr. Joe Rabinovich: Not religious instruction per se, but instruction about religion. There is a nuance there. There's no indoctrination in terms of Protestantism, Jewishness, or whatever, but there are courses under the moral and religious education curriculum that teach religions of the world, morality, etc.

There is no religion per se taught in the Protestant School Board of Greater Montreal, in any of its schools.

The Joint Chair (Mr. Denis Paradis): Thank you, Senator.

• 1705

Senator John Lynch-Staunton: My final question is a quickie. Are those day centres you were talking about publicly funded or privately funded?

Mr. Joe Rabinovich: Day schools are privately funded, but under Quebec's Private Education Act, the government provides funding for up to about 50%.

Senator John Lynch-Staunton: Okay, they're part of that system of public support.

Mr. Joe Rabinovich: Absolutely, yes.

The Joint Chair (Mr. Denis Paradis): We'll now proceed with Madame Christiane Gagnon.

[Translation]

Ms. Christiane Gagnon (Québec, BQ): If I have understood you correctly, if the linguistic school boards were set up, you would like to have the same rights as Catholics and Protestants, namely, the right to keep a Jewish denominations school. However, I have been told that there are 62 denominational or religions in Quebec. Accordingly, setting up linguistic school boards will promote the integration of cultures and religions and result in better management of the schools.

Do you think that we will not be able to reach this objective?

Mr. David Sultan (Community Relations Director, Canadian Jewish Congress (Quebec Region)): Bill 109 does not fulfil this mandate. Despite the fact that Minister Brassard has himself said that we had to open, secularize and update the schools, Bill 109 continues to maintain certain privileges for Catholics and Protestants. As far as we are concerned, this is where the problem lies.

We have never said that public schools should be denominational. We are simply saying that, if this is to be so, according to Bill 109, it must apply to everyone under the Charter, particularly since the amendment to section 93 could be adopted, to the extent that it applies to certain religions.

If schools are set up totally along language lines and not at all along denominational lines, the Jewish community will not be requesting that religious rights be extended to include everyone, we will be advocating just the opposite. We are simply saying that what applies to one religious group should apply to all religious groups if this it the path chosen by the Quebec government.

Mr. Frank Schlesinger: We must also consider that such requests are based on numbers. Obviously, if there are only 10 people from a religious group, this group cannot request that the entire school be of this religion.

Ms. Christiane Gagnon: But do we not have to adopt this approach in order to respect the wish of a certain majority or those who already have section 93 privileges? We know that 90 per cent of Catholics attend Montreal Urban Community schools. We have to respect the wish of the majority.

It is already relatively difficult to repeal subsections (1) to (4) and to remover certain privileges. Some groups have told us that they were worried that Catholic and in other cases Protestant religious instruction would no longer be offered. I think that we have to respect this.

Mr. David Sultan: Yes, but the problem is that, on the one hand, the Quebec government is telling us that they want to amend section 93 of the Constitution Act of 1867, because it is no longer current, in order to set up non-denominational boards and, on the other hand, the Quebec Education Minister is adopting or wants to adopt a bill, namely Bill 109, which maintains this denominational nature.

They are using a roundabout way to preserve something that they are trying to eliminate officially. I feel that there is a certain paradox here, and this is why we are saying that, in principle, we are in favour of an amendment to 93, providing that this amendment gives equal rights to all religious denominations in the province.

[English]

Mr. Joe Rabinovich: Nobody is disagreeing with what you are saying. If these rights that were granted in 1867 are still maintained, however, we are just asking that these same rights be extended to other religious minorities in order to be consistent.

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Rabinovich.

Ms. Sheila Finestone.

Mrs. Sheila Finestone: I'm glad you clarified what seems to be unclear.

[Translation]

I must also say, Mr. Sultan, that you really have dealt with the issue. It is indeed the choice of the parents, and their right to choose that is clearly mentioned in Bills 107 and 109. Their choice is connected to the neighbourhood, to the village where they live.

[English]

I noticed that my senator friend over there is very interested in the financing aspects. You're saying that in the public interest, there is an investment by the province of Quebec in the interest of a variety of ethnic minority groups—three that I know of, and possibly four: the Armenians, the Greeks, and the Jewish community. They have day schools where the dollars follow the children in the interest of the choice the parents have made for the educational undertaking of their children. Is that correct?

• 1710

Mr. Joe Rabinovich: That's correct.

Mrs. Sheila Finestone: So there is a financial input by a province that recognizes the diversity that is here. It took quite some time to do that, but Quebec has finally arrived at that point. I'm waiting for the point when it recognizes that all English have rights under paragraph 23(1)(a), but I might live to see that day.

In your view, then, you're prepared to accept the amendment per se. You recognize that it is a fragile amendment in that it pushes this province to ongoing use of the notwithstanding clause every five years. Sorry, I put that backwards. It is not your view that we would have to use the notwithstanding clause. After listening to everybody and getting totally confused by lots of them, it is my view that if they don't use the notwithstanding clause, it will be in peril.

You are the first group to say to us that in your view, using section 41 of the Quebec charter, Bill 109 and Bill 107 can go forward on their own feet and don't need the protection of the notwithstanding clause.

Mr. Joe Rabinovich: No, that's not what we said.

Mrs. Sheila Finestone: So tell me what you said.

Mr. Joe Rabinovich: What we said is the following: If rights are granted to specific religious groups, such as Protestants and Catholics, and these rights are not extended to other religious minorities, they will then have to use the notwithstanding clause.

Mrs. Sheila Finestone: That's what I meant. Otherwise, they won't need it?

Mr. Joe Rabinovich: If these rights are granted to the Jews, the Muslims, the Sikhs, they won't have to use the clause because there is no discrimination.

Mrs. Sheila Finestone: With that, Joe, there's no need to insist on the right to choose whether or not you would go

[Translation]

like a Sephardic Jew from Quebec in a French school if he so desires or in a school that abides by Sephardic traditions.

[English]

Thank you very much. I understand what you're saying, and I hope you're right.

[Translation]

The Joint Chair (Mr. Denis Paradis): Senator Beaudoin.

Senator Gérald Beaudoin: If I follow your logic, section 93 must be amended. You're saying that if we want to keep a denominational system that it is entrenched in the Constitution such as the one provided under section 93, which currently protects only Catholics and Protestants, we have to extend it to all religious groups.

If we eliminate subsections (1), (2), (3) and (4), it is obvious that we will avail ourselves of a notwithstanding clause contained in the Canadian Charter of Rights and Freedoms.

Which system do you prefer?

[English]

Mr. Joe Rabinovich: I'll answer that.

We believe parents have the right of choice, and that with many parents religion is an important aspect of the education of their child. I am not going to refer to the American experience, the separation of church and state, because we don't have that here.

The system that we would prefer is the following: We would prefer a public system that is completely secularized and is based on language, English and French. At the same time, we would prefer a private system, which we have in Quebec, and that would be the confessional system. Each school would be on its own at public expense, except that the public expense should only be for those elements of the curriculum that are the public curriculum.

So you would have two systems of education. You would have a public secular system with a predetermined curriculum that all the schools would follow, based on language, English and French. You would have a private system, “confessional”, based on the following: The public school curriculum would have to be followed, and you would have your religious curriculum, which would supplement the public one but which would have to be supported not by the state, but by the parents who send their parents to that specific school.

Senator Gérald Beaudoin: But this would be only for private schools.

Mr. Joe Rabinovich: Yes, that's correct.

The Joint Chair (Mr. Denis Paradis): Thank you, Senator Beaudoin.

We'll now go to Peter Goldring.

Mr. Peter Goldring: Thank you very much for your submission.

If I could ask a question, I understand that you're in favour of the amendment to section 93, but with qualifications. Could these qualifications be covered under an amendment to this resolution, an amendment that would state these concerns? Is this something they could consider on this application?

• 1715

Mr. Joe Rabinovich: The answer is no, and I'm being unequivocal on this. Aside from the confessionality, the education curriculum structure is under provincial jurisdiction. The federal government would not have any legal jurisprudence to intervene in terms of the questions you raise. The only jurisdiction the federal government has now in terms of public education is section 93, point final, nothing more. This is what we're living with; this is fact.

Mr. Peter Goldring: So are you prepared to go ahead and agree with this amendment, then, in the hope that this will be done at some point in the future?

Mr. Joe Rabinovich: We debated that question on the way to this hearing. It's a very good question, but I can't give you a direct answer. But let's look at what will happen if this amendment does not go forward.

Bill 109 still allows the imposition of linguistic boards while maintaining a Catholic school commission and a Protestant school commission in Montreal. In reality, that Protestant school commission would dissolve itself into an English or a French board. That's already been stated. The only board that would then exist would be the Montreal Catholic School Commission, which I believe would then become

[Translation]

an old stock Quebec school board.

[English]

This is what I project would happen. It would become a French Catholic school commission and an English Catholic school commission, because the English Catholics are very adamant about maintaining their religious identity. Immigrants coming into the province and integrating into Quebec would be going to a French school board.

Look at the choice a parent would have: If I live in Montreal and we don't have this amendment—and as an English-speaker, don't forget that I have the right to choose to send my child to an English school or a French school—I can send my child to an English school in an English school board; I can send my child to an English school in a Catholic English school board; I can send my child to a French school in a French linguistic school board; or I can send my child to a French school in a French Catholic school board. That's all in the same territory, and that's the way we can put in Bill 109. Some choice, eh?

Mr. Peter Goldring: I can recognize the complexities. But I repeat again that if these provisions are not being provided to cover your other concerns, would it be fair to say that you would then not be in agreement with this amendment to section 93 if you didn't have assurances? You don't have assurances that this protection will be given. Is it my understanding that you're not in favour of this amendment because the concerns haven't been addressed?

Mr. Joe Rabinovich: No. We are in favour of the amendment “provided that”, and we understand that the “provided that” cannot come from this body, it has to come from the provincial government. What we have to do is take not a leap of faith, but we have to have some encouragement that if the Quebec government is to respond both politically and educationally to the demands or the wishes of the Canadian Quebec population, it will either do it for everybody or do it for no one.

You're asking me if I'm in favour of it if I don't get that guarantee. I'm in favour of it because I also believe, from another point of view, that for the survival of English education in Quebec, it is extremely important that it consolidate its forces as well under linguistic school boards. Right now we have situations in Montreal in which we have an English school on one side of the street with 300 students, and another English Catholic school on the other side of the street with 45 students. If you combine both, you can have one school with a good curriculum providing all the necessary resources. Right now, that smaller school is not providing what it should be providing. So from an English-language point of view, the amendment is needed.

Mr. Peter Goldring: Thank you for that.

The Joint Chair (Mr. Denis Paradis): Ms. Marlene Jennings.

Ms. Marlene Jennings: Hello, and thank you.

I have just one question that I would like to ask of you, and it's in response to some points that Mr. Monahan brought up. He indicated that for a constitutional amendment of this type, Parliament has a responsibility to determine whether or not a true consensus exists among that class of persons whose rights are going to be diminished or taken away.

• 1720

Given the Jewish Congress's active participation in the entire debate that has taken place over the last 30 years as to whether or not we should have linguistic school boards or denominational school boards and how that should play, the whole bit, do you feel that there is in fact a consensus among the majority of the classes of persons who would be affected by such an amendment?

Mr. Joe Rabinovich: The answer is unequivocally yes. I was part of the chamber's task force a few years ago. We toured the entire province and we questioned the different communities about this. The strong majority, over 75%, were in favour of linguistic boards.

The Joint Chair (Mr. Denis Paradis): I will take just a few seconds to tell you that they've just announced that we'll have a vote in the House of Commons in a few minutes. So we'll go with the MPs before and then afterwards we'll proceed with the senators.

Mauril Bélanger.

[Translation]

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

[English]

I want to ask you a question, Mr. Rabinovich, but first I want to mention that the situation you describe as to your choices is analogous to the situation that exists in Ottawa right now—it's not all that bad and it seems to work somewhat. Oh, there's some griping about it, but let's not make a mountain out of it, either.

The question I want to ask you, sir, is following up on Mr. Goldring's question, which you really didn't answer. I've appreciated your forthrightness, and I will ask you again to consider the following.

This committee has to make a recommendation to its colleagues in the House and in the Senate to make a recommendation either for or against the amendment of section 93. That is the limit of our task. You are suggesting that we do it, but with a proviso. You've said and you've agreed and you've concluded that we can't deliver on that proviso. It's not in our bailiwick. So scrap the proviso. What is your recommendation?

Mr. Joe Rabinovich: My recommendation is to recommend the passing of the proposal from Quebec.

Mr. Mauril Bélanger: Without the proviso?

Mr. Joe Rabinovich: Yes.

Mr. Mauril Bélanger: Thank you, sir.

[Translation]

The Joint Chair (Senator Lucie Pépin): Mr. Godin.

Mr. Yvon Godin (Acadia—Bathurst, NDP): If I understood correctly, you said that you travelled around Quebec.

Mr. Joe Rabinovich: That's right, we visited the anglophone community.

Mr. Yvon Godin: And they said that they agreed with the linguistic aspect.

Mr. Joe Rabinovich: Yes.

Mr. Yvon Godin: But did they say that they agreed with the linguistic aspect, but with guarantees for the denominational schools?

Mr. Joe Rabinovich: According to our feedback, some people were in favour of the amendment process providing that the provisions of Bill 107 were maintained, because Bill 107 guarantees the denominational nature of schools.

The Joint Chair (Senator Lucie Pépin): Thank you. Senator Lavoie-Roux.

Senator Thérèse Lavoie-Roux: I would like to make a correction. I would like to correct an historic fact which you perhaps are not recalling correctly.

You talked about the immigration of francophone Sephardic Jews to Quebec. You said that they were obliged to go to Anglo-Protestant schools because, at that time, there were no French schools in the Protestant system. Perhaps you do not remember this, but at that time I was with the Montreal Catholic School Board and we created a school for Sephardic Jews. At first this school was attached to the Saint-Antonin school. A short while later, for one reason or another, there was a little bit of a falling out. There was a problem with the food eaten by the Sephardic Jews and, finally, I think that they were given the Maimonide school, which was on côte Saint-Luc. I think that the CECM was there, and that this was not done on behalf of the Catholic anglophones but on behalf of the Jewish francophones.

I therefore find that it is an exaggeration to state that we didn't concern ourselves with the others because there were denominational school boards.

Mr. David Sultan: Madam Senator, with your permission, I would like to say that I went to that school myself.

Senator Thérèse Lavoie-Roux: Yes? I imagine you're just about the right age for that.

Mr. David Sultan: I would simply like to say that the Malmonides school was founded in 1967, after the Quiet Revolution, thus it was after the opening of the Montreal Catholic school board schools to francophones in general, whether they were Catholic or not. This was not in the early fifties. It was a bit later, after the Quiet Revolution.

• 1725

Senator Thérèse Lavoie-Roux: I know that this was not in the early fifties. I was not with the Montreal Catholic school board in the fifties.

Mr. David Sultan: I am sure of that.

Senator Thérèse Lavoie-Roux: It was especially because I wanted you to notice that there had been a certain opening up. I would also very much like to pay tribute to Pierre Carignan, a great democrat who said that we must make room for others. He was chairman when I was myself vice-chair. It was at that time that we began to be aware that there were also Greek Orthodox people and others...

You say on the same page but a little further down that the funding of denominational private schools—because there are a certain number of denominational Jewish schools in Montreal—has greatly decreased. Would you tell us how much it has decreased, and what the highest level of funding was previously?

Mr. Joe Rabinovitch: When the private schools act was first implemented, private schools received approximately 80 per cent of the funding public schools received. Now, 25 years later, private schools only receive 50 per cent of what public schools receive.

Senator Thérèse Lavoie-Roux: So there was a decrease of about 33 per cent.

Mr. Joe Rabinovitch: That is a very substantial decrease.

Senator Thérèse Lavoie-Roux: In the school system as you would like to have it, would you want Jewish denominational schools? Do you think that the Jewish community would continue contributing something to private schools...

Mr. Joe Rabinovitch: Absolutely.

Senator Thérèse Lavoie-Roux: ... and also to public schools, as is still being done, even if it were proportionately less?

Mr. Joe Rabinovitch: Yes, yes. Absolutely.

Mr. Frank Schlesinger: The religious aspect will always be funded by private individuals and by the Jewish community. The public education part will be financed by the public.

Senator Lavoie-Roux: And how does that actually balance out within a school?

Mr. Joe Rabinovitch: The Jewish curriculum, so to speak, probably represents about 15 per cent of the present curriculum.

Senator Thérèse Lavoie-Roux: Yes.

Mr. Joe Rabinovitch: Which means the standard curriculum makes up about 85 per cent.

Senator Thérèse Lavoie-Roux: It might be a good thing for our colleagues who don't come from Quebec to know that Quebec was perhaps the most generous of all for private schools of other religious denominations, whether they were Jewish schools, or Orthodox or Armenian ones.

Mr. Joe Rabinovitch: I would like to say that there is a very similar system in Alberta, and it may even be a little bit more generous towards private schools.

Senator Thérèse Lavoie-Roux: They have more oil than we do. We just have water.

Some Hon. Members: Ah, ah!

Senator Thérèse Lavoie-Roux: I thank you.

Mr. Joe Rabinovitch: You're welcome.

[English]

Senator Jerahmiel Grafstein: I'm fascinated by this, because we had a struggle for subsidies of the non-Catholic, non-separate schools and that struggle continues. We haven't won that battle yet.

I want to go over some of the ground. What you're really recommending, as I understand it, is an equality model. You're saying remove 93, which is not equal but provides a preferred position, if you will, a selected right to a particular group. All of a sudden you have a level playing field of equality, and if you take a look at section 41 of the Quebec Charter of Rights, it says, as I quote from your brief on page 8, that parents or persons acting in their stead have a right to require that in the public educational establishments their children receive a religious or moral education in conformity with their convictions, within the framework of the curricula provided by law.

So they're talking here, at least in the Quebec charter, of a denominational type of public school system. You've talked about a private versus a public. I just want to focus on the equality model as it relates to the public school education as proposed to Quebec. You say, if I follow your argument, I am comfortable, we are comfortable, minorities other than Catholic or Protestant are comfortable with relying on the charter, provided in effect in the education bill there is a per capita or a formula that's fair and equal.

Mr. Joe Rabinovich: Absolutely.

Senator Jerahmiel Grafstein: So you do not under that model require a notwithstanding. The notwithstanding in effect inhibits that, because it may inhibit the effect of section 41 of the Quebec charter.

Mr. Joe Rabinovich: Correct.

• 1730

Senator Jerahmiel Grafstein: I'm not sure how that would work, but essentially, what you're saying is this: without the notwithstanding, give us the Quebec charter, give us the federal charter and give us equality as it applies to 109.

Mr. Joe Rabinovich: Exactly.

Senator Jerahmiel Grafstein: So this is really truly, if I'm looking at it as an equality model—and we've heard from the Reform Party about the desire across Canada to have an equality model.... This would really be the equality model.

Mr. Joe Rabinovich: Absolutely.

Senator Jerahmiel Grafstein: Then when it comes to the funding, the various groups could then rely on—and I put this to our earlier witnesses—where numbers warrant to justify the per capita equality.

Mr. Joe Rabinovich: Correct.

Senator Jerahmiel Grafstein: If there's a small group, it's pretty hard to get treatment, but if the group emerges and becomes a viable group, whatever that viability, and the viability's pretty low—

Mr. Joe Rabinovich: Yes.

Senator Jerahmiel Grafstein: It could be 100 students, it could be 75. We're not talking about a dozen, but about something reasonable to establish a class size, as an example, or a couple of class sizes. That's the model you're recommending.

Mr. Joe Rabinovich: Yes.

Senator Jerahmiel Grafstein: And it strikes me that now I want to ask the consensus question, because the earlier witness said that we in Parliament have to satisfy ourselves that from the minorities affected.... And the minority really isn't the Catholic minority, it's really the Protestant minority. Focusing on the Protestant minority, in effect I assume that a majority of that minority is in favour of this equality model.

Mr. Joe Rabinovich: Absolutely. We even have a few letters to that effect.

Senator Jerahmiel Grafstein: From the Protestant side, we've heard from the Protestant school board. We've heard from the Catholic school board, from the Catholic teachers, from Alliance Quebec and from the students' alliance, which is essentially francophone. We've heard from the Arab coalition, which is essentially saying the same thing you are. We even have the archbishops saying they're not opposed. They're not in favour of it.

It sounds to me—and this is the test that Monahan put to us and it's a question of fact—as if we in Parliament must establish as a question of fact whether or not we're satisfied that there is a consensus amongst the minorities affected, and it strikes me that we had that. You're saying, based on your evidence, that it's there based on your examination of it in the field.

Mr. Joe Rabinovich: Yes. I'm even going to give you more direct evidence. Perhaps we should table this. I have a letter addressed to Madame Pauline Marois from the Anglican bishop of Montreal, the Right Reverend Andrew Hutchison, who confirms everything I said in terms of the Protestants and their willingness to conform to what you said as well, in terms of consensus. The letter is right here.

Senator Jerahmiel Grafstein: At the end of the day, aside from the suspicions that some of us may have had, taking the Quebec government at face value, not in its legislation.... Because you have a second last sentence that says: “Nonetheless, the Quebec government intends to maintain a school system which limits confessional instruction to Catholics and Protestants.”

What you're saying, as I understand it, is that the minister—and we're going to hear from the minister tomorrow—has said equality, but the legislation seems to have an inhibiting factor. But if we take the minister at face value as a public servant, I assume you're satisfied that the minister will fulfil his public undertaking and implement that in the implementing legislation. Then we have true parents' choice, true equality.

Mr. Joe Rabinovich: Your comments are correct, but if you're asking me if I believe at this time that the minister will amend Bill 109 to ensure that equality is extended to all religious minorities, I am not that confident at this point.

Senator Jerahmiel Grafstein: So the only way he can break his word is to set up the nothwithstanding clause.

Mr. Joe Rabinovich: Absolutely.

Senator Jerahmiel Grafstein: So he has to use the notwithstanding clause to move away from equality in the province of Quebec. So you would have a pretty strong political argument to make if he uses that as a Trojan Horse against equality.

Mr. Joe Rabinovich: Absolutely.

Senator Jerahmiel Grafstein: Thank you.

The Joint Chair (Senator Lucie Pépin): Thank you, Senator Grafstein. Senator Robichaud.

Senator Fernand Robichaud (New Brunswick, Lib.): I have a few problems following what you are saying. You agree with the amendment to 93, provided that the province doesn't give particular classes of people special privileges that will not be extended to other people. You've just said that you don't believe the province will go in that direction. How can you say you approve when you don't know what is going to happen to you? You obviously have a lot of faith that things are going to work themselves out in the meantime.

Mr. Joe Rabinovich: Maybe in a sense we look at it as the lesser of two evils. I think the status quo is a worse situation than the amendment to section 93.

Senator Fernand Robichaud: Okay.

• 1735

Mr. Joe Rabinovich: So if you ask me for comparisons, I'm proposing this position because I believe the status quo is not as “acceptable” as going with the amendment.

The Joint Chair (Mr. Denis Paradis): Thank you very much, Mr. Rabinovich.

Mr. Frank Schlesinger: We are tabling two letters. There is also a letter we've included from the Christian Jewish Dialogue, which purports also to support the position taken by the Jewish community. They have been given to the clerk, who is making copies of them.

The Joint Chair (Mr. Denis Paradis): On behalf of the members of this committee, I would like to thank you very much for your appearance today before the committee, and for your comments.

[Translation]

On a point of order, senator Dalia Wood.

[English]

Senator Dalia Wood: Mr. Chairman, I want to ask why the pasteurs franco-protestants refused a viewing here. On October 22 they wished to appear before us. Now we have a letter from the Protestant pastors.

The Joint Chair (Mr. Denis Paradis): Senator Wood, we will proceed with your point of order afterward. We will adjourn now. There is a vote in the House of Commons. We will proceed with your point of order when we resume the hearings.

Senator Thérèse Lavoie-Roux: I have a point of order too. Why is it that Gary Caldwell cannot be heard? Will we discuss that after—

The Joint Chair (Mr. Denis Paradis): We will take note of your points of order when we resume hearings.

[Translation]

This hearing is suspended to allow for the vote in the House of Commons.

• 1737

• 1816

The Joint Chair (Mr. Denis Paradis): We are resuming the hearings of the Special Joint Committee to amend section 93 of the Constitution Act, 1867, regarding the school system in Quebec, pursuant to the Order of Reference dated October 1, 1997.

Before giving the floor to our first witnesses, I'll hear a point of order from senator Dalia Wood.

[English]

Senator Dalia Wood: Mr. Chairman, we've had a request from the pasteurs franco-protestants and we've turned them down. I would like to know why we have, when they asked on October 16 to come here.

[Translation]

The Joint Chair (Mr. Denis Paradis): Madam Joint Chair.

The Joint Chair (Senator Lucie Pépin): I think, Senator Wood, that we already heard Mr. Caldwell when he appeared with another association.

Senator Dalia Wood: The Franco-Protestant pastors did not come.

The Joint Chair (Senator Lucie Pépin): We've tried to accommodate as many witnesses and committee members as possible and we feel we have heard their points of view. Perhaps we haven't heard this specific group, but its point of view has been expressed and reiterated by others. This is not because we wanted specifically to eliminate them, but I think that their point of view has been presented by other groups.

We submitted the schedule to the committee members on Tuesday morning at 9:00 a.m. and they all told us they were satisfied with it. They also expressed their satisfaction with the witnesses whose names were on the lists. So, I am very sorry. This isn't because we do not want to accommodate you, but we don't have enough time. We feel that their approach has been...

Senator Thérèse Lavoie-Roux: Give us one more week, and we'll have the time.

The Joint Chair (Senator Lucie Pépin): You would like to sit during the adjournment?

Senator Thérèse Lavoie-Roux: Yes, I'd have no problem with that.

The Joint Chair (Senator Lucie Pépin): I am sorry, Senator Lavoie-Roux, but we discussed this here, in committee, and everyone agreed on Tuesday.

An Hon. Member: Exactly.

The Joint Chair (Senator Lucie Pépin): Senator Grafstein.

[English]

Senator Jerahmiel Grafstein: First of all, people have briefs, Madam Chairman. If people have briefs and they're not able to attend, as long as they're in French and English, I just undertake that I will read them, and I have read every brief that's been submitted so far. So the fact is that if you're not able to hear them, at least it's important that we get briefs so that we have an opportunity to receive their information. I don't care if it's five pages or fifty pages. I'm just telling you that, from our side, we intend to read everything, and we've read much more than the briefs that have been presented here.

There's lots of information in Quebec and from the parliamentary library that provides a great store of information. I've got about a foot and a half, and I'm about a third of the way through it. I hope to complete it before we table our report.

There should be no representation that isn't made available to every member of the committee. If we can't physically hear them, that's something, a question, we have to weigh. That's up to the chair and the group. But clearly we should have all those briefs in our hands before we go to draft our report.

• 1820

Senator Dalia Wood: I understand we've had the Quebec bishops here. We have not had the pastors, which is completely different. Everybody tells me the bishops are here. They're not bishops; they're pastors, they're Protestant pastors, and I would like to see them here. You have not heard them.

Senator Jerahmiel S. Grafstein: We did not hear the bishops, Mr. Chairman. Just to correct them, we received a letter from the bishops stating their position, and we have received representation from Catholic pastors, or fathers. I'm not sure what the Protestant situation is.

Clearly, let's get the information.

The Joint Chair (Mr. Denis Paradis): You're absolutely right, Senator Grafstein. As we welcomed a letter from the bishops, we will welcome a report from the association you're referring to. I think it's very important that any association that would like to intervene can do it with a mémoire.

[Translation]

Ms. Lavoie-Roux.

Senator Thérèse Lavoie-Roux: I'd like an explanation of why we're refusing to hear Mr. Caldwell. You will answer me that he came with some coalition or another. I was not there; this is not your fault, but mine. He wants to come and testify as an individual witness and talk about the States General. He is a sociologist, an intellectual as people say, and I'd really like to know why we are refusing to hear him.

The Joint Chair (Mr. Denis Paradis): Mr. Ménard.

Mr. Réal Ménard: Mr. Chairman, I think that we should show some respect to all the witnesses as a whole. Mr. Caldwell came. He is a dissident in the States General. If we want to be logical, we should invite people who will express the majority point of view of the States General. And he has been heard. You agree with me on that point?

Senator Thérèse Lavoie-Roux: We haven't heard him regarding the States General.

Mr. Réal Ménard: Madam Senator, are we going to start hearing the same witnesses three times?

Senator Thérèse Lavoie-Roux: We had the Aboriginals, who came twice.

The Joint Chair (Mr. Denis Paradis): I'm hearing Mr. Ménard right now, Madam Senator.

Mr. Réal Ménard: Mr. and Madam Chairpersons, we've also had the Franco-Protestant point of view. No one can deny that the Franco-Protestants, through two associations, have come to speak to us. I have no problem with that, but we cannot say that they did not come.

Thirdly, we have time constraints.

Senator Thérèse Lavoie-Roux: These were imposed on us.

Mr. Réal Ménard: And for a good reason, Madam.

Senator Thérèse Lavoie-Roux: No, there is no excuse.

Mr. Réal Ménard: Yes, there are excuses.

The Joint Chair (Mr. Denis Paradis): We're discussing a point of order raised by Senator Dalia Wood and now I'm hearing Mr. Ménard.

Mr. Réal Ménard: Mr. Chairman, you should always remind those who tend to forget that we are bound by a formal motion to table a report: we can't overstep our deadline; this report has to be tabled on November 7.

Senator Thérèse Lavoie-Roux: This must absolutely go through on November 7 to please the Parti Québécois.

Mr. Réal Ménard: Yes, Madam. And even if once in your lifetime you happen to please the PQ, you're not going to die from it.

The Joint Chair (Senator Lucie Pépin): Madam Senator, I would simply like to remind you that the agenda with the names of the witnesses was submitted to all committee members on Tuesday morning and that the committee members accepted the agenda that you have before you. So, I am very sorry; it is not that we want to hear one person rather than another; it is because we really feel that we have heard their approach. We are trying to hear everyone, but we don't want any redundancy. I am very sorry.

The Joint Chair (Mr. Denis Paradis): I'll also add this. Today we got a request both from the Government of Quebec and the Official Opposition in Quebec asking to be heard tomorrow. It is important to hear them because they are the ones who adopted the motion. We have spared no effort to find a slot in tomorrow's agenda tomorrow to hear both the Quebec Government and the Official Opposition.

Senator Thérèse Lavoie-Roux: They both agree; we can only hear one of them.

The Joint Chair (Senator Lucie Pépin): Listen, it's the committee that requested to hear them. We took steps to get this done. I am sorry, but I think that the debate is closed.

[English]

Ms. Val Meredith: Where were we? We're wasting time. There are witnesses who are waiting to be heard, and I think we should move on.

The Joint Chair (Mr. Denis Paradis): Ms. Meredith, thank you very much. We will proceed with the orders of the day.

[Translation]

We are pleased to welcome the Mouvement laïque québécois, represented by Daniel Baril, its chairman, Luc Alarie, its legal counsellor, and Yves Archambault, member of the board of directors.

Gentlemen, welcome.

• 1825

Mr. Baril, we're listening to you.

Mr. Daniel Baril (Chairman, Mouvement laïque québécois): Mr. Joint Chair, ladies and gentlemen, Members and Senators, as its name implies, the Mouvement laïque québécois is an organization that is dedicated to defending and promoting the secularization of every sphere of public life.

Our group includes individuals and organizations of varied religious, political, ideological, linguistic and ethnic backgrounds, and they are all without exception in favour of secularization.

Our action to promote secularization is based on respect of the fundamental rights recognized in the Canadian and Quebec charters. The Canadian Charter is our strongest argument here, and it is because the rights enumerated in sections 2 and 15 must be respected that we have come here to support the Government of Quebec in its request to have section 93 amendes.

We support this move not because Quebec's intent is to secularize the school system, contrary to what the newspapers report, as they have not yet understood that this is not a question of secularization, but because the request made by Quebec to implement a linguistic school structure will bring to the Quebec school system a structural basis that answers to present-day sociological reality, and this will allow it to better respond to our present needs.

We believe in the consensus that has been expressed many times regarding this by the population, whether it was during the States General on education, during the various parliamentary Committees that sat over the last ten years, the Royal Commission of Inquiry, the Parent Commission of 1966, or during the various surveys carried out regarding this matter. The last survey which was done by the Sondagem firm indicates that 88% of the population, putting all the languages and religions together, prefer that their children go to non-denominational schools, whatever the religion of the parents. This survey is the second basis for our argument.

In our minds, last week's opponents have little weight when compared to this 88% of the population representing millions of persons who have no lobby, no pressure group to make their voices heard. The surveys are their only opportunity to express their opinion.

The reform requested by Quebec would also make the school system more democratic by getting rid of some of the denominational constraints which are a source of discrimination. The Canadian Charter of Rights and Freedoms recognizes, under section 2, the basic freedoms of religion, thought, belief, opinion and expression. It also recognizes, under section 15, that:

[...] all have a right to enjoy the same protection and the same benefits of the law, independently of any discrimination, among others discrimination based on [...] religion.

Section 93 runs counter to the constitutional provisions because it grants privileges to two particular religions. The accommodations and the laws that flow from this section deny the right to freedom of conscience and the right to equality of religions. By suspending these liberties in schools, section 93 has the weight of a notwithstanding clause. But whereas the notwithstanding clause provided for by section 33 has a maximum duration of five years, the virtual notwithstanding clause of section 93 is permanent and without appeal.

Section 93, to our minds, would not resist a Supreme Court challenge if it were not enshrined within the Charter itself in section 29. This inherent contradiction in the Charter limits fundamental rights in an unacceptable manner in a free and democratic society.

The various denominational arrangements of the Quebec school system, as they were developed over the years based on section 93, finally went well beyond the obligations flowing from that section. These arrangements are also in contradiction with the charters, so much so that the government of Quebec has had to have formal recourse to the notwithstanding clause of both charters to maintain them. So this is an admission that denominational schools go against fundamental rights.

Section 93 moreover applies in a different manner depending on where you live, be it either in Montreal or Quebec or elsewhere in the province. Citizens of Quebec have different constitutional rights according to the city where they live. In certain parts of the Island of Montreal, it even depends on which side of the street you live on. This sole aberration is in itself sufficient to rescind section 93.

You can't at one and the same time agree with the basic freedoms recognized by the Charter of 1982 and be in favour of maintaining section 93, which suspends these same freedoms.

Recourse to the notwithstanding clause in a much less basic area than education, namely commercial signs, raised very acute social tensions. We don't see why this clause should be more acceptable where public schools are concerned.

Wanting to maintain section 93 because of the fact that it exists is a very weak argument when we look at the discrimination problems that it entails. Acquired rights must be evaluated on their merits and not be considered as untouchable. Let us remember that before slavery was abolished, owners had the right of life and death over slaves.

• 1830

In the U.S., those who opposed the abolition of such a regime were by the very same fact opposing the then-emerging notion of human rights, and they provoked a bloody civil war in the name of tradition and the acquired rights. If our societies were built on this principle of acquired rights, there would have been no social progress and we'd still be back in prehistoric times.

Those groups that come before the committee to say that their language rights are threatened are barking up the wrong tree because this is not at all what Quebec's request is about.

Linguistic school rights, as a matter of fact, are defined under section 23 of the Charter, which applies and has always applied in Quebec.

Most of the opponents, however, are not against the principle of linguistic school boards. As they know that Quebec is very determined in this regard, they are counting on section 93 being maintained, and they hope in this way to enjoy the benefits both of linguistic school boards and linguistic networks within the already existing denominational school boards.

All this is very clear in speeches made by the leaders of the anglophone community, such as the lawyer Julius Grey, sociologist Gary Caldwell, who already came here, and the representatives of Alliance Quebec.

This double system had for a while been considered in Quebec, but it was abandoned because it would have led to a ghettoization that would have been unmanageable and would have created chaos in the school system, especially in Montreal.

And those, moreover, who say that they fear for their freedom of religion as minorities are also a mistaken. The denominational nature of the school system is not a corollary of religious freedom. On the contrary, the principles of freedom of religion, conscience and of equality of religions impose neutrality on the State. That is what is called secularization, which becomes then the guarantor of these said freedoms.

Section 93 applies only to the Catholic and Protestant religions. On the Protestant side, apart from a few fundamentalist schools, the network is in fact non-denominational. The Protestant committee of the Superior Council of Education itself declared that "denominational schools are a ball and chain". A whole part of the work of Nathan Mair, our exhibit number 3, published by the Protestant committee of the Superior Council of Education, illustrates the fact that the Protestant network is not denominational.

Until the 1990s, the regulations of the Protestant committee moreover forbade so-called Protestant schools from offering any denominational religious instruction. And this same reality still prevails today. This is why almost all Jews in public schools are in Protestant schools, as the schools are in fact non-denominational. So we therefore cannot see how we could invoke section 93 in their case to maintain something that does not exist.

Now there remains the Catholic network. Catholics make up 86% of the population of Quebec. This is a big minority.

So we must put things back into perspective. Section 93 is the one which permits majorities to decide on the rights of minorities and not vice versa. The request to repeal this section cannot be seen as a request from a majority who wants to cut back on the rights of a minority.

Religious minorities have nothing useful to gain from section 93. On the contrary, this section limits their sole recourse to the Charter, to section 2 and section 15. Not only have they nothing to gain from it, but section 93 removes their possibility of exercising their right to equality of religion and freedom of conscience.

In Canada and in North America as a whole, Quebec is an exceptional case with its denominational school system. The request to rescind section 93 would not have the effect of giving it any special status; it would, rather, allow it to have a school system comparable to what already exists elsewhere in Canada and in the United States.

In British Columbia, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island and the Yukon, the public school system is non-denominational. In Ontario, Alberta, Saskatchewan and the Northwest Territories, there is a separate Catholic school system, but the public school system is as a rule non-denominational.

In Ontario, the Court of Appeal even declared that religion in public schools is against the Constitution. Only in Newfoundland can we find a system comparable to the one in Quebec, and the population wants to get rid of it. This data doesn't come from an evaluation made by the Mouvement laïque; this is drawn from a document of the Catholic committee of the Superior Council of Education, word for word.

Here is our fourth exhibit. The Catholic committee also took note of the fact that the American school system is essentially non-denominational, as in France and in Mexico. However, in the other Canadian provinces as well as in the American states, we don't see devotees of religions complaining about any infringement on their right to religious freedom by the non-denominational nature of public schools.

• 1835

The Catholic committee has also looked into the situation in various European countries. Even where schools allow a certain latitude for religious teaching, it was unable to find a single country where the situation could be compared to that of Quebec, that is to say with denominational administrative territories, and denominational committees appointed by the clergy within a department of education, denominational legal status for schools, denominational education decided on by the majority of the parents, school ministry, and, obviously, denominational religious instruction, all of this being protected from fundamental rights by a notwithstanding clause.

In multilingual countries such as Switzerland and Belgium, language is the main factor in organizing a school system, and not religion. Therefore, we're not asking for any particular status for Quebec, but for the possibility of setting up a system comparable to those existing elsewhere in Canada.

Section 93 was adopted when charters of rights were non-existent. It is up to you now to bring things up-to-date and to decide whether this notion of fundamental rights, as found in the Charter of 1982, should have priority, or whether it should be the notion of an old approach dating back 130 years which no longer corresponds to the reality of today. If you agree with these rights as they were newly formulated in 1982, and sections 2 and 15, you cannot agree to maintain section 93.

It is up to you to make sure that Canada can catch up with the modern world by allowing its provinces to obtain this essential and fundamental instrument, namely a school system adapted to the needs of today.

To conclude, I am pleased to deliver this message to you from Professor Guy Rocher, from the Centre for Research on Public Law at the University of Montreal, who was also a member of the Parent Commission in the 1960s and who has continually observed the way that the school system has evolved. As it was impossible for him to come, he mandated the Mouvement laïque to deliver this message which has been appended to our brief and tabled this afternoon.

He puts forward four basic principles in the conclusion to the Parent report. I'll direct your attention to the fourth one:

Finally, the members of the Parent Commission came to the conclusion that school boards were not, and should no longer be, denominational entities. It appeared clearly to us that the vast majority of school boards were then common and not denominational [...]

and this is outside of Montreal and Quebec,

[...] administering Catholic or Protestant schools according to whether the majority of the population was Catholic or Protestant. One of the chief exceptions was nonetheless the Catholic School Board in Montreal as well as the Protestant School Board of Greater Montreal, whose denominational character was guaranteed by the British North America Act [...]. Based on the lengthy and broad consultation that our Commission held, we believed, in the early 1960s, that the vast majority of the Montreal population, both Protestant and Catholic, would accept that this privilege be abandoned, as its basis seems to be increasingly doubtful.

This was in 1966.

The Parent Commission even went so far as to recommend replacing denominational school boards with unified school boards, which would have been neither denominational nor linguistic, as each one could administer, according to the needs of its population, Catholic schools, Protestant ones, non-denominational schools, English and French.

Regarding this fourth principle, we're obviously seeing a story that has not yet ended. This story is already a complexe one, full of incidents and unexpected turns of events. This story is also made up of many hesitations from successive governments, who nonetheless each one in turn sought to put a bit more order into the anarchy that had been reigning for a long time in the organization of schools on the whole territory of the Island of Montreal.

It would be an illusion to think that these changes are unanimously supported.

But the present situation is characterized by the fact that we can finally observe that there is a unanimous position taken by the highest legislative authority in Quebec which, being conscious of the reticence of certain parties and by taking these into account, has voted a specific proposal. We can finally see the light at the end of a long tunnel and hope to modernize the school structures, while still respecting the rights and aspirations of all segments of the population.

We put forward these requests in 1966 and for over 30 years section 93 has prevented their implementation. I thank you.

The Joint Chair (Mr. Denis Paradis): Thank you very much, Mr. Baril. Our first intervener will be Val Meredith.

[English]

Ms. Val Meredith: Thank you, Mr. Chair.

Thank you for coming out this evening. I am curious to know exactly who you represent. You say it's a non-profit organization that's been registered since 1981. Does it cross boundaries? Do you represent different interest groups or individuals?

[Translation]

Mr. Daniel Baril: It's both: individuals, as we indicate, who agree on secularization of public social structures and, on the other hand, organizations, mainly teachers' unions, who are in agreement with the objectives we pursue.

• 1840

In fact, there are no other organizations that can speak for those who are without religious allegiance. The Mouvement laïque is not a grouping of atheists. On the other hand, it does happen that we speak in their name. That's why we make the point in our brief that in Quebec you do have 4% of the population, according to Statistics Canada data, that say they are without religion, which is a higher percentage than the percentage of all those belonging to the eight Protestant Reform Churches. In fact, we have people of all allegiances: Catholics, Protestants, non-believers and people without religion are members of our organization.

[English]

Ms. Val Meredith: You refer in your brief to various parliamentary commissions that have been held over the 10 years and various impartial opinion polls, of which the latest one shows that 88% of the population prefer that their children attend common schools. Do you have copies of the other opinion polls that would support your 88% figure or support the consensus gathering of the population of the citizens and that you could table with the clerk?

[Translation]

Mr. Daniel Baril: I think it's feasible. Moreover, representatives from the Coalition pour la déconfessionnalisation du système scolaire will probably talk to you about that tomorrow.

[English]

Ms. Val Meredith: Thank you.

When we talk about whether there is a consensus, whether the citizens of Quebec support what their government is doing on their behalf without a referendum, without them having a direct democratic vote, one has to go on your say, and other groups', that the consensus is there. You've referred to these impartial opinion polls.

If we could have the results of those opinion polls, the questions that were asked, to whom they were asked and then the results of those, I think it might help us understand what the input is coming from the population. If you could find some of those results and table them with the clerk, I would appreciate that.

[Translation]

The Joint Chair (Mr. Denis Paradis): Thank you, Ms. Meredith. The next intervener will be Senator Beaudoin.

Senator Gérald Beaudoin: You want clauses from (1) to (4) of section 93 repealed so that all that will be left will be the introductory paragraph providing that education is exclusively a provincial jurisdiction. For the rest of it, I imagine that you will simply refer yourself to the Charter of Canadian Rights and Freedoms and the Quebec Charter of Rights and Freedoms. Do you foresee that it will be necessary to use the notwithstanding clauses and what will your attitude be once denominational rights have been set aside?

Mr. Daniel Baril: That won't be the case.

Senator Gérald Beaudoin: You are saying that it will be...

Mr. Daniel Baril: Presently, there are privileges that have nothing to do with fundamental rights, those privileges being the rights of the Catholics and Protestants to have denominational public school systems all the way from the ministry to teaching in the schools.

Once that privilege has been withdrawn, you are asking...

Senator Gérald Beaudoin: I imagine we would have a unified school system.

Mr. Daniel Baril: The legislation the government wants to apply, by asking for the repeal of section 93, is simply a geographic distribution of the clientele on a language basis. The rest of denominationalism is still there: the schools remain denominational, with a denominational status, a denominational educational project, denominational religious teaching. All that remains.

If you're asking us what we think of all that, of course it's not...

Senator Gérald Beaudoin: You say that all that remains in place?

Mr. Daniel Baril: Absolutely. The PSBGM representatives said that they need the notwithstanding clause to maintain religious teaching; that's totally false. The right to religious teaching is already provided for in the Quebec Charter. They need the notwithstanding clause if there are only two kinds of religious teaching.

Senator Gérald Beaudoin: But you don't agree with what they were saying on that?

• 1845

Mr. Daniel Baril: No. They were talking about using the notwithstanding clause concerning religious teaching. That is false. If you want to maintain the teaching of both religions only, Catholic and Protestant, then you need the notwithstanding clause. But religious teaching as such is already provided for in the Quebec Charter. That is a right granted to parents. But it's being granted only to two religions because of section 93 or because it's not possible to do otherwise. Here, it can't be done otherwise; it has to be secularized in some manner. But that's not the question on the table. We're discussing linguistic school boards.

Senator Gérald Beaudoin: Yes. In other words, what's on the table is the amendment providing that clauses (1) to (4) be repealed and that the province's exclusive jurisdiction in the matter of education, of course, would remain. That's very clear.

If the amendment passes, then the Quebec Charter of Rights and Freedoms will apply just like section 41, which provides for the teaching of religion. But the Canadian Charter of Rights and Freedoms also applies. Some have come before us saying that they were in favour of using a notwithstanding clause and others not. The latter will go by whatever system then exists.

My question was simply to know whether you would accept the generally applicable legislation after the amendment has passed.

Mr. Luc Alarie (Legal Advisor, Mouvement laïque québécois): Allow me to say a word.

Section 93, in clauses (1) to (4), is in itself a notwithstanding clause. Notwithstanding the principles of equality based on sections 2 and 15 of the Canadian Charter, the maintaining of section 93 is included. So that happens to be a notwithstanding clause and it is contained in the Canadian Charter of Rights and Freedoms.

Those who say that we'd need a notwithstanding clause if section 93 were repealed misunderstand the situation. Finally, what Quebec is asking for is to do away with a notwithstanding clause allowing two religious groups privileges or the maintaining of privileges. That's what we must understand.

The Joint Chair (Mr. Denis Paradis): Mr. Alarie, we will now go to the next intervenor, Mr. Ménard.

Mr. Réal Ménard: This is an extremely interesting and balanced brief which, in my opinion, represents a very broad majority in Quebec. You yourselves have referred to a poll according to which 88% of Quebeckers are of a view quite similar to the one you're expressing here tonight.

I have two questions for you. In this committee there are some people, whose name I shall not divulge, who encourage the idea that there possibly might not be a solid consensus in Quebec on this matter.

The Mouvement laïque québécois has been part of many consultations. You are involved in the area of education, school rights and those matters inherent in this whole situation. You yourselves have presented many briefs. Just so the members of this committee may have a better understanding of the situation, I'd like you to give us an overview of the antecedents of this whole matter of secularization, and not so much secularization as the roots that finally led to this desire for linguistic school boards. I'd like you to show us that this debate has been going on in Quebec for decades.

Second, I'd like you to show the members of this committee how your proposal and the idea of setting up linguistic school boards, in other words the repeal of clauses (1) to (4) of section 93, would further equality.

I think that, fundamentally, you are here tonight to plead in favour of the equality of individuals. It's important that this point of view should be heard.

Senator Thérèse Lavoie-Roux: We've heard it few times.

Mr. Réal Ménard: Yes, but hearing it isn't enough. One must understand. So we'll go over it again.

Madam Senator Thérèse Lavoie-Roux: I think I'm intelligent enough...

Mr. Réal Ménard: More than enough, Ms. Lavoie-Roux. Please address your presentation to the senator.

Mr. Daniel Baril: In fact, as we pointed out when we alluded to the Parent report, this debate has been ongoing since the 60s. The reform was incomplete. The Parent report organized things and gave us a school system matching the needs of the day. It modernized the school network. But its recommendations were not applied in their entirety, more specifically in this matter of school boards. The Parent report gave birth to the polyvalentes (large, comprehensive high schools) and the cegeps (community colleges). The public school system developed in all regions of Quebec and, despite everything said about it, it does have some good qualities. The problems it has are the same as other systems elsewhere.

• 1850

However, we never pushed to the very end on one of the main questions which was that of the non-denominational school board. The Parent report suggested going even further than the Quebec Government's current proposal which was that it suggested unified territories, neither linguistic nor denominational, which is what already exists.

For example, the CECM is denominational but it manages two linguistic networks. The same thing for the Protestant school board. What the Parent report was proposing was that the same school board manage both the francophone and anglophone schools of a given territory. It's quite feasible.

We're still playing catch up with the Quebec government's proposal: if you want linguistic territories, you'll have overlapping, but we're not necessarily protesting that avenue. From our point of view, it would have been preferable to set up unified school boards as they were suggested in the Parent report, but we'll agree on the consensus surrounding the linguistic school boards.

We haven't been able to advance in over 30 years. There have been all kinds of bills, beginning with Bill 107 presented by the Liberal Party at the time Claude Ryan was Minister of Education. Before that, there had been one from the Parti Québécois who, with Camille Laurin, attempted a school reform that was halted by section 93.

After that, the Liberal government, with Claude Ryan as Minister of Education, tried its hand at reform; they took up the Parti Québécois project and tried to make it conform to the Supreme Court's decision on section 93. It was inapplicable. Once again, its bill was debated in the Supreme Court. The following government found that it would not have been manageable, in other words Montreal would have had a layer of four school boards. You would have had up to eight or nine kinds of schools in Montreal if there has been an attempt at respecting section 93.

During the last ten years, all projects ran into that same brick wall. So when you have school board people from the sixties telling us that we should go back to square one and the problem is section 93, then that's a sign that it's time things started moving.

The Joint Chair (Mr. Denis Paradis): Ms. Marlene Jennings.

Ms. Marlene Jennings: Thank you very much. I'm sorry I missed the first part of your presentation, but I can assure you that I have gone through your brief. I find it very interesting. There are members of this committee who still seem a little bit confused about the matter of rights of minorities.

Constitutional experts have told us here that the obligation of the government, either in practice or based on an unwritten rule, is that when a constitutional amendment repeals a privilege or a right of a minority or a group of people, it should verify as to whether the majority of that minority or affected group is in favour of the amendment.

According to what we have heard here, it would seem that this consensus does, in fact, exist. But there seems to be some confusion in the ranks of the members of this committee. Whom does section 93 protect, exactly? On page 4 of your brief you write that the Protestants broadly support the amendment requested by the National Assembly. Then you say: "As for the Catholic network...". Then you explain who the Catholics of Quebec are and what their position in society is, demographically speaking. According to the 1991 census, they represent 86% of the population and they are therefore not a minority. Do you agree with me on that?

Mr. Daniel Baril: Yes, that's what we're saying. We're saying this to answer those who are using the minority rights argument here. They are on the wrong planet. Section 93 grants nothing to minorities. It adds supplementary privileges to the fundamental rights of two religions that are in a majority position in Quebec. We can't understand how things can be twisted in such a way that it is then said that minority rights are being threatened. We just can't see how some have managed to make hay with such arguments for a week here.

• 1855

The Joint Chair (Mr. Denis Paradis): Thank you very much, Madam Jennings.

Our next intervenor is Mr. Yvon Godin.

Mr. Yvon Godin: Mr. Baril, first of all, I'd like to welcome you. I only have one question for you. We're agreed that the repeal of section 93 would automatically entail the disappearance of denominational school boards.

On one hand, you are saying that there will be discrimination against minorities if the schools are denominational. Is that right? Minorities will not have the same opportunity as Protestants and Catholics.

By repealing section 93, with Quebec legislation, at the provincial level, are we opening the door for others, for the people you represent, or are more changes necessary?

Mr. Daniel Baril: If the act remains as it is, yes, more changes will be necessary. Repealing section 93 is essential, but not enough for minority rights to be respected. At present, it is impossible. They cannot challenge the unequal treatment, because the principle of equality is suspended. To be able to grant equal treatment to everyone, we must begin with section 93.

However, it is certain that Quebec legislation contains all kinds of other pitfalls with respect to equality of religions. But here we are discussing section 93, and as I said, it is a necessary but insufficient condition, the condition we must begin with.

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Baril.

Senator Grafstein.

[English]

Senator Jerahmiel S. Grafstein: Thank you for this brief. It is an interesting one. As I understand it, the brief is based on not equality but equality of choice, equality of choice of the parent to choose the system to educate their children in. The parents are able to educate their children according to their choice.

We have some problems with that in terms of the present situation in Quebec, and I'd like to have your understanding of that.

If section 93 goes, essentially what it does is remove a privileged right to Catholics and Protestants in the province. We're left now with Bill 109, and the federal charter and the provincial charter, both of which you support. You support the federal charter and you promote the provincial charter because of equality. That's what your brief says.

We have a problem, which is that when we look at what will be left if we amend section 93, it is the proposed Bill 109. In subsections 7(26) and 7(27), Bill 109 has a notwithstanding clause with respect to both the Quebec charter and the federal charter. So in effect, if we look at the current proposed legislation, we are substituting a preferred right as opposed to an equal right in section 93 to a preferred right as opposed to an equal right in Bill 109.

What's your group's position with respect to the notwithstanding clause in Bill 109, the education bill?

[Translation]

Mr. Daniel Baril: We are the Mouvement laïque québécois. It is clear that in a secular school system, there is no need for a notwithstanding clause, since everyone has equal rights.

But, as someone said earlier, that is not the issue. There is no doubt that there could perhaps be other changes to make. For the time being, we must start with section 93. Nothing can be changed until we start with that. That is what the experts have said over and over again.

Regarding a notwithstanding clause in Quebec legislation, we are not advocating the equality of choice, but the equality of religion and freedom of conscience. If legislation contains things that run counter to that, you can rest assured that next month, we will be in Quebec City to say that a notwithstanding clause is unacceptable.

• 1900

[English]

Senator Jerahmiel S. Grafstein: Just to conclude, your group is equally opposed to a privileged right in section 93 and a preferred right in Bill C-109—the same thing.

[Translation]

The Joint Chair (Senator Lucie Pépin): Go ahead, Mr. Alarie.

Mr. Luc Alarie: All I wanted to say was that the notwithstanding clauses that currently exist in Bill 109 are there because of section 93. If section 93 were to disappear, it would not be necessary to grant preferred rights in Bill 109.

[English]

Mrs. Sheila Finestone: It's there to be able to put Catholic schools at the base.

Senator Jerahmiel S. Grafstein: It's substituting section 93 for a Quebec form of section 93.

Mrs. Sheila Finestone: Exactly.

Senator Jerahmiel S. Grafstein: I see my colleague Senator Beaudoin agreeing with me.

[Translation]

The Joint Chair (Senator Lucie Pépin): Senator Lavoie-Roux.

Senator Thérèse Lavoie-Roux: Hearing from and meeting with the Mouvement laïque québécois takes me back a long way. It is not new.

Mr. Luc Alarie: You are one of the initial signatories.

Senator Thérèse Lavoie-Roux: I do not think so. But people did try to get me involved.

Senator Gérald Beaudoin: You did not succeed in getting her involved?

Senator Thérèse Lavoie-Roux: No, because... You may find this funny; at the first meeting I attended, we were given copies of the Canard enchaîné, which I did not know at the time—I was in my early 20's—and which contained attacks against the Church, etc. I did not like that. At any rate, as you say in English, it's beside the point.

You say that according to a Sondagem survey, roughly 80%... That is what I believe you said, but I may be mistaken. I think that 88% did not want religion in the schools. Is that what you said?

Mr. Daniel Baril: Is that your question?

Senator Thérèse Lavoie-Roux: No, but I wanted to check whether I have the number right, because the results of other surveys that have been quoted are not along those lines. Many witnesses have told us things that are not along those lines either.

Mr. Daniel Baril: What you are referring to is on page 1 of our brief. If you read it correctly, it says that 88% of the population would prefer their children to attend common schools, regardless of the parents' religion.

Several questions were asked. We have been asked to table this survey, and we do not have a problem with that. We will do it with pleasure. The questions are along the lines... We included the highest result here. What does it mean when we talk about common schools regardless of the parents' religion? That means that parents do not want their children to be segregated on the basis of religion at school, or that there be schools for Catholics, Jews, Protestants, or non religious people. That is what parents do not want. They want a common neighbourhood school. So 88% choose a common neighbourhood school without religious reference. There could also be other arrangements in the school. But there is no doubt that the common school referred to in the question is a school that has no denominational education project and no denominational status.

All of the surveys agree entirely with the report of the Estates general on education, establishing a non denominational school system made up of schools open to a cultural approach to religion and not a denominational approach.

So parents would agree to the school dealing with religious aspects, but not from a denominational prospective. It would be from a historical, sociological or cultural perspective. Parents agree with that type of project, and that is what the Estates general on education are proposing.

Senator Thérèse Lavoie-Roux: But at the estates general, Mr. Caldwell, who was one of the vice-presidents of I don't know what, stated that at least 70% of parents—and there again I would have to check the exact percentage—still wanted religious teaching and denominational schools. He wants to appear here, but I am not sure we will be able to hear him.

An Hon. Member: He appeared.

Senator Thérèse Lavoie-Roux: Yes, but he did not talk about that.

The Joint Chair (Senator Lucie Pépin): Will you please ask your question?

Senator Thérèse Lavoie-Roux: Here's my question. You are in favour of a completely secular school system.

Mr. Daniel Baril: Ideally, yes.

Senator Thérèse Lavoie-Roux: At the outset, you talked about a secular or an increasingly secular society. What do you want to secularize apart from schools?

Mr. Yves Archambault (Member of the Board, Mouvement laïque québécois): Why are you emphasizing the word "society" when we are dealing with the school system here?

Senator Thérèse Lavoie-Roux: Earlier on, in the introductory remarks, society was mentioned.

Mr. Daniel Baril: I talked about the public society, civil society, and public structure in society.

• 1905

Senator Thérèse Lavoie-Roux: What else is religious apart from schools?

Mr. Daniel Baril: I think that we are entering into another debate, but there are many things, starting with the Constitution. "By the grace of God, the Constitution..."

Senator Thérèse Lavoie-Roux: You do not like "By the grace of God?"

Mr. Daniel Baril: It is not that I don't like...

Senator Thérèse Lavoie-Roux: You prefer by the grace of angels. Perfect.

Now, you said that there were unions in your movement, which ones?

Mr. Daniel Baril: We will send you the list; I do not have it here. I mentioned the teachers' union.

Senator Thérèse Lavoie-Roux: Yes, that's right, you mentioned the teachers' union. Which one is it? Is it the CEQ?

Mr. Yves Archambault: The Montreal Teachers Alliance and regional unions, established throughout Quebec, is a member of the Mouvement laïque. At present, we have between 10,000 and 12,000 member institutions, in addition to several hundred individual members.

Senator Thérèse Lavoie-Roux: Fine. Excuse me, Madam Chair?

The Joint Chair (Senator Lucie Pépin): Can we come back to you for a supplementary question? I have other people who would like to ask questions.

Senator Thérèse Lavoie-Roux: Just a minute.

The Joint Chair (Senator Lucie Pépin): I know, but...

Senator Thérèse Lavoie-Roux: So you prefer a united school board. That is what you said earlier. You said that the Parent Commission report contained four or five recommendations including the last one on united school boards that had not yet been implemented.

Are you aware that the united school board—and that is why people are so opposed to it—was a school board that was to be managed by francophones? Anglophones objected to it, because at that time, it meant in some ways giving up their English educational institutions. Are you saying that is your next objective?

Mr. Daniel Baril: No, no, no, no.

Senator Thérèse Lavoie-Roux: But that is what I read in your report.

Mr. Daniel Baril: No, no, that is not our next objective. We would have preferred that, but I also said that we supported the current consensus for establishing linguistic school boards. That is what I said.

Mr. Guy Rocher mentioned the objective, the conclusion of the Parent report, but that does not mean we will move in that direction. All he is saying is that that is what was proposed at the time and the proposal was not implemented. The proposal has been updated or reformulated in the terms we have now to create linguistic school boards. We are not there yet. There was something else that escapes me...

The Joint Chair (Senator Lucie Pépin): Thank you, senator Lavoie-Roux.

Mr. Goldring.

[English]

Mr. Peter Goldring: Thank you.

Thank you for your presentation. I think one of the concerns is that if a majority can remove minority rights.... This is a concern of the parents too.

Could you tell us a little bit about the process it would take in the schools themselves for the parents to decide on whether they will have religion taught in the schools?

Will this be a simple majority process? What about the case of some areas where maybe 40% of the school is Protestant, 20% something else, and another 20% something else—in other words, where the 40% would not be a majority? Is the process allowing for greater minorities in order to be able to have religion taught in the schools, or is it a simple majority process?

[Translation]

Mr. Daniel Baril: We are not the ministry of Education. For the third or fourth time, I reiterate that this is not where the current debate lies. That is a debate that will take place in Quebec on what will happen subsequently. Majority or minority? For us, it is unthinkable to allow any majority, whether it be 60 or 80%, determine the fundamental rights of others.

At present, that is what is happening in denominational schools. A majority of parents can decide that a school will have a certain denominational status without consideration for the fundamental rights of others. We are fighting that. As long as that type of situation is possible, we will continue to fight.

There is no doubt that quite a debate would have to be undertaken. Don't ask me what percentage makes it acceptable, because it is unacceptable and does not exist elsewhere. I do not know why one province is being put on trial here, when these things do not exist in the public school system in Canada.

[English]

Mr. Peter Goldring: Well, frankly, it is of concern. There is a strong feeling that there are some protection rights in section 93. If we're looking to remove those protection rights from section 93, we should have a very clear understanding of how it travels down to the parents' right to be able to have religion taught in the school—to clearly see what the process will be.

• 1910

[Translation]

Mr. Daniel Baril: You have the procedure in Bill 109.

[English]

The Joint Chair (Senator Lucie Pépin): Madam Finestone.

Mrs. Sheila Finestone: Thank you.

[Translation]

Your proposals were very interesting, but I would like to ask a fundamental question: do you want to remove all religion from the schools to secularize them?

Mr. Luc Alarie: No. Our commitment is based to a much larger extent on freedom of conscience and freedom of religion, on respect for the two fundamental freedoms. We believe that a secular school system will make it possible to respect these two fundamental freedoms that are included in the first section of the Charter.

I could give you an example of an aberration that section 93 has led to. During the school board elections in November 1994 in the territory of the Commission scolaire des écoles catholiques de Montréal, more than 23,000 people, who were citizens entitled to vote, were systematically excluded from the electoral list because they were not either Catholic or Protestant.

[English]

Mrs. Sheila Finestone: I've seen one of those; I know you're right.

[Translation]

Mr. Luc Alarie: The minister of Education requested a public inquiry on that.

[English]

Mrs. Sheila Finestone: So in English, you are not pushing for separation of church and state. That's what you've just said.

[Translation]

What we are seeking is equality for everyone, equal treatment. In a sense, in the Quebec Charter, in section 41, equal rights are given to people of all faiths. There is a balance for everyone. They must have equal status. We want everyone to be equal, but at present, according to the project designed under Bill 109, it will be possible to set up schools that reflect the wishes of the people, in each separate school. That means that most Catholics in Quebec will undoubtedly want Catholic schools in their villages or in their neighbourhoods. And the Protestants, who are in the minority, will have their rights too.

But what about the other religious groups, those who are of another faith?

[English]

Is that right, foi?

[Translation]

An Hon. member: Religious belief.

Mrs. Sheila Finestone: Belief, okay.

[English]

In a sense, if you start with section 93, remove 93 and use section 33, the nonobstant, and base your undertaking on section 41 of the Quebec Charter and respect sections 2 and 15 of the Canadian Charter.... I am a little bit concerned because you're unable to give the denominational preferred right that seems to be the goal of Bill 109 for Catholics and Protestants, and you don't take into account the other minority groups.

Maybe I need to give a road-map.

[Translation]

Did you follow my reasoning.

Senator Gérald Beaudoin: They did not understand it, but they followed it.

The Joint Chair (Senator Lucie Pépin): Mr. Baril.

Mr. Daniel Baril: We did not come here to defend Bill 109. We are here to defend Quebec's request to repeal section 93 on its territory. Bill 109 raises several problems for us. Someone told me earlier that it is like taking the equivalent of section 93 and putting it in Quebec legislation. Yes, that is exactly what it is.

• 1915

When section 93 has been removed, there is no doubt that minorities will still not have equal rights. But we have to start there so that they can obtain equal rights under the Charter later on. At present, they cannot invoke the Charter. In our view, Bill 109 must be fought. We are the Mouvement laïque québécois. We want a secular school system that respects freedom of religion for all members of society.

Mrs. Sheila Finestone: Mr. Baril, would you accept the addition of "where numbers warrant"?

In my riding, I have more than 100 different groups and religious beliefs. It doesn't make sense. You cannot have an educational system for each group of ten people. But if you added "where numbers warrant", as in section 23, perhaps it would work and you would get your equality.

Mr. Luc Alarie: You heard the position of the Jewish Congress this afternoon...

Mrs. Sheila Finestone: Yes.

Mr. Luc Alarie: ... that seems to be based on common sense, and that basically says: let's set up a secularized public school system, and the communities that want religious teaching will have private schools where the public portion will be funded by government and the religious portion funded by the communities themselves. I think that is a position that makes a lot of sense and that would ensure that everyone's fundamental freedoms are respected. So we would have a secular school system in Quebec that would, in my view, respect all citizens' fundamental rights, not only the rights of the minorities and the majorities, but the rights of all citizens.

The Joint Chair (Senator Lucie Pépin): We have one last comment by Senator Wood.

[English]

Senator Dalia Wood: My question was just answered. Mrs. Finestone put it nicely.

[Translation]

Senator Gérald Beaudoin: Could I ask them if they agree with the Jewish Congress' conclusion?

Mr. Daniel Baril: Absolutely.

Senator Gérald Beaudoin: That is what I thought, but I wanted you to state it clearly.

Mr. Daniel Baril: But I am not sure that everyone understood the Jewish Congress' presentation the same way. In fact, we understood that they would prefer a non denominational system. But if the system remains denominational, as in Bill 109, they will claim their rights, and we understand them.

Senator Gérald Beaudoin: Mr. Luc Alarie's summary was very clear.

Mr. Daniel Baril: Yes. Their first choice is a secular school system. We agree with that. We even agree with the Estates general when they say they want a non denominational approach to religion in the schools. We can make room for that in a secular school.

The Joint Chair (Senator Lucie Pépin): Mr. Baril, Mr. Archambault and Mr. Alarie, thank you very much for appearing before us.

Mr. Daniel Baril: Thank you.

The Joint Chair (Senator Lucie Pépin): We will now go to the Fédération des travailleurs et travailleuses du Québec.

Good evening, Madame. Good evening, gentlemen. We are happy to have you before our committee. Are you Ms. Hurens?

Ms. Joane Hurens (Vice-President, Fédération des travailleurs et travailleuses du Québec): Yes.

The Joint Chair (Senator Lucie Pépin): You are accompanied by Mr. Jean-Pierre Néron and Mr. Émile Vallée.

You have the floor.

Ms. Joane Hurens: First of all, we would like to thank the members for hearing us today.

The Joint Chair (Senator Lucie Pépin): Excuse me. Do you have the brief? I will give you my copy, but it was distributed some time ago. Please continue.

Ms. Joane Hurens: For those of you who may not be familiar with the structure of unions in Quebec, let me introduce ourselves.

• 1920

The Fédération des travailleurs et travailleuses du Québec, the FTQ, is the largest union organization in Quebec. It is made up of 44 affiliates, representing over 480,000 members in all areas of activity in Quebec.

It represents Quebec workers who are members of the unions affiliated with the Canadian Labour Congress. The FTQ speaks for these unions and their members on a broad range of general and public interest issues.

Like many other associations that represent broad segments of the Quebec population, the largest of these, the FTQ, is appearing before you today to ask the federal Parliament to approve the constitutional amendment already passed by the National Assembly regarding section 93 of the 1867 Act as it applies to Quebec.

We are asking Parliament to pass the resolution quickly, without amendment, and, hopefully, unanimously.

We do not intend to repeat all the arguments put forward in favour of the resolution by other witnesses, however, we would like to mention the contribution made by Minister Dion and the Coalition pour la déconfessionnalisation du système scolaire, the coalition for a non-denominational school system, which you will be hearing tomorrow morning.

The FTQ is a member of the coalition and supports its brief. We would now like to highlight the three points that justify our position:

1. Section 93 imposes unreasonable restrictions on Quebec's supposedly exclusive jurisdiction over education;

2. Section 93 no longer protects the Protestant minority, as it was supposed to;

3. Section 93 is an obstacle to implementing equality of rights for citizens and students who are neither Catholic nor Protestant—namely those of a different religion or no religion at all.

The first point is about the unreasonable restrictions on Quebec's jurisdiction over education.

Not all provinces are subject to restrictions on their authority over education. The only provinces to which these restrictions apply are those which, before joining the Canadian federation, already granted special privileges in the area of school management to certain denominations. Five of the ten provinces have no requirements of this type, under section 93 or an equivalent provision, and their education systems are strictly non-denominational.

Moreover, the provinces to which section 93 or an equivalent provision apply are not affected in the same way. The particular status of Quebec City and Montreal regarding denominational schools is unique. In Ontario, for example, the Constitution allows Catholics to establish separate schools, but the basic rule about a non-denominational school system applies everywhere, both in the major cities and in all the regions. In Quebec City and Montreal, the Constitution requires that there be both Catholic and Protestant school boards. This makes for an extremely rigid system.

In order to make school board structures correspond to the fact that education is provided in English and French, we have to do some incredible acrobatics. With the exception of Newfoundland, to our knowledge, no province has to comply with such strict rules.

The restrictions placed on Quebec by the Canadian Constitution regarding its school system are really unreasonable. Subsections (1) to (4) of section 93 of the 1867 Constitution Act must no longer apply to Quebec.

Our second point is that section 93 no longer protects the Protestant minority.

In 1846, when denominational school boards were established in Quebec City and Montreal, and in 1867, when section 93 was passed, Catholics and Protestants may have had the impression that this protected the control they had over their schools.

However, the makeup of the population has changed considerably since that time. Protestant students now account for just over one third of all students in Protestant school boards. The figures are 36% on the island of Montreal and 37.7% throughout the province. In addition, Protestant voters are in the minority in Protestant school boards on the island of Montreal and in a number of other school boards.

• 1925

The fact that students of different religions and students of no religion at all are together is something positive, to the extent that it promotes better mutual understanding on the part of each group. However, it does illustrate the artificial, outdated and increasingly unreal nature of the protection Protestants are supposed to enjoy.

Moreover, labelling school boards as Catholic or Protestant contributes to making students, parents and voters who are neither Catholic nor Protestant think that the educational institutions do not really belong to them, and that they will always remain outsiders or even alienated individuals within them.

The third point is that section 93 runs counter to equality of rights and respect for diversity.

The fact that section 93 no longer protects the Protestant minority in no way means that it once provided adequate protection of minority rights. The most fundamental right of minorities is the right to enjoy equality with the majority and to be protected from all types of discrimination. Understood this way, this basic right also assumes that the various minority groups living in the same area will not be treated differently.

Section 93 never provided protection for the rights of minorities other than Catholic or Protestant minorities. Although it is possible to explain this in historic terms, the provision is nevertheless fundamentally discriminatory. It is a clear violation of the spirit of the Canadian Charter of Rights, because its authors felt the need to introduce in section 29 a permanent notwithstanding clause that authorizes this waiver.

Section 2 of the Charter provides for freedom of conscience and religion. Section 15 provides for equality rights and prohibits discrimination on a number of grounds, including religion. Section 93 is in violation of these two sections and requires the Quebec legislature to override them. Far from protecting basic rights, this provision guarantees privileges that run counter to the fundamental rights set out in the Canadian and Quebec Charters and by the Universal Declaration of Human Rights.

Section 93 overrides a fundamental democratic principle of Quebec and Canada, namely, that there is no state religion, and that no one is required to belong to a particular religious group and, consequently, that no one shall be treated differently because of their religion. Although this principle has not been respected, it nevertheless remains fundamental. The right was introduced in an 1852 act of the Parliament of United Canada. The first section of the act "guarantees the enjoyment and free practice of any religion without distinction or preference". On the basis of this legislation, the Supreme Court of Canada ruled that in our country "all religions are on an equal footing". It could have added: "except where the Constitution violates this fundamental principle".

We are asking the federal Parliament to release Quebec from the constitutional requirement to violate the principles of independence of religious groups and the equality of all regardless of religion. We ask that it approve the amendment already passed unanimously by the National Assembly.

Thank you, Madam Chair.

The Joint Chair (Senator Lucie Pépin): Thank you. We will begin the questioning. Mr. Goldring.

[English]

Mr. Peter Goldring: Thank you very much for your presentation. It was very good.

Are you representing the 44 syndicates that you mentioned in your brief or are you representing the 480,000 members? Is this your opinion, or is it the opinion of your membership?

[Translation]

Ms. Joane Hurens: No we did not take a poll or referendum within our organization on this issue, although it has been raised in democratic forums within the Fédération des travailleurs et des travailleuses. These decisions were made at conventions or at other forums, such as meetings of regional councils.

We represent 480,000 people, and no, we have never claimed to represent the personal views of each of them. We represent them as a union, and generally, they agree with the positions taken by their federation on social and constitutional matters.

• 1930

[English]

Mr. Peter Goldring: So there was no process for the polling of it? Is this is an opinion of the executive rather than that of the membership?

[Translation]

Ms. Joane Hurens: There are two parts to my answer. First, within our association, as within any institution or the Parliament of Canada, once we are elected, like you who represent all the people of Canada and pass legislation, we take stands on the basis of resolutions passed at our major conventions.

Now, if you are questioning the legitimacy of our position here, I can say that we support our Parliament, the National Assembly, and we hope the federal Parliament will do likewise. There is unanimous support for this amendment, and this has not always been the case. The government party met with the opposition parties and they worked together on a compromise. Now the support is unanimous—something quite rare in constitutional matters, I'm sure you will agree.

The Joint Chair (Senator Lucie Pépin): Senator Beaudoin.

Senator Gérald Beaudoin: I have no doubt whatsoever about the consensus among your members, but when you take a vote on issues such as this one, do you record it or is it done in a broad, general way? You say that it was unanimous, strongly supported by the majority, and so on.

Ms. Joane Hurens: Look, if we are going to continue on this track, you can either accept or reject our report. The question is whether it is good or not. No, we didn't take a vote on this. Just as the Canadian Parliament does not regularly take votes on...

Senator Gérald Beaudoin: We do take votes. Sometimes we have to interrupt our meetings to go and vote.

Ms. Joane Hurens: Yes, but you don't hold a referendum. We did not hold a special convention to discuss this issue.

Senator Gérald Beaudoin: Your position is very clear. Section 93 may have been justified in 1867 because everyone, or almost everyone, was either Catholic or Protestant. There was even provision for appeal to the Governor General in Council. Today, of course, this seems rather strange. The provision is rather out of date, but it still exists. You recommend that we keep the first part of the provision and repeal the other four subsections. You have no other demands. Your presentation is very clear and specific. That is what you said.

Ms. Joane Hurens: Yes.

The Joint Chair (Senator Lucie Pépin): Mr. Ménard.

Mr. Réal Ménard: Madam Chair, I wouldn't want people listening to us to think that there is something out-of-date about the position taken by the FTQ. There was nothing improvised about the position you presented this evening.

Ms. Joane Hurens: No, not at all. We take part in a number of forums in Quebec society, and I think that is a well known fact. We have just celebrated our 40th anniversary. I think we are very much a part of Quebec society. And when the positions we take are challenged, we are aware of that fact. So far, that is not the case on this issue.

Mr. Réal Ménard: So, essentially, what you are saying is that there is nothing that would justify the committee not acting on the resolution, certainly not from a human rights points of view, certainly not from the point of view of equality rights, which is very important to your union, of course, and certainly not from the point of view of modernizing the school system.

Given the high regard for your organization in Quebec and your involvement at various levels, as I was saying before, I think you are a very appropriate group of witnesses to tell our colleagues, particularly those from outside Quebec—because as you know the committee is made up of people from all provinces—just how broad and deep the consensus on this is. That is my question to you, Ms. Hurens.

• 1935

Ms. Joane Hurens: I prefer not to imagine what could happen not only at the FTQ but also throughout Quebec if the Parliament of Canada, the House of Commons were to reject this unanimous request from the Quebec legislature. I think that would be unprecedented, and I don't think it would be appropriate.

As regards human rights, it is true that the provision amounts to an insult. Section 93 in today's society is an insult to the equality rights of Quebeckers as regards their choice of religion and their choice to vote within their school board.

I think another question will be asked and I'm trying to find the example of another province. Let's take British Columbia, where there is a Canada-wide union. Let us assume that section 93 were to apply to British Columbia and that only Victoria and Vancouver were protected by this section. In such a case, people in Victoria and Vancouver would be able to chose between a Catholic or Protestant school board. We know that there is a very large Chinese community in Vancouver, which is probably neither Catholic nor Protestant and which would not be entitled to vote. That would be ridiculous.

Why is the situation different for Quebec. This is so inconsistent. I think the British Columbia example is a good one.

Mr. Réal Ménard: I would like to ask a brief question.

Ms. Joane Hurens: Yes.

Mr. Réal Ménard: On page 4 of your brief, you highlight a very important point for committee members. Perhaps you could set the record straight regarding population trends in Quebec, and the paradoxical situation of the Protestant community?

Ms. Joane Hurens: Yes. Émile, could you answer this question, particularly in the case of Montreal?

Mr. Émile Vallée (Political Advisor, Fédération des travailleurs et travailleuses du Québec): I'm not sure exactly what you are asking. I think it is clear that Protestants are in the minority within their own school boards.

Mr. Réal Ménard: I would therefore conclude that it is incorrect to say that school boards protect minorities in the current system.

Mr. Émile Vallée: They do not protect minorities, contrary to what some people suggest.

Ms. Joane Hurens: No, no, no.

The Joint Chair (Senator Lucie Pépin): Thank you, Mr. Ménard.

Ms. Jennings.

Ms. Marlene Jennings: Thank you very much. I have looked at your brief and found it very interesting. On a number of occasions, some committee members have questioned whether there is a genuine consensus in Quebec and have particularly questioned whether there is a consensus among people whose special rights are protected by section 93. I would like you to comment on that. Personally, I think there is a consensus, but I would like you to speak from your experience and tell us whether you think there is a genuine consensus, among both Protestants and Catholics, the two groups protected by section 93. I think that would be useful for Committee members.

Ms. Joane Hurens: I will try to give a partial answer to your question, perhaps by mentioning again some arguments I made at the beginning. My colleagues may add to my comments if they wish.

When a unanimous position taken by the National Assembly or a provincial legislature is called into question, it is as though all members of the Quebec National Assembly were being told that they do not know what they are doing. I find that extremely contemptuous. It is reasonable that all members of Parliament should be accountable and that they should ask us questions, but I do not accept this disregard for the legislature's representativeness. If the House of Commons were to be treated in the same way, it would not be very acceptable either.

Mr. Émile Vallée: May I add something? We have to be careful, because there is a difference between consensus and unanimity.

Ms. Joane Hurens: Yes.

• 1940

Mr. Émile Vallée: We cannot expect to achieve unanimity in a society like ours. If we did, we would have to wonder about the way we are governed. However, it is clear, in this case, that the main stakeholders are involved and have said clearly that they supported the amendment.

The groups that might have objected, such as the Catholic bishops who spoke earlier about Protestant ministers, have not objected. They are not opposed. The main school boards, teachers, and the main groups involved have come out in favour of the amendment. In my view, that means there is a consensus. I don't know how we could define it otherwise.

Ms. Joane Hurens: I find it unacceptable that, particularly in the Montreal region, where there is such a diversity of religions and ethnic groups nowadays, people are being excluded from the democratic process on various school boards. That is unacceptable. We should move quickly to correct this.

Ms. Marlene Jennings: We have heard from people representing francophone Protestants in Quebec who, apparently, had exercised their rights to dissent in some parts of Quebec. They are protesting loudly against the passage by the Parliament of Canada of the amendment as requested by the National Assembly. I would like you to comment on this.

Ms. Joane Hurens: We spoke a little earlier about the expression "where numbers warrants". We are talking about 2% of the population. I think there is a consensus, but there is not unanimity.

The Joint Chair (Senator Lucie Pépin): Mr. Godin.

Mr. Yvon Godin: First of all, I would like to welcome the representatives of the FTQ, an organization for which I have a great deal of respect.

I disagree when you say that the National Assembly unanimously decides to change an act, not just section 93, but any act, that we have no choice but to accept, that otherwise it is an insult.

I would just like to give you an example. If Quebec wanted to pass legislation to restore hanging, I'm sure no one would be on your side if you were opposed.

The Fédération des travailleurs et travailleuses du Québec represents many unions in Quebec. As I said earlier this week, you are not machines. You are parents, you have children.

We must realize that this request to amend section 93 did not happen yesterday. I would ask you to tell us whether any members of your federation disagreed with your position.

I'm proud to say that I too was a union member and I can say that I never saw a member who disagreed with the union's position not speak out and express their views. They all know where we stand. So did you see any expressions of disagreement from some of your members on the position you took? Did some people say you were on the wrong track and that you would lose the next election?

Ms. Joane Hurens: No. And they know our fax numbers and our telephone numbers. There were no demonstrations of this type, because this was part of the consensus. The FTQ is very active on school boards in Montreal, through its labour council, so the FTQ is very much involved in all of this.

However, I do agree with you on one thing. If the National Assembly were to take a stand in favour of capital punishment, I would not be here, and the FTQ would not be here defending such an indefensible position. But we understand each other on that. This is not something we are doing on the spur of the moment. This is an issue which has been discussed in Quebec for years. We know this was not decided at the last minute. There is a very broad consensus on this issue.

And when there is unanimous consent from a legislature like the National Assembly of Quebec on such a fundamental constitutional issue, I think we are on solid ground.

• 1945

[English]

Senator Dalia Wood: I disagree with your view of a unanimous vote. The Quebec government has asked us to abolish section 93, which is an amendment to our Constitution, and it is not a matter that I would take very lightly. I think our job here is to find out if there is a consensus with the minority that are affected.

Going back to your numbers here, I'd like to ask you this. You say that you have not consulted your membership. Do you think your members are aware of the possible consequences of removing section 93, that they will lose their right to religious education in the schools?

Mr. Émile Vallée: I'd like to say one thing to start with. We do not think this process here is to be taken lightly. Of course it is your job to try to see if there is a consensus. This is part of the process. If this article of the Constitution has to be amended, then it has to go through Parliament and of course you have to do your job. We are not denying that by any means. On the contrary. Otherwise, we would not bother coming here. We think you have do it and you have to do it properly.

On the second point, as mentioned before, we have not made a survey of what our members think. The way this position and other similar positions are taken is that our federation has conventions every two years where policy papers are prepared, where resolutions are sent by local unions, by unions where this kind of issue is debated, people take positions and then a vote is taken. This is at a convention, and between conventions we have what we call a general council that meets four times a year where, similarly, we have resolutions, we have discussions and decisions are made. We have an executive board that meets once a month that discusses all sorts of issues like this one.

These issues come and decisions are made and they are usually made by a vote, and a lot of the time by consensus as well. As mentioned before, if that position was not really reflected, then we would have heard about it. We would have heard from people involved that the position we were taking was not representative of them.

[Translation]

The Joint Chair (Senator Lucie Pépin): Thank you. Senator Grafstein.

[English]

Senator Jerahmiel S. Grafstein: I want to join my colleague Mr. Godin in saying that we're here at 8 o'clock at night because we take our parliamentary duties seriously. The Constitution can't take place unilaterally. There's no such thing as a unilateral Constitution. It requires not only a consensus within the province but also a consensus in terms of the other provinces, and we represent those. So we agree.

You are promoting, properly so, the Canadian Charter of Rights and Freedoms as it applies to equality. You talk about equality of citizens regardless of religion and about the negative impact of section 93 that excludes the exercise of Protestant rights for religion in some respects and others. So you are four-square for equality and so on.

Are you aware, as we've discovered, that the education bill that is to, in effect, supplant or substitute for section 93 has the notwithstanding clause that accepts not only the federal charter but also the Quebec charter, so in effect it preserves the so-called preferential rights? What's the position of your group on that? Have you made representations to the Quebec legislature to remove those clauses so that there will be equality when it comes to the practice within the province of Quebec?

[Translation]

Mr. Jean-Pierre Néron (Union Advisor, Fédération des travailleurs et travailleuses du Québec): Before answering your question, I would like to come back to the question about the FTQ's representativeness with respect to this issue. The FTQ represents 480,000 people. It is true that we did not conduct a poll, but it is also true that we have 20,000 people who work in the school system. They are good watchdogs when we take stands if they disagree with us.

• 1950

With these 20,000 members, we should therefore hear alarm bells going off in Clement Godbout's office, telling us that we have not taken the right stand.

More specifically, you might wonder whether they considered this problem before. The answer is yes, and I will give you an example of what I mean. Very often, there are elections for positions on school boards at the Conseil du travail de Montréal. At various times, we have supported MÉMO or other groups on basis of secularization. So we have been involved in this debate in the past. Our organization is representative, and we can tell you what our position is on the issue before you.

[English]

Senator Jerahmiel S. Grafstein: That's an answer to a specific question.

[Translation]

Ms. Joane Hurens: With respect to freedom of choice in the area of religion, we fail to see how a government or a parliament could justify using the notwithstanding clause in this case. In light of our position, it would be rather contradictory to tell you that we agree with the elimination of section 93. I don't think that would be consistent. In any case, we would not like the Quebec government to adopt such an approach and we don't think it will.

The Joint Chair (Senator Lucie Pépin): Thank you, Senator Grafstein.

Ms. Meredith.

[English]

Ms. Val Meredith: Thank you, Madam Chair.

I want to follow up on some of the comments that have been made on consensus and unanimity. My understanding is that there was unanimity in the Quebec legislature. Was that really a healthy thing? One has to ask whether there was no concern in the Quebec legislature that they could all agree.

The second thing I want to address is the consensus or feedback you got from your membership. You said it's like a barking dog: they would have been barking if they had been concerned. Have you let your membership know you are taking this position? If there was a resolution, I would be interested in your tabling the resolution with the committee so we can understand what kind of question went out to your membership and what kind of response you would have gotten from it.

I asked the same thing of a previous witness on polling; some independent polls. What kind of question was asked, what kind of response came back? It's just so that we have some idea of what kind of conversation the witnesses have had with the citizens of Quebec on this issue.

[Translation]

Ms. Joane Hurens: I have two comments to make, then I will have my colleagues add to my answer, if they wish. First of all, this is an old debate on which people took positions a long time ago. Thus, when we are asked to present the FTQ's position, we do not go back to our members to ask for their agreement. If people disagree today or if they disagreed in the past, they can and could present a resolution to that effect at our various meetings or conventions. This consensus mechanism has existed for a long time.

The FTQ would like to see linguistic, not denominational school boards for all of Quebec, without any exception.

As to the question about unanimity in the National Assembly, I would say that there was no unanimity on this a few months ago. There was no unanimity. So the government went to see the Opposition and they reach some compromises, and this made unanimity possible. I don't think it can be said that there was no debate on this. There were some major debates in the National Assembly in order to reach this consensus, but it was not imposed. A compromise was reached. Normally, in order to reach a compromise, there must be a debate.

[English]

Ms. Val Meredith: I'm still unclear. I know you've had this position. Memberships in unions change. I am still concerned with how you as a union executive...what resolution went before your membership at this assembly, what kind of question.

Unless I've misunderstood this, the debate we're dealing with is not necessarily about linguistic school boards; it's whether or not we're going to amend the constitution and remove Quebec out of section 93, denominational schools. What Quebec does beyond that is not an issue I'm dealing with right now; it's Quebec removing itself from section 93 in the Constitution, which guarantees denominational schools for Catholics and for Protestants.

• 1955

I'm curious to know whether that question or that debate has happened, or did you just ask your membership if they wanted linguistic schools? To me, that's a different question.

Maybe I misunderstand this whole thing we're sitting here debating.

[Translation]

Ms. Joane Hurens: But there are some things I simply don't understand. We are invited here as an organization that is very representative of the people of Quebec, and you are asking us to account for each position taken by the FTQ or whatever organization. For your part, however, you never talk about referendums when you pass legislation. You are more or less asking me for the background of all the positions taken by the FTQ. It is as though we were to ask you for the background of each piece of legislation passed by Parliament. We trust you in this regard, because you were elected by the people. As elected representatives, you, like us, have to be accountable, and that is why we must continue to take a stand on issues. Is the FTQ supposed to remain silent, in between its conventions, because it has not taken the trouble to reconfirm support for all of the positions that it plans to present to various political forums?

We have been asked that question two or three times, and I am starting to run out of arguments.

The Joint Chair (Senator Lucie Pépin): Thank you. Mr. Nick Discepola, please.

Mr. Nick Discepola: Thank you, Madam Chair.

Ms. Hurens, I am in no way calling into question the quality of your comments. On the contrary, the way you represent your members does not worry me. I think you need to get used to the Canadian parliamentary system. For some time now, the Reform Party has been trying to manage our country using polls or 1-800 lines or fax systems. It will take them a little while to adjust to the Canadian reality.

But I am calling into question your statement on the "unanimity" expressed by the members of the National Assembly. For my part, I do not think that anyone here is questioning the consensus that exists in Quebec and that has helped the cause, because it was adopted unanimously by the province's Legislative Assembly.

Constitutional experts clarified this morning that, because the National Assembly had not taken the initiative to hold public hearings, the burden of proof... To begin with, there are two things that must be proven: first of all, that the affected minority has been consulted and that the majority has had an opportunity to express itself; and secondly, that the province making the request should have borne this burden of proof. We were able to resolve the issue, because, thanks to the minister, we had the opportunity to hold parliamentary hearings. If we had not done so, I think that Quebec's request would have lost a bit of credibility.

So, don't you think that the affected minority should have been consulted in order to ensure, in the context of constitutional change, that the majority of this minority gives its consent?

Mr. Émile Vallée: I can assure you that because of the way that the discussions were held on this issue in Quebec in recent years, the groups involved have been consulted and have had ample opportunity to express their points of view, both to the party in power and to the opposition parties.

You also mentioned the affected minorities. The debates were public. Anyone could step in. People could intervene and those who wanted to do so, did. But it seems to me that you're forgetting one thing: you are forgetting your own role in this process. If my understanding is correct, people who have something to say appear before your committee and it is up to you to see if there's a consensus. That is what you're currently doing.

Mr. Nick Discepola: But we are not here to rubber stamp the process.

The Joint Chair (Senator Lucie Pépin): Thank you. Senator Lavoie-Roux.

Senator Thérèse Lavoie-Roux: I would like to welcome the members of the FTQ. I worked very closely with one of its presidents, Mr. Daoust. If you see him, say hello to him for me, because I have a lot of respect for him.

• 2000

Now let's move on to the things that are of concern to us. It seems to me that you said the issue was no longer calling into question the consensus among the National Assembly, the opposition, etc. I wonder why a parliamentary committee was struck. This could have been done in five minutes, it would have been a lot shorter. But do you think it is acceptable for the National Assembly not to have accepted to hold public consultations?

You say that consultations were held on several occasions, I would ask you to conduct a little poll on section 93, not in the street, but only among the people around you. No one has ever been consulted on section 93 nor on the consequences of its repeal. Do you think that is acceptable? Normally, a consensus is achieved by consulting people. But in this case, I really wonder, even more so since many people have appeared before us.

As for you, you tell us about your 480,000 members and others have talked about 2 or 4 million, and it is likely that no one undertook consultations.

That brings me to my question: what do you think of the fact that the National Assembly did not agree to hold public consultations? In the end, they threw us the ball.

Ms. Joane Hurens: With respect to consultations, my colleague answered adequately. If, for example, the Assemblée des évêques du Québec or the Protestant school teachers' union had disagreed, and if the majority of the affected minorities and majorities had disagreed, I think that the Quebec Parliament and the Quebec government would have held more structured and formal consultations. I do not think that the Quebec Parliament wants to pass the hot potato on to you. In fact, we are here because this is the road we need to take to amend or repeal section 93, in order to exclude Quebec from its application.

So I don't think that there's been an outcry. Instead, I think that the main stakeholders and players agree with this approach.

Senator Thérèse Lavoie-Roux: They adopted it in the National Assembly, but the next day, it was on the Minister's desk, and the federal Parliament had to adopt it.

Ms. Joane Hurens: If I may, Mrs. Lavoie-Roux, if it had been an issue like the one raised by Mr. Godin, that is if the Quebec Parliament had decided to vote in favour of the death penalty, I think there would have been considerable backlash. In the case before us, the debate had been under way for several months.

Senator Thérèse Lavoie-Roux: At any rate, we will do our best, but I must say that there has been a lot of dissent.

The Joint Chair (Senator Lucie-Pépin): Senator Lavoie-Roux...

Senator Lavoie-Roux: But the government wants to lead us to believe that everyone agrees, because Mr. Dion and Ms. Marois made some kind of pact or treaty so that we would adopt this quickly. The Minister even made a commitment to have it adopted by the month of December or the month of...

Ms. Joane Hurens: There is consensus but not unanimity.

The Joint Chair (Senator Lucie Pépin): That is correct. One moment, please. There are two speakers left, Senator Beaudoin and Mr. Godin. I will allow you each a short question.

Senator Gérald Beaudoin: In fact, I have a comment. There is more than a consensus. When you talk about the National Assembly, it's unanimity. So it is no longer a question of perception, but a fact.

Mr. Réal Ménard: Exactly.

Senator Thérèse Lavoie-Roux: Except that the people weren't consulted.

Senator Gérald Beaudoin: No, no, but it is a fact, it is indisputable. I don't have a question; I just wanted to make a comment.

When a group as important and as well structured as yours presents conclusions, it is clear that members have been directly or indirectly consulted. I accept that and I am not questioning it in any way. I just wanted to put that on the record.

The Joint Chair (Senator Lucie Pépin): Mr. Godin.

• 2005

Mr. Yvon Godin: It is the same for me; I would just like to put something on the record. The other groups that came here and that said they represented minorities were not subjected to systematic questioning like the Fédération des travailleurs et travailleuses was this evening. Mention was made that they did not proceed with consultations to determine whether people were in agreement or not. I just wanted to put that on the record.

The Joint Chair (Senator Lucie Pépin): Ms. Hurens, Mr. Néron and Mr. Vallée, thank you very much for your presentation.

Ms. Joane Hurens: Thank you.

The Joint Chair (Senator Lucie Pépin): Have a safe trip home.

I would now invite the Ligue des droits et libertés to come to the table. Good evening, Ms. Lemonde. Good evening, Mr. Johnston. We will ask you to make about a ten minute presentation and then we will have questions.

Ms. Lucie Lemonde (President, Ligue des droits et libertés): My name is Lucie Lemonde and I am the President of the Ligue des droits et libertés du Québec. I'm accompanied by my colleague Raymond Johnston, who is a Ligue board member.

I must say at the outset that the Ligue is a member of the Coalition pour la déconfessionnalisation du système scolaire au Québec and that we support the coalition's brief. I thought that they had presented yesterday, but I just learned that they will present tomorrow.

We do not want to repeat the information in the Coalition's brief, but present our own brief which focuses solely on respecting rights, namely equality rights and freedom of religion.

The Ligue des droits et libertés is an independent, non partisan, non profit organization that was founded in 1963, with a mission to defend and promote individual and collective rights, whether they be civil, political, economic, social or cultural rights. The Ligue's action is based on principles recognized in United Nation's conventions, in particular the Universal Declaration of Human Rights.

Since the early 1970's, the Ligue has been defending the interdependence and indivisibility of rights by drawing its inspiration from the preamble of the Universal Declaration, which states that the highest aspiration of the common people is the advent of a world "in which human beings shall enjoy freedom of speech and belief" and, obviously, the values of equality rights of men and women.

In 1988, the Ligue was the spokesperson for the Coalition pour l'égalité des droits en éducation and, on behalf of the Coalition, presented a brief to the parliamentary committee on reforming the Quebec Education Act. According to the Ligue and the other members of the Coalition, it would be impossible to reform the school system in a satisfactory way as long as section 93, a constitutional impediment, continues to exist. We feel the statement is still valid in 1997, and we continue to defend this point of view.

Our position is based on the following principles:

1. All human beings are equal and must have equal access to fully exercising their fundamental rights, including freedom of religion and conscience, without any discrimination based on belonging or not belonging to a religious group.

• 2010

2. Freedom of religion and conscience is a fundamental freedom that is guaranteed in the Canadian and Quebec charters, as well as in international human rights documents to which Canada has adhered. As you know, the Supreme Court interpreted this freedom of religion in Big M Drug Mart as including the right to express one's beliefs and non-beliefs.

3. Another principle: the right to public education and teaching must, in our view, respect freedom of religion and equality rights. It must also be consistent with the preservation and enhancement of the multicultural heritage of Canadians, as set out in section 27 of the Canadian charter.

4. The main mission of schools and the educational system must be to promote equality and non discrimination and to promote the integration of diversity.

These principles are closely linked and require, in our view, separation of the Church and the State, in addition to non denominational school structures. So that means that the State must refrain from getting involved in the content and delivery of religious education and that the Church must not interfere in the thrust and administration of public education.

Only a non denominational system can guarantee both equality among citizens of different faiths and respect for their religious beliefs. But such a system remains inaccessible given the provisions of section 93 that ensures constitutional protection for denominational school structures, namely, as you know, in Quebec City and Montreal.

In our view, the status quo is unacceptable, because it maintains discrimination on the basis of religion by favouring two main religions to the detriment of other religious denominations. Catholic or Protestant religious education is provided in all public schools using public funds, whereas this privilege does not exist for any other religious denomination.

Section 93 does not protect minority rights. It guarantees privileges by creating discrimination based on religion to the benefit of two specific denominations, and as a result, constitutes an obstacle to equality rights by running counter to the spirit and the letter of the Canadian and Quebec Charters.

It is also clear that this preference based on religion is no longer socially justifiable, namely because of Quebec's multicultural reality. In addition, we feel that maintaining denominational schools and school boards may be divisive and result in social marginalization by denying the plurality of Quebec society and leading to ghetto schools for students who are members of cultural and religious minorities.

The situation we are facing today is quite different from the one that prevailed in 1867, when freedom of religion and equality rights without discrimination were not entrenched in the Constitution and did not benefit from constitutional guarantees. If it were not for the fact that section 93 is also entrenched in the country's Constitution, legislation on education promoting denominational public schools could be deemed unconstitutional as it is incompatible with fundamental freedoms and the right to equality in education.

So we are facing a unique situation: constitutional provisions are incompatible with each other, but they cannot be used to cancel each other out because they are on an equal footing. For the drafters of the Constitution Act of 1982, the contradiction was so obvious that they added an interpretive clause to section 29 that made it possible to override the principle of non discrimination on the basis of religious beliefs or the non-existence of such beliefs.

We join the Coalition in asking that Quebec be freed from the constraints of section 93 of the Constitution Act, 1867, and section 29 of the Constitution Act, 1982, and in pointing out the broad consensus that exists in the province of Quebec on the need to set up a school system that is adapted to the current situation and respectful of diversity and true equality.

Thank you.

• 2015

The Joint Chair (Mr. Denis Paradis): Mr. Johnston, did you have something to add? No. Very well. We will start with Mr. Goldring.

[English]

Mr. Peter Goldring: Thank you, Mr. Chairman.

Thank you very much for your presentation.

You had mentioned in your brief that the status quo is unacceptable now because you feel that there is discrimination shown in section 93. Has it ever been discussed as an alternative that rather than eliminate subsections (1) to (4) of section 93, to modify or amend it to improve it, to add more areas of representation for the province, so that you're building onto the Constitution rather than just eliminating it? Was it ever suggested that you could improve it, or was it all simply to eliminate it?

[Translation]

Ms. Lucie Lemonde: We feel that the Constitution Act, 1982, responds adequately to what we want in terms of respect for freedom of religion for each person and a right to equality in education.

[English]

Mr. Peter Goldring: There was some concern in previous briefs, however, that section 2 of the 1982 Constitution somehow affected the right to have religion taught in the schools. In fact, there's a court case in Ontario, the substance of which is to prevent religion from being taught in the schools. How do you feel that court case would apply here in Quebec? Is there a risk of that happening here too?

[Translation]

Mr. Raymond Johnston (Director, Ligue des droits et libertés): You are asking whether there is a risk of legal proceedings in a case where the teaching of certain religions within a school will be prevented. Is that the sense of your question?

I will try to put my answer in context. For the past 30 years at least, almost all groups that are concerned with education in Quebec have been urging successive governments, since the end of the 1960's to present, to make some changes, so that the Quebec government takes a stand and requests and amendment to section 93 of the Canadian Constitution. In fact, and it is important to point this out, all of the attempts at for restructuring education in Quebec have almost always failed because of section 93 of the Canadian Constitution.

Only one piece of legislation was adopted, under Minister Ryan several years ago. It developed an approach to restructuring school boards in Quebec with a view to increasing the number of school boards in order to establish the right to dissent. The government tested its bill by presenting it to the Supreme Court. Each time any kind of comment was made, it further strengthened the right to dissent in the Education Act.

For the past 30 years in Quebec, many groups have been urging the government to come up with something like we have today. Several Liberal governments, and several PQ governments to date, have refused to act on the issue, claiming that consensus wasn't broad enough.

I will go back to your question. If the constraints of section 93 were eliminated, if protection for denominational rights in the school system were to be removed from the Canadian Constitution, and if the Quebec government does not protect itself from challenges by using the notwithstanding clause, its current bill could be challenged. However, for goodness' sake, there would be nothing dramatic about citizens of Quebec using the principle of equality rights and freedom of conscience and religion to amend school structures in Quebec or to ensure that there is in fact some form of equality.

• 2020

Whether services for other religious denominations be provided at school outside regular school hours, or not, is another debate. But I don't think that anyone is opposed to the objective of equality, whether it be here or elsewhere.

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Johnston.

Senator Beaudoin.

Senator Gérald Beaudoin: I agree entirely with you that the context has changed since 1867. It is clear that at that time, I do not know what the exact proportions were, but perhaps 90 or 95% of the population was either Catholic or Protestant. At that time, the Fathers of Confederation saw fit to protect Catholic and Protestant groups.

Moreover, for nearly a century, right up to the quiet revolution, with perhaps an exception in 1896, Quebec never had a minister of Education. It had an educational superintendent.

Things have changed considerably since 1960 and the debate has gone on for 30 years. There are perhaps only two or three ways of solving the current problem. What we have here is a resolution to eliminate the subsections of section 93 that deal with denominational rights and a possible appeal to the Governor General, which is today unthinkable. It is still in force, but it is not very practical.

Clearly, another possibility would be to extend denominational rights.

You choose the following alternative: let's eliminate the four subsections, and that way all religions will continue to be taught, of course, but there will no longer be any denominational structures. That is undoubtedly a valid point of view. Is that what you consider the most practical or the easiest to establish? Because others would also be possible.

The Joint Chair (Mr. Denis Paradis): Mr. Johnston.

Mr. Raymond Johnston: Exactly. We believe that in order to make the educational system in Quebec more respectful of equality rights, we must start by removing the constraints in section 93, which are obstacles in our quest for equality among people of different religious denominations and people who have no religious denomination.

The Joint Chair (Mr. Denis Paradis): Thank you. Mr. Ménard.

Mr. Réal Ménard: Your contribution to the debate is extremely important. We must not forget that you are first and foremost people who are concerned with rights and freedoms. You are not here today representing religious or partisan affiliation.

I'm all the happier because I've heard a lot about Ms. Lemonde and I'm told her interests in university research converge with some of the matters I'm very interested in. I'd like to bring out two aspects of your evidence.

In 1982, there were questions concerning the Charter of Rights and Freedoms and the enrichment of the multicultural heritage as well as a certain number of provisions deemed incompatible with Bill 101. In that respect, there was no mistake as 200 amendments were made to the Charter or Bill 101.

You spoke about those who are the most ardent defenders of the Charter "in view of its merits". Based on the premise that the Canadian Charter of Rights and Freedoms has a certain number of intrinsic merits, you're telling us that, no matter what side of the House or this committee they may be sitting on, members or Senators must give effect to the National Assembly's resolution. As a matter of fact, the fundamental principle of the equality of individuals contained in the Charter cannot be implemented as long as section 93 is in force. You have clearly shown this to us, but perhaps you'd like to develop this point a little further.

We have here a provision which, to all practical intents and purposes, is not compatible with the Charter. You reminded us that it's so true, that without the notwithstanding clause referred to in section 29, it would deemed incompatible in any kind of society that relies on rights on freedoms. That's one of the most important points.

The Joint Chair (Mr. Denis Paradis): Put your question, Mr. Ménard.

Mr. Réal Ménard: If I don't have the right to speak, Madam Chair, I'll go and clean up my office.

• 2025

The Joint Chair (Senator Lucie Pépin): Go ahead.

The Joint Chair (Mr. Denis Paradis): Put your question and then go clean up.

Some honourable members: Ha! Ha!

Mr. Réal Ménard: I'll ask for a vote on that.

Ms. Lemonde, if you would be so kind as to explain why federalists who believe in the merits of the Charter should agree to the amendment put forth by Quebec's national Assembly. That's a question. I should have put a question mark.

Ms. Lucie Lemonde: Well, I guess that just like all other Canadian men and women, federalists' first concern is to live in a society where the right to equality will be respected. In my opinion, if the main value of the Canadian Charter is to entrench this right to equality—as does the Quebec Charter, by the way—I think that to respect this right to equality and individual fundamental freedoms, to borrow my colleague's expression, you have to get rid of the constraints of section 93.

Mr. Réal Ménard: I'll end on this following point. You're a very well informed person and you follow public life rather closely so would you say you're satisfied with the consultations undertaken by the government of Quebec? You do in fact seem to be saying that, at the end of the day, Quebec has taken the need to consult very seriously. There were parliamentary committees and so forth. What can you tell us about the consensus in Quebec?

Ms. Lucie Lemonde: Maybe my colleague could answer that better than I.

Mr. Raymond Johnston: I don't want to use too many clichés, but I'd like to first remind the members of the committee that the government of Quebec and the Official Opposition, the National Assembly as a whole, unanimously agreed on a proposal. But the initiative doesn't come from the National Assembly. This proposal is the result of 30 years' worth of lobbying by all groups concerned with human rights in Quebec. This debate has been on-going for 30 years with every attempt that's been made to change Quebec's public education legislation. And section 93 has always been an underlying element of these debates.

I don't want to remind you of the same things that others will remind you of, but even the Parent Commission in the 60s, which was chaired by a Monsignor, by the way, suggested that denominational school structures be done away with in Quebec. We haven't managed to evolve in that direction yet because of that constraint that was in the Canadian Constitution at the time. It isn't too early in the day for the national Assembly to be asking for this amendment that's been wished for by many groups over the years.

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Johnston.

Senator Grafstein.

[English]

Senator Jerahmiel Grafstein: First of all, thank you very much for your presentation.

I take it then, since your group is an equality vehicle, that you would agree that 23(1)(a) of the charter should ultimately apply to Quebec. In other words, to ensure that people outside of Quebec are treated equally with those within Quebec, in terms of a choice for their children for their language rights, I take it your organization would be in favour of the application of 23(1)(a) to Quebec.

[Translation]

Mr. Raymond Johnston: For the time being, we agree about the existence of protecting linguistic rights in the area of school organization.

[English]

Senator Jerahmiel Grafstein: For 23(1)(a)?

[Translation]

Mr. Raymond Johnston: I don't know if that is what you're alluding to.

[English]

Senator Jerahmiel Grafstein: As I understand it, 23(1)(a) says that if you're an immigrant coming to Quebec, you really can't exercise your right of choice in your language if in fact you haven't come from another Canadian province with an English background. I'm putting it roughly. I thought it would be well known in Quebec. I take it immigrants should be treated equally with citizens in Quebec, and paragraph 23.1(a) application would do that.

• 2030

[Translation]

Ms. Lucie Lemonde: Maybe our organization doesn't have any official position on that point. All I can say is that the Supreme Court decision on the interpretation of section 23 of the Canadian Charter and the Charter of the French Language is in fact being implemented in Quebec. The Supreme Court has stated that the Canadian Charter had precedence over the provisions of the French Language Charter and that's what is in force in Quebec.

[English]

The Joint Chair (Mr. Denis Paradis): Mrs. Sheila Finestone.

Mrs. Sheila Finestone: Thank you very much.

[Translation]

Thank you for coming. I would like to pursue the same line as senator Grafstein, but perhaps from another angle.

I know the Ligue des droits et libertés well enough and I know that you defend the values and the views expressed in many international documents on human rights, children's rights as well as those contained in all the great international declarations. If I'm not mistaken, these goals have always been central to the Ligue's action, haven't they?

We're faced here with a situation where the direction of education in Quebec is going to be changed, wouldn't you say? That's the goal of the legislation that's being proposed. Here, Quebec's wish is to change the direction while making sure that all citizens, men and women, are still on the same footing.

I also think that in the Quebec Charter, the importance of the parents' rights to choose the education of their choice for their children is recognized. That is also the case with international law on the rights of children as defined by Unesco and in the great Charter of rights and freedoms. Moreover, we're discussing section 29 or 59 that should be used to repeal section 93.

Here's my question. If we're really a group set up to promote equality between all citizens who have chosen to live in Quebec, don't you think it's about time to put education on an equal footing? Don't you think that it's time to make sure that the Quebec government uses section 59 of the Canadian Charter to guarantee to everyone settling in Quebec that they have the right to education in their own mother tongue,

[English]

as a matter of philosophic thought, from a philosophic perspective?

From a group that believes in human rights, in fundamental liberties, it is an anachronism today that in Quebec, the only place in Canada, there is no respect, there is no right of access for people who come from other countries and who have been studying in English or whose family culture and language are English.

The issue here, which affects about 10,000 children, by the way, and 10,000 children's lives.... I know this is a little uncomfortable, but I'm asking you about it from a philosophic perspective, because I think you ought to go back and study this, if you haven't. Philosophically it is really unacceptable in a modern society, which wants to become a more modern society, that you're going to have language rights in English and in French. Do you not believe the language rights in both English and in French should be available and accessible to those people who want to study and learn in that language, whether it is English or French?

• 2035

[Translation]

The Joint Chair (Mr. Denis Paradis): Mr. Johnston.

Mr. Raymond Johnston: We could answer you at length. I'll be direct and frank; we have not examined that question within the context of this special committee's work as this was not part of its terms of reference. If we have representations to make on that point, as your intervention constitutes criticism of a Quebec government policy, we will do this, as the case may be, in a Quebec setting.

[English]

Mrs. Sheila Finestone: I want to say I thank you for that, and I would appreciate if you would really look at it.

I believe you will find this would be the right time to demonstrate a real open spirit to all Quebeckers, and certainly English Quebeckers, at this time.

[Translation]

The Joint Chair (Mr. Denis Paradis): Ms. Jennings.

Ms. Marlene Jennings: Do you have anything to add in answer to Mrs. Finestone? If so, go ahead.

Ms. Lucie Lemonde: Only that the Ligue has always defended the rights of minorities, whether native rights or rights of Quebec's different and diverse minorities. We're here to talk about the rights of religious minorities, not linguistic minorities. So I would go with Mr. Johnston.

The Joint Chair (Mr. Denis Paradis): Ms. Jennings.

Ms. Marlene Jennings: I understand that you're not ready to answer the question put to you by Mrs. Finestone. On the other hand, as you came here to address the rights of religious minorities, maybe you can answer my question.

As a preamble, I will first repeat that I support the Quebec National Assembly's request to amend section 93.

However, I presume that you know, as well as I do and as do the people around this table, that under the Quebec Public Education Act, even after amending section 93 as requested by the National Assembly, religious discrimination will continue to exist.

Mrs. Sheila Finestone: That's right.

Ms. Marlene Jennings: The Public Education Act includes a notwithstanding clause allowing the Quebec government to authorize parents to decide on the confessional status of each school, by a majority vote, and only for the Catholic and Protestant religions.

As your organization is here to support the right to equality, I presume that once this amendment has been passed by the Parliament of Canada, which is something I personally hope for, the Ligue will make representations to the National Assembly to have this discrimination stopped.

Ms. Lucie Lemonde: We've always played a watch-dog role, if I may put it that way, and we will continue to do so, you can be sure of that. But we will have more freedom to act and our work will be focussed far more on the real question.

The Joint Chair (Mr. Denis Paradis): Mr. Mauril Bélanger.

Mr. Mauril Bélanger: Thank you, Mr. Chairman. Does that mean you would be against the use of clause 33 of the Charter by the government of Quebec, the notwithstanding clause, to protect itself or shield itself, to use your expression, from the possibility of having denominational schools? Would you be against the use of that clause of the Charter by the government?

Mr. Raymond Johnston: We consider we'll have perhaps won an inning in getting enough organizations in Quebec together for the government to finally decide to try to have section 93 lifted. That's a first round. Without that, nothing would have been possible.

• 2040

As soon as this amendment is passed, and we hope it will be soon, then there can be a debate in Quebec as to what conditions have to be put in place to ensure real equality.

Mr. Mauril Bélanger: Without pushing the comparison, this may not be a baseball match but a football game that we're playing. There might not be nine innings but only two halves and two quarters. If the notwithstanding clause is not raised, then the game is over.

As an organization, I'd like to know if you would publicly oppose the government of Quebec using the notwithstanding clause to protect its own legislation so that what seems to be a majority of the people in Quebec can still choose denominational schools. Would you be against the use of the notwithstanding clause to that end?

Mr. Raymond Johnston: At this point, I must say that we have not examined that aspect of the problem because we figure that the prerequisite to be able to even look at this question is in your hands. As long as that barrier has not been brought down, that debate can't even take place. That's what the real problem is.

Mr. Mauril Bélanger: Without referring to the commitment of your organization, what would your personal opinion be on that? May we ask you? If it's not fair, I won't ask. If you don't want to answer, just say so and send me off to greener pastures. Do you personally think the government should use it?

Mr. Raymond Johnston: If you're asking me for my personal opinion, I can't see any purpose in using it. It could even be harmful to the evolution of the school system.

The Joint Chair (Mr. Denis Paradis): One last intervenor, Mr. Nick Discepola.

Mr. Nick Discepola: Mr. Chairman, I already have an answer to my question to what was said to Ms. Jennings and Mr. Bélanger.

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Discepola.

Ms. Lemonde and Mr. Johnston, I'm happy to thank you for your presentation in the name of the members of the special joint committee. Thank you very much.

We now call upon the representatives of the University of Alberta Education Department.

• 2042

• 2044

The Joint Chair (Mr. Denis Paradis): We shall carry on with our hearings of the joint committee by welcoming Mr. Frank Peters from the University of Alberta, Department of Educational Policy Studies.

[English]

Welcome, Mr. Peters. We have something like at the most one half hour to deal with your presentation so if you can give your presentation in 8 or 10 minutes, something like that and after that we'll proceed with questions from the members of the committee. So, we're listening to you, Mr. Peters.

Mr. Frank Peters (Individual Presentation): Thank you very much. Good evening, Senator Pépin amd Monsieur Paradis and members of the Parliament and senators, ladies and gentlemen.

• 2045

I want to make it quite clear first of all that I'm a professor in the Department of Educational Policy Studies, and I'm speaking for myself. I wouldn't dare assume that any of my colleagues would agree with anything I'm saying this evening. I might be out of a job on Monday if the university were to think I'm speaking on their behalf.

I'd like to thank the chairs and the committee members for allowing me to present my material to you this evening.

I intended to speak to you under four headings, and those four headings are presented in my paper, “The History of the Dissentient School System”. Then I want to make some comments about section 93 of the Constitution Act. I was going to speak about some issues of minority rights and, finally, to say a few words about section 43 of the Constitution Act. I'm going to abbreviate those massively.

In terms of the history, I just want to draw attention to the fact that by 1867 the whole idea of government support for a variety of denominational schools was well established. The public view throughout the 19th century indeed was that the education of children was a matter for parents and the church and not really for the state. Indeed, the whole matter of the public support for non-denominational schools didn't enjoy a lot of support at that time.

In essence, the Common School Act of 1841, with the dissentient clause, was in many ways to be a harbinger of what was to become our Canadian educational way in five of the ten provinces and in two territories. This principle was carried right over into the Constitution Act of 1867.

I want to draw to your attention a number of points about section 93 of the 1867 act.

First of all, it was an expression, a codification of the practices that had been common in Canadian society for varying lengths of time.

Second, the qualifying subsections of section 93 were not just add-ons casually written in to placate some fringe groups and get their support for the establishment of the country. They were reflections of the accommodations between the differing segments of society, developed out of an acknowledgement of basic value differences and a tolerance and a respect for these differences.

I don't think we should forget the heavy weight that these accommodations carried in 1867. Sir Charles Tupper reminded us that in his view Confederation would not have occurred without this guarantee for the educational rights of the religious minority.

Thirdly, I want to make it clear that this agreement of 1867 included the right to publicly funded Protestant and Roman Catholic school systems. I am aware that things have changed since 1867 and there is a need for change, but there's a tendency today to redefine this Protestant orientation in terms of education as one in which no particular religious doctrine is going to be taught in the schools and no particular value structure or creed is going to be advanced.

Indeed, in some circles the Protestant schools are seen as having evolved into public schools. In some provinces these schools have to be, by law, secular and neutral. Some of us may see that as contradictory, but nonetheless if they are secular and neutral this must effectively preclude their being Protestant.

The question arises as to who's going to safeguard and protect the constitutional bargain that was struck with both Catholics and Protestants in 1867.

The heading that I want to deal with under section 93 of the 1867 act is specifically intended to safeguard these rights and privileges which Protestants and Catholics had with respect to denominational schools. We know about the rights that the denominational boards had in relation to denominational content, denominational curriculum and the non-denominational aspects that would effect to the denominational guarantees.

The section also identifies the areas where the provincial government must permit the exercise of positive rights in relation to hiring and in relation to the control of the denominational content of the curriculum. If we look at the reverse side of this frame, we can also see what the provincial government could not do were the requirements imposed by section 93 to be removed.

As the Supreme Court of Canada has made clear, without the requirements of section 93 provincial governments are going to be restricted by the charter obligations as they legislate in educational matters. The legislation will be subject to full scrutiny of the charter.

• 2050

In other words, the demands of the Charter of Rights and Freedoms may make it impossible for the Quebec government to put in place the continued protections for Catholic and Protestant schools that would permit them to provide Catholic or Protestant moral and religious instruction, pastoral and religious care, and guidance services, as envisaged by Bill 109.

While it appears that the Catholic bishops in Quebec are supportive of the general policy thrust that will replace the denominational school system with a linguistic one, their support may be based in large part on a belief that religion will remain as an integral, highly influential and pervasive element in education in Quebec.

In my view, this belief may be ill-founded, and the Quebec government is likely to find itself in a position where, without the requirements imposed by subsections 93(1) and 93(2), it is incapable of preventing the complete secularization of the educational system, unless the subsections they want to remove are in fact replaced with some other subsections that guarantee what they want to do.

Whether or not this complete secularization is desired by a majority in the Quebec community doesn't seem to me to be the key issue I'm dealing with right now. Rather, the issue is that they may not even be aware of the inevitability of such a development once the protections offered by section 93 are removed.

I'm sure the Quebec government is sincere in its protestations that schools may continue to be Catholic or Protestant and I'm sure that the Catholic hierarchy is confident in the safeguards the government is providing for religion in the schools. And unless they were confident in this regard, I'm sure they would be negligent in their responsibilities under canon law, and I'm sure they'd be making very strong representations publicly and before this committee.

I think the Minister of Intergovernmental Affairs, the Honourable Stéphane Dion, seems to have missed this point also. Courts in Ontario and in British Columbia have established the principle that public schools with the secularized administrative structure he refers to are prohibited from being religious or denominational in terms of their operation.

It may well be that significant segments of the Quebec population to whom the idea of the total secularization of the education system would not sit well also exist.

I'm aware of the speculation—and I've heard it this evening—that the Quebec government might consider using section 33 of the Charter of Rights and Freedoms, the notwithstanding clause, to protect its initiatives from charter scrutiny and to make it possible to put in place the religious curricula and programs.

It seems incongruous to me that the Canadian Parliament would approve a constitutional amendment removing existing constitutional protections and then expect or hope that the province that has just received approval for the amendment would use the notwithstanding route to put in place an educational system that would otherwise be unconstitutional.

An inevitable consequence of removing section 93 of the Constitution Act, and in particular with removing subsections 93(1) and 93(2), is that the provinces are forced into providing and maintaining a monolithic, less diverse, less generous type of educational system than they might be with section 93 opportunities.

Before leaving section 93 I want to draw attention to the invaluable and critical role I believe subsections 93(3) and 93(4) assign to the Governor in Council and to the Parliament of Canada. In effect, these bodies were expected to and were relied upon to act as constitutional protectors of the rights of the identified classes of persons when it was considered that these rights had been infringed upon by the provincial legislation. However, there's a belief among the religious minority groups—and it may be well founded and some of the discussion here this evening might cause me to believe that there is some credence to this—that given the manner in which both the Manitoba school question was handled 100 years ago and the Newfoundland matter was dealt with last year, the Parliament of Canada cannot be counted on to protect the educational rights of the minorities.

There is a developing sense that Parliament sees its role not so much as a protector of minority rights, but as an endorser or even an enforcer of the will of the majority. Section 93, however, suggests that the majority will should not be able to abrogate minority rights without the express consent of those protected minorities. Surely any test of democratic consent must acknowledge this right.

• 2055

I'm going to skip the section that I dealt with that deals with minority rights. I'll move right away to section 43 of the Constitution Act, 1982, which I agree is the correct one of the amending sections to deal with a request such as this one, the bilateral process.

Let me draw attention to the conflicts that arise, in my view, when section 93 of the 1867 act meets with section 43 of the 1982 act. We find a very peculiar situation in which constitutionally protected rights can be activated only by a vote within a minority community, or within a segment of that minority. For example, consider Protestants or Catholics in a school district who set up their separate or dissentient system.

However, these same rights, it seems, can be negated and totally extinguished by a majority vote on a resolution, at least initially, in the provincial legislature that may or may not be an accurate indication of the view of the majority of the provincial electorate and may also not represent the views of the affected minority.

Is the majority of the Quebec population in favour of completely extinguishing denominational school rights in that province? Is the majority of the Protestant community in favour of such a drastic change? Is the Catholic community in Quebec, clergy and hierarchy included, aware that this is what the amendments to section 93 will do? Is there a majority in favour of such a secularizing initiative?

None of these questions have been answered in Quebec, nor have they even been asked, nor does section 43 of the Constitution Act, 1982 require that they be asked.

In an earlier submission to this committee, it was pointed out that providing rights and privileges to Catholics and Protestants only is inconsistent with contemporary Canadian values, and I agree wholeheartedly.

Our society must seek to accommodate a wide variety of beliefs and a diversity of tastes and pursuits, and customs and codes of conduct, and our educational structure must reflect that diversity that has been advocated by the Supreme Court. So rather than taking away the rights and privileges currently safeguarded for Protestants and Catholics, a more effective policy initiative would be to permit the extension of these same privileges to other groups wishing to ensure that their believes and values are integrated into their children's education.

I would urge this committee, if it's at all possible, to request that the Quebec government amend the request it has before you to ask that minority rights be extended rather than decreased. I have provided a number of reasons at the end of my brief to you.

Thank you.

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Peters. For the first question, we'll go to Mr. Peter Goldring.

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

There seems to be a feeling that subsections 93(1) to 93(4) are hopeless, and that this can't be improved upon or moulded. Could you comment on that? Do you believe that possibly the answer to this is that rather than extinguishing subsections 93(1) to 93(4), these could possibly be amended, improved upon, and built upon? Is that a possibility?

Mr. Frank Peters: I believe there is nothing that prevents the Quebec government from extending the rights that are presently guaranteed to Protestants and Catholics under subsections 93(1) and 93(2) to any other number of groups within that province by either constitutionally protecting them or just extending them in some statutory fashion within the province.

I would remind you of the manner in which the Newfoundland government in the late 1980s extended the rights that were guaranteed to a large number of denominations. It extended them to the Pentecostal assemblies.

• 2100

Mr. Peter Goldring: I have a supplemental question, Mr. Peters. There seems to be some question too as to whether this affects aboriginal rights. Can you give us your opinion on how it would do that? In looking at it, it seems to affect the Rupert's Land transfer, which is the obligation of the federal government for the fiduciary responsibility to the Indians that it still maintains in the Rupert's Land area to this day. What is your feeling as to how it would affect aboriginal rights?

Mr. Frank Peters: I would rather not attempt to answer that one at this stage, Mr. Goldring, because it's not a matter I attempted to apply to this at this time.

Mr. Peter Goldring: Would it be a concern, as well?

Mr. Frank Peters: It certainly could, but it isn't an area I have looked at specifically in relation to this.

Mr. Peter Goldring: All right, thank you.

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Goldring. Monsieur Ménard.

[Translation]

Mr. Réal Ménard: Good evening and thank you for coming all the way from Alberta. I can see you're very interested in all these questions. I'd like to understand your point of view. What you would wish for, basically, is that clauses (1) to (4) of section 93 continue to apply all over the Quebec territory. You say that denominational rights should be broadened to other groups in Quebec and not just reserved for Protestants and Catholics.

Now, are you aware of the fact that contrary to the penultimate constitutional amendment we bilaterally passed for Newfoundland which was asking for it for the Pentecostalists, this might mean a broadening of the whole thing to dozens and dozens of groups? If we broaden the application of section 93, that also means schools and, ultimately, school boards. Do you realize what kind of inconsistency and incoherence this could bring about for the whole Quebec school system?

This constitutional amendment cannot be compared to the one asked for by the Newfoundland Pentecostal Church. There's an extremely different importance in terms of groups involved. On the island of Montreal alone, there are many dozens of groups who could demand the kind of protection afforded by section 93.

[English]

Mr. Frank Peters: Yes, I do. I'm aware of the complications that might arise. I would suggest, however, that if we look at schools rather than school systems as the units with which we would be dealing, then the attempt ought to be made to safeguard the right to establish dissentient schools for whatever groups, where numbers warrant, wherever they want them in that province.

My concern about removing section 93 entirely is that you are forced into a situation whereby you end up with a secular system, which many groups in society today would not see as being neutral; it would be quite contrary to their views.

[Translation]

Mr. Réal Ménard: I'll end on that note. You should know that the intent of the government of Quebec, through the National Assembly, is not to end up with a totally secular or secularized system. That is an intent that is very clearly expressed in the Public Education Act and Bill 109.

Secondly, and I'm saying this with all due respect for your convictions, have you ever considered that it's possible that in a given community or school, the reason for which a majority of parents are not asking for Catholic or Protestant teaching is because of a lack of agreement? It's quite possible that in a given community, the values put forth by the Catholic or Protestant communities don't find any approval in the ranks of a majority of the parents.

No constitutional guarantee will ever protect us from that. What's unbelievable is that many people either from the Protestant or the Catholic sides have come before us without ever raising the possibility that in 1997 or 1998 or even in the year 2000 a majority of parents be religious but without adhering to any of the codes of values supporting one or the other of those two religious factions. That is possible.

[English]

Mr. Frank Peters: I am quite aware of that, Mr. Ménard. I would not want to be in a position similar to that of the present structure, whereby those people are compelled to send their children to either Catholic or Protestant schools. I'm advocating a broader basis.

• 2105

But in the absence of any replacement for the subsections of section 93 the court rulings indicate that by applying the charter...the only type of educational system that can be put in place is a secular system, not a religious system. I'm just as concerned about making sure people who want secular schools can have those secular schools, and Buddhists who want Buddhist schools can have them for their children, rather than the limited type of structure that is currently in place. You don't necessarily create the expanded type of system I would advocate by removing the current protections as they exist.

The Joint Chair (Mr. Denis Paradis): Thank you, Professor Peters. Nick Discepola.

Mr. Nick Discepola: Professor Peters, I would like to ask you the following question. If you know the majority of the Quebec population is in favour of establishing linguistic school boards, if you know the majority of the Protestant community is in favour of such a change, if you know the Catholic community is in favour of such a change, contrary to what you have stated in your brief, does that change your opinion at all?

Mr. Frank Peters: I'm attempting not to give just a knee-jerk reaction, Mr. Paradis.

I'm not aware that these decisions were arrived at by these communities fully cognizant of the fact that by removing these subsections from section 93 the inevitable consequence of that will be a secular school system. Nothing has convinced me here that there is a consensus in the views on these, as I've watched television and listened to the discussions here—that this majority in fact has been identified within the Catholic community, for example.

I am aware that these groups are in favour of moving to a linguistic school system. But within that linguistic school system, according to the Supreme Court, it is possible to allow and to safeguard the dissentient rights. The present arrangements indicate—and I am assuming this is what the bishops in Quebec have agreed to—that there will be denominational protections within that system. My understanding, and I believe the understanding of at least one other expert who has spoken to you, is that this safeguard in fact may not exist when the new regime, without the 1993 safeguards and without section 29 of the charter buffer, is subjected to the other charter provisions. The court rulings in Ontario, in the Zylberberg case and in the Canadian Civil Liberties Association case and the court ruling in British Columbia, the Russell case, may well require a secular educational system.

The Joint Chair (Mr. Denis Paradis): The next intervention will be by Sheila Finestone.

Mrs. Sheila Finestone: Thank you very much. It was an interesting paper. However, I would like to advise you that the Chambers commission, Gretta Chambers, did a study of the Protestant school system across Quebec, consulted widely, and the decision taken through consultation was that English-language teaching would be far more preferable, if there is such a phrase, than the present structure of the Protestant school system. So I think you should be comforted in that regard.

You say there is no evidence the amendments are essential in any way to the implementation of a structure of linguistic school boards; the proposed changes appear to be expedient and convenient. Before I ask you to elaborate on that, I would just like to advise you for your own information that within the present structure of Bill 107 and Bill 109 section 23 is already written in; the notwithstanding clauses. I think it's important for you to know that. It's already in the structure of the bill that will be implemented in Quebec. It's in the Education Act.

Mr. Frank Peters: There are a number of concerns about the use of the notwithstanding clause. It's not quite the same as a constitutional guarantee, as you well know. It has to be renewed every five years.

• 2110

As far as I know, and I suspect you know, the Quebec government has indicated that it is not terribly keen to be using the notwithstanding clause.

Mrs. Sheila Finestone: Well, it's within the Education Act. It is one of the questions that we will be posing tomorrow to the minister. We'll see what she has to say about it.

I'm really curious to note that you don't think that there would be a minority Protestant and Catholic system, which is one of the concerns that we're expressing, that we will continue with a privileged right for two denominations, Catholic and Protestant, but the other minority groups where numbers warrant would not be given equal consideration or equal thought. That you're really right back at square one, even if you remove section 93, is what seems to be being indicated to us as a possible outcome of this particular legislation. I wondered if you would have a comment in that regard.

Mr. Frank Peters: I'm not quite sure what the question was. I agree that merely removing the subsections from section 93 solves nothing. In fact, it creates a system that is equally offensive. It would require and put in place a secular education system.

Mrs. Sheila Finestone: I asked you the question, sir, because on page 12 at the very last paragraph in your presentation you say, “My preference would be to ask this committee to seek amendments to the Quebec request, which would constitutionally safeguard the right to establish dissentient schools everywhere in the province”. Well, essentially they're not establishing dissentient schools, but they are going to be entitled to establish minority right schools for Protestants and Catholics.

Mr. Frank Peters: In my presentation I added to that and said “the right to establish dissentient schools for whatever groups”.

Mrs. Sheila Finestone: In my typed copy—-

Mr. Frank Peters: As I made my presentation to you I included “for whatever groups”.

Mrs. Sheila Finestone: I see. Well, thank you for that clarification.

Mr. Frank Peters: Expanded beyond the—-

The Joint Chair (Mr. Denis Paradis): The next intervention will be a short one. It's going to be by Mauril Bélanger.

Mr. Mauril Bélanger: You're proposing that this committee seek a modification to the amendment sought, which would essentially keep guaranteeing constitutionally the right of dissension or the religious rights, which is essentially keeping what we have. I'm not sure we'd be any further ahead. I'm not even sure we can do that.

The other option that was offered this afternoon by another witness—and that's the one I'd like to ask you a question about—is that if we were to put in section 93 as head words his suggestion of words to the effect that, notwithstanding any other section of any other act, the Government of Quebec may have denominational schools, or something like that,—

The Joint Chair (Mr. Denis Paradis): Make it short.

Mr. Mauril Bélanger: —this would have the effect of removing the obligation and leaving with the Government of Quebec a choice, and therefore a choice that is driven by legislation.

What is your comment on that?

Mr. Frank Peters: My comment on that would be that there is still some responsibility to find out whether the affected minorities whose constitutional rights are being abrogated are in fact in favour of that abrogation.

Mr. Peter Goldring: Mr. Peters, your comment was about the rights in Ontario for religious education being in the courts of Ontario right now. Subsections (1) to (4) of section 93 apply to Ontario right now, so how would removal of subsections (1) to (4) of section 93 make it any different in Quebec? In other words, what were the reasons why the religious rights in Ontario could be before the courts? What difference does that make for the province of Quebec?

Mr. Frank Peters: The court cases I referred to—and they're not before the courts, as these cases have been decided—both applied to public schools, where subsections (1) to (4) of section 93 didn't apply. By removing subsections (1) to (4), in fact what you will end up with is a system that is identical to the public school system in Ontario. That's where the rulings from those cases would have relevance.

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Mr. Peter Goldring: Thank you very much.

The Joint Chair (Mr. Denis Paradis): Mr. Peters, on behalf of all the members, thank you for your contribution to this committee.

We now have in front of the committee the Evangelical Fellowship of Canada, represented by Bruce Clemenger, director of national affairs, and Danielle Shaw, policy co-ordinator.

Welcome to this committee. You will be given ten minutes or so to make a presentation and after that the members of the committee will ask you some questions. Mr. Clemenger, you may go ahead.

Mr. Bruce Clemenger (Director of National Affairs, Evangelical Fellowship of Canada): We'll do a tag team.

The Joint Chair (Mr. Denis Paradis): Fine.

Mr. Bruce Clemenger: Thank you very much for allowing us to appear at this late hour. I'll try not to tax you too long.

During these hearings you have heard from evangelical Protestant parents, educators, and principals from Quebec. We represent a national association of Protestant Christians whose membership consists of 28 denominations and numerous other church-related organizations.

Our organization established a task force on education in 1994 to consider public policy and other matters relating to educational philosophy, funding and structuring. Since 1989 our organization has been active in efforts in Ontario to obtain funding for confessional education, in association with the Coalition for Religious Freedom in Education and the Ontario Multi-faith Coalition for Equity in Education.

We in principle do not object to the shift from denominational to linguistic school boards in Quebec, and although we affirm the commitment to protect confessional schools, which we find in Bill 109 and which has been expressed in various statements by the Minister of Education of Quebec, we are deeply concerned and disturbed about the implications for acquired religious education rights of exempting the province from the subsections of section 93 without alternative constitutional protections for religious minorities.

Two points we want to make concern the lessons from Ontario, where the constitutional protection for confessional schools is absent in the public system, and the importance for religious communities of what we call faith-based education.

Ms. Danielle Shaw (Policy Co-ordinator, Evangelical Fellowship of Canada): There are three principles we seek to use as guidelines in responding to educational issues.

First, parents have the primary responsibility for the education of their children and therefore have a corresponding right to be able to choose the type of education they desire for their children, as affirmed in the United Nations Universal Declaration of Human Rights.

Second, education is shaped by a framework of beliefs and values, sometimes called a world view, by which we make sense of our lives and the world around us. It is the EFC's view that it is not possible to educate children from a world-view-free or values-neutral perspective, since what children are taught and how they learn will be shaped by particular world and life views.

Third, if a group of parents wants a certain type of education and can demonstrate that this can be done responsibly, governments should make legal and financial provision for such schooling.

It is in the context of these principles that we address the proposed amendment to section 93 of the Constitution Act of 1867.

Exempting the province of Quebec from the requirements of section 93 will remove a layer of protection for religious education in Quebec, leaving inadequate protection in its place.

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Ontario is a good example of what can happen without constitutional protection for faith-based education. As a result of a series of charter challenges to various provisions and regulations under the Ontario Education Act, indoctrinational religious instruction is now prohibited in Ontario public schools, as is government funding of non-Catholic confessional schools.

Ontario Ministry of Education policy program memorandum 112, which was released in December 1990, states that indoctrinational religious instruction is prohibited in the public school system during the school day regardless of whether or not such instruction is provided on a voluntary or non-coercive basis. Following the release of memorandum 112, two confessional schools that were operating under the public school system were ordered to deconfessionalize. Parents in Ontario who wish their children to receive an integrally religious or faith-based education are forced to send their children to private schools or to educate them at home.

in January of this year the Supreme Court of Canada ruled in Adler et al. v. Ontario that the Province of Ontario is not constitutionally required to provide faith-based education, although it may do so if it chooses. To date there has been no concrete action on the part of the provincial legislature in Ontario to permit faith-based or integrally religious education within the public school system.

Although religious freedom is guaranteed in the charter, parents in Ontario who cannot afford to send their children to private schools have no effective means of exercising that freedom. Those who can afford private tuition are in effect doubly penalized, since they not only pay their tuition but also contribute through taxes to the public education system. Charter challenges in British Columbia and Manitoba have resulted in similar findings. The EFC is concerned that allowing the proposed amendments will result in similar changes in the province of Quebec.

Mr. Bruce Clemenger: I want to talk briefly about faith-based education.

To continue with the example from Ontario, the reason there is protection in Ontario for Catholic schools is that the public system in 1867 was in effect Protestant, not religiously neutral. Thus section 93 is premised on the view that education is faith based and it deliberately protects the rights of parents to choose an education for their children which is consistent with their own world view.

Most public systems in Canada have begun to adopt a secularist approach to education, which maintains that it is possible to education children from a religiously neutral perspective. A secularist view of education maintains that faith is private, education is public, and religion in effect has no place in the public school system.

Some have suggested that religious views can be accommodated by provision of opt-in religious instruction classes and time set aside for religious observance. However, the mere provision of religious education classes or religious observance is insufficient to accommodate the faith-based approach to education. This was recognized by the Supreme Court in Tiny Separate School Trustees v. The King, in which it was stated that:

The idea that the denominational school is to be differentiated from the common school purely by the character of its religious exercises or religious studies is erroneous. Common and separate schools are based on fundamentally different conceptions of education. Undenominational schools are based on the idea that the separation of secular from religious education is advantageous. Supporters of denominational schools, on the other hand, maintain that religious instruction and influence should always accompany secular training.

There are two different conceptions of education, faith based and secular. In Ontario the absence of constitutional protection for explicitly faith-based education within the public school system has contributed to the secularization of public education in Ontario and the removal of religious exercises from the public school systems in at least two other provinces. We are concerned that the abrogation of paragraphs (1) to (4) in section 93 as applied to Quebec is likely to have similar consequences.

To conclude, although the Province of Quebec has committed in the Education Act and Bill 109 to protecting religious education within the public school system, constitutional protection for religious education is needed in order to guarantee that the current commitments will be maintained. The effect of the constitutional amendment moved by the Quebec National Assembly will be to remove a layer of protection for provision of religious education for those who desire it.

EFC therefore urges Parliament to deny this motion unless constitutional protection for religious education within Quebec is explicitly included by means of amendment. To this end we would recommend that if section 93 is amended, a subsection be included in the section to ensure that where numbers warrant parents shall have the right to establish and direct publicly funded religious education projects and confessional schools which are fully integrated with their faith perspective and which conform to the provincial education standards.

The Joint Chair (Mr. Denis Paradis): Thank you very much, Mr. Clemenger.

We will proceed now with question period. The first intervener will be Peter Goldring.

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

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By the precedent set in Ontario, I ask the question, why would we want to head down the same road by removing the subsections (1) to (4) that seem to be the protection against this from happening for Quebec? Clearly, from these court cases, it will result in challenges on the religion in the school system.

To confirm again, you feel that to avoid this, you wish to improve on the existing section 93 to reflect the reform of the education system in Quebec.

Mr. Clemenger: Yes. Again—this is confusing—this comes from our experience in Ontario. In Ontario, in the public system it was Protestant. It's now secular because of these court rulings and under this memorandum 112.

In Ontario it is against ministry policy to even allow voluntary noon-hour Bible clubs or Bible studies to meet. These are voluntary and student-led. They are against government regulation. It's the complete secularization of the system and the complete removal of religion from the public system, and kind of forces it back to the private. We find that very, very disturbing. Our concern is that in Quebec, absent the Constitutional protection of subsections (1) to (4) in section 93, the same effects will take place under the application of section 2 of the charter.

Mr. Peter Goldring: My supplemental question is that it's claimed—well, it's a fact—that the vote in the legislative assembly of Quebec was unanimous. But at the same time as this unanimous vote, there was a petition on the table with 225,000 names on it petitioning against this. I'd like your comments on that, and your feelings on how a majority can extinguish minority rights.

Mr. Bruce Clemenger: It disturbs us greatly. The evangelical community in Quebec is very, very small. My guess is that it's probably less than 2%. You heard from them, I think last week. They operate about 15 schools that I'm aware of, in Trois-Rivières through to Quebec City, and they're protected under dissentient rights protection. I don't know whether they come up on the radar screen, in terms of developing a consensus. They're very small.

They want to pursue the rights that are guaranteed them under the UN Declaration of Human Rights, which allows parents to choose the nature of the education for their children. They want to be able to maintain the acquired right they already have, and establish and maintain confessional schools that reflect their religious vision of life. They're not opposed to the shift from denominational, confessional schools to linguistic school boards. They're not opposed to the development of a broad-based secular education. They have a different view of what education is, and I think that's what section 93 recognizes. There is a notion of faith-based education and there's a more contemporary view of secular education. Those are two competing views.

If we want to celebrate difference and champion diversity, then why not allow the system to maintain that diversity and encourage it? Our concern is that with the abrogation of section 93—the subsections—the ability for these people to enjoy that freedom and obtain public funding will be eliminated.

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Clemenger. We'll go now to Monsieur Ménard.

[Translation]

Mr. Réal Ménard: Good evening. Please be indulgent with us because it's getting late and we've been sitting since this morning. I thank you for coming and I would like to put three questions to you.

First of all, for my personal information, I'd like you to remind us of the major elements characterizing your faith and your convictions as a group.

Secondly, I would ask you to never forget that at this specific point in time—one can't predict the future, but that holds true for many problems—the Quebec lawmaker who is to appear before us, very skilfully accompanied by the Official Opposition, wants that under his Public Education Act and Bill 109, every parent, at the beginning of the year, may freely chose the kind of religious teaching the children will receive. Not only does this guarantee exist, but it is also present in the Charter of Rights and Freedoms. I'm not saying that this has any constitutional value; that would not be true. It is certain that you can't have guarantees comparable to those existing in section 93.

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However, what you are asking for, in my view, isn't possible and is certainly not consistent with a modern society. In my view, there's a summarizing phrase that one should have present in one's mind. In the name of what principle should your religious community or even the Protestants or the Catholics have a right to schools and school boards in a society where you can't justify that except for the fact that you have had it in the past? This isn't questioning the depth and intensity of your convictions. But we, as legislators, believe that it's not compatible. I personally believe it's not consistent with a modern school system and the obligation we have to show openness to our newly arrived fellow citizens.

As you know, Canada welcomes 250,000 immigrants and it's one of the countries which welcomes the most immigrants. Quebec welcomes 35,000. Give me arguments other than the fact that this is a vested right and which might convince me that we should undertake this form of discrimination. I agree that it's positive discrimination, but it's discrimination nonetheless.

That is my last question for this evening, Mr. Chairman.

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Ménard. You'll be free to go clean up your office later.

Mr. Clemenger.

[English]

Mr. Bruce Clemenger: The elements of our belief, statement of faith—I'm not sure what you're asking for. We are confessionally a Protestant group. I can give you a statement of faith later. I'm not sure what you're after.

In terms of our principles as they apply to this situation, I can—

[Translation]

Mr. Réal Ménard: Elements of faith. What are the characteristics of your faith? What is it that characterizes your evangelical alliance? I don't know your group and I'd like to understand what it's all about.

Mrs. Sheila Finestone: [Editor's Note: Inaudible]

Mr. Réal Ménard: Yes, but there is no such thing as the Protestant religion.

Mrs. Sheila Finestone: Is that so?

Mr. Réal Ménard: No, what exists is the evangelical religion.

Mrs. Sheila Finestone: So, religion...

[English]

The Joint Chair (Mr. Denis Paradis): We're listening to you.

Mr. Bruce Clemenger: You're right. There is no Protestant denomination, and that is also problematic. It's not like Catholic.

We represent 28 denominations. We represent groups like the Pentecostal Assemblies of Canada, the Salvation Army, Wesleyan Free Methodists...a broad range of 28 denominations. What distinguishes us is a belief in Jesus Christ as a personal saviour and in God, a kind of vigour in terms of spreading that understanding and telling others about Christ. There's an element of social activism as well—a care for society and neighbours being expressed.

Those are the characteristics. It's basic orthodox creed in terms of Christianity but with that additional emphasis on a belief in Christ, the authority of the Scriptures, those kinds of elements. I'll send you more information.

I'll tell you what: Billy Graham is coming to town next May, and I'll bring you there.

The Joint Chair (Mr. Denis Paradis): Senator Grafstein.

Mr. Bruce Clemenger: I didn't get your second question.

Senator Jerahmiel Grafstein: I find myself in the invidious position of advising my friend to read the New Testament. It's a very interesting piece of literature and I commend it to you. It's not only in English but it's also provided in French in Quebec.

I've read it, by the way, as I have the Koran. I find them both very interesting contributions to world literature.

I'm confused somewhat by your evidence in the sense that I have the advantage, as you did probably, of being brought up in Ontario in a small town. I had a faith that was different from the majority of the minority faith. I was brought up in a public school system. The public school system required me to adhere to a Christian orientation from morning to night. When I was separated and segregated from that I felt somewhat discriminated against. So I understand the public school system in Ontario quite well.

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Having said that, section 93 applies not only to Quebec but to Ontario. The problem you pointed out is that the application of section 93 is somewhat uneven as it applies from province to province because of the different structures. So the removal or the adherence to section 93 doesn't necessarily solve your particular problem.

In Ontario, I know there is a tremendous problem with getting funding for anything other than the separate school system. If you are in other than the separate school system and you're in the public system, if you're in the evangelical movement, if you're Christian Scientists, if you're Jehovah's Witnesses or whatever, it's difficult, and I'm not sure whether it's possible at this moment to obtain funding unless you decide to enter into the private school system.

It's not as if there's an absence of rights in Ontario, but you have to adopt the private school system and seek subsidies through an indirect process, which hasn't been very well clarified in Ontario, and we have section 93 there. So section 93 gives protection to the Catholic system, English and French, but it doesn't necessarily to the Protestant. I understand that in Ontario.

When you come to Quebec, the situation is somewhat different. In some respects they're further advanced in terms of funding religious education other than Catholic or Protestant. So we have an anomaly.

We are here to deal with Quebec because really the application of section 93 is separate and distinct in each province and that's why we're using section 43. I think you'll agree section 43 is the right route and what applies in Quebec doesn't necessarily apply outside of Quebec, save and except how it might be viewed politically.

Different faiths have different world views, but in its present application in Quebec, section 93 is limited to only Catholics. We've heard that the Protestant application has been, over the years, diminished somewhat. So from an equality standpoint, the present situation in Quebec is not satisfactory and so on.

How do we solve that problem of equality if equality of world views is part of your faith? In other words, you have your view and there are other world views—Muslim, Buddhist, Jewish. So how do we solve that as it applies to Quebec?

My friends from Reform are trying to say maybe we should extend section 93, but that doesn't appear to be a realistic possibility. So having in mind the political reality, how do we deal with this issue of inequality in Quebec, save and except with respect to extinguishing section 93 to start with a level playing field?

The Joint Chair (Denis Paradis): Mr. Clemenger.

Mr. Bruce Clemenger: Perhaps the way I understand it is section 93 has provided, in a sense, a beachhead for the extension of education rights along confessional bases. I agree it is unequal in application and protects really only two groups—Protestant and Catholic.

We wanted to bring in the notion of Ontario because of the same situation. In Ontario only the Catholic system is fully funded. Others are basically doubly taxed. If you want to send your child to a confessional school, you have to go to an independent school. You're paying your taxes, which go to the public system, and you're also paying tuition. So that's where we join with Sikhs, Muslims, Hindus and Evangelical Christians who have gone to both the government politically and to the court.

We're currently looking at moving to the Supreme Court to try to get the government to extend funding to these alternative schools. We want to see that done within the public system, within the public board, but to alternative schools.

Senator Jerahmiel Grafstein: In other words, there has to be a “where numbers warrant” clause.

Mr. Bruce Clemenger: That's right, as in our conclusion.

Senator Jerahmiel Grafstein: So you're applying an equality test at it applies to denominational schools in and for the province of Ontario.

Mr. Bruce Clemenger: That's right, and we think the same thing could take place in Quebec. Our concern is that once you abrogate subsections (1) to (4) you have in a sense lost the beachhead. So we'd rather see section 93 or the spirit of section 93 expanded with the constitutional protection it has, rather than have section 93 abrogated. Is that level playing field for all religions, all faiths, or, as in Ontario in the public system, will it just result in the ascendancy of a secularist view, which is incompatible with other religious world views?

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The Joint Chair (Mr. Denis Paradis): Thank you.

[Translation]

The last intervenor will be Mr. Mauril Bélanger.

[English]

Mr. Mauril Bélanger: Thank you, Mr. Chairman.

Mr. Clemenger or Ms. Shaw, I want to continue with that. You're suggesting that we extend the beachhead, if you will, to apply section 93 to other denominations. It's not in the cards. This committee's task is to determine whether or not there is a large enough consensus, in its collective opinion, and say yea or nay to what's before us.

My question is, which regime would you prefer, a section 93 regime where essentially two denominations are granted privileges and others are not, or a charter regime, subsection 2(a) or section 15, where it's a level playing field?

Mr. Bruce Clemenger: Given a choice of no rights for confessional schools versus some rights for confessional schools, I'd go for some rights, assuming that some is better than none.

Mr. Mauril Bélanger: The status quo.

Mr. Bruce Clemenger: If the choice is between the status quo or a completely secular system, I'd go with the status quo.

Mr. Mauril Bélanger: My last question is, do you acknowledge that there could be or is in Quebec near unanimous consent—I think unanimous consent—in the creation of linguistic school boards and a significant enough consensus in favour of amending section 93 to do away with denominational school boards—and I specify school boards?

As a member of this committee who has tried to be assiduous—and we're on the second last day of hearings—I must say that I'm leaning towards believing that there is such a consensus. I want to know if you can acknowledge that indeed that could be the case.

Mr. Bruce Clemenger: I'm not from Quebec. We have members in Quebec. Those members we've talked to—some have appeared here—in principle are not opposed to a shift to linguistic boards. Secondly, they now enjoy dissident rights to have a small number of evangelical Protestant schools in Quebec. They want to retain that right. Would they show up on the radar screen in terms of general consensus as only 2%? Probably not. Is that how we determine the strength, the reality, the necessity, or the importance of establishing or maintaining minority rights?

Mr. Mauril Bélanger: At one point we have to distinguish minority and the minority of the minority, and we haven't made that distinction sufficiently, in my mind, at this committee. I hope we do it in the next little while.

The francophone Protestants claim the status of a minority of a minority. It might be a nice philosophical discussion we could have to determine if the intent of the legislator in 1867 was to protect the minority—in this case the Protestants, because the Catholics are certainly not a minority, they're 86% in Quebec—or was it to protect the minority of the minority? At what point do you stop? I think that's a legitimate question they posed, and I think we will have to answer it.

Do you have a view on that?

Mr. Bruce Clemenger: First of all, my understanding is that these rights pertain to parents, not to denominations themselves but to parents. If there is a small number of parents who desire an alternative form of education for their children, which is guaranteed under the UN convention and a number of other international conventions, then why not accommodate them? Section 93 is an indication of how that can be done. Status quo or not, I'd rather see it amended in section 93, which would broaden those rights.

In Ontario, when we're pushing for this, we're not talking about a lot of people who want an alternative system, but those who do I think should be able to exercise that right and expect public funding. This can be done under linguistic boards and not allow associated schools with the public boards a large overlap of costs or services. But where there's a minority that wants this alternative form of education, why not allow it?

Mr. Mauril Bélanger: Thank you.

The Joint Chair (Mr. Denis Paradis): Mr. Clemenger, Mrs. Shaw, thank you very much for your presentation to this committee tonight.

[Translation]

We're sitting long hours these days and I'd like to especially thank our interpreters, our support staff, our clerks as well as you all, members of this committee, for your faithful attendance and remarkable work. So, thank you very much.

I would like to remind you that we will continue with our hearings tomorrow morning at 8:30. I saw Mr. Godin raising his hand.

Mr. Godin.

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Mr. Yvon Godin: Have we received the translation of the brief that the Natives presented when they appeared here as our last witnesses last night?

The Joint Chair (Mr. Denis Paradis): I will ask our clerk.

The Co-Clerk of the Committee (Mr. Denis Robert): We have not received it yet; it has been sent to translation.

The Joint Chair (Senator Lucie Pépin): We'll find out about it tomorrow.

The Joint Chair (Mr. Denis Paradis): This meeting stands adjourned until tomorrow morning at 8:30.