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]

Thursday, October 30, 1997

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[Translation]

The Joint Chair (Mr. Denis Paradis (Brome—Missisquoi, Lib.)): We will now resume the hearings of the Special Joint Committee to amend section 93 of the Constitution Act, 1867, concerning the Quebec school system, pursuant to the House of Commons and Senate Order of Reference.

I would like to welcome the representatives from the Quebec government, Mr. Jacques Brassard, Minister responsible for Canadian Intergovernmental Affairs and Minister of Transport, and Ms. Pauline Marois, Minister of Education and Minister responsible for the Family and Children.

I am happy to see that two ministers from the Quebec government are here today to support the work of Parliament in this constitutional amendment process. Thank you for having accepted to participate in this exercise in democracy.

I am confident in saying that your presence here is appreciated by all members of the committee, from all political parties. I will now give the floor to the Joint Chair, the Honourable Lucie Pépin.

The Joint Chair (Senator Lucie Pépin (Shawinigan, Lib.)): Welcome to the committee, Minister Marois and Minister Brassard.

As you know, our Special Joint Committee has been entrusted with the responsibility of studying the resolution proposed by the Quebec National Assembly with a view to amending section 93 of the Constitution Act, 1867. We are pleased to invite you to help us study this resolution and elaborate on this important issue.

The members of our committee will address you in either official language, in English or in French. Again, welcome and please proceed with your presentation.

The Joint Chair (Mr. Denis Paradis): With respect to procedure, you will each have 10 minutes to present your briefs. We will then move on to questions from committee members.

Please proceed, Mr. Brassard. We are all ears.

Mr. Jacques Brassard (Minister responsible for Canadian Intergovernmental Affairs, Government of Quebec): Madam Chairwoman, Mr. Chairman, committee members, I would like to begin by underscoring the exceptional nature of the appearance by the Government of Quebec before your committee today. Given the stakes for Quebec and for the world of education, our government felt that it was important to set certain facts straight and to specify the nature of the constitutional amendment sought by Quebec as well as its effects on the world of education.

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Quebec has undertaken a major reform of its school system, one of the key elements of which is the setting up of linguistic school boards. The setting up of such school boards has been a topic of discussion in Quebec since the 60s. On several occasions, we have attempted to make these changes within the framework of the parameters set by section 93 of the Constitution Act, 1867. These futile attempts only underscored the problems associated with the overlapping administrative structures ensuing from the application of section 93.

These attempts also showed that a constitutional amendment was needed to allow Quebec to organize a school system adapted to the needs of Quebec society and to ensure that school boards are completely non-denominational and that they henceforth are organized on a linguistic basis. With this goal in mind, the government of Quebec announced, at the start of this year, its intention to initiate a bilateral constitutional procedure, the purpose of which is to exclude Quebec from the application of subsections 1 to 4 of section 93.

In 1996, the federal government indicated on a number of occasions that it was open to the possibility of dealing with Quebec's request for an amendment to section 93 promptly and on a bilateral basis. Responding to these overtures, the government of Quebec began exploratory discussions with Minister Stéphane Dion, being careful to stipulate from the outset that these discussions did not constitute a recognition by the government of Quebec of the Constitution Act of 1982 and that they were limited to the issue of section 93, with no possibility of extending the discussions to other constitutional questions.

At a first meeting in February 1997, Minister Dion, in the presence of a representative of the federal Department of Justice, clearly confirmed the possibility of amending section 93 on a bilateral basis by way of the respective resolutions of the National Assembly and of the federal Parliament.

During a second meeting in March, Mr. Dion indicated that the wording of the draft resolution proposed by the government of Quebec was acceptable to the federal government. He asked Quebec to submit the resolution to the National Assembly for debate and passage in order to allow the federal Parliament to take similar steps. On April 3, 1997, Mr. Jean Chrétien, Prime Minister of Canada, confirmed his government's position on the bilateral nature of the procedure in a letter to Mr. Lucien Bouchard, Premier of Quebec. Mr. Chrétien also promised to act promptly in this matter.

On April 15 of this year, the National Assembly authorized, by unanimous resolution, a constitutional amendment that would allow Quebec to be exempted from the application of subsections (1) to (4) of section 93 of the Constitution Act, 1867. The preamble to this resolution stipulates, in particular, that in no way shall the amendment constitute a recognition by the National Assembly of the Constitution Act of 1982, and reiterates that federal government's commitment to promptly follow up on such an amendment on a bilateral basis.

Last September, at a third meeting on this subject, the federal Minister of Intergovernmental Affairs acknowledged the existence of a Quebec consensus with respect to the constitutional resolution passed by a unanimous National Assembly and promised, on behalf of the federal government, to do everything necessary to ensure that similar resolutions were passed by the federal Parliament before adjournment for the holiday period.

The constitutional amendment authorized by the National Assembly only concerns the application, in Quebec, of the rights and privileges of a denominational nature stipulated in section 93. Moreover, Minister Stéphane Dion had stated, in June 1996, that his government would not attempt to trade the constitutional amendment for something in return or, in his words, to act like a "carpet dealer".

In conclusion, I would like to remind you that the successive governments of Quebec have always demonstrated a great deal of openness towards and an exemplary respect for the rights of the English-speaking community, an important component of the Quebec people.

I will now ask my colleague, Quebec's Minister of Education, to explain the context surrounding the reform of Quebec's school system and the need for the constitutional amendment authorized by the National Assembly of Quebec.

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Ms. Pauline Marois (Minister of Education, Government of Quebec): Madam Chairwoman, Mr. Chairman, ladies and gentlemen, members of the committee, requesting an amendment to the Constitution and appearing before a joint committee of the House of Commons and the Senate are exceptional actions on the part of Quebec.

After trying for one last time in the spring of 1996 to reform the education system and reorganize school boards within the constitutional framework as it now stands, we, like other governments who have tried to do so in Quebec over the past 30 years, have come to the conclusion that it is impossible to effectively carry out such a reform without amending section 93 of the Constitution Act of 1867.

Having come to this conclusion, we followed the established procedure for requesting a constitutional amendment. The National Assembly not only passed a constitutional resolution, but it did so unanimously.

Debate on this resolution, as my colleagues in the Official Opposition can confirm, was arduous both between the parties and within their respective caucuses, but it was productive. Our National Assembly fully represents the various sectors and trends that exist within Quebec society and it rendered a unanimous decision on this fundamental issue.

Since the report of the Parent Commission, published in the 60s, regular and ongoing efforts have been made by all governments to reorganize Quebec's school boards along linguistic rather than confessional lines. Each of these efforts was preceded by wide-ranging consultations. Over the last five years alone, the groups most directly involved in this debate have had the opportunity to voice their opinions on five separate occasions: as part of the proceedings of the Kenniff Committee, at the public hearings held by the Commission for the Estates General on Education, at the hearings I chaired in May and June 1996, at the hearings held by the Parliamentary Committee on Education on Bill 109, and again last month, when the Parliamentary Committee studied the draft bill to amend the Education Act.

In the last two instances, the groups that appeared before the Parliamentary Committee discussed the establishment of linguistic school boards from the perspective that the Constitution Act of 1867 would be amended in order to remove Quebec from the application of subsections (1) to (4) of section 93, in keeping with the resolution that was unanimously passed by the National Assembly on April 15, 1997. It is therefore absurd to claim, as some people have, that the members of the National Assembly who unanimously passed Bill 109 on the establishment of linguistic school boards voted without having heard the groups who wished to state their position on this matter. Furthermore, over half of the groups who took part in the hearings of the Joint Committee in Ottawa had already appeared before the Parliamentary Committee on Bill 109 last June.

I would like to go over the text of the constitutional resolution presented by Quebec, because the "whereas" clauses that precede the text of the amendment clearly explain the reasons why and the context in which the National Assembly passed the resolution.

The first whereas clause states that the government intends to establish linguistic school boards as soon as possible. Allow me to stress that it is urgent that we obtain this constitutional amendment. You have heard the reasons why, in the briefs presented by the Fédération des commissions scolaires du Québec, the Centrale de l'enseignement du Québec and the Fédération des comités de parents. These groups, which are involved in education on a daily basis, have explained why the requested amendment is necessary. If the amendment is not passed before the end of this year, Quebec will be left with a tangled web of overlapping school board structures, a situation our society can no longer endure.

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In the words of the Fédération des commissions scolaires du Québec, and I am quoting from their brief:

[...] the overlapping of linguistic and confessional school boards would render annual activities such as the admission of students, the assignment of personnel, the distribution of resources, the drawing up of electoral lists and the levying of school taxes extremely complex and cumbersome.

The second whereas clause in the resolution, to which the Official Opposition contributed significantly, emphasizes the fact that the National Assembly is reaffirming the established rights of the English-speaking community in Quebec. Although section 93 protects denominational rights and not linguistic rights, and several groups have come here to say so, the National Assembly was nonetheless aware of the need to reassure Quebec's English-speaking minority regarding the management of its schools.

The National Assembly and the Quebec government have always recognized the importance of giving the English-speaking community the right to manage and control its educational institutions.

To this effect, in June 1997, the National Assembly unanimously passed Bill 109, which, among other things, consolidates the English-language education system. As has been noted, Quebec anglophones have access to a full-scale education system which spans kindergarten to university.

The third whereas clause states that it is desirable that Quebec recover its full capacity to act in matters of education. It is high time that we put an end to the vain attempts made by so many Quebec ministers of Education over the past 30 years to reorganize our school structures along other than religious lines, and to the interminable and expensive legal proceedings that have monopolized so much energy within the education community.

Let us recall that Bill 107, adopted in 1988, was examined until 1993 by the courts and then submitted to the Kenniff group, who were to determine how to simplify its application while respecting the constraints of section 93.

The Quebec education community has always been against the overlapping and multiplication of structures made necessary by section 93.

As the federation of parents committees put it, and I quote:

As soon as the first news of the reform was made public, parents of students in Montreal and Quebec school boards informed us that the multiplication and overlapping of school boards in Montreal and Quebec were absolutely unacceptable.

The education reform underway in Quebec is a major undertaking. Now more than ever, Quebec needs its full capacity to act in matters of education. We are considerably reducing the number of school boards, as was also unanimously proposed by the Parliamentary Committee on Education. We are reorganizing the school system along linguistic rather than religious lines to better reflect Quebec's sociological profile. We are redefining of powers of schools and school boards. We are taking a very close look at basic school regulations.

The National Assembly is unanimous in the belief that the future of education in Quebec, regardless of the government in power, needs to be liberated from the shackles of section 93.

The fourth whereas clause of our resolution states that such an amendment in no way constitutes recognition by the National Assembly of the Constitution Act of 1982, which was adopted without its consent.

This position has been defended by all Quebec governments since 1982. Quebec is calling for an amendment that would free us from an obsolete provision of the 1867 Constitution, which is no longer relevant, given the pluralistic society of today's Quebec.

We must not confuse denominational rights with linguistic rights.

There is a linguistic minority in Quebec. With Bill 109, we are ensuring the right of this minority to administer its own school system.

It is now up to Quebec to determine the place of religion in the school to take into account the pluralism of Quebec society.

This debate will take place under highly democratic conditions and, once again, Quebec's brand of co-operation will allow us to attain the largest possible consensus on this important question. To this end, a work group chaired by Jean-Pierre Proulx has already been formed and its report is expected in the fall of 1998. It will be tabled at the National Assembly and transmitted to the Parliamentary Commission on Education, which will hear the interested parties.

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Until then, the current situation in Quebec with respect to confessionality remains unchanged, as I observed last March 26 in the National Assembly in a ministerial statement on the management of the diversity of religious expectations in public schools.

The current denominational provisions contained in the Education Act, as we know, guarantee the right to choose between Catholic or Protestant religious education and moral education, as well as the right to receive religious instruction or religious animation services. They also require schools recognized as Catholic or Protestant to respect the regulations of the denominational committees of the Conseil supérieur de l'éducation, by virtue of the powers they have been given. In this spirit, in order to ensure that the school boards respect these commitments, I wrote to the presidents of school boards on August 28 and asked them to try to avoid any disruptions to students and their families during the reorganization of the school system. This reorganization included the distribution of students in the schools, educational projects in place or the preservation of the schools' Catholic or Protestant denominational status.

The final whereas was addressed at length by my colleague, and I have no further comment on it.

In conclusion, Mr. Chairman, Madam Chair, the unanimous vote of our National Assembly on the constitutional resolution and Bill 109 reflect a consensus of the majority of Quebeckers, particularly the education community, on the need to obtain this constitutional amendment. Consensus does not mean unanimity in a democratic society. We hope, therefore, that the federal Parliament, after a debate on this important issue, will follow the National Assembly's lead in responding to the consensus of the majority of Quebeckers by adopting a similar constitutional resolution.

Thank you.

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

We will now have a question period. For the information of my colleagues, there are already 12 people who have indicated they would like to ask questions, and I would ask that we limit ourselves, as we agreed, to about two minutes each.

Ms. Val Meredith.

[English]

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

I would like to thank you for joining us in this very important discussion we are involved in.

I don't doubt for a minute that the Quebec government is acting on behalf of the people of Quebec in trying to advance the education system into the 21st century. I believe Canadians support the concept that the constitution is a living document that must change with the changes in society to reflect Canada in the 21st century. I don't question that there is support for linguistic school boards in Quebec. From all the witnesses we have heard that seems to be consistent.

What isn't clear is whether the people of Quebec accept releasing the protection of denominations within the charter, the Constitution, to allow that to happen. I don't feel we've been given empirical evidence that the element of giving up protection of religion in the schools has been addressed by the population. I guess I'm looking to you for assurance that they understand they are giving up the protection of the right for religion to be taught in the schools in order to accomplish linguistic school boards.

Can you assure us in some way that the people of Quebec are clear on what it is they are being asked to address in order to accomplish linguistic school boards?

[Translation]

Ms. Pauline Marois: I will try to answer your question, Madam.

Quebeckers are not renouncing religious education in schools, and this must be made very clear between us.

The Education Act guarantees this religious instruction. This is a Quebec statute that includes a set of clauses providing for how this is to be done. Our legislation and our teaching regulations even stipulate the number of hours set aside for religious instruction. These are probably the only hours that are mandatory for a specific subject at school. For all other subjects, there is no amount of time specified. We are in the process of reviewing all this, but any changes will have absolutely no effect on that question.

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When you heard the Fédération des comités de parents, you noticed that the federation nonetheless consulted its parent committees. The committees in the Montreal region, among others, very strongly and very clearly supported the views defended here by the federation, knowing that if section 93 were retained as is, the result would be duplication.

As for broader consultation, given that this issue has been discussed for the past 30 years, and that the Assemblée des évêques says that it has no objection to what we are proposing, I imagine that this must reflect what the members of their communities want also.

On this point, all the parliamentary commissions that we have held, except for those where witnesses appeared by invitation only, have always been open to anyone who wanted to come. People had an opportunity to express themselves each time.

Indeed, the groups representing the most people, since teachers are sometimes parents as well, have indicated their support for this amendment.

The Joint Chair (Mr. Denis Paradis): Senator Lynch-Staunton, the floor is yours.

Senator John Lynch-Staunton (Grandville, PC): Thank you for being with us and for accepting our invitation. It is important that those responsible for the issue before us clarify certain questions that I feel are still without an answer.

I would have two general questions. You both pointed out that the National Assembly was unanimous in not recognizing the Constitution Act of 1982. I do not want to open a debate on this, but the whereas of your resolution does not appear in the whereas clauses of the resolution before us.

I do not know if you were shown the two texts, but I find it strange that we do not have all the whereas clauses that were adopted unanimously by the National Assembly. In any case, I would say that what is before us is a contradiction, because one of the whereas clauses of the resolution before us says, in reference to section 23 of the Canadian Charter of Rights and Freedoms, that this section guarantees citizens across Canada the right to instruction in the minority language and to publicly funded educational institutions managed and controlled by the linguistic minorities.

The Charter, as you know, is part of the Constitution Act of 1982. Your request means that you are participating in an amending exercise for a constitution that the National Assembly does not accept.

That said, I do not want to open the debate on the acceptance or otherwise of the Constitution, but I feel there is a contradiction which seems to me strange, to say the least.

The Charter is an integral part of the 1982 Constitution Act that the National Assembly does not recognize. Once Quebec is exempted from section 93, the Charter as a whole, if it is accepted, would become applicable, which is not the case now, in view of two decisions by the Ontario Court of Appeal. This might lead to the elimination of denominational public schools.

Today we are not just talking about denominational schools. We are not talking about changes that would affect linguistic rights; we are talking about specific rights that were entrenched in 1982 for two religious denominations.

The Joint Chair (Mr. Denis Paradis): Senator Lynch-Staunton, a question, please.

Senator John Lynch-Staunton: Mr. Chairman, give me two minutes. I intentionally put everything in writing.

At present, the National Assembly has invoked the notwithstanding clause to be exempted from the Charter. When it was renewed the last time, the Parti Québécois did not vote in favour of the notwithstanding clause.

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I would therefore have two questions. First, does the Quebec Government, which does not recognize the Constitution Act of 1982, accept that the Canadian Charter should apply in Quebec as elsewhere in Canada and, if so, in the next debate on renewal of the notwithstanding clause, will the Parti Québécois maintain the same position, given that it does not recognize the Charter as applying to Quebec?

My second question deals with the issue of religion in schools. Many witnesses have told us that once section 93 no longer applies in Quebec, the denominational character of linguistic schools should be extended to all religions. This was said by many of those who appeared before us.

On the other hand, some say that in a pluralistic society like the one in which we live, especially in Montreal, it is no longer the State's role to see that religious education is provided with public funds, and that this responsibility belongs to parents and religious authorities outside the public school system.

First, what is the Quebec government's position on the application of the Canadian Charter of Rights and Freedoms and, second, what is its policy or its position, in the short and long term, on the place of religion in public schooling?

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

Mr. Jacques Brassard: One must not confuse being subject to with support or consent. The Constitution Act of 1982, for Quebec, and not only for the government of which I am part, but for the government that preceded us as well, was imposed on us without our consent. Since 1982, no Quebec government, whatever its allegiance, has given its approval for the 1982 Constitution.

It is clear, however, that it does apply. Quebec is subject to the 1982 Constitution. However, Quebec as a government, as a State, has not given its approval to the Constitution Act since 1982. I will remind you of the reasons.

In 1982, the National Assembly felt that this Act reduced the jurisdiction and powers of the National Assembly in the areas of education and language, and that was the main reason that no government, whether a Parti Québécois or a Liberal government, gave its approval to the Constitution Act. But it does apply.

You made reference to the notwithstanding clause found in the Charter, which is part of the Constitution Act of 1982. That provision was used by the governments of both Mr. Lévesque and Mr. Bourassa. Its use, once again, must not be interpreted as consent to the legislation. I would remind you that Mr. Bourassa made efforts, and this is the whole story of the saga of the Meech Lake Accord, to have the Constitution amended. His intention was to have it amended so that he could give his consent and support.

With respect to religious instruction, you are opening a debate that must take place. It is true that in 1999 there will have to be another debate in the National Assembly. You can rest assured that this debate will be democratic and that all groups and interested parties in Quebec society will be invited to participate. It will be a major debate aimed at answering the question of whether the notwithstanding clause should be used again or whether it should be suspended or no longer used.

For the time being, I think it is too early to answer. The debate on the place of religious instruction will take place at the same time. If we respect the Charters, not only the Canadian Charter but the Quebec Charter as well, religious instruction is a right, but for all religious groups. That is why Mr. Ryan, then minister of education, introduced the notwithstanding clause into the Education Act. It was to limit religious instruction to two denominations for historical reasons that everyone understands.

That debate will therefore be reopened at that time.

Senator John Lynch-Staunton: Do you still feel...

The Joint Chair (Mr. Denis Paradis): I am going to allow only one question per member, so that we can get to the end. Ms. Marois, would you like to add something?

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Ms. Pauline Marois: We have an official position as a government. I expressed it in a minister's statement in the National Assembly last March, on March 26, to be exact. We are making a very clear commitment. We are saying what the structure of the school boards will be, that is without any denominational reference, and there is a consensus on that.

A second measure aimed at promoting the harmonious establishment of linguistic school boards is that we will maintain the present denominational status, Catholic or Protestant, of schools. However, two years after implementation, the schools will be called on, in consultation with the parents, to review the meaning and relevance of their denominational status with a view to maintaining it or eliminating it, as provided in the Education Act. We are, of course, retaining the freedom to choose Protestant or Catholic instruction, or moral instruction.

Finally, to ensure that the debate is a democratic one, with all desirable and necessary transparency, we have mandated the task force that I referred to in my remarks; it is chaired by Mr. Proulx, who has a great deal of credibility in this area, as do the members of the committee who will work with him. The report will be submitted to me, as Minister of Education, and will be tabled with the National Assembly's parliamentary commission to be debated. If appropriate, hearings will be held for groups that would like to take a position on the recommendations that might be made by the task force. This will result in a very broad-based debate, I believe.

The Joint Chair (Mr. Denis Paradis): Thank you, Ms. Marois. The next speaker will be Mr. Réal Ménard.

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): I would have two short questions. Hello, and greetings to our guests.

If by any chance the federal government—and we do not foresee this scenario at this point—does not pass the resolution presented by the National Assembly, what would that mean concretely for children, for school attendance, Ms. Marois? What exactly is the scope and the nature of the urgency? Why must all parliamentarians be urged to be present on November 7 when the resolution is presented, and why is it important for it to be passed before the Christmas holidays?

Ms. Pauline Marois: Before the Christmas holidays.

Mr. Réal Ménard: I prepared myself a little bit.

Ms. Pauline Marois: You heard very eloquent testimony on this issue from the Fédération des comités de parents and the Fédération des commissions scolaires. I have very carefully read what they said in their testimony, and it is perfectly in line with what might happen.

It is important to know that the legislation we adopted, Bill 109, calls for the establishment of linguistic school boards, and we are going ahead with it. Since we are completely redefining the role of school boards and the areas they will now cover, we believe that it was appropriate to proceed immediately with the establishment of linguistic school boards.

However, because of section 93, obviously, outside Montreal and Quebec City, we will need to provide an opportunity for dissent on the part of minorities who would want their own network of denominational school boards. That requires us to maintain a parallel structure of francophone and anglophone school boards, francophone Protestant school boards and anglophone Catholic school boards, for example, which generally reflects our history and culture.

But what does that imply? I can give you a series of events that might happen. We must first review the notices of intent by Protestants and Catholics to form a dissenting school board. That means a parallel structure of school boards, that is, two francophone school boards in one area. There is no mystery there.

There are currently provisional boards. These must decide first if they recognize that a denominational minority exists. To recognize it, research has to be done, people have to be questioned and registered. If the provisional board does not recognize that those making the request form a minority, it must obviously indicate this and make up its voters' list, and there could always be another objection. This is a very long and costly process, because we need to make separate voters' lists, you see, depending on whether people are voting for a francophone, an anglophone, or a dissenting school board, whether it is Catholic or Protestant. And that is the case across Quebec.

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For Quebec City and Montreal, the model is different, because the Constitution is different in that section 93 applies differently for Quebec City and Montreal. To resolve that problem, we have chosen to set up denominational committees within linguistic school boards, a Protestant committee and a Catholic committee which will determine which school children will go to. You can imagine that it will be very complex. It could become very confusing. Only through the good will of people will we be able to avoid confusion. We can count on people's good will. Of course, at the beginning, this is the case, but we know that a few rules are sometimes necessary to do our day-to-day work.

This, then, is the urgency. The end of December marks the official beginning of the establishment of new school boards, and we will need to have met in advance all the requirements I just mentioned and applied all this, unless there is an amendment.

If there is no amendment, we will carry on using the present formula for a year. If the amendment is adopted in one year or in the spring, we will have had to do all this anyway. We have no choice if we want to proceed legally.

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

The next speaker will be Ms. Marlene Jennings.

Ms. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): Hello, Ms. Marois and Mr. Brassard. First, I would like to say that as a Quebecker, I am very happy to see you here supporting the work of the Canadian Parliament and participating in the constitutional amendment process.

You have acknowledged, I believe, that the effect of amending section 93 will be to remove at the constitutional level the authority to have denominational schools without recourse to the notwithstanding clause. My question deals with the fact that there has been considerable consultation of the Quebec people over the last 30 years. However, none of this consultation has explicitly focused on a possible amendment to section 93 and on its legal and constitutional consequences with respect to denominational schools.

If it was not the mandate of the Estates General on Education or of the parliamentary commission studying Bill 109, I wonder what exactly you are basing yourself on when you claim that there is a consensus to amend section 93. I am not talking about structures, but about schools, because you know as well as I do that with this amendment, the only way to maintain denominational schools would be to use the notwithstanding clause.

The Joint Chair (Mr. Denis Paradis): Ms. Marois.

Ms. Pauline Marois: It is not so straightforward, in theory or in fact. I will go into a few of the aspects again. The rights and privileges conferred by section 93 of the Constitution are aimed at Catholics and Protestants living only in Montreal and in Quebec City, even where they are the majority. This must be clear.

Throughout the rest of Quebec, section 93 gives rights to these two religious denominations, but if they are in a minority situation, it is not the Constitution that guarantees whether the school will be a denominational one or not; it is Quebec's Education Act that is very explicit in how this right must be exercised, on the obligations of school boards in this area, on the denominational status of the school, and so on. We therefore must be very clear about this. We are removing the denominational character of the structure and not of the school, and it is the Education Act that allows for this.

The notwithstanding clause says that only Catholics and Protestants in the Montreal and Quebec City areas and in the rest of Quebec who are in a minority situation will have their rights protected. But we must be careful. The notwithstanding clause is needed because we do not recognize at that point, and this must be said, the freedom of conscience of other denominations, although we believe this is necessary in a pluralistic society. This is why we have undertaken...

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

Mauril Bélanger.

Mr. Mauril Bélanger (Ottawa—Vanier, Lib.): Ms. Marois, over the past few days and the last two weeks it has become clear that there is a consensus regarding amendment of section 93 to eliminate the application of subsections (1) to (4). It is not unanimous, as you said yourself, but there seems to be a consensus, and it seems to me that this consensus is based at least in part on the fact that parents will be able to continue to opt for denominational schools. We are not talking about structures, as you said, but about schools.

There have been presentations by experts, by constitutionalists, who have said it is possible that the denominational status of schools and religious instruction, whether Catholic or Protestant, may violate the fundamental rights entrenched in the Canadian and Quebec Charters. It is on that point that I would like to ask you two questions, if you will allow me.

Other constitutionalists have said that a solution could be found without necessarily using the notwithstanding clause, by referring to section 1 of the Charter, which is much more reasonable in a free and democratic society. I would therefore like to ask you if your government has considered that possibility, if it seems to be a realistic one, and what form that solution might take.

Second, is it possible that as a government you might feel justified in renewing the notwithstanding clause when it expires, as provided for in Bill 107, if that was the only solution that would enable you to maintain the provisions in the bill?

Ms. Pauline Marois: We feel that these questions are very relevant and that it will be important to reflect on them carefully. I think that these are perfectly reasonable and fundamental questions that need to be asked. We believe that it is so important that before renewing our discussions of whether to opt out of the Charter and also from the Quebec Charter—let us not forget—there will have to be a debate on these questions. This is why our government has expressed this desire, which was confirmed in a minister's statement, for the most open debate possible on all these issues with a view to maintaining, through the Education Act and our Catholic and Protestant committees of the Conseil scolaire de l'éducation, this right to denominational schools.

But let us not forget that even if a school has a denominational character, it is a public school. No school may refuse a child that might have different convictions than those chosen by the school attended by that child.

I do not know if my colleague wants to add anything on this question.

Mr. Jacques Brassard: I would like to give a little historical reminder. When Mr. Ryan was Minister of Education and overhauled the Education Act, the question was raised as to whether a privilege—because that is what it is—could be given to two denominations only, without using the notwithstanding clause.

For reasons that are no doubt legitimate—history is one, as is the composition of Quebec's society—can a privilege be awarded to only two denominations, Catholic and Protestant, without invoking the notwithstanding clause? There was a long debate, but the issue was analyzed in detail. I think that Mr. Ryan even consulted the courts. The answer was very clear and unambiguous: if you want to award rights to only two denominations with respect to instruction in public schools, you must use the notwithstanding clause; otherwise, you violate the provisions of both the Canadian and Quebec Charters.

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The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Brassard. Sheila Finestone.

[English]

Hon. Sheila Finestone (Mount Royal, Lib.): Well, that's very interesting. I see a follow-up in this.

Before I start my remarks, I'd like to say welcome to you, Minister Brassard, and hello again to you, Madame Marois.

I'm really quite delighted that you've come to further the discussions in the Canadian Parliament that touch the lives of Canadians who live in Quebec and to further the participation in a fuller understanding of the meaning of this really dramatic—it sounds like it's very exciting—change to the Education Act of Quebec.

[Translation]

First of all, let me say again in this regard, as I have said several times during the hearings of this committee, that I agree with the amendment of section 93, for the reasons that you have just described so eloquently, Mr. Brassard.

This clause is discriminatory with respect to religious minorities in our pluralistic and multicultural society, and people are living with that every day where we're from, isn't that right? I am also in favour of linguistic school boards in Quebec.

However, how do you respond to the arguments of various groups who have appeared before this committee on the issue of the notwithstanding clause, which they feel would no longer be necessary in order to maintain local denominational schools? I think, Madam Marois, that you felt at one time that the notwithstanding clause was not needed for the maintenance of local denominational schools under linguistic school boards if Bill 109 was amended to include not only the rights of Catholics and Protestants, but also equal rights for religious minorities where numbers warrant.

If I understood correctly what you have just said, you would not be prepared to make this change to the law in order to bring it into line with the Canadian and Quebec Charters. Did I understand you correctly?

Mr. Jacques Brassard: No, that is not what I said. That debate will need to take place. It will take place when the provisions expire, in 1999. We are already getting prepared for it. As my colleague said, a task force has been set up to study and examine that question.

[English]

Mrs. Sheila Finestone: All right, so you're saying—

[Translation]

Mr. Jacques Brassard: I simply said...

[English]

Mrs. Sheila Finestone: —that this decision is not taken yet, Mr. Brassard, but therefore—

[Translation]

Mr. Jacques Brassard: No, no, no.

[English]

Mrs. Sheila Finestone: —that leaves a very large and open question: what's going to happen to the schools that are financed in the public interest that are in the private sector? There's the réseau of Armenian schools, Jewish day schools, etc. What is going to happen to those areas of the province that Madame Marois just recently outlined whereby there will be minority pockets of people who may not have the numbers that warrant? What protection are they going to have? What will be the exchange of information in the field of religious rights?

[Translation]

Mr. Jacques Brassard: First of all, we are talking about public schools, and only public schools.

Mrs. Sheila Finestone: My question dealt with both.

Mr. Jacques Brassard: As far as other schools go, there are private religious schools other than Catholic and Protestant schools in Quebec right now, that are publicly funded. Jewish schools are private schools that are publicly funded, which is quite rare and even unique, we might say. This will continue.

To conclude on that point, I would like to say that this debate will be a fundamental societal debate. I cannot tell you right now what the result of that debate will be. It will need to take place, it will need to be very democratic, and all interested parties will be invited to participate in it. What the result will be, I could not tell you right now. Will there be a consensus, for example, to maintain the present provisions of the Act that call for the use of the notwithstanding clause? I do not know. Or will the consensus be that we have to align ourselves more with the Charter provisions? I could not tell you right now.

• 1625

However, what I can tell you is that a question as fundamental as this requires wide public debate and that we have to take the time to do it. Everyone must, basically all those who have a word to say, or who would like to express themselves, be able to do it.

The Joint Chair (Mr. Denis Paradis): Thank you Mr. Brassard. The next intervention will be from Senator Beaudoin.

Senator Gérald Beaudoin (Rigaud, PC): I must say first off that I quite agree that subsections (1), (2), (3) and (4) of the section 93 do not meet modern needs. I think that it is obvious, since the advent of the Canadian and Quebec Charters, that in a society we cannot give privileges only to two religions.

I believe that on this matter, the Supreme Court very often stated that we have freedom of religion, and they applied section 93. Of course, it is there, but today, we cannot say that there are only two religious groups and that only these two groups could receive privileges.

Therefore you conclude that we must get rid of the denominational structures and I totally agree with that. I have no problem with that. As you say, there is unanimity at the National Assembly and there is a consensus among the population.

Having said that, once this will have been done, we will fall under the rule of the charters of rights. I am an advocate of charters of rights and freedoms. I feel very comfortable with that system.

However, there are some who have shown concern by saying: what will happen to denominational instruction? I'm among those who believe that there are various possible arrangements. There are legal experts, to whom you alluded during your presentation, who have written a great deal on this question, and they are read with close attention.

There is one thing that we must absolutely protect, and I am not against that at all, quite the contrary. If the charters of rights are now the ground rules, we must respect freedom of expression and equality before the law. And that is where the difficulty perhaps lies. We have no choice. In a democratic society, we must respect the principle of equality before the law.

Are you considering the use of notwithstanding clauses on a long term basis or only on a short term basis? Shouldn't we aim at getting rid of these notwithstanding clauses?

Ms. Pauline Marois: In certain circumstances, we know that they're absolutely essential, isn't that so?

Senator Gérald Beaudoin: On a short term basis!

Ms. Pauline Marois: On a short term basis! Therefore we agree on the essentials. I believe that, within a democratic system wanting to respect rights and equality before the law, we must avoid notwithstanding clauses. However, if they do exist, it is because they are sometimes necessary.

Senator Gérald Beaudoin: I won't deny that, but we should try to show a bit of creative imagination.

Ms. Pauline Marois: We agree on that too.

The Joint Chair (Mr. Denis Paradis): Mr. Brassard, a supplementary.

Mr. Jacques Brassard: The notwithstanding clause, Senator Beaudoin, must be seen as a legitimate tool. It exists in both charters.

Senator Gérald Beaudoin: And it is even constitutional.

Mr. Jacques Brassard: Yes, it is even constitutional and therefore we can use it.

Some Hon. Members: Oh, oh!

Mr. Jacques Brassard: However I think that we should only resort to it in extreme cases. It must be used with a great deal of skill and caution.

Senator Gérald Beaudoin: Not necessarily the notwithstanding clause, but the notwithstanding clause if necessary, and only in that case.

Some Hon. Members: Oh, oh!

The Joint Chair (Mr. Denis Paradis): Our next intervenor will be Mr. David Price.

Mr. David Price (Compton—Stanstead, PC): First I would like to welcome you to the National Capital. I think that it was very important for you to come.

Ms. Pauline Marois: And moreover, from another national capital.

Mr. David Price: I believe that it is very important for you to be here. For you and for myself, a Quebecker, I believe that it is absolutely necessary to have a chance to put questions on these matters in public.

First, I want to tell you that I'm going to vote in favour of this resolution. I live in the Eastern Townships, where we already have linguistic school boards that are working very well.

• 1630

But at the same time, in the Eastern Townships, we're also living with a problem which might get worse with this change. I am talking about the problem of the Protestant francophones.

I would like to quote Monsignor Turcotte. He said that the bishops agreed to accept this change on condition that religious instruction be protected at the school level. I quite agree, but what long-term guarantees can we hope for? I'm not talking about guaranteeing, but hoping.

Ms. Pauline Marois: The guarantees that we can give, at this time, are, first, the ones we have in our Education Act, which I repeated at the time of the minister's statement made to the National Assembly. Not only do we want to reorganize our institutions on a linguistic basis, but also to respect the diversity of religious expectations in Quebec, which is presently the case on the Island of Montreal. This is what amending section 93 will allow us to do.

You were talking about the Eastern Townships. I know their position very well, because they were very eloquent in support of linguistic school boards, might I say in passing. I've met them several times. If we come back to the territories of Montreal and Quebec, we can very clearly see all the perverse effects that that has had within the framework of school organization. People have felt rejected by one of the two major school boards of Montreal Island. They didn't feel welcome there, as they have different religious convictions from those preached by the school board. We are tending towards diversity, which implies that we will find the best means possible for recognizing the role that religion plays in school.

The Joint Chair (Mr. Denis Paradis): Thank you, Ms. Marois. The next intervenor will be Mr. Nick Discepola, who will be followed by Mr. Godin.

Mr. Nick Discepola (Vaudreuil—Soulanges, Lib.): Welcome, Mr. and Madam Ministers. Even if you say that your presence is exceptional, I think that it is perfectly normal for the Minister of Education to come here to plead her case, so do speak, and that is why I welcome you here.

Ms. Marois, I want to put you at ease in spite of what you might have read or seen in the media. Already, for the last three or four days, there is a wide consensus and I'm convinced that the amendment will go through.

Mr. Brassard, I feel reassured by your remarks. You are showing a great open-mindedness towards the anglophone community and you do recognize its importance. But nonetheless, right from the start, the anglophone community has been taking refuge behind section 93 to obtain a type of constitutional protection. I admit that this has nothing to do with linguistic protection, but nonetheless, I believe that, thanks to section 23, we have been able to go and get the consensus which everyone wanted.

In your future debate, because you have already spoken about this, are you going to show great open-mindedness towards the anglophone community and perhaps eventually consider enshrining 23(1)(a)?

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

Mr. Jacques Brassard: Since 1982, through a conscious choice both by the National Assembly and by successive Quebec governments, Quebec is not subject to this provision of section 23. I do not think that this will be the case either in the short or in the long term, because a choice was made in Quebec 20 years ago, a fundamental choice. That choice, was to make sure that immigrant children would be integrated into French schools. That choice dates back to the adoption of the French language Charter, which has never been contested by any government, whatever its allegiance. Whatever the party in power, never has this been reconsidered.

• 1635

Immigrant children are integrated into French schools. If you apply 23(1)(a), you are upsetting and contesting this basic choice, because thereby, you are creating two categories of immigrants. And that's what 23(1)(a) is about. That is what is called the universal clause relative to the Canada clause, which is presently applied in Quebec and which moreover has been integrated into the French language Charter. It is a universal clause; which is to say that any person coming from any place in the world whose learned language is English would have the right to go to English schools.

That means that there are two categories of immigrants, at this time. That means that, if you come from Jamaica, from India, from Great Britain or from the Bahamas, you have that right if that is applied. On the other hand, if you come from France or Spain or from Brazil, you are obliged to send your children to French school.

To us it is clear that there is no question of challenging this fundamental choice. I think that this in no way infringes on historical rights of the anglophone community in Quebec. It's rights are fully respected, but this does ensure equity towards immigrant children.

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

Mr. Yvon Godin.

Mr. Yvon Godin (Acadie—Bathurst, NDP): Good day Madam Minister, Honourable Minister. You are real stars. At first, I thought it was Céline Dion and Roch Voisine who were coming in here with all the cameras. But we will not sing O Canada for you.

Now let's turn to more serious things. I am an Acadian and I pass through Quebec every weekend. And as an Acadian, I like Quebec very much.

At the start of this process, I had concerns because in my view, this is a more important matter than some people might think.

If you listened to the news in April and May 1997, you know what happened in New Brunswick when the government wanted to close down French schools. In our province, we know what it's like to be a minority francophone. Finally, it all came to an end with the intervention of the RCMP, with tear gas and dogs being let loose on children, blind people, etc.

So, you can understand my difficulty with this committee. My way of putting questions may have disturbed some people, but I have more confidence today regarding the decision we will be taking. Our caucus made the decision to give majority support to the decision of the Quebec National Assembly.

However, I'm wondering about one thing. Some minorities which appeared before the committee were wondering how the secularization of school boards in Quebec would be carried out.

There is no doubt at all in the minds of those people. They will have no problem with that. However, the problem will arise in the schools. I have difficulty conceiving of a child who will go to school in the morning, and, when catechism time comes around, is told: You will get out of the class because we are going to speak about Jesus. I have a problem imagining that.

Therefore, do you have any kind of program in mind which will facilitate things for the outlying minorities far from Quebec and Montreal?

Ms. Pauline Marois: So that we understand each other well, and no doubt this will complement the answer which I was giving just a while ago to Mr. Price—I was looking for the exact section in the Charter of Rights of Freedoms—presently, there are two religious groups who have rights and privileges which are ensured and we have used the notwithstanding clause of our charters for the very purpose of ensuring them. These are the Catholics and the Protestants. All the other religious groups, be they Jewish, be they Muslim, are deprived of these rights and privileges.

• 1640

What we're saying today is that tomorrow morning, after the constitutional amendment, under our Education Act, Catholics and Protestants will have the right to choose the denominational status of their school and will have the right to give courses on religion in school. They even have the right to provide parish services in school.

On the day when, besides the constitutional amendment, we will get rid of the notwithstanding clause, we will be subject to our charters. And here I'll quote word for word section 41 of the Quebec Charter of Human Rights and Freedoms, which states:

41. Parents or persons acting in their stead have the right to require that, in public schools, their children receive religious or moral instruction in conformity with their convictions, within the framework of the programs provided by the Act.

This is very important. This is a very strong statement. This means that no matter what their religious convictions might be, we must respect them. Some parents will want their child to leave the small class to get a course on morals because they'll be teaching the Catholic faith or some other faith.

The Joint Chair (Mr. Denis Paradis): Thank you, Ms. Marois. Mr. Denis Coderre.

Mr. Denis Coderre (Bourassa, Lib.): Madam Minister, Honourable Minister, we are very pleased to see you here. I had moved a motion to invite you. We were told that you would not be interested. But the fact that you are here demonstrates to what extent you believe in the importance of participating in this democratic exercise.

As you can also see, Honourable Minister, there is no crass ignorance here. People understand very well. I can assure you that when you leave Ottawa, you'll have a very clear idea in mind, which is that this amendment will go through. Personally, I support you on that point. I support the Quebec government, as a Quebec MP, as an MP working in the interest of Quebec. I believe that we can assure you that this amendment will go through.

However, we do have some questions to put. I'd like to come back to the matter of the notwithstanding clause. There are some snags here.

You are the government. You must set the tone, as you always do. Are you in favour, yes or no, of applying the notwithstanding clause? That's all I want to know.

Mr. Jacques Brassard: For the time being, the notwithstanding clause is a part of the Education Act. I cannot answer your question because when that debate arises in 1999, I wouldn't want my choice to prevail, nor the choice of the government in power at that time, either. I want this choice to be a choice made by society as a whole. This is a basic matter, and the choice must be a social choice.

However, I would tell you that if, obviously, at the time that this democratic debate takes place, there is a vast and very strong consensus appearing, like the one which presently exists in Quebec society, as you have just recognized, to set up linguistic school boards, if, at that time, there is a very strong consensus so that, in our school system, we go on granting privileges to two denominations, I believe that at that time the government will have to respect that consensus. If it is another...

Mr. Denis Coderre: You're going to wait for the consensus. But you, personally, are someone who is well-known. You are a personality who expresses his point of view.

The Joint Chair (Mr. Denis Paradis): I asked the committee members to limit themselves to one question, Mr. Coderre. So I'll go on immediately to the next intervener.

Mr. Denis Coderre: This is a part of the Education Act, and I want the Act to be respected.

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

[English]

Senator Jerahmiel S. Grafstein (Metro Toronto, Lib.): Thank you, Mr. Chairman, and welcome, ministers. I'm delighted that you've accepted our invitation to assist us in Ottawa with our constitutional responsibilities.

In my view this is realistic politics. Coming from Ontario this week, I understand the difficulties, the great difficulties in developing any type of consensus when it comes to a major reform in education.

• 1645

Based on the evidence, Madam Minister, that I've heard this week, it strikes me that you and your government have been quite courageous in promoting an equality-based model of education while removing the preferred rights and privileges as contained in section 93, and at the same time developing a strong consensus, in my view, amongst the minorities most affected.

I want to congratulate you on that, and I want to thank you as well, because sitting on this committee from Ontario, I've had an opportunity to study the struggle for educational equality within Quebec in the last 30 years, and as I understand the struggle—having finished with Newfoundland, reading about Newfoundland and now moving to Quebec—I now will have to return to Ontario and find out why in Ontario we have a system that perhaps is not as open-minded or based on equality principles as you're moving towards in Quebec. I want to say that at the outset.

I also welcome Minister Brassard's very realistic acceptance or acknowledgement of the 1982 Constitution applying to Quebec, because for us, as parliamentarians, we absolutely have no power whatsoever to accede to Quebec's request for a bilateral change to section 93 without referring to 1982, and that's the amending section 43 of the 1982 Constitution. We're stuck with realism. We have to deal with the 1982 Constitution, and I think there's a grudging and realistic acceptance of our respective positions.

Having said that, Minister Brassard, I want to put this on the record as well. Having heard you on paragraph 23(1)(a), you must understand that there is a strong difference of opinion within Quebec and outside Quebec as to the equality model really being equality without 23(1)(a) applying. I don't want to reopen that debate, because you've been clear on your point, but I think you should understand that we've heard from people representing 13,000 families in Quebec, 13,000 pupils, who feel that they have not been given parents' choice or choices.

My question is this. Having in mind that you now have within Bills 109 and 107 the notwithstanding clause, and understanding that you're going to wait for a consensus, do I take it, Madam Minister, that you would be promoting, you would be leading for an equality model, if in fact the denominational structure is still in place?

[Translation]

Ms. Pauline Marois: You know, I basically agree with the Quebec Charter of Human Rights and Freedoms. This Charter recognizes equal rights for all citizens, men and women, in Quebec.

To this effect, I could read again for you the section of the Charter mentioning the right that parents have to require that public educational establishments offer their children religious or moral instruction that is in conformity with their convictions, while respecting, of course, the curriculum as set out by the Act. This is normal, seeing the resources and means that are available.

I think it is clear that all societies must try to achieve this objective and to ensure compliance with such a basic principle. In this respect, I am completely comfortable with this section of our Charter; not only am I comfortable with it, I am also very proud of it.

That is why it is so important that this debate be as calm as possible, and that is why I wanted to separate the debate on the role of religion in schools, on the way we were to teach the history of religions (and it was relevant to do so), and the reorganization of our educational services from the whole discussion about reforming Quebec school boards. I thought this debate was important enough that it be carried out with all the necessary information and in a context in which we would not be sidetracked by other issues.

We will take the time to have this debate. We will proceed calmly. It will be a democratic debate, and, as my colleague said, we will respect whatever consensus may emerge. This in fact will be referred to the National Assembly of Quebec. We must be quite aware of that.

The Joint Chair (Mr. Denis Paradis): Thank you, Ms. Marois. I will now give the floor to Ms. Christiane Gagnon.

• 1650

Ms. Christiane Gagnon (Québec, BQ): I would like you to speak again about the consensus that exists in Quebec, Ms. Marois, because a number of spokespersons said, during the hearings in Quebec City of the various committees, but particularly in the case of Bill 109, that section 93 was not an issue, and that it had been misunderstood. So I would like you to reassure the committee, because it is important that we understand the consensus that has emerged in Quebec.

Ms. Pauline Marois: Bill 109 has only one objective: to introduce linguistic school boards. Bill 109 said that this could be done in one of two ways: with or without a constitutional amendment.

In the case of an amendment, we would simply establish interim councils according to the process described, and reorganize school boards along linguistic lines.

If there were no constitutional amendment, we would be in the mess I described to you or to someone else who asked a question about this earlier.

Bill 109 clearly sets out that if there is an amendment, we will proceed in one way, and if we do not have an amendment, we will proceed in a different way.

Before debating Bill 109, the National Assembly passed a resolution before you today, which we are here to discuss.

The witnesses who came to testify had to be testifying about something. The first issue was whether or not they agreed with the introduction of linguistic school boards. The second issue was whether or not they agreed with using a constitutional amendment to achieve this objective, or whether they prefer to remain under section 93.

There were no other issues. There were organizational matters, of course. School boards talked about how they would be organized, as did the parent committees, but that was the main focus.

So, in this regard, I don't think the process could have been clearer.

The Joint Chair (Mr. Denis Paradis): One very brief intervention before we conclude. Jason Kenney.

[English]

Mr. Jason Kenney (Calgary Southeast, Ref.): Thank you, Ministers, for appearing before us.

There's one point I'd like to address, Madame Marois. You said in your statement that the bishops have not objected to the proposed amendment, but I'd like to make it clear, on the record, that they haven't supported it either. What they have made clear is that they support linguistic school boards as long as there is some assurance and a guarantee that there will be continued access to confessional education.

This comes back to the point that we have not yet received a clear assurance from you that the notwithstanding clause will be invoked to protect the excellent provisions in Bill 109 from the coverage of the charter. What you're asking the minority groups who have come before our committee to do is to trade a constitutional right to protect the fundamental right to denominational education, which was given to them by their ancestors, for some vague potential commitment of future governments to provide that protection.

What do you say to those minority groups who feel that this is a violation of their entrenched acquired rights to denominational education?

[Translation]

Ms. Pauline Marois: I never said that the bishops had or had not approved an amendment. They left it up to the government to decide how to proceed. That was very clear, and I believe Mgr Turcotte was very eloquent on that.

I am saying what I have already said on a number of occasions, and I have been repeating it now for several minutes. Section 93 does not protect religious education in the schools. The Education Act does that.

Outside of Quebec City and Montreal, the Education Act protects minority rights. It's very important that it be understood. The provision for religious education for Catholic or Protestant students is provided for in our Education Act. The Charter of Rights and Freedoms states that once the notwithstanding clause is removed, once section 93 is removed, parents or guardians will be entitled to require, not to wish for but rather to require that their children receive religious or moral instruction, in accordance with their beliefs, in public schools.

• 1655

That means that if we were to get this essential requirement in order to guarantee the protection of rights, not only would two groups in our society enjoy certain privileges, all groups in our society would have their rights guaranteed. I think this is even more important for minorities.

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

One final brief comment. Marlene Jennings.

Ms. Marlene Jennings: I will be very brief, Ms. Marois. Like many Quebeckers, I have some Aboriginal roots—Montagnais, Cree and Attikamek. During our hearings, we had the privilege of hearing from Grand Chief Chalifoux of the Native Alliance of Quebec, and from Mr. Daniels, who is the President of the Congress of Aboriginal Peoples.

They came to say that if section 93 were amended as requested by the National Assembly of Quebec, this could have an impact on the right of Aboriginals to have denominational schools both on reserves and off reserves. There are in fact denominational schools on reserves and off reserves that were established specifically for Aboriginals.

I would like to know whether you have looked at this whole issue and whether you have drawn any conclusions about it.

Ms. Pauline Marois: The situation is exactly the same as for all other groups, whether they are in the majority or in the minority. These Aboriginal nations are treated in exactly the same way as all citizens with respect to their educational rights. Hence, I fail to see how this could have a different impact on these groups.

The Joint Chair (Mr. Denis Paradis): On behalf of all committee members, Ms. Marois and Mr. Brassard, I would like to thank you very much indeed for your presentation here this afternoon.

Mr. Jacques Brassard: We would like to thank you too.

The Joint Chair (Mr. Denis Paradis): We will take a four or five-minute break.

• 1658

• 1716

The Joint Chair (Mr. Denis Paradis): Before continuing, the Joint Chair has something to tell committee members.

The Joint Chair (Senator Lucie Pépin): Please note that Mr. Claude Ryan will be appearing before the committee on Monday at 3:30 p.m.. He will be accompanied by Mr. Jose Woehrling. We will end our hearings on Tuesday morning with the appearance of Mr. Dion. I will confirm the time of the Tuesday meeting.

The Joint Chair (Mr. Denis Paradis): We are resuming the hearings of the Special Joint Committee to Amend Section 93 of the 1867 Constitutional Act regarding the Quebec school system, in accordance with our Order of Reference from the House and the Senate.

We are pleased to welcome this afternoon Jean-Marc Fournier, from the Official Opposition of Quebec, a member of the National Assembly, and François Ouimet, who is also a member of the National Assembly.

Welcome, colleagues. I would like to tell you how we work here. You each have 10 minutes for your presentation, or you can share the 10 minutes. It is up to you. Then there will be questions from committee members.

Mr. Nick Discepola: Didn't the previous witnesses get 10 minutes each? In the interest of fairness, I think we have to give these witnesses 10 minutes.

The Joint Chair (Mr. Denis Paradis): That is what I was going to say. I apologize.

You have the floor, Mr. Fournier.

Mr. Jean-Marc Fournier (Member of the Official Opposition, National Assembly of Quebec): We have no written brief. We will present our comments briefly and then answer your questions.

First of all, I would like to thank you for giving us an opportunity to appear before you today. I think this amendment is essential, because it is about something essential, namely, our children's education.

I'd ask my colleague, François Ouimet, the MNA for Marquette in the National Assembly and the education critic, to speak to you first.

• 1720

For Quebec, this request for an amendment is about education, and my colleague, the MNA for Marquette, will clarify the meaning and nature of this request.

The Joint Chair (Mr. Denis Paradis): Mr. Ouimet, the floor is yours.

Mr. François Ouimet (Member of the Official Opposition, Quebec National Assembly): Mr. Chairman, Madam Chair, ladies and gentlemen, I am pleased to be here today as the official critic on education. In order to clarify some of the issues, I would like to reiterate just how important it is for the children and parents, and for the entire population of Quebec, to obtain this constitutional amendment which is truly the key to reforming the Quebec school system.

Indeed, Quebec has sought to modernize its school structures since the early 60s, ever since the Parent report. All of the efforts made by various successive governments since the time of this report have met with failure.

The problem we have always run up against pertains to the provisions of section 93 of the Canadian Constitution and the ensuing legal challenges. And yet, Quebeckers ardently wish to replace the denominational school boards with linguistic school boards, since they better reflect Quebec's current reality and the way that Quebec's society has evolved since 1867.

For once, and this is rare, Quebec's francophones and anglophones, Catholics and Protestants are all in favour of setting up linguistic school boards. This deserves to be pointed out. Linguistic and denominational communities are all in favour of this.

As a former president of the largest school board in Quebec, the CECM, and as a member of the Kenniff Commission, I learned that the only way we can go ahead in implementing linguistic school boards, in the interest of the students, is to modify the Constitution.

This explains why, in 1996, the Liberal Party in Quebec's National Assembly, took steps to amend the Constitution. I would remind you that we succeeded in convincing the Quebec government of the need to take such a step, and this was no easy task since the government was reluctant to do this for reasons that you understand very well.

[English]

As Liberal members of the National Assembly we initiated in 1996 a process to obtain a constitutional amendment. I wish to remind you that we had to convince the current government, which was then opposed to such a process, but the interests of our children commanded that we implement linguistic school boards by way of a constitutional amendment.

I therefore submit to you that a golden opportunity is knocking at our door to amend the Canadian Constitution so as to respond to the wishes of an overwhelming majority of Quebeckers, both French and English, both Catholic and Protestant. We must seize this opportunity.

[Translation]

Now I'd like to talk to you about the consequences for children and parents should this constitutional amendment fail. The Minister, Ms. Pauline Marois, has talked about certain aspects, but I would like to go back to some other points.

First of all, it must be understood that in the cities of Montreal and Quebec City, there would be four school boards with six school networks: a Catholic school board with a network of French schools and a network of English schools; a Protestant school board with a network of French schools and a network of English schools; a French language school board; and an English language school board.

• 1725

Outside of the cities of Montreal and Quebec City, there would be a dissenting school board with a network of French schools and a network of Catholic English schools, or a dissenting Protestant school board with also a network of English schools and a network of French schools, as well as the French language school board and the English language school board.

Each school board in each school network would have its own bureaucracy, its own administration, with its educational orientation and all the other associated administrative services. You can quickly realize the problem we will have with overlapping and duplicated structures. Administration will become more cumbersome and the financial burden will be greater. We must be prepared to see the various school networks and the various school boards competing for clients because you can quickly see that the funding of the public schools is based upon the number of students in the school and the number of students in the school boards.

You can therefore already foresee that the school boards will be fighting amongst each other to attract clients in order to obtain more funding so that they can, of course, offer more educational and teaching services to the children.

We also have to think about the problem of parents who have to choose, for instance, between a Catholic school that comes under the linguistic school board and a Catholic school that comes under the denominational school board. The same problem will exist in the Protestant schools. Two types of schools: how do you choose? Think about the consequences in the regions, where there are few school buildings, but where the parents and the children will have the right, under section 93 of the Constitution, to demand their own schools.

The advantages of the constitutional amendment are undeniable. Anglophones will be able to manage and control all English-speaking children without exception, without having to deal with the "where numbers warrant" provision of section 23. The same goes for French-speaking students. Each language group—francophones and anglophones—will have its own school board.

There would be a consolidation of all the financial, human and material resources related to school management. Otherwise, in the current situation, children are scattered about among a number of different school boards in the same region. In other words, some francophones come under a Catholic school board, and some francophones come under a Protestant school board. I will not go into the issue of immigrants, who are supposed to do their education in French in Quebec.

In my view, the essential question is this: how would school children be better served by such a system if we do not get a constitutional amendment?

I will turn the floor over to my colleague, the MNA for Châteauguay.

Mr. Jean-Marc Fournier: Thank you very much, François. I would like to give you a very quick presentation of three issues that I have been wondering about, and on which I would like to comment. Then we can move to the question period.

First of all, I will go over quickly some of what François was saying to you. We must always ask what is the objective of the constitutional amendment regarding linguistic school boards. Clearly, the objective is to establish efficient structures in an area which, everyone agrees, is so essential to society—namely, education.

Efficient structures are those that take into account people's needs by allowing for different points of view. At the same time, they eliminate overlapping and superimposed bodies and provide the type of performance expected by the people of Quebec, the parents of our children and taxpayers, people who want public funds to be used for children first, rather than for structures.

• 1730

The second question explains a little bit about why we are here today, because we noticed the current climate of the discussions. How is a constitutional amendment of this type, a bilateral amendment, carried out?

I think the key word is co-operation, co-operation at two levels. Co-operation in Quebec City first, and second, co-operation between Quebec City and Ottawa.

I will speak first about co-operation in Quebec City. As you now know, because you've been studying this for some weeks, the debate has been going on for a number of years already. However, it took on new vigour when my colleague from Marquette suggested the proposed constitutional amendment. Clearly, politics being what it is, let us just say that co-operation had its ups and downs. However, the important thing is the end result. There is a consensus. Agreement was reached.

There is no doubt that a constitutional amendment raises some concerns. That is true of this one as well. We therefore tried to allay these concerns, to take as many of them as possible into account. This was the context of Thomas Mulcair's amendment, which is in fact the third whereas of the draft resolution before you.

The purpose of this extremely important amendment was to reaffirm the right of the English-speaking community. We are pleased we convinced the Parti Québécois government to accept this point.

I would now like to speak about the second type of co-operation, that between Quebec City and Ottawa. In this respect, I would like to congratulate Minister Stéphane Dion for supporting Quebec's initiative with conviction since the very beginning.

I would also like to pay tribute to the work done by your committee. We note with appreciation the speed with which you undertook your consultation. That is a sign of co-operation.

I come now to the final question I wanted to raise with you. What does a constitutional amendment demonstrate to Quebeckers? First of all, it proves, beyond any doubt, that we can make structures adapt to people, rather than forcing people to adapt to structures.

Of course, it proves as well that co-operation produces more results than confrontation. It proves that we can talk to each other, understand each other and support each other.

In conclusion, and I will close here so that we have time for questions, I would say that as a Quebecker and as a Canadian, particularly on this 30th of October, our Constitution is proof of the fact that our country has a history. Bringing our Constitution up-to-date shows that our country has a future.

Thank you.

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Fournier and Mr. Ouimet. We will now move to the question period. The first person on my list is Peter Goldring.

[English]

Mr. Peter Goldring (Edmonton East, Ref.): Mr. Fournier, you just mentioned adapting structures to people's needs. I suppose that one of the first things said at the beginning of these meetings was why don't we modify and adapt section 93 to our needs—start with that, build on a structure that we already have, (1) to (4), and change that.

Be that what it may, I have some questions here from the statements by the previous presenters where they were saying that the religious dissidents will be protected, yet this morning we heard from an organization that represented two million people and they stated that no decision had been made yet as to religious education in schools and it varied from choices of no religions being taught to the status quo, two religions, to numerous religions being taught to a final one, a generic form of moral instructions. This group that represented two million people believed that no decision had been made.

When we're looking at extinguishing (1) to (4) of section 93 for Quebec, my concern is that in the meantime we will have to protect the system we have, or the status quo, while we're making up our mind about which way to go next, instituting the notwithstanding clause. We're really trading one 93 for a notwithstanding 93. So why are we going through this process?

• 1735

[Translation]

Mr. Jean-Marc Fournier: We will each answer in turn. Mr. Ouimet will start by talking about the substance of the proposal.

[English]

Mr. François Ouimet: I think one of the first things we have to distinguish, and unfortunately it has not always been easy to distinguish, is the difference between the structure of the school board, which is confessional, according to the provisions of section 93 of the Constitution, and the religious instruction that is given in a classroom and that takes place in a school. The distinction is clearly that there is no consensus, I believe, in Quebec on the question of religion in the classroom and religion in the schools. I think both the Minister of Education and Mr. Brassard stated that this is why for a period of two years they have given a mandate to see how we can accommodate all religious minorities. Where there is a consensus, it is clear and it has existed for a number of years, ever since 1964 with the Parent report, that we must do away with the structure of the school boards that are called confessional.

[Translation]

I think it is very important to make this distinction. Too often, we tend to mix things up. Some might say that some interest groups are cultivating this ambiguity. But we must make this distinction very clearly. The process you are examining has to do with changing school structures. It is not about what goes on in schools or in the classrooms.

[English]

Mr. Peter Goldring: Just to clarify that, you believe that religion will be part of the curriculum in the school. So the opinion stated by the group representing two million people, that there is one choice, which is no religious instruction in Quebec schools, wouldn't be correct.

My supplemental question is on this consensus we're talking about. Here is one group that represents two million people that obviously is in conflict with what you say. Are there more? How is the consensus taken? Do we have statistics on it? Do we have it on paper or a survey taken that would indicate that specifically consensus was taken about the extinguishment of subsections 93(1) to (4)? Is there a document?

[Translation]

Mr. Jean-Marc Fournier: Mr. Ouimet will now answer the question.

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

[English]

Mr. François Ouimet: I think there is a clear consensus both on the objective of obtaining linguistic school boards and on the means to obtain the linguistic school boards.

Mr. Peter Goldring: That's right.

Mr. François Ouimet: When we look at the people who are primarily concerned.... You know as well as I do that there is a unanimous resolution of the National Assembly: all the MNAs representing the various segments of the population without exception have adopted that resolution. When you look at the people who are directly concerned—the parents—they have expressed their support to both the objective and the means to obtain it, and that is la Fédération des comités de parents de la province de Québec.

When you look at the teachers, both French and English, both Protestant and Catholic, have given their support both to the objective and to the means.

When you look even at the students who are primarily concerned by the reform, the students coming out of the CEGEPs and the universities have expressed their support. These are children who were in the schools, primary and high schools, not too long ago.

When you look at the school boards, there is a consensus there.

La Fédération des commissions scolaires represents 90% of the school boards. They have supported both the objective and the means to obtain it. The other school boards have not objected to it, have only stated that it is not legally necessary.

When you look at the Catholics and the Protestants, the very groups that are concerned by the issue, both the Assembly of Catholic Bishops and the Protestant bishops have supported it merely by not being here to contest it.

There is also the estates general that was established by the government, which sat over a period of one and a half years and which came out with a report.

At our own parliamentary commission at the National Assembly, we heard various groups. The issue was squarely on the table.

• 1740

So to say that there is no consensus is not seeing what has developed in our province over the past years.

Mr. Peter Goldring: But to say—

The Joint Chair (Mr. Denis Paradis): Sorry, Peter, I think we will have to proceed with another intervention.

[Translation]

The next speaker is Senator Beaudoin.

Senator Gérald Beaudoin: I agree with you, Mr. Ouimet, in light of the unanimous vote in the National Assembly and in light of what has been said here for the last two weeks. I am sure that there must be a consensus to amend section 93. I have no doubt about that. It is also clear that the denominational structures that were established must be changed.

Actually, the debate could stop there in some ways. However, the two ministers we heard from earlier spoke very well and very clearly about what denominational schools or education would be like after the amendment is passed. On that, of course, we might have some questions.

In addition, it is clear that it will take two more years before this problem can be settled. What is your attitude regarding the notwithstanding clauses? They may prove necessary. Personally, I would accept them, but I always said that in order to build a new system—because it would be a new system—we must build on something permanent and solid, and not on something transitory.

Mr. Jean-Marc Fournier: I would like to tell you that I was pleased to hear the Canadian Minister of Intergovernmental Affairs say that for him and for the government, the use of section 33, the notwithstanding clause, was a last resort. That is what he said, and I was pleased to hear it, particularly since other debates were mentioned. I don't want to get into a discussion here of the other debates, in which reference was made to this section.

We agree that a charter is important. It provides rights, and if the government wants to derogate from them, it has to think about such a measure very carefully first. That said, I am not convinced. I know that some people think that the notwithstanding clause will have to be used automatically. I must say I am not convinced of that. What will happen once section 93 is removed, the Charter remains in place, and the Act proceeds as you described? I will not go over this again, but, first of all, there will have to be a Charter challenge of the Act.

Second, the challenge will have to be upheld if we are to be sure that the notwithstanding clause will be invoked at some point. In other words, the court will have to agree that the Charter has been violated, and this means that it may uphold the challenge. We would also have to see whether the court interpreted section 1 narrowly or broadly.

So let's imagine the court has just decided that there is an anomaly in the Charter. Courts usually have several ways to work around things so that the notwithstanding clause is used as little as possible.

But the clause does exist, and if it is in the Constitution, then it can be used on occasion. But generally, when the court is faced with this type of situation, it finds other arrangements so that the Act can be effective, while at the same time being consistent with the Charter. So before resorting to the notwithstanding clause, the legislator can see whether other arrangements are possible.

I would like to end with the very recent case of the ruling on the Quebec Referendum Act, where the court did find other options. That is the point we have reached in Quebec.

• 1745

After listening to the two ministers who spoke earlier, I got the feeling that both the Quebec government and we ourselves now have the political will to examine those options.

I do not want to conclude by saying that people automatically resort to the notwithstanding clause. Quite the opposite. Other arrangements can be made when there are challenges.

The Joint Chair (Mr. Denis Paradis): We will now move on to Mr. Réal Ménard.

Mr. Réal Ménard: I'm very pleased that you appeared today. It is not everyday that the Quebec government, especially the Quebec Official Opposition, gets so closely involved in our business.

I think that is a very positive sign of a healthy democracy. We know it will not last, but that is to be expected. We are also going to follow your progress very closely.

Mr. Jean-Marc Fournier: We hope democracy will last.

Mr. Réal Ménard: Yes, yes, we agree on that. I would like to look at two issues with you. Our committee heard from the Montreal Catholic School Commission, which Mr. Ouimet knows quite well, if I'm not mistaken.

What would you tell its chairman and board of trustees? They have told us they would subscribe to the establishment of linguistic school boards, but they're very concerned that there aren't enough guarantees to ensure religious instruction in schools in the long term.

I think you share the view of most of the parliamentarians around this table, namely that right now—we are not talking about the future—the legislator from the Quebec government is clearly bound and determined to provide religious instruction, access to religion classes and pastoral services to students and parents who want them.

How can you reassure the Montreal Catholic School Commission, by hoping your message will be heard?

Mr. François Ouimet: Attempts should indeed be made to reassure the Montreal Catholic School Commission, but it is virtually impossible to sway the party that is currently running that board.

I was once the leader of that political group and I know that it is extremely difficult to hold internal discussions there. The best proof of that is that all of the schools on that board are Catholic, but the bishops and parish priests have often insisted on the fact that within the school walls, even though the schools may be Catholic, nothing points to their being denominational or Christian.

Mr. Réal Ménard: In the education plan?

Mr. François Ouimet: In the education plan or even in the daily life of the school itself. And yet there is a constitutional guarantee. The guarantees regarding the Montreal Catholic School Commission are iron-clad, but there is no semblance at all of the schools being denominational. It is quite striking.

As for religion, what happens in classrooms? A little earlier, someone mentioned that the Assemblée des évêques had said that they agreed with the idea of having linguistic school boards as long as religious instruction was protected.

I think I should clarify that. When the bishops say that, you have to remember that there will be religious instruction if the parents want it.

Mr. Réal Ménard: It is the religion factor.

Mr. François Ouimet: But it is very basic nonetheless. In the Montreal Catholic Commission schools—and I won't even mention the schools that are legally Protestant under the Protestant School Board of Greater Montreal—the parents do not really want to have a denominational spirit in these schools. And yet they are bound by the provisions of section 93. It is high time these school structures were modernized.

Mr. Réal Ménard: What you are saying is extremely interesting because one of the ironies of this debate is that we all agree that people's religious convictions should be respected, regardless of what they may be.

None of the people who came to see us, and who are advocates for Catholic associations, even though they may be more conservative—and I don't mean to be pejorative—have ever doubted that this code of values could get the support of a given community. That may not be the case in two, or four, years.

• 1750

I find it very interesting to hear you say that it is not because of constitutional guarantees that that is possible if, at the grassroots level, parents do not subscribe to the plan. Unfortunately, that cannot have a positive effect on the schools themselves. I fully agree with you on that.

The Joint Chair (Mr. Denis Paradis): The next intervenor will be Sheila Finestone.

Mrs. Sheila Finestone: Thank you very much.

[English]

Thank you very much for coming.

Between the two of you, Mr. Fournier and Mr. Ouimet, you might add some clarity to certain points. I think your presence and that of the previous witnesses indicates really the incredible constitution and the amazing federation within which we live, where you can look to modernizing and updating your federation in collaboration with the partners with whom we work. For me in particular and for all of us in this room, seeing the two partnerships at work and able to clarify issues that are of concern to us is really very encouraging. For that reason I want to welcome you here doubly.

It just so happens that the next set of witnesses comes from the black community of Montreal. In the response given by Mr. Brassard when we were talking about paragraph 23(1)(a), which is not the issue...that I know well; we're talking about religious; but it does have a very big significance in the following way.

Let's say we continue to grow in Quebec through immigration.

[Translation]

Quebec's population is not increasing because of Quebeckers, but because of immigration. Our birth rate is quite low.

That means that if people come here, let's say from the Caribbean or Africa or the United States, in other words from a significant community because the black community here is... Here is my question.

[English]

What is going to happen? That I don't have clarity on. The black community says, in speaking to us, that they have sustained and grown through immigration; that there have been very exciting and interesting programs through the PSBGM, where for the most part they have been housed and they have sent their children; that the special programs for minority, racial, and cultural groups are served there in this linguistic board structure with a particular focus on multiculturalism and integration, etc. Now these children come, the new immigrants, and they are going to go into the French-language stream—which I agree with, by the way—and if you meet the black youth you will see very fine bilingual youth, fully confident speaking French, but they are surrounded in a milieu where they have comfort from their family and from their network.

What happens now? Where do they go? Are they going to go into the French-language stream, into the French school system? I want that to be quite clear, so they will understand that. Secondly—

Mr. François Ouimet: If they have chosen to immigrate to this country and to this province, and this province has been their choice, normally one could anticipate that parents would find out what the school system is like and what its requirements are. It seems clear to me that anyone who wants to immigrate to Quebec should know and must know they will be asked to go into the French school system. That is the rule if you choose Quebec, for all sorts of historic reasons, which I'm happy to hear you agree with.

Mrs. Sheila Finestone: I don't agree with paragraph 23(1)(a), but for a different reason. Within the English school stream you are going to be setting up you can have your English culture and English background but you can go into the French stream. You can go into a French-language immersion structure. I see nothing wrong with that. However, that was definitely ruled out, and I'm not going back on that—

Mr. François Ouimet: That's not possible.

Mrs. Sheila Finestone: —but I wanted that clarified by the politicians from Quebec, because that is an issue they are going to have to fight in Quebec and present their case on. You're going to have to respond to it, because they've come here for a response but this is not the place for that response. Correct?

• 1755

Mr. François Ouimet: That's right.

Mrs. Sheila Finestone: Good. Okay. So you take that back and remember that is the next thing you're going to have to deal with.

Mr. François Ouimet: Okay.

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

[Translation]

The next intervenor will be Mr. David Price.

Mr. David Price: I would first like to welcome you to our committee. It is very nice to have people from the Opposition, like us, especially with the idea that we will form the next government. As I said earlier, I will vote in favour of the amendment. However, I do have some concerns about our Franco-Protestant communities.

[English]

Probably because of your experience, I would like to describe a concrete case. You have a Franco-Protestant school that has taken 15 years to build in the sense that it takes in a region. Now the problem is that with this change they will go back into the mainstream of the schools, because these people are having to be bussed in and naturally you know what happens in a case like that—why should they have a separate school? There's a French school system, so they'll automatically go back in. So they'll lose their school completely, something that they worked years to build up. The teachers are Franco-Protestant. What happens to a group like that?

Mr. François Ouimet: Let me address that issue and make a distinction once again. It may be the practical effect for the French Protestants in your area, but it does not result because of the constitutional change that is being looked at here. It results more because the government has decided to change the territories of the school boards.

Mr. David Price: This results from going linguistic. Oh yes, it will definitely.

Mr. François Ouimet: Well, it results from going linguistic in terms of changing the territories, because we are reducing 156 school boards into roughly 70 school boards.

Mr. David Price: Right now you've got—

Mr. François Ouimet: If I may just finish.

Mr. David Price: —a French school with 1,000 kids here and another French school right next door that has about 300 kids. That's the situation. What will happen is because they are Protestant they retain their school, and if this is a Catholic school, they will automatically go into there. Now, we know it won't happen overnight, but it will happen because of the cost factor.

Mr. François Ouimet: But it is not necessarily a consequence of the constitutional change. It is a consequence of changing a system, modifying the school structures.

Had you addressed the issue to the minister—and I addressed questions to her on that specific issue—her answer would be that it is always possible to have agreements between schools and between school boards to least disturb the school projects that are existing.

It may be more a theoretical answer than a practical one, but there are some impacts—

Mr. David Price: They know that things can be worked out in the short term, but it's the long term where the fear is.

Mr. François Ouimet: It would be wrong on our part to say that there will be no impacts. Sure, there will be impacts. But we've always felt that in the balance of conveniences there were many more advantages than disadvantages in changing that.

[Translation]

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

Ms. Marlene Jennings: Good evening and thank you for accepting our invitation to present your views and to answer our questions.

I would like to join my colleagues in congratulating you on what you are doing. There should be official recognition of what you have done at the National Assembly to try to reach a consensus and convince the current party in power to refer this matter to the Canadian Parliament. I think I am speaking on behalf of my colleagues and on behalf of many Quebeckers of all political stripes.

I have a very brief question for you. I think you have already heard me ask the same one to Ms. Marois. It is about the claims made by Aboriginals.

• 1800

The Native Alliance of Quebec and the Congress of Aboriginal Peoples claim to have their own rights to denominational school boards and that these are protected by section 93. Moreover, given the fact that the Quebec government does not recognize these Aboriginal rights to education in section 91, subsection 24, they are very scared that if Parliament passes the amendment put forward by the National Assembly, their rights with regard to education or denominational school structures would be affected.

As members of the Opposition, I would like to know if you have any views on this.

Mr. Jean-Marc Fournier: I will answer to the best of my knowledge. I do not think that section 93 makes any distinction or differentiation or establishes categories of citizens, be they Aboriginal or not. I think I can safely say that. Section 93 first and foremost recognizes that education is exclusively a provincial jurisdiction, in this case of Quebec. Also, a framework is defined in subsections (1) to (4) on the way this jurisdiction should be used within these parameters.

Earlier on, there was talk of privileges rather than rights. I think that enough reference has been made to court rulings which state that this is indeed a question of privileges that are enshrined in the Constitution. However, those privileges are granted to minorities, namely Protestants or Catholics.

So I think it would be very awkward on my part to tell you that somewhere in that section there is reference to a given group of citizens. If that is the claim of the Aboriginals, perhaps it can be found in another legal document. I really don't know which one that would be.

Ms. Marlene Jennings: Thank you.

Mr. François Ouimet: I would also like to add that to my knowledge, there are three Aboriginal school boards: the Cree School Board, an Aboriginal school board and a third school board, whose name escapes me. But these school boards are not affected in the least, neither by Bill 109, nor by the constitutional amendment, as far as I know.

Ms. Marlene Jennings: Yes, but...

Mr. François Ouimet: Perhaps I misunderstood your question, Ms. Jennings.

Ms. Marlene Jennings: No. It is just that these two associations or groups represent Métis and Aboriginals, both on and off reserve. They maintain that even prior to 1867, they had their own denominational schools, both on and off reserve, which they continued to manage.

So they are a minority within a minority that had that privilege.

Mr. François Ouimet: Perhaps I understand the claim a little better. In 1867, the Constitution had crystallized the state of school rights that existed in Lower Canada at the time, and I can understand that Aboriginals feel we had rights and privileges that were never truly recognized in their case after 1867.

Historical research might show exactly which acts were in effect when that was the case.

Mr. Jean-Marc Fournier: In any case, that is not the basis for the request for a constitutional amendment which is currently on the floor.

Ms. Marlene Jennings: Thank you very much.

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

Mr. Mauril Bélanger: If I may, I would like to go back to the famous notwithstanding clause yet again. I do not know if you have been able to follow the progress this committee has made during these first few days. Given all the testimony we have heard, we wonder whether there is indeed a consensus. The discussion had evolved over the past few days to a point where, although I don't want to speak for my colleagues, I think a number of us recognized that a consensus does exist, not only on linguistic school boards, but also on amending section 93, as is being requested by the National Assembly.

• 1805

What I was saying, and which I repeat, is that part of this consensus stems from the assurance that parents and bishops, or others, could nonetheless keep their denominational schools.

You yourself said earlier that after a bilateral amendment to section 93, there could be a court challenge. In fact, some groups said that they would challenge it. At some point, we may end up with a situation where the Supreme Court says that according to the Quebec Charter or the Canadian Charter of Rights and Freedoms, paragraph 2(a) and so on, the government can no longer do what it promised. We may end up in a situation where the only remaining option—if it really were the only option, because I do not want to put you in a corner either—would be to invoke the notwithstanding clause.

I'm putting this question to you as spokesman for the Official Opposition. If we had no other choice but to invoke the notwithstanding clause to maintain these arrangements, would you as spokesman for the Official Opposition consider this to be justified?

Mr. Jean-Marc Fournier: I'd like to give you a complete answer. It is a precise question and I'd like to answer. But to give you as clear an answer as possible, or at least my view on the matter, I'd like to put this in the proper context as I did for Senator Beaudoin.

In my opinion, whenever there is a challenge and the court makes a ruling by giving a stricter interpretation to section 1 and comes to the conclusion that there is a lack of compliance, it normally indicates certain avenues, approaches or possible adjustments. It also attempts to ensure that the Charter can be applied taking into account the wishes of the legislator.

There's no need to insist on the supremacy of Parliament, something which is part of our heritage in relation to this new instrument which is the Charter of Rights. A way must be found for the two to co-exist. That is something parliamentarians must keep in mind in enacting legislation. The court, another important institution, must do likewise. That is why it suggests possible solutions.

I'm convinced that it is almost always possible, with one reservation, to make use of these adjustments. It is possible to respond to the desires of the great majority and at the same time take into account the Charter through such adjustments.

Your question refers to a hypothetical extreme situation. In such circumstances, I would say that a rigorous analysis must be done before resorting to such a clause, although of course it can be used since it exists. As Minister Brassard mentioned, an attempt must be made to determine how strong the popular will is when deciding whether or not to use the notwithstanding clause. The use of this clause must always be reviewed. We know it is not a permanent situation and must be regularly reassessed.

So this obligation does require the legislator to undertake a regular reevaluation. Once the clause has been used, it may be discovered that another type of arrangement would be possible or that there is insufficient popular support for the use of the clause.

I know that you have discussed this matter and that for some of you it seemed to be an automatic reflex. I'm not saying that we are the only ones to have this point of view, I think it is shared by a number of people. I think the perfect example of this, without going into a debate here, is the Supreme Court ruling relating to the referendum law in which it defines a precise framework.

When we remain calm and take a cool look at the situation, we realize that this ruling does open different avenues. It is the work of the legislator to see what possible adjustments can be made. Having listened to the minister, I think that this is the approach that will be taken by Quebec. There will certainly be co-operation, once again, between the opposition and the government to find the proper approach.

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Fournier. Our next questioner will be Ms. Val Meredith.

[English]

Ms. Val Meredith: I want to quarrel with my honourable colleague over there, because there are some of us who are concerned about whether or not the citizens of Quebec have consented to what the government is doing on their behalf.

• 1810

I want to remind you that with the repatriation in 1982, 74 out of 75 members of Parliament from Quebec, on behalf of the people of Quebec, accepted it and thought it was a good thing. But the Province of Quebec said no, it's not. In the Charlottetown accord the government of the day in Quebec said, on behalf of Quebeckers, we agree; but in the referendum, the majority of Quebeckers didn't agree.

So the concern I have is, why did Quebec not do what Newfoundland did and come to the House of Commons and say we have gone to the voters of Quebec, who have overwhelmingly supported us in our endeavours to change the educational system by removing Quebec from section 93? That would have made it very easy for those doubters of whether or not you have asked that question to say that the people of Quebec are behind their government in this endeavour.

Mr. Jean-Marc Fournier: I think the answer is in your question. You speak of Charlottetown, and the fact that the government of the day, the Liberal government, was in favour, and that in the referendum the population voted against it. We have to remind ourselves that at that time in Quebec the Parti Québécois, who formed the opposition, was against the Charlottetown agreement.

So it's not the same case as the one we have today. I think that's clear when you have the government of one party coming in front of you, followed by the opposition in the same assembly, saying they agree. There's a consensus, a unanimity, achieved on this project.

Of course there was a referendum in Charlottetown, but there was no consensus in Quebec at that time. There was no unanimity. It was very different from this proposition.

Ms. Val Meredith: But there's no empirical evidence that there is a consensus among the people.

Mr. Jean-Marc Fournier: Let me say something. I know there are many people who think we should go to direct democracy more often. I believe in direct democracy, but I think when you have all three parties represented in the National Assembly in favour of that, is it of some use...? We also have to think a little bit about the money of the taxpayer at some point. When you have all parties saying they agree.... And as you know, all these parties are representative of ridings of every sector and region of society. François and Madame Marois have expressed the process; I don't know how many years back this discussion started. So it is there, a discussion among the population.

A minute ago Mr. Ouimet expressed that all those who are in favour are not just the politicians but they come from all groups directly concerned—the teachers, the children, the students and the school boards involved. They say they are in accord. When you have all those groups, plus unanimity of.... So if direct democracy is good, I think direct democracy expressed by the election of representatives in an assembly is also good—or at least I hope it is.

[Translation]

The Joint Chair (Mr. Denis Paradis): Excuse me, but we have several other questioners. Mr. Nick Discepola.

Mr. Nick Discepola: Thank you, Mr. Chairman. Thank you, sir. Today you have received almost total support; the Conservative Party has expressed its opinion, along with the Liberal members, the Conservative Party spoke in the House of Commons and even the New Democratic Party expressed its view. There remains one political party to be convinced. Because the government of Quebec refused to hold a referendum on this question, this party will not recognize that there is a consensus. To me it is quite incomprehensible.

• 1815

[English]

You seem to always be drawing that consensus...and I think it's important. But you have here members of the National Assembly, opposition members, government members, Catholic groups, Protestant groups, and anglophone groups—all in support.

I want to correct you on something, Mr. Goldring. If I'm misquoting you, please correct me, but in your question you quoted—

[Translation]

The Joint Chair (Mr. Denis Paradis): Please, we are not at the debate stage. We have invited witnesses, who are here right now.

Mr. Nick Discepola: Forgive me. But this is very important.

The Joint Chair (Mr. Denis Paradis): Mr. Discepola, any debate we want to hold amongst ourselves can wait until next week. But our witnesses are here right now, and they will not be here next week.

Mr. Nick Discepola: I was just coming to my question. I have been very patient, Mr. Chairman. I have given up the floor. But some points do have to be clarified.

[English]

Mr. Goldring quoted from, I believe, page 7 of the survey presented to us by

[Translation]

the Coalition pour la déconfessionnalisation du système scolaire, where we see the coalition surveyed some 1000 people in Quebec. The questionnaire provided three options: religious instruction, Catholic instruction, or Protestant instruction. Barely 16% of respondents opted for Catholic or Protestant instruction, and 11% opted for instruction covering all religions. The vast majority must therefore have chosen the other option.

The Joint Chair (Mr. Denis Paradis): What is your question, Mr. Discepola?

Mr. Nick Discepola: I will try to formulate this as a question.

[English]

I would ask you to look also at page 5 of that same report, which says—

[Translation]

The Joint Chair (Mr. Denis Paradis): Mr. Discepola, I must call you to order once again. We have witnesses who are members of the Official Opposition at the National Assembly...

Mr. Nick Discepola: I withdraw my question.

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

Mr. Nick Discepola: I think, Mr. Chairman, that it is very important for us to show the Reform Party that there is a consensus among anglophone minorities as well. I would like your comments on that, please.

Mr. François Ouimet: I have two shorts comments in response to Mr. Discepola, and an answer for the Reform Party representative. If you don't mind, I will put my remarks in English.

[English]

I made the point before, I believe, on the existence of the consensus in Quebec. You say no empirical evidence exists. I would submit to you that no empirical evidence was ever deemed in Quebec to be necessary, because the consensus was so much there.

On the situation in Newfoundland, recall also that the clergy was very much opposed to their process, whereas in Quebec the clergy favours the process, and they represent the religious minorities concerned.

I express the hope, on behalf of all Canadians, that we will have the support of the Reform Party on this constitutional amendment. It would be wonderful.

[Translation]

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Ouimet. Senator Lynch-Staunton.

Senator John Lynch-Staunton: My question is to you, Mr. Ouimet. You introduced yourself as a former president of the CECM in Montreal. That is correct?

Mr. François Ouimet: Yes, it is.

Senator John Lynch-Staunton: If you can, I would like you to explain why the CECM has taken a position contrary to the position of the Féderation des commissions scolaires du Québec. I don't know whether the CECM is a member of the federation.

Mr. François Ouimet: It is.

Senator John Lynch-Staunton: But the federation says that it provides educational services for over 1 million students, over 90% of the entire school population. Its position is unequivocally in favour of the National Assembly resolution. But Mr. Pallascio, when he appeared before us a few days ago, took a stance quite different to your former employer's.

Mr. François Ouimet: Yes. I'm glad to hear it.

Senator John Lynch-Staunton: Let's go back to that. I am asking the question, and I hope you can give me an answer.

Mr. François Ouimet: I will be glad to answer.

Let me start by saying that the CECM's position has not always been completely consistent over the years. In 1994, it voted in favour of linguistic school boards, and wanted to transform itself into a linguistic school board.

I should point out that teachers' organizations, parents' representatives, teachers' representatives, school administrations, administrators—in fact, everyone making up the institution—are completely in favour of going ahead with linguistic school boards. I am not talking about elected politicians.

There is still one elected political party which governs the school board through a coalition and is questioning the advisability of instituting linguistic school boards. We have to deal with them. They are members of the school board federation, but they have been very inflexible on this point for many years now.

• 1820

I am making no judgment on their position, but in my opinion, that position has been outdated for some time.

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Ouimet. Let's go on to the next speaker.

You have another short question, Senator Lynch-Staunton?

Senator John Lynch-Staunton: We must have a clear understanding of the CECM's position. The CECM represents a large number of students in Quebec and is one of the biggest school boards in Canada.

I don't consider you as one of their spokespersons, but you can perhaps clarify their approach. I'm starting to understand their position a little better. These people, who are elected by a minority of those who have the right to vote, as tends to happen in all school board elections in Montreal, are not representative of the majority.

In your opinion, will they accept their new status if the amendment is passed? Or would they go to court in an effort to keep their current status, or would they do everything they could to delay the implementation of the measures many people would like to see taken?

Mr. François Ouimet: At the school level, administrators would accept linguistic school boards, but members of the party in power are adamant about preserving denominational school boards.

Before a National Assembly committee, they said that, as an institution, they would not hinder the change if the requested amendment went through. As for their political arm, the Regroupement scolaire confessionnel and movements that support it, I cannot speak on their behalf. The change could be contested; we will see when it happens. However, from an institutional standpoint, they govern by representing a fragile coalition. This is a delicate issue. They have stated that they would not initiate a legal debate, and that they would not take their case to court.

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

Our last speaker, Mr. Paul DeVillers.

Mr. Paul DeVillers (Simcoe North, Lib.): Good evening, gentlemen. I believe that members of this committee—except for our Reform Party representatives—are convinced there is indeed a consensus. Do you think that consensus could have been achieved in Quebec without section 23, which assuages concerns the anglophone community may have regarding their language rights?

Mr. Jean-Marc Fournier: This issue was raised in your Parliament, as it was in the National assembly. There have been debates on it. Obviously, in the past there was always some link between denomination and language. If the same debate had been held before 1982, we would not have arrived at the same conclusion.

This also applies to the English-speaking community in Quebec. I have just come from Edmonton, where I went to meet Franco-Albertans a week ago. Many of them tell us that they are starting to develop their communities, to have their own schools, and that section 23 has been very useful to them indeed. Obviously, it is section 23 that will give the English-speaking community a sense of security and... It is through section 23 that we can make a distinction between the debate on denominational structures and the debate on the language issue. The Constitution makes it possible for us to distinguish between the two, and to guarantee...

Nonetheless, there have been concerns in Quebec. This is why we have made every effort to assuage those concerns, and tabled the Mulcair amendment. We worked very hard to get it through. The conclusion of that debate is that there is indeed a consensus. The consensus itself is much more important than the measures taken to achieve it. The Mulcair amendment is in the motion as passed, and in the draft motion proposed.

Thus, there is a constitutional provision making it possible to bring the amendments we would like to see to section 93. However, the National Assembly, as well as the governing party, have expressed their willingness to preserve the English-speaking community's acquired rights.

• 1825

I think that is how we succeeded in achieving a consensus. And in conclusion—because I think we will soon be leaving you...

Some Hon. Members: Ah, ah!

Mr. Jean-Marc Fournier: Leave you physically—that is leave this room. Thus, in conclusion, Mr. Chairman, I would add we have been very happy to come before you today to show that there is indeed a place for co-operation and that we are capable of moving forward, making progress, and changing things for the better.

We are extremely happy to come before you with one voice—the Parti Québécois government and the Liberal opposition. We are unanimous in our belief that we can make a change. We are very happy about this.

The Joint Chair (Mr. Denis Paradis): My dear colleagues, members of the Official Opposition at the Quebec National Assembly, on behalf of all members of the Special Joint Committee, I would like to thank you very sincerely for your presentation here this afternoon.

We will suspend the meeting just long enough to have a bite to eat. Everyone in the room is invited to join us. We don't have enough food for 150 people, but we have a little.

• 1826

• 1900

The Joint Chair (Mr. Denis Paradis): We will resume the hearings of the Special Joint Committee to amend section 93 of the Constitution Act of 1867.

[English]

concerning the Quebec school system and pursuant to the order of reference of both the Senate and the House of Commons.

We have the pleasure to have with us tonight the Black Community Resource Centre, represented by Ricardo Gill, president, Sharon Sandiford, member of the board of directors, Ababebesh Assefa, executive director, and and Vere Rowe, administrator. And on behalf of the Quebec Board of Black Educators, we have the pleasure to have Curtis George, president, and Garvin Jeffers, vice-president, with us.

Welcome to this session. First we'll hear your presentation for eight to ten minutes and after that we'll proceed with questions from the members of the committee.

Mr. Gill, we're listening to you.

Mr. Ricardo Gill (President, Black Community Resource Centre): Thank you, co-chairs.

Committee members, ladies and gentlemen, it is indeed an honour for us from the Quebec Board of Black Educators and the Black Community Resource Centre to have been put on the agenda to make this presentation. Our presentation is going to be very brief. I should say, though, that we thought we were going to be on for three o'clock.

Some hon. members: Oh, oh.

Mr. Ricardo Gill: We realize that we are now on for seven o'clock. We were wondering why, but having come early we know the reason. It's always great to follow in the footsteps of such illustrious people.

Some hon. members: Oh, oh.

Mr. Ricardo Gill: What we're going to do, though, is focus on the English-speaking black community and the way we view the impact of the constitutional amendment on the education of our youth. I know many other presentations covered things globally, and very much of what they have presented also relates to our community, but I believe there may be some dimensions that were not covered. We hope to cover them this evening.

First, let me say that the Quebec Board of Black Educators is becoming old. The board is 30 years old. And we, the Black Community Resource Centre, are rather young. We're one-tenth of their age. We're only three years old. But we have put our collective heads together. We feel there are many things that all youngsters would benefit from if the amendment is made and if we move from confessional boards to linguistic boards.

Now you could follow the text, but I think in the interests of time I will just highlight some of the points.

We support the amendment, and our support is based upon the belief that linguistic boards are a more rational and a superior arrangement for the delivery of educational services, since demographic changes have made confessional boards anachronistic. Furthermore, we believe that minority racial and cultural groups will be better served under this new arrangement, and later you will see why.

We support the reorganization. Many earlier speakers talked about the good economic sense that reorganization makes. But we also believe that it will improve the quality of education and will provide improved services to the English-speaking community, of which we are members. We hope very much that the English-speaking black community will benefit from this regrouping, since it will now be divided between two boards, rather than the eight boards that many of our youngsters attend. They are very dispersed.

We estimate that the English-speaking black community is about 55,000—and we are speaking strictly of the English-speaking black community. We have always been a minority within the larger English minority in Quebec. As far as our records show, we have been attending the Protestant school system for many years. Certainly there are records showing that at the turn of the century we were attending schools that no longer exist in the Little Burgundy, Saint-Henri area, like Royal Arthur or Prince Albert, etc. So it's not a new community. Historically, we have attended these schools.

A smaller number attend the Catholic boards on the island, dispersed at CECM, Baldwin-Cartier, Sault-St-Louis, etc. This has resulted in fragmentation and has prevented these students, those particularly who go to the Catholic system, equal access to specialized programs and services as are found in the PSBGM system.

For approximately twenty years we have been negotiating with the PSBGM. QBBE has worked very closely with them—and various liaison committees to make sure—and they have responded well and have implemented multicultural, multi-racial polices. They have implemented departments, and there are programs that help with the adaptation and the offering of culturally and racially sensitive services to these youth. We hope that as the new structures come into place, some of these services will be extended to the two linguistic boards to which these youngsters will be going—and that's the English western board and the English eastern board.

Unfortunately, we didn't come on before the minister, otherwise you would have heard that we were lauding the Quebec Minister of Education's initiatives in introducing strategies for the educational success of children from immigrant families and for access to cultural resources. It's called une stratégie pour l'accès aux ressources culturelles.

We hope that the new school boards will take the necessary steps to develop, maintain and support measures that promote understanding among racial and cultural groups; that foster conflict resolution programs, such as peer mediation; and that integrate all visible minority groups into the educational structures of the boards.

Now I know that the hon. member for Mount Royal did speak to one of the questions. I don't know how you picked it out, but you certainly did pose a certain question to Mr. Ouimet.

As my colleague—who is a lawyer—said, this is strictly an aside. It is therefore in passing that we are saying we share certain concerns. Obviously, we believe it would be very difficult to see certain trends reversed. Nevertheless, we made the point about the fact that immigration did contribute to the population size of our community in the school system.

But to recapitulate, I think there is a point that we would like to make, but I don't know if it has already been made. What we are really saying is that we support the amendment. We do express concern. Despite this, however, we are saying that the status quo is unacceptable. If we have the status quo, it will mean having parallel confessional and linguistic boards, particularly on the island. In that situation, the black community will be more fragmented and will not benefit from the services offered—those that I referred to earlier—by such systems as the PSBGM.

And there's another problem. The fragmentation will also create different types of school systems, to the disadvantage of students from the inner city. I would just like to highlight that and let you know what I'm talking about. Let's say you had a PSBGM restricted to the territory that it is now restricted to. You would find that within that particular geographic area, most of the schools would be in the poor areas. Of the children attending those schools—I don't have to tell you—limited numbers would be socially and economically disadvantaged and unable to keep pace with their peers who happen to live in the western board or even the eastern board.

• 1910

We really believe these youngsters who are socially and economically disadvantaged—with the present arrangement of the PSBGM and hopefully with an arrangement if we bring the linguistic boards into place—will definitely suffer should you maintain the status quo and have co-existing confessional and linguistic boards.

That's one of the points we wanted to stress, because we know there are some schools those children may have to go to. I know we talked earlier about the competition for youngsters, but I'm thinking about schools like Coronation and Somerled and the one in Urbain and so on.

Co-chairs and ladies and gentlemen, I think those are the major points. There aren't many, but they're something that may not have been picked up in all of the discussions. We thought it was worth it for us to come this distance to make those points. Thank you.

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

We will start our question period with an intervention from Mr. Goldring.

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

Do you support parents having the freedom to have religion taught in this reformed school system?

Mr. Ricardo Gill: Yes, we support it. But many of the English-speaking youth who are in the Protestant system have been used to moral and religious education programs. They have always had moral religious education.

Mr. Peter Goldring: An earlier group mentioned it has not been decided yet what forms of religion would be taught in the school—whether it would be the status quo now with Protestant and Catholic, or whether it would be open to all religions or no religions. Is that a concern for you that it hasn't been clarified in more detail?

Mr. Ricardo Gill: I take it there will be that range: Catholic education and moral religious education. I can only speak for our group, but the parents hope moral and religious education programs will be considered because it's a question of inculcating good values where these youngsters are concerned.

Mr. Peter Goldring: Have you asked the question to determine if that will be continuing?

Mr. Ricardo Gill: I have not asked the question, but I think the minister has spoken about the work Jean-Pierre Proulx and others will be doing over the next little while. I'm sure there will be a lot of input from various segments of the population that will help to ensure that.

The Joint Chair (Mr. Denis Paradis): The next intervention will be by Professor and Senator Beaudoin.

Senator Gérald Beaudoin: Do you agree with the amendment?

Mr. Ricardo Gill: We support it.

Senator Gérald Beaudoin: You support the resolution or Quebec.

One of your arguments is the question of fragmentation. It's a major argument, because I understand you are here and there within the whole city of Montreal. In practice it cannot be a real parallel school board.

• 1915

Mr. Ricardo Gill: Maybe I should explain. At present, because of the open boundaries of our system, young black kids who live, for example, in Côte-des-Neiges can go to a Protestant school in Verdun—the Argyle Academy—or they may live in Lachine and they can go to NDG. With the changes, when there are divisions along linguistic lines and confessionals, that is what will lead to the fragmentation.

Currently it's all being accommodated because of the orientations. You send your child according to the orientation, but they still belong to one family, so to speak. In the new situation, if there's the status quo, you have many different families.

[Translation]

The Joint Chair (Mr. Denis Paradis): Ms. Bujold.

Ms. Jocelyne Girard-Bujold (Jonquière, BQ): Thank you for coming here today and giving us your views. I listened to your comments very carefully, and I noted with interest that your views summarized the consensus there has been in Quebec for 37 years, beginning with the Parent report, continuing with the Estates General, and culminating in general consultations. The consensus reflects a desire for logic and efficiency in the educational system, and as you say will be more advantageous to your English-speaking community. So it is with great pleasure that I received your brief. I have gone through its broad outlines, and I will read it in greater detail.

[English]

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

Ms. Marlene Jennings: Thank you very much for your presentation.

I'd like you to touch a little more on a point that Mr. Goldring raised, which was whether or not you had verified within our community—because I'm part of that same community—whether or not the majority of our community wishes to have indoctrinational religious courses or school.

There's a difference between the programs that we have in the Protestant school boards, even though the word “Protestant” is in the title, because the Protestant school board historically have received students of all religious faiths. It's basically what we would call a common, non-denominational board in the actual services and programs. While religious courses may be given, they're more in the sense of the types of religions that exist, the types of values that exist.

It would be safe to say that generally in our community we have a strong sense of religious beliefs. We have very strong churches and some have existed for 90 years on the Island of Montreal. Generally, the religious values of our particular faith are transmitted to the children by our parents and by our church. We do not expect the school to do that. Is that correct?

Mr. Ricardo Gill: You are correct. You're safe in saying that.

Ms. Marlene Jennings: Is that one of the reasons why our community supports this amendment to take away that religious denominational protection of two religions, two faiths? We have to say Roman Catholic because there are other Catholic faiths that are not Roman that are not protected under section 93. Greek Orthodox and Marmite are Catholic faiths, and they are not protected under section 93.

Therefore, one of the reasons why the black anglophone community supports this is precisely because we do not depend on the schools to transmit our particular religious values and faith to our children. We have other means—the parents and our churches.

Thank you.

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

The next intervention will be made by Sheila Finestone.

Mrs. Sheila Finestone: Thank you very much.

First of all, I want to tell you how pleased I am that you were good enough to come early and stay late. I hope you were at least pleased for the one little sandwich that you were able to have. It is an interesting day. You really expressed by your very presence the diversity that is the reality of Quebec.

• 1920

Secondly, for those of you who are not aware, we are extremely fortunate that we have a school commissioner, someone who's now on the new school board. We have renowned educators in the general system who are well familiar with the existing system. I listened very carefully when you said something about the school boards and that you would hope the new school board will put into place the same kinds of services you were used to in the non-denominational named Protestant school board system.

Having listened to our previous witnesses from the Government of Quebec as well as the opposition party of Quebec, it is my observation that what we're doing here is removing the discriminatory or privileged positions of two religious formations, Roman Catholic and Protestant, as my colleague just said. At the same time we are going to open up to this non-denominational format. But the content and the process are in the process, as you pointed out, of being discussed over the next two years.

Do you see the importance of your job as being to ensure that the content of the school boards you want will be put into place?

Mr. Ricardo Gill: Yes, most definitely. We see that as part of the Quebec Board of Black Educators and the BCRC.

Mrs. Sheila Finestone: Are you now a member of this new board?

Mr. Ricardo Gill: Yes. I am a commissioner on the English western provisional board.

Mrs. Sheila Finestone: Good. Could you give us some sense of—

Mr. Ricardo Gill: That's a long one.

Mrs. Sheila Finestone: Well, I don't know whether I want to hear from you, Mr. Gill, or from Mr. Rowe or Mr. Jeffers, or actually you, Curtis, who are the educators in that sense. I thought you might want to share, particularly with the Reform Party, who are having some problem really appreciating the fact we are accepting this new road.

In your experience so far, how is it going?

Mr. Ricardo Gill: In the provisional board?

Mrs. Sheila Finestone: Yes.

Mr. Ricardo Gill: Actually, I was supposed to be at a meeting tonight at seven o'clock to elect the director general. I didn't know what to do, so I voted by proxy. I don't know if it's legal. I will know next week. Anyhow, the formality of the appointment takes place next week.

To answer your question more seriously, I think it's unfolding rather well. We're talking about implementing lots of changes in a short space of time—not only structural changes but changes of governance and curriculum changes. All these things are going to be coming out in the next short while. It's exciting, but sometimes you are asking if it can be done. It seems to me as though it can be done and done well.

Mrs. Sheila Finestone: Mr. Chairman, I wonder if you would give me the privilege, because I know this community very well and they are from both of our areas....

[Translation]

I would like to make a comment, because this is something we do not see very often.

[English]

One of the concerns we all have is the psychosocial development of our children, which I think you alluded to. When we look at the level of school drop-out, we have serious concern because it's quite high in the black community. At least it was; I don't know where it is now.

I've been told that the difficulty for children, particularly children from visible minorities who are now already identifiable who have changed their language of education and their parents can't help, is that they find a level of frustration that has had a negative impact on these children and has prevented them from moving forward in the school system. I wonder if you might comment on that. Am I right or wrong, or what is your experience as educators?

That question is for any one of you who wishes to respond.

Mr. Ricardo Gill: One of my colleagues has slipped me a note that says “Give concrete examples”, so I'll turn that to Mr. Curtis George. He's a more concrete man. Let him answer that one.

Mr. Curtis George (President, Quebec Board of Black Educators): One thing that has just come to mind is the fact that a few years ago I served on the Gretta Chambers task force on English education in Quebec. We began the meeting with a letter from a young high school student that showed a great deal of frustration with the school system. She was operating in a language that was not her own; she was one of the Bill 101 students who went into the system. When students go into a system or into a language they are not familiar with at an age where they've done some work in the English system and are integrating at a latter stage, they have difficulty. So yes, it's a setback for them, and yes, it's very frustrating.

• 1925

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

Next intervention, Mauril Bélanger.

Mr. Mauril Bélanger: Thank you, Mr. Chairman.

Mr. Gill, I would like to visit an issue with you, something which I visited with two groups who brought the same concern about paragraph 23(1)(a) to our attention. I sense, and correct me if I'm not reading properly between the lines, that you are telling us of your concern, but it is not an impediment, a sine qua non, if you will, to saying yes to the proposals before us. Am I correct in reading it that way?

Mr. Ricardo Gill: Yes, I think you read it correctly.

Mr. Mauril Bélanger: Thank you.

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Bélanger. Nick Discepola.

Mr. Nick Discepola: We're timing this well, because I'm going to piggyback on that. And I appreciate your being here, because I think it's fantastic. You're always colourful, and there's no pun intended there either.

As Mr. Bélanger said about paragraph 23(1)(a), you're not making it conditional. That's reassuring, and I hope some people around this room are listening to that. By the same token, though, you brought up the word “fragmentation”. And Senator Beaudoin did it too.

Are you not concerned that because of the non-insistence of the Quebec government to implement section 23(1)(a) in the future the survival of the anglophone black communities will be at stake?

Mr. Ricardo Gill: Yes, I think as much as the future of the English-speaking community will be at stake, because I think the growth in any community, if you're speaking in terms of demographics or whatever, comes from reproduction or immigration and not too many people dying. Hopefully we will remain healthy and live long and there will be children, but I'm saying that one of the sources that contributed to the vibrancy of the community has dried up. But this, I guess, is an equal concern for others. I hope it would be.

Mr. Nick Discepola: Thank you.

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

Mr. Peter Goldring: Mr. Gill, I'd like to clarify that point that we have no concern over the consensus for going to linguistic schools. I think that's a given. There is consensus for that. Our concern is consensus for the process. And one of the concerns is about taking a section from the Constitution that is protection. It's not perfect, but it's protection of minority rights—section 93, subsections (1) to (4). The question is, why we can't build on and improve that section of the Constitution rather than extinguishing it? That's the question we ask. And starting with something new that obviously has some complications because it involves suggestions of using the notwithstanding clause to keep the status quo...that's the concern we have. It's a concern with the process.

I'd like to ask you, with your comments on 23(1)(a) and the comments earlier from the Government of Quebec when they said that to institute 23(1)(a) and have it adopted by Quebec would cause complications.... And that's the reason they gave for not looking at doing it. I believe their reason was that it would be complicated, it would create confusion. What is your feeling on that? What is your feeling about why 23(1)(a) is not being activated?

Mr. Ricardo Gill: I thought it wouldn't be nice to have brought the young lawyer with me all the way from Montreal.... I will hand that one to Ms. Sandiford to see if she has any thoughts on the subject.

The Joint Chair (Mr. Denis Paradis): Ms. Sandiford.

Ms. Sharon Sandiford (Member, Board of Directors, Black Community Resource Centre): To answer your about why we don't just stick with what we have and try to just work with it and remodel it, I think that because what we have is so outdated and because of multiculturalism and the pluralism in society.... I don't think we can work with what we have. I think it's necessary to revamp what we have.

In relation to 23(1)(a), obviously it was a direct concern because of some of the comments that were made about the possibility of the English community decreasing. With the migration of our people and with the government not allowing our people's children to go to English schools, obviously the community would decrease. It will have an effect on linguistic boards. Once again, we still support linguistic boards, and as was clearly stated by the Minister of Education, they're not going to put into force 23(1)(a). So we will not see that with this present government.

• 1930

Obviously, we're going to try use whatever efforts we can, community efforts. We're hoping that the federal government will use some of its efforts to try to see if we can maybe change the situation, but historically the provincial government has always insisted that children of immigrant parents must go to French schools, once again for their own purposes and cultural expansion and so forth. How far we will get in that area, once again we'll have to see. But as it stands, the minister made it quite clear that we're not going to see any success there with this present government.

The Joint Chair (Mr. Denis Paradis): Thank you very much. On behalf of all the members of the committee, I would like to thank you very much for this presentation, which was a little bit late.

We'll have a one-minute recess to allow the other group to take their places.

• 1931

• 1933

The Joint Chair (Mr. Denis Paradis): We continue the hearings of the special joint committee.

It's our pleasure to have with us tonight the Ontario Catholic School Trustees Association, represented by its president, Patrick Daly; its director, Patrick Slack; and Denis Murphy, director of Catholic education. Welcome here tonight. I presume it's Mr. Daly who is making the presentation. Mr. Daly, you may go ahead.

Mr. Patrick Daly (President, Ontario Catholic School Trustees Association): Thank you, and thank you to the co-chairs and the committee members for allowing us this opportunity.

In addition to those you introduced, I'd like to introduce as well Mr. Art Lamarche, one of the regional directors of our association. As well as being president of the Ontario Catholic School Trustees Association, I'm most proudly, together with my wife Carol, a parent of three young children in Catholic elementary schools in Ontario, and for that reason I'm most pleased to be here today.

Founded in 1930, our association represents 53 Catholic school boards. Collectively, these school boards educate over 600,000 children from junior kindergarten to grade 12, OAC. Ours is the largest minority denominational school system in Canada.

The mission of all Catholic school boards and their schools is to create a faith community where religious instruction, religious practice, value formation and faith development are integral to every area of the curriculum. This is accomplished through our distinctive approach to completing and implementing the curriculum as defined by the Ontario Ministry of Education and Training.

• 1935

In the province of Ontario, Catholic school boards and the trustees who serve on these boards provide education according to the constitutionally determined rights of Roman Catholic parents. One of the objectives of our association is to maintain the constitutional rights of Roman Catholic separate school boards and their supporters.

We appreciate the opportunity to present this brief to the special joint committee. We believe that Canada is facing a critical moment in its history with the advent of the Quebec resolution.

In our brief we outline in the first few pages what we value and share as Canadians. We suggest strongly that the Quebec resolution raises fundamental questions about, indeed, the values we share.

Our heritage as Canadians recognizes the symbiotic relationship between the individual and community. We want to make very clear to the committee members that in our brief and our brief comments we do not in any way want to indicate that we oppose the creation of linguistic boards in the province of Quebec. Our concern, and indeed opposition, is to the process and the fact that in achieving its goal the Province of Quebec is wishing to amend the Constitution and indeed eliminate denominational rights in Quebec.

We outlined some of the fundamental principles of community, including individual rights and group rights. We believe that there is an important social balance at the heart of our Constitution. On the one hand, it respects individuals by recognizing their claims to personal autonomy. On the other hand, it respects communities by recognizing that the interests of individuals are best vindicated through the joining together of those with similar interests to create nurturing, supporting and normative communities.

Our association believes that the coexistence of individual and group or community rights in our Constitution is part of the genius of the Canadian social contract.

We outline further in our brief some examples of community and state quite strongly that Catholic education has community at its core. As the National Conference of Catholic Bishops has stated:

Community is at the heart of Christian education not simply as a concept to be taught but as a reality to be lived.

Similar visions of community have sustained native culture, the Franco-Ontarian community and the various multicultural communities in our country.

On page 4 we outline the importance of the family in education. The Ontario Catholic School Trustees Association approach to education rests on three basic principles. The first is that children have a right to education. The second is that Catholic education is a shared responsibility of the state, church and the family. The third is that the rights of parents in education must be respected.

Concerning the right to education, our Constitution refers to individual rights and collective rights but not to social rights, positive goods or basic necessities that we all have a right to expect from society no matter what our social status might be.

The right to education is basic to our society—so basic that references to it in our Constitution assume it rather than mandate it. Publicly funded education is a social right of value—indeed, a necessity on which we are agreed as a society.

Article 13 of the International Covenant on Economic, Social and Cultural Rights, to which Canada has subscribed, specifically addresses education as a basic right.

• 1940

The second principle regarding education as a shared responsibility is we indicate that in legal terms education is a provincial responsibility, as expressly acknowledged in section 93 of the Constitution Act of 1867. Responsibility for Catholic education has been shared among parents, church, school boards, and the province from the very earliest times. Our diversity could be accommodated in no other way.

A measure of parental control and involvement is essential for excellence in education. It is also constitutionally mandated by section 93, and by section 23 of the Canadian Charter of Rights and Freedoms.

The third principle, an important one indeed, is respect for parental choice and constitutional rights. We want to express our strong belief that parents are the first educators of their children and have the original, primary, and inalienable right to educate them, a responsibility that is delegated to them by the State only in part. We go on at length to outline the importance of parental choice in education.

Further in our brief, beginning on page 6, we state our three concerns about the Quebec resolution. The first is the importance of denominational school boards. We do not believe the religious aspects of the system of education, including the existence of denominational schools, can survive unless denominational school boards are available to provide the overarching government structure. While we recognize it is ultimately the schools and the classrooms through which denominational education is provided, the infrastructure needed to support them and the political will needed to ensure they fulfil their mandate must come from outside the school and the classroom. Roman Catholic separate school supporters in Ontario have always recognized that our school boards provide that necessary supportive role. In the absence of the school boards we fear schools and classrooms will lose their denominational character.

The second concern is about the charter and secularization. We do not believe the position concerning the effect of the Canadian Charter of Rights and Freedoms on the authority of a province to legislate in respect of religion in its public schools has been fully understood in connection with the Quebec resolution. The Quebec resolution is misguided because it assumes, optimistically, that the provincial government will remain free to legislate in respect of religion in public schools. This is not the case. It has been said, perhaps somewhat complacently, that the homogeneity of Quebec society makes the prospect of legal challenge unlikely. It should be recalled that the Elgin case in Ontario was launched by three or four people each of whom was a single representative of a very small minority in that school system. They succeeded in secularizing the public system in Ontario completely.

The third concern, which I'm sure you've heard a great deal about and we won't speak about in the few moments we have, is our concern with the notwithstanding clause and the protection some assume that will provide.

I will touch briefly on perhaps our most important concern, the impact on minority rights and constitutional change. The amendment of the constitution by any means must be considered with the utmost gravity. We suggest amendments should occur only upon mature and careful reflection, with full regard for the basic principles of the federation.

One of the most important matters we deal with in our brief is the issue of the political precedents and the dangerous precedents set by this resolution. We want to make it very clear that there's no question in our mind, and I don't believe in any of the minds of the committee members here today, that if this were to be passed by the federal government it would indeed set a very dangerous political precedent in other provinces protected by denominational protection provided in the Constitution.

• 1945

Parliament should be cautious about giving in to the politics of the moment when constitutional rights are at stake. We believe that an amendment to the Constitution should only be considered when three criteria are rigorously met.

First, the amendment must be necessary to secure a legitimate objective of the legislature proposing it. We do not believe that's the case in this circumstance.

Second, there should be a significant consensus in the province about the need for and the acceptance of a proposed amendment. Where minority rights are involved, that consensus must include more than a majority of the affected minority. If it does not, then it's the particular mission of the federal government to protect the rights of the minority.

Finally, when minority rights are involved, the constitutional change should be tailored to minimize the prejudicial effect on them.

The position of the Ontario Catholic School Trustees Association is that the resolution does not meet these criteria.

We go on to refer to some of the reasons why some are suggesting the resolution is necessary. We'll leave those with you to read at your leisure.

The one I would like to comment on is the suggestion by some that in fact by reason of the expense, it would be cheaper to move in this direction. The experience of our association is quite the contrary to the issue that some would raise such that it would be cheaper to move to linguistic boards. The real cost of education, as it should be, is in the schools and in teachers' salaries. Administrative costs are relatively minor as a percentage of the total costs of operating schools.

These base costs will not change regardless of the overall administrative structure of schools. We believe that the modest additional costs, if any, associated with denominational schools is a necessary and valuable investment by society.

On page 10, we ask an important question of the committee: does the alleged consensus rest on full and adequate information and a correct perception of the legal and practical effect of the amendment?

You'll note, when you have an opportunity to read the brief, that we do not believe this is the case. Our association says that the consensus on which the federal government is relying is not a true consensus, but one based on a false premise that religious practices will continue to be protected in the Quebec system of public education.

In view of this, the fundamental condition for the amendment, as set by the Government of Canada, has not been met.

Finally, we speak to the minimal impairment of minority rights. You'll note again that our association strongly supports the continued protection of minority rights in Canada. We believe that such rights should not be removed, except with the consent of the entitled minority. Within that minority, the desires of the parents are entitled to be given special weight. That consent has not been obtained in Quebec.

In conclusion, the Ontario Catholic School Trustee's Association calls upon the Government of Canada to return the Quebec resolution to the National Assembly of Quebec without calling a vote. We recommend instead that the federal government advise the Quebec government of its concerns about the resolution in its current form.

Again, co-chairs and committee members, I want to express our thanks to you for hearing us. We'd be pleased to respond to any questions you have.

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

We will now proceed with the question period. We'll start with Mr. Goldring.

Mr. Peter Goldring: Thank you you for your presentation, Mr. Daly.

There was a judgment given at a court of appeal of Ontario prohibiting religion from being taught in the schools of Ontario. Is this something that you can see happening in Quebec too if section 93 is removed and the system truly goes toward linguistic schools or a public form of school?

Mr. Patrick Daly: Yes, that's one of our grave concerns with the direction the Quebec government is considering and asking you to approve.

• 1950

There have been a few court cases in Ontario that in fact have not allowed religious education in the public schools in Ontario. I read earlier today a letter by a renowned professor from McGill University in which he indicated quite forcefully that an exactly similar situation would occur in Quebec if the government moved in this direction.

Mr. Peter Goldring: Here's a supplemental question: do you think the goal of this, the linguistic school boards, could be accomplished by utilizing section 93, which they have, and maybe deleting references to boards or whatever? They could modify section 93 to better address the multicultural society in Quebec and accommodate the wishes of the linguistic school board direction? Could you give any comment or suggestion as to how that could be accomplished without extinguishing subsections 93(1) to 93(4)?

Mr. Patrick Daly: I'll ask other participants to comment, but in fact that is our position. As I said at the outset, the goals could be achieved without taking something away. I further understand that this is the position of the Quebec bishops on this important matter.

Perhaps Monsignor or Pat can comment.

Mr. Denis Murphy (Director of Catholic Education, Ontario Catholic School Trustees Association): If I understood your question correctly, you were suggesting as well that perhaps section 93 could be amended in a more expansive fashion. So rather than having legislation that's restricting rights that people presently have, it would be expanded to grant other rights.

I think that we, as an association, would be quite ready to accept that. The Catholic school trustees in the province of Ontario have been supportive for years of extending public funding to other groups, for example, in Ontario. I might add that this is also the position of the Conference of Bishops of the Province of Ontario.

Senator Gérald Beaudoin: I have two questions, but I think you already answered one of them. You say that you would be ready to extend denominational rights to groups other than Catholic and Protestant ones. If we follow your logic, in an egalitarian society you have to come to that conclusion. But could it work? You see, we have many religious groups. How do you define religious groups, etc.? It's very easy when we are talking about Catholics, Protestants, Muslims, or Jewish people. That's very easy. But where does that end?

Mr. Patrick Daly: I just want to again reinforce Monsignor Murphy's comments that our association, for a number of years, has been on record as supporting public funds to other religious groups in Ontario, just as the Conference of Bishops of the Province of Ontario has done.

Clearly, there would have to be some criteria developed in terms of where numbers warrant. We have not proposed that others, the legislature in Ontario in our case, would have to do that, but obviously there would have to be some “where numbers warrant” criteria put in place. You just not could allow it to be totally inclusive.

Senator Gérald Beaudoin: That's right, but you would extend the denominational rights?

Mr. Patrick Daly: Yes.

Senator Gérald Beaudoin: But there is one thing I do not understand too well, which is the conclusion. You don't want a vote here in the Parliament of Canada; you want us to return the resolution to Quebec City.

Mr. Patrick Daly: Without a vote.

Senator Gérald Beaudoin: Yes, but what does that mean?

Mr. Patrick Daly: It's similar to rejecting the request. Our position is that it should be sent back for the—

Senator Gérald Beaudoin: But if you disagree with the resolution, you have to say no.

Mr. Patrick Daly: Sending it back seems to us to be saying no. Saying no would be the same.

Senator Gérald Beaudoin: It may be possible in parliamentary procedure, but it's a bit unprecedented.

Anyway, what is important is your point of view. You are against the amendment, and if ever section 93 is changed, it would be to extend instead of substituting another regime.

• 1955

Mr. Patrick Daly: Absolutely.

[Translation]

The Joint Chair (Mr. Denis Paradis): The next speaker will be Ms. Girard-Bujold.

Ms. Jocelyne Girard-Bujold: Allow me to say I do not agree with your brief. I think you have forgotten two extremely important aspects of the Quebec government's request to have section 93 amended.

You forgot that Quebec's society has changed a great deal since 1867. It is demonstrating great openness towards the many cultural communities that make up Quebec society as a whole. You forgot that there is a consensus in Quebec regarding this request. A consensus among the three parties making up the National Assembly. It is a consensus that has been in the making for 37 years, starting with the Parent report and culminating in what we see today.

I am surprised and disappointed by your remarks. We, the Quebec people and Quebec society, want to show that we are extremely open to all considerations affecting the development of the communities that make up the Quebec people. Thank you.

[English]

The Joint Chair (Mr. Denis Paradis): Do you have any reaction to those comments, Mr. Daly?

Mr. Patrick Daly: I want to ask Monsignor Murphy to comment as well, but I don't think anything we said in our brief nor the other considerable amount in it would indicate in any way that we suggest Quebec society was not open to other cultural communities. We believe perhaps the same in Ontario, and in our Catholic school system we have been very open to other communities as well. So I hope that in no way was suggested by anything we said.

[Translation]

Ms. Jocelyne Girard-Bujold: I did not see this aspect in your presentation. I may not have read your brief, but I did not see this in your presentation. Those are the linguistic and denominational standpoints. I think we are open to all denominations that now exist in Quebec society.

The Joint Chair (Mr. Denis Paradis): The next speaker will be Mr. Nick Discepola.

[English]

Mr. Nick Discepola: Thank you.

Did your group consult any experts in the constitutional field before preparing your position?

Mr. Patrick Daly: Yes. We have one of the most prominent constitutional lawyers in Ontario working with us on a regular basis, and he assisted us with the development of the brief.

Mr. Nick Discepola: Is he as good as Professor Monahan from Osgoode Hall Law School?

Mr. Patrick Daly: We like to think he's the best, but I'm not sure. I'm not going to compare one—

Mr. Nick Discepola: Let me ask you the question, because I've talked to some Ontario colleagues who have expressed the same concern you have about possibly creating a precedent. Professor Monahan stated categorically that in his opinion it would not create a legal precedent at all.

On the question of burden of proof as to whether the minority that is affected has been consulted or that there is a majority consensus amongst them, he went so far as to say the burden of that proof should be on the legislature that's even requesting the amendment, not on the Parliament of Canada.

So I wonder why you persist in stating you feel.... And I'm only addressing it because of the concern for possible impact on Ontario, because I don't agree with the conclusion there is no consensus in Quebec; I won't have the time to get into it.

Why do you believe there will be a precedent here that will affect Ontario? Why can't you just let Quebec decide what they want to do, since even in your own brief you state categorically it's a provincial matter? If Quebeckers decide they want to go along linguistic boards, and through legislation provide other means for confessional schools, why should you object?

Mr. Patrick Daly: I think in my comments I stated quite clearly our concern is in the political precedent, in which direction I don't think anyone can deny this will lead. There's no question in our minds that if this resolution were passed, that in fact could set a political precedent.

Mr. Nick Discepola: If there was as much a political will in Ontario as there is political will in Quebec to do what we want to do in Quebec, should it not be the right of the provincial legislature in Ontario to request a change similarly?

Mr. Patrick Daly: Absolutely not. We do not think it's the right of any provincial government to expunge the rights of a minority in that province.

Mr. Nick Discepola: Even though they are democratically elected to do so?

Mr. Patrick Daly: Even if they are democratically elected, to take away the minority rights would not be acceptable.

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

The next intervention is by Paul DeVillers.

• 2000

Mr. Paul DeVillers: Just to follow up on the issue of precedents, there is the distinction between the legal precedent, which professor Monahan said and which you yourself in your letter to Mr. Gray.... I guess it was when Louise Ervin was here with the Canadian association. She's part of your organization? Okay. You're saying it is not a legal precedent but a political precedent.

Then in your submission you're saying that you don't believe a consensus has been demonstrated. Are you saying that the test hasn't been met, or do you object to the test?

I think of Professor Monahan, and also statements made by Minister Dion that what we're saying is in the appropriate case when the test can be met...that is, that the federal government can respond favourably to a request by a province for a constitutional amendment when it is something that's clearly in the public interest that is being requested, it's a good thing being requested, and, secondly, when it has been demonstrated that there is consent within a majority of the group of people whose rights are being affected.

Do you have any trouble with that test, or is it just that in this case you are saying that the test isn't being met?

Mr. Patrick Daly: I think both. What we're indicating in our brief—and then we introduced it by saying so—is that we are not commenting on or in no way would it be appropriate for us to oppose the establishment of linguistic boards. That clearly is not something that we should be commenting on.

What we are saying strongly is that in fact the Government of Quebec does not have to ask for an amendment to the Constitution to achieve the goals. That's what we're opposing.

We understand as well that the bishops of Quebec have said the same thing. Although perhaps supportive of the establishment of linguistic boards, they are on the record as indicating that you do not need to change the Constitution to achieve that.

I would like to comment on the consensus issue, particularly as a parent. Perhaps they have the most to lose or gain in terms of what direction you will choose. I have spoken to individuals who represent many Catholic parents in Quebec, indicating to us that they do not support this amendment. Clearly, parents should be the primary people one listens to in terms of educational issues.

Mr. Paul DeVillers: Yes. That's something to be determined, whether there is the consensus or not.

I'm more concerned with your position on what the government is saying is its position. Hypothetically, if for instance a future government in Ontario were to come to the federal Parliament and ask for a similar amendment in Ontario to do away with subsections (1) to (4) of section 93 and were demonstrating clearly that there was a consensus among.... It's mainly the Catholics that are benefiting from the protection of section 93 as the minority group in Ontario. In that situation, if the Ontario government was able to show.... We both know it's not going to happen, because they would never get a clearly demonstrated consensus or support from within the Catholic community. But if they could, would you in theory have any opposition to that amendment being granted at that time?

Mr. Patrick Daly: As a Catholic parent with children in Catholic schools, yes, I would have strong—

Mr. Paul DeVillers: You wouldn't consent.

Mr. Patrick Daly: You asked me theoretically. If I had known—

Mr. Paul DeVillers: Let's say they did a referendum and it was only Catholics and they were able to demonstrate. In a case like that, are you still saying that the federal Parliament should say no?

Mr. Patrick Daly: Yes, I'm saying no. As a Catholic parent in Ontario, I'm saying no.

Mr. Paul DeVillers: So even if there was a clearly demonstrated consensus, you're saying—

Mr. Patrick Daly: The question is so hypothetical.

Mr. Paul DeVillers: I know it is, but I'm just asking—

Mr. Patrick Daly: That's why I feel uncomfortable.

Mr. Paul DeVillers: Yes, I know it's a hypothetical question.

Mr. Patrick Daly: My answer at this point would be no.

Mr. Paul DeVillers: You would still say no.

Mr. Patrick Daly: Yes.

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

[Translation]

Mr. Mauril Bélanger: Thank you, Mr. Chairman. Before putting my question, I would like to make a short comment on what we have been hearing. The Quebeckers who appeared before us and did not agree with the proposal were no less open. They just have a different opinion, and I think we have to respect that opinion as well.

That said, I will put my question.

[English]

I came in this initially with some concerns, and I've listened. I've listened assiduously and carefully, and I've asked questions. I got, on the whole, pretty straight answers.

• 2005

I myself am satisfied that there is a consensus in Quebec. You may not be, but I've been here for the last two weeks and I've asked the questions. It is not unanimous by any stretch of the imagination, and that's legitimate too, but there is, in my opinion, a sufficient consensus to proceed, even with the notion that all of those who came before us are aware that there are consequences to this and that it's not quite clear how it's all going to be resolved in the end. But in my opinion, and in my sense, there's enough good will in the province of Quebec, among all parties, to go down that road. Having satisfied myself that this exists, I think it's incumbent upon me to support this.

Having said that, I want to touch on Ontario now. We have moved, with the current government in Ontario, to two linguistic school boards to a certain extent. We now have in the entire territory francophone and anglophone school boards, if you will. Some of them happen to be confessional, others public.

I say that because I have to disagree with you entirely that there is any will at all in Ontario right now to move in the same direction. I don't sense it. In a decade or two, it might be different, and the people then who will be in authority may decide to try to move on it or not. That's something down the road.

For you to ask us say no is I think uncalled for. I'm sorry that you're trying to link it to a concern that it might happen in Ontario—and I see you nodding—because there's no appetite for this in Ontario now. I don't sense any movement at all toward this in Ontario.

Do you share that view?

Mr. Patrick Daly: I want to make it quite clear that I did at no time say that the current government in Ontario would move in that direction. I have not said that. What I've said is, the precedent would be there for future governments in Ontario to move in that direction. There can be no question about that. The political precedent would be there.

I do not believe this current government in Ontario would do it.

Mr. Mauril Bélanger: Fair enough.

The Joint Chair (Mr. Denis Paradis): Final comment, please.

Mr. Mauril Bélanger: But having heard what I've just heard, if there's no concern other than that the precedent would be there, for goodness' sake, we can't freeze ourselves as a society in this country because of such concerns. If there's a will in certain provinces to move, let's do that, and not say we're afraid of setting a precedent and immobilize society. I think that's irresponsible.

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

Next intervention, Marlene Jennings.

Ms. Marlene Jennings: I'd like to address the issue of the test that has to be met. According to constitutional experts who have testified before us here, in order to allow the Parliament to confirm in fact that there has been consensus for a constitutional amendment, they said very clearly that for the class of persons whose rights are protected, it has to be demonstrated that there is a clear consensus—not unanimity, but a clear consensus—amongst that class.

That class, the courts have said, is not the school boards; it's the parents. The class of persons who are protected under section 93 right now in Quebec are Protestants in the city of Montreal—not the Island of Montreal, but the city of Montreal—Protestants in the city of Quebec and the right to dissent in the other regions. That right to dissent de facto has been to Protestants, because de facto, even though the schools boards in the other regions are not protected, and therefore are really common school boards because the overwhelming majority, if not 100%, in most regions of the population has been French Canadian Roman Catholic, this means that the school board itself has basically been in the hands of Roman Catholics. Therefore, if you've had French Protestants, for instance, then they've had the right to dissent.

I haven't finished. It has been very clear here. I'm not talking about the Protestant school board of Montreal, I'm not talking about the trustees; I'm talking about that class of persons whose rights are protected. There is a clear consensus in support of linguistic school boards and the removal of a privilege that has existed for the minority Protestant community and for the majority Catholic community. So the situation is quite different, as Mr. Bélanger stipulated, from that of Ontario.

• 2010

The fact is quite clear as well that there will be no legal precedent, there will be no constitutional precedent judicially. You've stated that it may create a political consensus. Even if it does that—and now we're talking about hypothetically—and even if hypothetically down the road it's not the Harris government, it's another government, that decides it wants to take this battle on in Ontario, the test will still have to be met by that government.

I think that's where the difference is. In Quebec the Quebec National Assembly has met that test. The proof has been in the presentations that have been made before us over the last two weeks by the classes of persons whose privilege is actually protected under the charter, or section 93, at this time. In Ontario I don't foresee that happening, not in the near future. If in the future that test is made, then I don't think the political precedence is going to have anything to do with it. It's going to be whether or not the test has been made.

Do you agree?

Mr. Denis Murphy: The short answer is no.

Ms. Marlene Jennings: I have another question for you, then.

Mr. Denis Murphy: I think a somewhat longer answer from us, though, would be first of all to say the primary purpose of our coming here this evening was not to argue the question of consensus. That's probably a responsibility of the committee, having heard from various people in the province of Quebec. I think they are the ones who are going to address the question of consensus.

We made a statement that from people we have talked to in the province of Quebec, including people in the Protestant school community, and in both the anglophone and the francophone Protestant communities, there are people who are very dissatisfied with the direction the Government of Quebec is going in at this time. But I don't think that's our argument. I don't think that's the primary purpose why we came here this evening. I think the primary purpose why we came here this evening was to point out to you that it's not necessary to amend the constitution in the ways that are being suggested by the Government of Quebec to achieve the objectives they have.

One can easily achieve the establishment of linguistic school boards in the province of Quebec, and we would support that as part of the evolution of the province of Quebec if it so deems necessary. We would support that and we have no problem with that whatsoever. What we're suggesting is that to amend the constitution in the way the Government of Quebec is suggesting will have deleterious effects both in the province of Quebec and elsewhere. We are suggesting that the extension of privilege through expanding section 93 would be a consummation devoutly to be wished. Rather than restricting rights people already have, we would see rights extended to people who don't at present have them. That would be the basis of our argument. The question of consensus we leave with the members of the committee.

The Joint Chair (Mr. Denis Paradis): Thank you, Monsignor. Peter Goldring.

Mr. Peter Goldring: Thank you.

Mr. Murphy, yesterday Patrick Monahan raised the question, does the test enjoy the majority of the minority, the opinion of the minority? I had asked earlier if this opinion had been polled or if there were some statistics on it, some information on it. Ms. Jennings is suggesting the consensus was taken. I don't see any clear consensus, because I too believe the consensus should be of the parents of the minority. With your disagreeing with Ms. Jennings, would you expand on how we could poll the minority in order to get an opinion on this matter?

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

Mr. Patrick Daly: I think Monsignor Murphy, in answering the previous question, said that wasn't our responsibility, and we don't say that to skirt the question. Clearly that's the responsibility of the committee and ultimately of the Parliament of Canada. I think it's better for you and fellow committee members to decide whether or not that consensus has been achieved.

Mr. Peter Goldring: But you do not believe an opinion has been made on that.

• 2015

Mr. Patrick Daly: We have our strong doubts.

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

Senator Gérald Beaudoin: I'm convinced there is a consensus. That is why I will vote for the resolution.

You express the concern of Ontario. Of course Ontario may have some political reasons, but legally speaking this amendment will not apply to Ontario, it will apply only to Quebec. Obviously section 43 applies, there is no doubt about that. All the experts have said that. The concern of Ontario is of what nature? Are you afraid of the precedent?

Mr. Patrick Daly: We will allow the constitutional lawyers to argue whether there's a legal precedent. We're not to comment on that. But there's no question in our minds that this would set a political precedent for future governments in Ontario or other provinces to consider. We think that's a real danger we ask the committee members to consider.

Senator Gérald Beaudoin: We have to realize that under the present system not all provinces have denominational schools and denominational structures. It's already like that in Canada.

The Joint Chair (Mr. Denis Paradis): Did you refer to a legal opinion you have?

Mr. Patrick Daly: No, I didn't.

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

On behalf of all the members of the committee I would like to thank you very much for your appearance tonight in front of us. Thank you.

[Translation]

Before concluding, I would just like to remind you that we will resume our hearings on Monday, at 3:30 p.m., with Mr. Ryan, Mr. Woehrling and Mr. Hilton.

Mrs. Finestone.

[English]

Mrs. Sheila Finestone: Mr. Daly, on page 7 of your document, under heading 2, the charter and secularization, in the second paragraph you say “We recently sent letters to members of the House of Commons and to senators setting out the basis of the legal opinion of our council.” I would like a copy. And that was what the chair asked you. Would you please deposit the copy of your legal opinion?

Mr. Patrick Daly: I thought the chair asked me in response to the question. We have sent that letter to all members.

The Joint Chair (Mr. Denis Paradis): Could you give a copy of this letter to our clerk?

Mr. Patrick Daly: Absolutely.

The Joint Chair (Mr. Denis Paradis): Before closing I would like to thank

[Translation]

clerks, support staff, interpreters, and committee members.

[English]

Thank you very much to everybody.

[Translation]

The meeting stands adjourned.