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]

Monday, November 3, 1997

• 1704

[Translation]

The Joint Chair (Mr. Denis Paradis (Brome—Missisquoi, Lib.)): We are resuming the hearings of the Special Joint Committee to amend section 93 of the Constitution Act, 1867, regarding the school system in Quebec, pursuant to the order of reference from the House of Commons and from the Senate.

Before hearing Mr. Hilton, I want to inform you of something. Tomorrow morning, at 9 o'clock, we will be hearing Minister Stéphane Dion. We will be meeting again tomorrow afternoon at 3:30 p.m. to study a draft of our report. Tomorrow morning's meeting will be held here, in this room, and tomorrow afternoon, it will be held in the Victoria Building.

Following that we have planned another meeting on Wednesday afternoon at 3:30 p.m. Normally, during this meeting, we should be able to finish our report so as to table it on Thursday, both in the House of Commons and in the Senate.

[English]

Mrs. Sheila Finestone (Mount Royal, Lib.): Mr. Chairman, is it again in the Victoria Building?

The Joint Chair (Mr. Denis Paradis): It's in the Victoria Building, tomorrow afternoon at 3.30 p.m., but you will be notified as to which room.

• 1705

Mrs. Sheila Finestone: Is it also in the Victoria Building on Wednesday?

The Joint Chair (Mr. Denis Paradis): For Wednesday we have no room available yet.

Mrs. Sheila Finestone: You can come to my office. Is that all right?

The Joint Chair (Mr. Denis Paradis): They're looking for some rooms for the Wednesday meeting.

[Translation]

Mrs. Sheila Finestone: I am inviting you one and all.

The Joint Chair (Mr. Denis Paradis): Yes, Ms. Lavoie-Roux.

Senator Thérèse Lavoie-Roux (Québec, PC): I thank you for having informed us about your agenda. We were terribly pressed for time in the meetings that the Minister wanted us to hold within a very short time frame. I would not want us to be as pressed for time when it comes to adopting the report. We haven't even begun debating it and we do not even know what plan the writers have followed in drafting it. I would have liked to know, but we don't even know that much. We accept it, sight unseen.

I don't want us to be pushed and to be told that the report must be adopted tomorrow. I am sorry, but I think we should be given the time we need to consult each other. I am simply giving you notice, Mr. Chairman.

The Joint Chair (Mr. Denis Paradis): I also would like to consult you after the session, Ms. Lavoie-Roux. Could I possibly have a couple of minutes to consult you and to see how we can set up...

Senator Thérèse Lavoie-Roux: But we also have other responsibilities.

The Joint Chair (Mr. Denis Paradis): I understand.

Very well. Are there any other comments? Are you satisfied with the agenda?

Senator Gérald Beaudoin (Rigaud, PC): Tomorrow, the meeting will be at 3 p.m.

The Joint Chair (Mr. Denis Paradis): At 3:30 p.m.

Senator Gérald Beaudoin: To study the draft, the working document.

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

Senator Thérèse Lavoie-Roux: In the victoria Building.

The Joint Chair (Mr. Denis Paradis): In the Victoria Building. Agreed?

We will now give the floor to Mr. Hilton. Welcome to this hearing of the joint committee. I suppose that you have a brief presentation to make before we go on to a question period with the members of the committee.

Mr. Hilton, you have the floor.

Mr. Allan Hilton (Constitutional Lawyer): Did Madam Senator speak? I did not hear well.

Senator Thérèse Lavoie-Roux: Did you send us a brief?

The Joint Chair (Mr. Denis Paradis): No. Mr. Hilton has no brief.

Senator Thérèse Lavoie-Roux: When I saw Mr. Hilton, I thought that he was the president of the hotel company; I would like to be told who he is.

[English]

Mr. Allan Hilton: Perhaps I can identify who I am and why I'm here.

I have appeared in the Quebec Superior Court, the Quebec Court of Appeal, and the Supreme Court of Canada, along with Mr. Irving, in all of the section 93 cases that have been litigated since the late 1970s and early 1980s.

I am an anglophone, a Quebecker, a Protestant, a parent, and someone who I think has a bit of knowledge about section 93, which is not an expertise that is widely held in the legal profession in Quebec.

As such, I think it's important that this committee have perhaps a good understanding of what the courts have done with section 93. In my view, there is nothing left of the guarantees in section 93 of the Constitution Act, 1867, that is worth preserving, at least in so far as the Protestant minority in Quebec is concerned, if the maintenance of those rights means that linguistic school boards cannot be implemented.

Obviously there have been a number of seminal cases dealing with section 93 in the last number of years emanating from Quebec, as there have been from Ontario.

What I would like to do is to trace with you the change in approach that I have perceived in the Supreme Court of Canada between 1984 and 1993 and demonstrate that in reality, with Bill 107—as we refer to it more often, at least in English in Quebec—the way the Supreme Court has interpreted the provisions that were subject to review by the Supreme Court, there is essentially nothing left of any value that is worth preserving.

If I may begin by talking a little bit about one statement that was made by Madam Justice Bertha Wilson in the reference to the Ontario Court of Appeal that ended up going to the Supreme Court of Canada in what is most frequently referred to as the separate school reference, Madam Justice Wilson, speaking for the majority of the court in that case, said that subsection 93(1), which is the section, as you know, that contains the essence of the guarantees in favour of the classes of persons contemplated by it, should be interpreted, and I quote:

...in a way which implements its clear purpose which was to provide a firm protection for Roman Catholic education in...Ontario and Protestant education in...Quebec.

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I understand that much of the testimony, or at least some of the testimony, that has taken place before this committee has related to issues relating to Catholic instruction or Catholic education in Catholic schools. Only to a very limited extent did section 93 contemplate protections for Catholics in Quebec. There are historical reasons for that, which time would not permit me to go into to any extent, but basically section 93 was a minority rights provision, the same way section 23 of the Constitution Act, 1982, is now a minority rights provision, and it has to be looked at in that way when considering the issues that are before this committee.

In saying that section 93 provides minority guarantees, it's important to clarify that the minority guarantees relate to geographic territories. Obviously in Quebec the Protestants were the minority throughout most of Quebec at Confederation. There were certain pockets of Quebec in the eastern townships and perhaps in some other places where Protestants were a majority. Perhaps the chairman would know that, knowing where he comes from. However, by and large, Protestants were the minority, and the Protestants were the class of persons who exercised the rights that were contemplated in section 93 of the Constitution Act both before and after Confederation, because the statute that was in effect crystallized at the time of Confederation was a statute that was a consolidation statute from 1861. It is generally that statute the courts look at to determine if there was any right or privilege belonging to a class of persons at Confederation that were prejudicially affected by any legislation that subsequent legislatures might have enacted.

I say it's territorial because the right of dissent was a right of dissent from the majority in a given territory as defined. In 1867 those territories were effectively municipalities, so in Quebec at Confederation what you had were Protestant and Catholic denominational schools in the cities of Montreal and Quebec, which were both common schools in the sense that they were open to students of any religious faith and also denominational schools as a matter of characterization by law.

In the rest of Quebec you had what were called common schools, and the religious minority in the territory served by those common schools could exercise the right of dissent. Basically, as I've indicated, it was essentially the Protestant minority that exercised rights of dissent.

In 1899 a provision was enacted by which the government could create school boards that would apply only to Protestants or school boards that would apply only to Catholics. That situation continued uninterrupted until 1971 so that between 1899 and 1971 you had, outside of Montreal and Quebec, a situation where there would be the potential of having school boards for Protestants, school boards for Catholics, the common school board, which I mentioned at the beginning, plus dissentient schools from what would have been the common school boards.

Clearly, in a geographic area, which would be a school board for Protestants, it would be impossible to exercise a right of dissent by Protestants because they were obviously the majority as geographically and demographically defined, with the result that between 1899 and 1971 there developed a number of situations where school boards would merge. You would have dissentient trustees who would agree to become part of a school board for Protestants. Therefore, you had this incredible mixture, which existed until 1971, at which time the legislature of Quebec enacted legislation in 1971 and 1972 that resulted in there being only outside of Montreal and Quebec school boards for Catholics and school boards for Protestants. I think there were five little dissentient school boards that remained, which were insignificant in terms of numbers of students and what not.

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In a case that was brought in 1984 arising out of what was called Bill 3, Mr. Justice Brossard of the Quebec Superior Court decided that the school boards for Protestants, which I've just described, were the legal successors to the previously existing dissentient school system for Protestants. Therefore, the existing Protestant school system was entitled to the protection of section 93 of the Constitution Act in the same way the courts have recognized, and indeed the legislature of Quebec has recognized, that the Protestant School Board of Greater Montreal, la Commission des écoles catholiques de Montréal, and their equivalents in Quebec City were denominational school boards whose rights could not be prejudicially affected by the legislature.

In the course of that judgment, Mr. Justice Brossard, after a lengthy trial, a number of witnesses, and masses of documents, had occasion to consider the differences between a Protestant denominational school and a Catholic denominational school. I must confess, if there is one thing that neither Mr. Irving or I were ever able to persuade anyone beyond Mr. Justice Brossard in the Superior Court, it was that there was a fundamental difference between Protestant denominational schools and Catholic denominational schools.

Mr. Justice Brossard said this:

[Translation]

The concept of the Protestant denominational school is a pluralistic one, because there are several Protestant denominations. Their origins are as numerous and varied as the denominations themselves.

The result is that Protestant schools developed in Quebec on the basis of a pluralistic philosophy where religious instruction is mainly concerned with forming the individual religious conscience. The teaching of secular matters is fully independent and must not be in any way interfered with by doctrine or dogma.

Thus between Catholics and Protestants, basic differences exist in their respective concepts of denominational schools. To the former, the denominational school must be seen as a whole, every facet of which must reflect Catholic and Christian values and thus constitute the privileged locus for religious and pastoral instruction. To the latter, on the contrary, religious instruction must be dissociated from instruction in other subjects, while fully respecting the freedom of individual conscience.

As strange as it may seem, the evidence shows that the unifying point for Protestants, in their appreciation of the need to keep the Protestant denominational nature of their schools, is essentially a negative one: it is something required to prevent any student of the Protestant faith from ending up in a Catholic denominational school.

[English]

Then, ironically, he added:

[Translation]

Faced with this evidence, it is easier to understand the history of some religious wars.

[English]

All of which is to say that I think you can see that there are very different views as to what denominational schools meant for Catholics and Protestants. That was therefore translated, in so far as Protestants were concerned in Quebec, to a series of attacks of legislation that were enacted.

[Translation]

The Joint Chair (Mr. Denis Paradis): May I ask you to slow down a little so that the interpreter can keep up with you?

Mr. Allan Hilton: Chief Justice Lamer told me exactly the same thing the last time I appeared before the Supreme Court. I have been accused of all kinds of things, but seldom of speaking too fast in French, except in these two cases.

[English]

The first case that reached the Supreme Court is one that demonstrated, I think, at the time, an indication that section 93 rights were going to be interpreted in a way they had been in the 1920s by the Supreme Court of Canada and even to a somewhat lesser extent by the Privy Council. In the Greater Hull School Board case it was held that proportional funding and the right to levy taxes by dissentient schools and by the two denominational school boards in Quebec were guaranteed rights under section 93 of the Constitution Act. No distinction was made between what was later to become something referred to as the denominational aspects of section 93 rights and the non-denominational aspect of section 93 rights. Clearly, proportional funding and the right to levy taxes did not have anything to do with the denominational aspects of denominational rights. Indeed, Mr. Justice Chouinard, speaking for the majority of the court, noted that denominational status does not exist in a vacuum.

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As a result of that judgment in 1984, another attack on legislation in Quebec was undertaken with respect to a provision of the Education Act then recently enacted. That provision gave the government the right to establish the curriculum in Quebec schools.

Earlier, in the 1920s, Chief Justice Anglin, in the famous case of Hirsch, noted:

...it is apparent that we

—speaking of the Supreme Court—

would regard legislation designed to impair the right of Protestants, as a class of persons in the province of Quebec, to the exclusive control, financial and pedagogic, of their schools, as ultra vires of the provincial legislature.

The issue in the Régime pédagogique case was therefore whether or not section 93 protected the right of Protestants—as a class of persons—to determine, subject to regulation, the curriculum in Protestant schools. Based on the earlier judgments of the Supreme Court, and keeping in mind that the government never exercised any authority over the curriculum in the 20th century, it would seem that this introduction of such a provision in the Education Act would be found ultra vires. Such was not to be the case.

Despite the fact that in the Ontario separate schools reference—I referred to that a little earlier—the Supreme Court held that a statutory power in Ontario at Confederation to regulate the course of study to be followed was “an express power to describe the courses to be taught”, the court held that a similar provision in Quebec did not mean what it meant in Ontario. Rather, it only meant that Protestant commissioners and trustees could monitor and implement the curriculum set by the Quebec Council for Public Instruction.

These findings for the Catholic minority in Ontario and the Protestant minority in Quebec were viewed as being, frankly, quite incompatible. Even academic observers such as Professor Pierre Carignan—who I'm sure will be known to Senator Beaudoin—remarked that the court had effectively overruled itself in the Régime pédagogique judgment when it said what it did about rights for Protestants as one would have thought they might have existed, as arising out of the Separate school reference.

Very unusually, Mr. Irving and I tried to persuade that this judgment was rendered per incuriam, a legal expression meaning “by inadvertence”. Not surprisingly, we were not successful in persuading that a rehearing should be granted because of an error of the sort I've just indicated.

Next came the Bill 107 reference that ended up in the Supreme Court in 1992. As you may be aware, under Bill 107, the denominational school boards in Quebec—referred to in English as “confessional school boards” due to a bad translation—were maintained; that is to say, in Quebec City and Montreal. The Catholic and Protestant school boards outside the cities of Montreal and Quebec City were to be simply abolished. The right of access to denominational schools in Montreal and Quebec City would be limited to Catholics and Protestants as the case may be, thereby depriving in particular the PSBGM of a considerable number of students who had historically attended the PSBGM.

The bill also provided that a right of dissent could be exercised, but only from the territories of linguistic school boards. Linguistic school boards would overlap all of the territory of Quebec so that everywhere in Quebec there would be both a French linguistic school board and an English linguistic school board. In order to be able to exercise a right of dissent, however, you had to exercise the right of dissent from the English school board if you were an anglophone and from the French language school board if you were a francophone.

The practical result of this was that because Protestants are probably a majority amongst anglophones, the English Protestants could not dissent from an English school board, but francophone Protestants would be able to because clearly they would be a minority amongst francophones. Also, from a practical point of view, anglophone Catholics would probably have a right to dissent from an English school board because they would more than likely be the religious minority amongst anglophones.

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The court held that all the provisions I've just referred to were entirely valid and the only qualification to the validity of Bill 107 brought about by section 93 was that the court held that the legislature could not reduce the territories of the denominational school boards in Quebec City and Montreal to limits lesser than the cities of Montreal and Quebec as they existed from time to time.

So the Government of Quebec came extremely well out of the Régime pédagogique case and the Bill 107 reference. I don't think anybody could offer the view, as sometimes one hears these days, that the Supreme Court was a leaning Tower of Pisa in its approach to the Constitution and the legislature of Quebec.

Quite frankly, section 93 these days is not viewed, in my submission, very positively by the Supreme Court of Canada. I want to cite just one last extract from a recent judgment in Ontario you may be familiar with. In the case of Adler against Ontario, Mr. Justice Sopinka said this about section 93:

Section 93, although it served to promote the union of the provinces, has also been a considerable impediment to reform designed to modernize the education system. Changes have been achieved only through long and costly litigation as the plethora of cases dealing with s. 93 attests. As a consequence, one province is nearing completion of the process of attempting to discard this costly yoke. The process, however, involves a long and expensive constitutional amendment.

Well, here we are with the second one.

In my submission, no one in his right mind would suggest in Quebec today mounting an attack on any aspect of provincial legislation based on section 93. In my submission it would be doomed to failure. Therefore the more realistic thing to do is to recognize that linguistic school boards are the wave of the future. As far as the anglophone minority in Quebec is concerned it's clear that it's in the interest of anglophones to consolidate their school resources into English-language school boards rather than having them divided between Catholic school boards and Protestant school boards.

Thank you very much. I'm sorry if I went over 10 minutes.

The Joint Chair (Mr. Denis Paradis): Thank you very much, Mr. Hilton, for your presentation.

We will now proceed with question period and we'll start with Rahim Jaffer.

Mr. Rahim Jaffer (Edmonton—Strathcona, Ref.): Thank you.

I might need you to clarify something for me, so I can understand it a little more clearly. From your position, it seems that section 93 shouldn't make a difference, if anything is amended in section 93 as it applies to Quebec, as long as these linguistic school boards are set up effectively. If you could just explain that a little more clearly for me, that would suffice.

Mr. Allan Hilton: The judgment of the Supreme Court of Canada clearly allows the implementation of linguistic school boards as they were contemplated by Bill 107. I know Bill 107 has recently been amended to take out some of the provisions that were, frankly, a little offensive as they related to limiting access to schools, but that being said—and I'm certainly no expert on the way in which the school board system is administered—I gather the Government of Quebec is of the view that it would be administratively inconvenient to keep in place denominational school boards in the cities of Montreal and Quebec while at the same time having, overlapping those territories, English-language school boards and French-language school boards, with the consequential right as well to the exercise of rights of dissent, because those had to be preserved to keep the legislation valid under section 93. There would be such a possibility of a multiplicity of school boards that it becomes administratively inefficient to have that type of system in place.

So I can certainly understand, especially as it relates to the regions of Montreal, where the majority of anglophones will be, that the Government of Quebec would want to do that.

As Madam Marois said—I happened to be here Thursday—the object of Bill 107 was to deconfessionalize the school board system, and certainly that has been brought about and ratified by the Supreme Court.

[Translation]

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

The following intervenor will be Ms. Lavoie-Roux.

Senator Thérèse Lavoie-Roux: You said that section 93 did not contain any guarantee for Protestants.

• 1730

Mr. Allan Hilton: No. For Catholics. As a matter of fact it does contain guarantees, but the interpretation given them at the time renders them practically nonexistent, in my opinion.

There really was no such right at the time of Confederation comparable to the one referred to by the Supreme Court and the Privy Council in their interpretation in the 1920s. The Supreme Court at that time was ready to apply that right to protect guaranteed rights, specifically those of Protestants.

Senator Thérèse Lavoie-Roux: You also state that people could maintain their right to dissidence. For example, francophone Protestants could adopt a dissident school system.

Mr. Allan Hilton: This would be so if the Act, as it now exists, were to be applied. Don't forget that the Act is not applied to the system of school boards. In Quebec we still have...

Senator Thérèse Lavoie-Roux: No, but once section 93 has been abolished, will French Protestant dissidents be able to maintain their right to dissidence?

Mr. Allan Hilton: If the Act were not amended in that sense, the answer would have to be yes. The Act as it now exists provides for the possibility of exercising a right to dissidence, but I presume that if the...

Senator Thérèse Lavoie-Roux: What Act are you referring to exactly?

Mr. Allan Hilton: The Education Act.

Senator Thérèse Lavoie-Roux: The Education Act.

Mr. Allan Hilton: Yes.

Senator Thérèse Lavoie-Roux: They would keep their right to dissidence.

Mr. Allan Hilton: As we speak, they would. The right to dissidence still exists, unless it has been suppressed by recent amendments. I must confess that I have not consulted the recent amendments.

[English]

Senator John Lynch-Staunton (Grandville, PC): Which law, 107?

Mr. Allan Hilton: Yes, 107.

Senator John Lynch-Staunton: But 107 as amended by 109.

Mr. Allan Hilton: I notice that there are—

Senator John Lynch-Staunton: Amended 107, not 125.

Mr. Allan Hilton: Exactly, 107.

[Translation]

Senator Thérèse Lavoie-Roux: Protestant francophones told us several times that they were going to lose their right to dissidence and that...

Mr. Allan Hilton: I cannot confirm this, Madam, because I really have not consulted the amendments to the Act. However, Bill 107, as adopted, certainly provided for the possibility of exercising the right to dissidence for linguistic school boards, including francophone Protestant school boards.

Senator Thérèse Lavoie-Roux: So if I understand you correctly, you stated that anglophones would not be threatened in any way.

Mr. Allan Hilton: Not in any way.

Senator Thérèse Lavoie-Roux: That is all very well, Mr. Hilton, if were only thinking about the disappearance of the linguistic structure. But what will prevent the government, in the future—and this has been mentioned a few times—for financial or other reasons, from setting up unified school boards because they would be less costly to run? At that time, obviously, the majority could impose its will on the minority.

You assure us that there is no danger. I would like further explanations on that.

Mr. Allan Hilton: There is section 23. I have no doubt that if such a bill were put forward by the government, it would immediately be attacked under section 23 of the Constitution. And I'm relatively sure that the courts would not allow the abolition of an education system in English in Quebec, as you anticipate.

Senator Thérèse Lavoie-Roux: We should remember that the reason linguistic school boards have been so long in coming, was mainly that the supporters of the current government fought, over and over, for unified school boards. This idea appeared again in august. Some Parti Québécois supporters asked why unified school boards were not being proposed.

I want some guarantees for anglophones that this right will be protected, and I want these guarantees to be strong.

Mr. Allan Hilton: I don't think there is anything whatsoever, at the moment, preventing the national Assembly, even with section 93, from passing legislation to establish unified school boards in Quebec, except, of course, in Quebec City and Montreal. There is no constitutional guarantee protecting school boards at the moment. And even linguistic school boards would not enjoy constitutional protection under section 93.

Consequently, in my view, the legislature could do whatever it wished as regards the creation of other school boards. However, two things would be necessary: retain special structures for Montreal and Quebec City, and allow people to exercise their right to dissent, if section 93 were maintained. Those are the two essential things, in my opinion.

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Of course, there would be other, relatively minor financial and administrative considerations, but outside of these, the legislature could do whatever it wished to the school system, except in Quebec City and Montreal.

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

Senator Lynch-Staunton.

[English]

Senator John Lynch-Staunton: I'd just like to elaborate on this question of dissident schools—no, not dissident; dissentient schools is the appropriate term, I guess.

At least two groups that I can remember, and maybe there were more than two, came here with pretty forceful briefs in which they separately maintained that the exemption of Quebec from section 93 and the adoption of Bill 107 would in effect mean...and I will quote from the brief of the Association des communautés scolaires franco-protestantes du Québec. This is from the letter that came after their brief.

To decide that article 93 to Quebec would no longer apply to Quebec would result in the following: the minorities in Quebec would lose their constitutional rights to have dissentient schools...

You don't seem to agree with that.

If you'll allow me, the other example I will cite is from la Commission scolaire dissidente catholique de Greenfield Park, which has actually gone to court. You may be familiar with that. They asked for an injunction—

Mr. Allan Hilton: To stop what?

Senator John Lynch-Staunton: —to stop Bill 107 from being applied. They're afraid that if Quebec is exempt from section 93 before this goes to court, they won't have a leg to stand on. But that's another question for us to...

So here we have two directly affected parties who separately claim in different ways that taking Quebec out of section 93 will in effect abolish whatever rights they have been able to—

Mr. Allan Hilton: To exercise the right of dissent?

Senator John Lynch-Staunton: Yes.

Mr. Allan Hilton: If subsections 93(1) to (4) are no longer applicable to Quebec, then nothing would stop the legislature of Quebec from eliminating the right of dissent as you describe it.

Senator John Lynch-Staunton: That's correct.

Mr. Allan Hilton: Nothing would prevent them from having the right of dissent there either, if they chose to.

Senator John Lynch-Staunton: But did you not say that you are satisfied that Bill 107 maintains their right to dissent?

Mr. Allan Hilton: I have to confess, Senator, I have not kept up with the legislative amendments, since professionally I haven't been obliged to look at this since 1992 or 1993.

Senator John Lynch-Staunton: I can appreciate that.

Mr. Allan Hilton: But certainly, putting aside any subsequent amendments that may have touched upon the exercise of the right of dissent, Bill 107 preserved a right of dissent from linguistic school boards. As I think I indicated in my view, in so far as Protestants are concerned, it would be francophone Protestants who would be in the better position or the more likely position to be able to exercise a right of dissent, because francophone Protestants are relatively few and far between, certainly in comparison to the majority of francophones.

Senator John Lynch-Staunton: Hopefully we'll have a second round. This is what the Commission scolaire dissidente catholique de Greenfield Park says in its brief:

[Translation]

The establishment of the new network of linguistic school boards contemplated in this legislation will mean that the dissident school board will be dissolved and in its place there will be two linguistic school boards.

[English]

The reason Quebec can do that is that the right to dissent, which was protected in section 93, will no longer be there; therefore, they will be at the mercy of the legislator. If this is well founded as an argument, then in effect section 93 has more of an impact than we have been led to believe—maybe on a small number of people but still a significant minority, and we're here to look after the minorities. This is what troubles me: the franco-Protestants who in two cases have raised some very important issues.

Mr. Allan Hilton: First of all, you're talking on the one hand about a Catholic dissentient board in Greenfield Park—

Senator John Lynch-Staunton: I'm sorry, yes, but in a right-of-dissent zone.

Mr. Allan Hilton: If I'm not mistaken—and if we had the time I could check—there is in Bill 107 a provision allowing the government to eliminate dissentient schools. I think you also have to keep in mind that the Supreme Court held very clearly that structures are not protected, that all there must be is the possibility to exercise a right of dissent, even if it means you must undo an existing structure. The answer is in the Bill 107 judgment.

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With that in mind, I don't see how, with section 93 in place, anything would be different in so far as what the legislature or Government of Quebec could do to those dissentient school boards, as opposed to a situation whereby subsections 93(1) to (4) would not be there. Structures are not protected. If there is one message that is very clear in this judgment, it is that.

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

The next intervention is from Sheila Finestone.

Mrs. Sheila Finestone: Thank you very much, Mr. Chairman.

It's very interesting. I wanted to follow that line of questioning as well. I understood that structures or school commissions are not protected. However, I think what the French-speaking Protestants were concerned about was the fact that this would be at the local school level, where they may not have a sufficient number where numbers warrant, which is under section 23. Is that a possibility of the—

Mr. Allan Hilton: Are we talking about the Greenfield Park situation or the franco-Protestants?

Mrs. Sheila Finestone: The franco-Protestants.

Mr. Allan Hilton: Section 23 doesn't benefit franco-Protestants. They're not a linguistic minority in Quebec.

Mrs. Sheila Finestone: Okay, then let's take the English-speaking Catholics.

Mr. Allan Hilton: English Catholics benefit from section 23 rights as much as any other anglophone in Quebec who is a Canadian citizen and to whom section 23 applies.

Mrs. Sheila Finestone: All right. So then could you explain to me exactly what happens with respect to anglo-Catholics. They can dissent, right?

Mr. Allan Hilton: Yes, from a situation in which you would have a school board for anglophones.

Mrs. Sheila Finestone: Fine. Could you sketch for us exactly—you're removing the school commissions—what happens at the local school level that would allow dissension? What is the process?

The second part of my concern is the question that Senator Lavoie-Roux asked you with respect to the move toward unified boards. Is there the potential under Bill 107 or Bill 109, amended, to move to a unified board that then puts into jeopardy the control and management of your school? There is nothing I saw in sections 23 or 93 that indicates control and management. In section 93 it talks about public funds, but it doesn't say “control” or “manage”.

Mr. Allan Hilton: Section 93 does not address itself at all to any issue of linguistic rights.

Mrs. Sheila Finestone: Even religious rights.

Mr. Allan Hilton: Nothing. Zero, zero, zero. That was decided as early as 1917, I think, in Mackell. It was a judgment of the Privy Council.

Mrs. Sheila Finestone: Mr. Hilton, my question—

Mr. Allan Hilton: So the extent to which any rights of the sort you're describing would need to be determined would have to be based on an interpretation of section 23 of the Constitution Act, 1982, which I think is susceptible to being interpreted in such a way as to enhance or guarantee rights of management and control for members of linguistic minorities in a province, which in Quebec would be the anglophone minority. Certainly the trend of the Supreme Court is much closer toward that than it is toward anything having to do with section 93.

Mrs. Sheila Finestone: So you're—

Mr. Allan Hilton: Section 93 offers no linguistic guarantees at all. Indeed, another judgment that dealt with that—this is perhaps a lesser-known judgment—would have been an attack against the provisions, I believe, of Bill 22, concerning access to English-language schools, which was taken under section 93 in the 1970s and which failed in a judgment of then Chief Justice Deschênes.

Mrs. Sheila Finestone: Therefore, is there any—

[Translation]

The Joint Chair (Mr. Denis Paradis): Please conclude your remarks, Mrs. Finestone.

[English]

Mrs. Sheila Finestone: Here's my concern, frankly. I perhaps don't know how to word the question to ensure that my concern has been met. I thought section 93, and of course the Education Act of Quebec, section 41, would allow and ensure that the English linguistic school system we are being asked to support—which I do support—would also allow for control and management of the public funds that would be allocated. I thought there would be no jeopardy and no need for an approach to the courts, that this was understood as part of the protection for both the French system and the English system and would allow for the dissentient boards, French Protestants and English Catholics.

• 1745

Mr. Allan Hilton: But, Mrs. Finestone, as we speak, section 93 extends only—and I emphasize this—to the two denominational school boards in the city of Montreal, the two denominational school boards in the city of Quebec, and any existing dissentient school boards that operate, of which there may be one, I guess, in Greenfield Park. I don't know if there are any others.

Senator Gérald Beaudoin: [Editor's Note: Inaudible]

Mr. Allan Hilton: But that are functioning?

Senator Gérald Beaudoin: [Editor's Note: Inaudible]

Mr. Allan Hilton: But they're not functioning, Senator.

Mrs. Sheila Finestone: I believe, Mr. Hilton, we were told that there were 24 applications by French Protestants to become dissentient school boards.

Mr. Allan Hilton: Are you talking about exercising a right of dissent, on the one hand, or exercising a right under section 218, I believe it is, to have a school recognized by the Catholic committee or the Protestant committee as a Protestant or Catholic school?

Mrs. Sheila Finestone: It is under section 218, Mr. Hilton.

Mr. Allan Hilton: Well, that has nothing to do with section 93 rights. That's purely optional.

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

[Translation]

Senator Beaudoin.

Senator Gérald Beaudoin: I would like to come back to the right to dissent. I agree that we are mixing up apples and oranges to some extent when we talk about section 23 and section 93. The right to dissent applies to religion only. It does not apply to language. That must be very clearly understood.

Section 23 is very clear. The linguistic school rights of the official language minority are protected. That is very clear. The right to dissent refers to denominational rights. I understand that at the moment, outside of Montreal and Quebec City, the right to dissent exists because within Montreal and Quebec City, schools are denominational.

We are being asked to suspend subsections (1), (2), (3) and (4) for Quebec, but not for the rest of Canada. This has an impact on the right to dissent, because the dissent has to do with a particular system, namely denominational schools. For example, outside Montreal and Quebec City, there is a common school, but Catholics have the right to dissent, if they wish. Theoretically, both Catholic and Protestant minorities may exercise their right to dissent. In practice, I think schools tend to be denominational.

Mr. Allan Hilton: Denominational, yes, but not in the legal sense.

Senator Gérald Beaudoin: Exactly. You are referring to francophone Protestants. Clearly, their right to dissent exists because they are Protestant, not because they are francophones.

Mr. Allan Hilton: Exactly. That is the practical fact; it is not the legal fact. It is because they are Protestant.

Mrs. Sheila Finestone: That is why I said that I did not think the answer was very clear. I know that it's based on religion and not on language, but I wanted to make sure that these people would be able to study in French schools, not necessarily Catholic schools.

Mr. Allan Hilton: They may make a request under section 218 of the Act, but that would be for the school, not the school board.

Senator Gérald Beaudoin: My only question is about the right to dissent. I think it is related to denominational rights. Why would a minority have the right to dissent? The answer is because the minority wants to preserve its Catholic or Protestant religion. There's no other reason. Language has nothing to do with that. I think that must be stated very clearly.

Mr. Allan Hilton: Exactly.

Senator Gérald Beaudoin: If subsections (1), (2), (3) and (4) are set aside as requested in the resolution from Quebec, I think this will have an impact on the right to dissent.

• 1750

I don't see how we can protect these rights unless Quebec, in a general law, advocates Catholic and Protestant education and uses the notwithstanding clauses to set aside the charters of rights. Do you see any other way of maintaining this protection?

Mr. Allan Hilton: Assuming the subsections of section 93 are declared not to apply to Quebec?

Senator Gérald Beaudoin: Yes.

Mr. Allan Hilton: You are asking whether, in that situation, the right to dissent can be maintained?

Senator Gérald Beaudoin: Exactly.

Mr. Allan Hilton: Without using a clause...

Senator Gérald Beaudoin: Well it could be with or without, but that was not the point of my question. I wanted to know whether such a thing would be possible. People who exercise their right to dissent are dissenting from a general system. I think that is logical.

Mr. Allan Hilton: To be quite logical, if the right to dissent is limited to Catholics and Protestants, there could be a problem regarding other religions that do not have the same right. However, if the right to dissent exists for all religions, for all religious minorities, perhaps such a provision would be found legal.

Senator Gérald Beaudoin: Yes.

Mr. Allan Hilton: Because it would not be discriminatory.

Senator Gérald Beaudoin: Yes, exactly. If we were drafting section 93 today, we certainly wouldn't draft it in the same way, and subsections (3) and (4) would disappear immediately, because the courts would deal with that. That leaves subsections (1) and (2), which discriminate against other religions.

Mr. Allan Hilton: It is not illegal today because it is in the Constitution.

Senator Gérald Beaudoin: That is correct. It is in the Constitution and we respect that. However, if we were drafting the Constitution today, we certainly would not do it in the same way.

Mr. Allan Hilton: No, not at all.

Senator Gérald Beaudoin: We are not judging our ancestors, I am sure they did their best. And you are saying that if there were to be a right to dissent, it would have to apply to all religions.

Mr. Allan Hilton: I think that would be more legal. If we limit the right to dissent to Catholics and Protestants, that is obviously discriminatory.

Senator Gérald Beaudoin: Indeed, if it is limited to Catholics and Protestants. With our modern charters, there is no doubt that this is illegal, unless the notwithstanding clause is used. Do you agree with that?

Mr. Allan Hilton: Definitely. It is exercising the right to dissent.

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Hilton. The next speaker is Paul DeVillers.

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

[English]

Mr. Hilton, we've had witnesses from outside Quebec come and express the concern that if the federal Parliament grants the requested amendment to section 93 to exempt Quebec from subsections 93(1) to (4), it might impact on other provinces, particularly Ontario.

My first question is this. Does your opinion that there aren't many rights left in section 93 apply to other provinces as well as to Quebec, or to all other provinces? And secondly, what would your opinion be on the impact of this constitutional amendment going through vis-à-vis other provinces?

Mr. Allan Hilton: I cannot pretend to speak authoritatively on the laws of any province except my own. That's number one.

Number two, I don't think the recent pronouncements of the Supreme Court, as illustrated by what I read to you from Adler, would give anybody very much hope to successfully base a challenge to provincial legislation on section 93 of the Constitution Act.

This amendment process is a legislative process that has the effect of amending the Constitution. A court called upon to examine section 93 rights in some other province would not be able to take any account, at least formally, of the fact that subsections 93(1) to (4) had been eliminated in so far as Quebec was concerned. The court would be obliged, because subsections 93(1) to (4) would still be there with respect to other provinces, to give those subsections whatever application they may have in the circumstances.

I cannot see how a court would use the fact that there is a constitutional amendment making these subsections inapplicable to Quebec as a basis to determine a case one way or the other. An attack on legislation would stand or fall on its merits, independently of what Parliament may do in respect of Quebec, or Newfoundland for that matter.

• 1755

Mr. Paul DeVillers: I just want to be clear. Is it your opinion that section 93 has been denuded for application to all provinces?

Mr. Allan Hilton: Certainly judgments of the Supreme Court of Canada are applicable, at least in terms of the process of reasoning, throughout Canada. The laws of each province at the time section 93 came into force—or its equivalent, in terms of when other provinces came into Confederation—are what need to be examined when determining what rights are protected by section 93, not laws that were enacted after.

As you know, the enactment of laws after the coming into force of section 93 cannot serve to enhance section 93 rights. They are rights that are frozen in time. In so far as Quebec is concerned, and Ontario and the other provinces that joined Confederation with it, that's July 1, 1867, and it's the same or the applicable date for any other province to which section 93 or its equivalent applies.

[Translation]

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Hilton. One final brief remark from Senator Lynch-Staunton.

[English]

Senator John Lynch-Staunton: Thank you.

If this is not in your field, just let me know. There is some question as to whether the amending formula in section 43 is the appropriate one to be used here. If you're not ready to discuss that—

Mr. Allan Hilton: Since I don't have the Constitution Act with me, I would not—

Senator John Lynch-Staunton: Well, briefly, because there is more than one province involved in section 93 and we're asked to do it through the amending formula bilaterally, should the other provinces—mainly Ontario, which, when it was the Province of Canada, was a major party to the agreement on section 93—not be part of the amendment?

In other words, should those who were there at the time not be here today, when we're changing something they had reconfirmed in 1982?

[Translation]

The Joint Chair (Mr. Denis Paradis): That is Senator Beaudoin's bedtime reading.

Senator Gérald Beaudoin: Exactly.

[English]

Mr. Allan Hilton: I haven't examined this in any detail, Senator, but my impression would be that the process Parliament is being asked to follow is a legal process and would be recognized as such by the Supreme Court.

Subsections 93(1) to (4) apply in very different ways in Ontario and Quebec because of the nature of the rights that existed at Confederation. The rights as they exist in section 93 in Quebec are different substantively, or have the potential to be different substantively, depending on the laws that were in force in Ontario at Confederation.

Of course this is not something the courts are ever going to have a chance to look at, unless this resolution is adopted and someone then challenges it down the road. There is very little jurisprudence on amending formulas due to the very sad fact that we haven't had amendments.

A voice: Exactly.

Mr. Allan Hilton: So anybody who purports to speak authoritatively on this would be wrong to say they can speak authoritatively. They can speak with an informed mind, but not much more than that.

Either position is certainly one that, as lawyers would say, is a pleadable situation, but my own view is that what Parliament is being asked to do would ultimately be determined legal by the Supreme Court, if ever it were challenged.

[Translation]

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

Senator Gérald Beaudoin: I have a supplementary question.

It is our good fortune to have before us a person who has argued these cases before the Supreme Court of Canada. I have another question I would like to ask you.

In the course of your arguments, did the Supreme Court judges ever speak about the Ontario system and subsection 93(2)? People say that there is a link between the two provinces, but there is no reciprocity. Some maintain that the rights of English-language schools in Ontario were extended to Protestant schools in Quebec. However, if Quebec passes a resolution saying that it wants a different system, if will not lose anything, nor will Ontario, because it will retain its system.

I'm therefore inclined to think that if ever this issue is brought before the court, it will rule that this is a bilateral matter for this reason.

Mr. Allan Hilton: We shouldn't forget that subsection 93(2) was analyzed in the Supreme Court judgement in the régime pédagogique case. One side argued, incorrectly, apparently, that the rights guaranteed to Catholics in Ontario apply to Quebec through subsection 93(2), and the court said that this was not so.

In other words, subsection 93(2) does not offer a great deal of encouragement to lawyers pleading the case.

Senator Gérald Beaudoin: What decision was that?

• 1800

Mr. Allan Hilton: I think it was the régime pédagogique case.

Senator Gérald Beaudoin: What year was that?

Mr. Allan Hilton: Nineteen ninety-three. It's an SCR. I could find you the page reference.

Senator Gérald Beaudoin: Yes, thank you. It is not about Bill 30, in Ontario?

Mr. Allan Hilton: No, no. In this case, it was argued that under subsection 93(2), what applied in Ontario also applied in Quebec, particularly as regards the guarantee established in the Separate Schools Reference case.

Senator Gérald Beaudoin: I see.

Mr. Allan Hilton: I think the judgment...

Senator Gérald Beaudoin: The Supreme Court said that this did not apply to Quebec.

Mr. Allan Hilton: Exactly. I think it's mainly in the reasons. Madam Justice Wilson wrote the reasons, not the dissenting, but the concurring reasons, with Chief Justice Dickson. She dealt with this issue in the reasons.

The Joint Chair (Mr. Denis Paradis): Senator Lavoie-Roux, briefly, please.

Senator Thérèse Lavoie-Roux: Yes, I will be very brief. We know that there was a reference to the Supreme Court regarding the legality of Bill 107.

Mr. Allan Hilton: Yes.

Senator Thérèse Lavoie-Roux: Would it not have been advisable to refer the issue before us to the Supreme Court?

It is quite impossible to expect citizens to be able to afford references of this type. Would it not have been wiser to ask for a reference to the Supreme Court, to get its opinion on this amendment?

Mr. Allan Hilton: A reference on what issue, Senator? I think we need a justiciable issue to refer to the court. I think what you have before you is a political issue, not a legal one. The role of the Supreme Court is to comment on legal issues.

Senator Thérèse Lavoie-Roux: Yes, but some people say that they are losing their rights as a minority, and others are saying the opposite. So the issue would be the protection of minority rights.

Mr. Allan Hilton: I don't think the Supreme Court can deal with an issue of this type, because, in my opinion, this is not a legal matter.

Senator Thérèse Lavoie-Roux: But section 93 is a legal matter. It protects the denominational rights, and, indirectly, linguistic rights.

Mr. Allan Hilton: The Governor-in-Council certainly has the power to refer any issue to the Supreme Court. The answer he may get is another matter.

Senator Thérèse Lavoie-Roux: Yes, yes, but would it not have been wiser to proceed in this way?

Mr. Allan Hilton: That is a political issue, not a legal one.

The Joint Chair (Mr. Denis Paradis): On behalf of all the members of the committee, I would like to thank you for your presentation this afternoon, Mr. Hilton.

Mr. Allan Hilton: Thank you.

The Joint Chair (Mr. Denis Paradis): I would like to inform committee members of a couple of things. First of all, Senator Maheu would like to table some documents. Senator Maheu.

Senator Shirley Maheu (Rougemont, Lib.): Thank you, Mr. Chairman. I received a request from Ms. Marie Gibeault, who appeared before the committee, to table a two-page document, which is to be added to her presentation.

The Joint Chair (Mr. Denis Paradis): There are no objections? We will therefore receive the document in question.

I have two other important messages. First of all, those who have any ideas for the draft report that we should have by tomorrow afternoon around 3:30 are asked to see Laura Snowball after the meeting to tell her what they would like to add.

Second, and this is for all committee members, RDI will be broadcasting live our meeting tomorrow morning at 9 a.m.—both the Minister's statement and the questioning from committee members.

An Hon. Member: Why RDI?

The Joint Chair (Mr. Denis Paradis): Are there any other comments? If not, we will adjourn until tomorrow morning at 9 a.m. If we are not in this room, we will be in the room across the hall.

The meeting stands adjourned.