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]

Tuesday, November 4, 1997

• 0900

[Translation]

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

This morning, we are very pleased to welcome the Honourable Stéphane Dion, President of the Queen's Privy Council for Canada and Minister of Intergovernmental Affairs.

This is our last meeting before we begin to draft our report. I think it's important that the Minister have this opportunity to answer your questions.

Minister, you have the floor.

The Honourable Stéphane Dion (President of the Queen's Privy Council for Canada and Minister of Intergovernmental Affairs, Lib.): Thank you very much, Mr. Chairman.

I would first like to introduce the senior officials accompanying me today. They are Mr. Yves de Montigny, Director of Constitutional and Intergovernmental Affairs with the Privy Council Office, and Mr. Louis Reynolds, General Counsel with the Department of Justice.

Madam Chair, Mr. Chairman, Honourable Members and Senators on the Committee, I would first like to note the importance of the hearings you are completing today and the report you will be preparing in the days to come.

The establishment of linguistic school boards has, of course, been discussed extensively in Quebec over the past thirty years, but attaining that goal through constitutional means has not been the subject of a parliamentary committee as such.

In fact, it is more demanding and complicated to change the Constitution than to change the law. This is normal by definition, because the Constitution is the most fundamental law of the land. In the same way, it is one thing to strike a parliamentary committee on a legislative amendment, and quite another to strike one on a constitutional amendment. The debate takes on broader dimensions once it is raised to the constitutional level.

If the Official Opposition in the National Assembly had been able to convince the Government of Quebec to strike a parliamentary committee specifically to examine the issue of amending section 93, the work of your Committee would have been made easier. Such a provincial initiative would have been a natural development, because education falls exclusively within provincial jurisdiction, and the Minister of Education, Ms. Pauline Marois, has powers in that field that I do not have.

Nevertheless, Ms. Marois and her colleague, Mr. Jacques Brassard, Minister for Canadian Intergovernmental Affairs, have provided you with substantial testimony. The cooperation they showed you was greatly appreciated by the Government of Canada.

Under the circumstances, your Committee has played an essential role. You have heard from numerous groups and individuals. You were able to observe that the almost unanimous support for the establishment of linguistic rather than denominational school boards in Quebec was not without some reluctance and misgivings about section 93 of the Constitution Act, 1867 to achieve that goal. There is a consensus in favour of this constitutional amendment, but there is also some reluctance. It is a good thing for the legislator and for Quebec society as a whole to be fully aware of this, so as to manage the situation more effectively once the amendment has been passed.

Your work has highlighted aspects of the issue that had formerly been neglected to some extent or overshadowed by other considerations. One such aspect is the potential incompatibility that amending section 93 could create between the Canadian and Quebec Charters of Rights and Freedoms and the maintenance of special status for the Catholic and Protestant denominations within the school system. The public had not been made sufficiently aware of that aspect, and your hearings have made it possible to examine it thoroughly. I will return to this later.

[English]

From the very beginning of your hearings, opponents of the constitutional amendment have made their views known. They have done so with clarity and conviction, and you have listened with attention and respect. Afterwards, having heard from a large number of individuals, groups and experts, many of you publicly concluded that the consensus exists in Quebec in favour of the constitutional amendment requested unanimously by the National Assembly. I would like to discuss with you the reasons for that consensus and share my thoughts about the testimony you have heard in the past two weeks.

• 0905

Let us consider together the essence of what was said in these hearings about the three sections of the Constitution that you have in your view: first, section 43, about the amending formula that applies in this case; second, section 93, which is the key section about religious denominations and the issue of schools; and third, section 23 of the Canadian Charter of Rights and Freedoms, which established language rights with respect to school amendments.

[Translation]

The first point on section 43 deals with the bilateral amendment. Section 43 of the Constitution Act, 1982, clearly establishes that what we are considering today is indeed a bilateral amendment—in other words, one that requires the approval only of the province to which it applies and the Parliament of Canada. That is the categorical opinion of the Department of Justice, as I noted when I first appeared before this Committee. The legal experts you called, Professors Daniel Proulx and Patrick Monahan, have stated unequivocally that this is the appropriate amending formula.

Accordingly, the proposed amendment is clearly a bilateral one. It does not create any legal precedent for the other provinces. Only the legislature of the province concerned and both Houses of the Canadian Parliament have the authority to approve the proposed constitutional amendment, which will not have any legal effect outside that province. It is noteworthy, however, that both bodies, the provincial legislature and both Houses of the Canadian Parliament, have this constitutional responsibility. Parliament is not just the rubber stamp of the provincial legislature. It must conduct its own examination of the facts, through a parliamentary committee, if need be. This is in keeping with the spirit of federalism, which avoids concentrating in one parliamentary body responsibility for matters that closely affect the rights of citizens. Two parliaments are less likely to err than only one.

At the federal level, it falls to the House of Commons and Senate to consider each bilateral amendment on its own merits, in light of the specific circumstances of the province concerned. It is also incumbent on them to determine whether there is a consensus within the province's population, including reasonable support among the affected minorities.

That brings me to the heart of the matter: section 93 and the objectives of the amendment you have been considering. Your work highlighted two issues that we were already aware of but that you have further clarified. The first is that this constitutional provision no longer reflects Quebec reality. Section 93, as drafted in 1867, no longer reflects Quebec reality. The second consideration that your work clearly brings to light is that the scope of section 93 has become increasingly limited as a result of the case law.

In any case, it has little legal relevance and no longer meets the needs of Quebec society. Thus it is clear that it does not reflect the Quebec of today. A number of groups took pains to assert that the constitutional guarantees under section 93 are not fundamental rights, and that the rights, privileges and powers they confer are not enjoyed by other religious denominations or by Catholics and Protestants in New Brunswick or Nova Scotia. In a pluralistic society that is open to the world, it is not unreasonable to want to remove the binds of a constitutional provision that the majority no longer requires to enforce its rights and that no longer corresponds to minorities' real expectations, as representatives of the Rassemblement arabe, the Quebec Board of Black Educators and the Jewish Congress have told you.

You were also told that practice and Supreme Court judgments have eroded the rights guaranteed under section 93. The list of things section 93 cannot do, as various witnesses who appeared before you made clear, is quite lengthy. I will confine myself to the essential points.

• 0910

First of all, in 1989, the highest court ruled that the Government of Quebec could virtually determine all aspects of the curriculum not directly linked to moral or religious instruction, both in dissentient schools and in schools governed by Catholic and Protestant school boards in Montreal and Quebec City.

Furthermore, a ruling in 1993 made it clear that the Privy Council's rather generous interpretation back in 1926 is no longer appropriate. The right to school boards is limited to Montreal and Quebec City, and does not extend to the Island of Montreal and the greater Quebec City region. Only Montreal and Quebec City have that right.

Moreover, enrollment in denominational schools could be restricted to Protestants and Catholics based on the interpretation given by the Court in its 1993 ruling. It is clear that no other religious denomination enjoys rights under section 93.

Finally, let's look at the testimony of Allan Hilton, whom you heard yesterday and whose words echo the testimony of Colin Irving, who appeared before him. Let's look at the list.

[English]

There is no longer any control over the curriculum. There is literally no management and there is no control at the local level. There is no degree of control over financing at all. So we are speaking about rights which for the most part existed a century ago but don't exist at all any more. The Provincial Association of Protestant Teachers of Quebec drew the same conclusion.

For their part, Professors Smith and Foster noted in their submission:

The right to dissent does not include the right to raise taxes without the restrictions of a referendum, the right to choose the language of instruction, the right to control the course of study, or the right to the management and control of education.

Nothing in that applies with section 93, the way it has been interpreted with courts.

[Translation]

Given that the guarantees granted to Catholics and Protestants no longer correspond to the Quebec of today and have, in any case, been reduced in scope through the case law, it is not surprising that they are now being challenged.

All the groups and individuals you have heard from have expressed their agreement with establishing school structures organized along linguistic lines. Some witnesses, however, doubted the need to amend the Constitution to effect the desired change. They believe that linguistic school boards and denominational school boards can coexist. That view was expressed by the Quebec School Boards Association, the English-Speaking Catholic Council, the Coalition for Denominational Schools and the Association of French Protestant School Communities.

The creation of pyramiding denominational and linguistic structures, however, would entail tremendous practical difficulties.

In effect, it would result in the superimposition of six separate school systems in Montreal and Quebec City and a multiplication of schools in the regions, with the fragmentation of resources which that entails. Quebec Education Minister, Ms. Pauline Marois, testified extensively before this Committee with respect to the numerous obstacles encountered by successive Quebec governments before the decision was made to proceed via a constitutional amendment. For its part, the Federation of Quebec School Boards wrote in its submission:

"The superimposition of linguistic and denominational structures would render extremely complex and cumbersome annual activities relating to admissions, personnel assignments, resource distribution, establishment of electoral lists and division of the tax base."

Expanding the scope of section 93 so that all religious denominations could make claim to the rights guaranteed under that provision, as other groups have suggested, would pose even more insurmountable difficulties. Not only would schools be fragmented along religious lines, with all the risks which that entails, but material and physical resources would be spread even more thinly, to the detriment of children.

In any event, the Constitutional amendment we are being asked to adopt does not challenge religious instruction in schools, but solely the denominational status of school facilities. We already knew from reading the Quebec legislation that parents and their children will retain the right to choose between religious or moral instruction in accordance with their convictions.

Quebec's Education Minister, Ms. Marois, confirmed in her testimony before your Committee that the current situation with respect to religion in the schools will be maintained for the time being and that a democratic debate on this issue will take place once the task force she recently struck reports in the fall of 1998.

• 0915

Provided that the place of religion in the schools is discussed frankly and openly, as the Government of Quebec has pledged it will be, the Catholic majority will be able to assert itself without the support of a constitutional guarantee. Ms. Marois also reiterated her attachment to the values set out in section 41 of the Quebec Charter of Human Rights and Freedoms, which grants parents or children the right to demand moral or religious instruction in public educational institutions, in accordance with their convictions.

It is undoubtedly for these reasons that the Catholic bishops do not object to the proposed constitutional amendment, as confirmed just recently by Bishop Morissette in a letter to me, a copy of which I provided you with at my last appearance.

[English]

Today I have another piece to give to you. The Anglican Church in Montreal is of the same opinion. In a letter he sent to me yesterday, a copy of which I can table this morning, Bishop Andrew Hutchison wrote:

The Diocese of Montreal of the Anglican Church of Canada considers it in the best interest of our Quebec society to move to a non-confessional administration in the school system. The amendments proposed to Article 93 by the Quebec government, which would remove the obligation for the Quebec government to have confessional school boards, seems reasonable to us and in keeping with traditional positions enunciated by the Anglican Church.

[Translation]

Some testimony has alluded to a possible conflict between the Charters of Rights and Freedoms and religious instruction in the schools if section 93 of the Constitution Act, 1867 were amended. Without wishing to minimize the importance of this problem, it is appropriate to put it in the proper perspective. In the first place, Bills 107 and 109 are deemed to be valid until proven otherwise; the burden of proof lies with those alleging that they are unconstitutional. In order for them to be considered invalid, a court would first have to find that these two laws violate freedom of religion and the right to equality, and that they do not constitute reasonable limits in a free and democratic society. In that regard, one may assume that section 41 of the Quebec Charter of Human Rights and Freedoms represents an acceptable solution and would be deemed by the Supreme Court to be a reasonable limit.

As the Liberal critic on Constitutional Matters, Mr. Jean-Marc Fournier, so aptly noted, it is common practice for the Supreme Court to suggest adjustments that would make the statute comply with the Charter's definition of "reasonability". The Supreme Court can thus suggest amendments whose purpose is not to nullify the objectives of the legislature, as evidenced by the suggestions it made when it ruled in 1988 that Quebec's unilingual signage provisions violated the Canadian and Quebec Charters. Those prescriptions have become law in Quebec, albeit a little late. Had they become law earlier, perhaps we might have saved the Meech Lake Accord—but that is a whole other debate. In any case, they have become law in Quebec and it is the Supreme Court that suggested a course of action.

More recently, the Supreme Court took the same approach when it ruled that certain provisions of the Referendum Act were unconstitutional, in a judgment rendered on October 9, 1997, as I'm sure you recall. So, the Supreme Court can suggest such accommodations when presented with a specific problem.

In light of the care shown by the highest court when called upon to arbitrate between the interests of different groups in the community, and given the variety of solutions employed by the different provincial legislatures in that regard, it is far from certain that a notwithstanding clause is necessary to allow for religious instruction in the schools. In our opinion, the position taken in that regard by Professor Patrick Monahan and Mr. Colin Irving is far too categorical.

• 0920

In any event, it is noteworthy that Quebec's Education Act is currently exempted from the application of the Canadian and Quebec Charters through a notwithstanding clause. That clause, enacted in 1988 by the then Education Minister, Mr. Claude Ryan, was re-enacted in 1994. I was naturally very pleased with the statement by my counterpart, Minister Jacques Brassard, that the notwithstanding clause must be used only as a last resort and with great care and tact. That is absolutely true. The notwithstanding clause is contained in section 33 of the Constitution Act, 1982. It can therefore be used legitimately in some circumstances, to the extent that the government considers it be a last resort.

In the case at hand, it would no doubt be premature for the Government of Quebec to commit itself to maintaining the notwithstanding clause after its sunset. The issue must still be debated, and it is quite possible that other solutions can be found. Even if a decision were made to re-enact the notwithstanding clause contained in the Education Act, it would have to be viewed as sui generis. First, because the use of the notwithstanding clause would be justified given the amendment of section 93, which some have characterized as a "permanent notwithstanding clause", and which has exempted two groups from the general application of the Canadian Charter. Second, because the use of the notwithstanding clause authorized by section 33 of the Constitution Act, 1982 would have as its sole objective the temporary maintenance of rights that have traditionally been protected by the Constitution and that would presumably still be broadly supported by Quebec society.

[English]

Now, section 23: linguistic rights with respect to schools. The school system will no longer be organized along denominational lines if we accept the amendment. Rather, it will be organized along linguistic lines.

Although section 93 did not provide any protection to Quebec's anglophone minority, it must be acknowledged that the close correlation between language and religion has historically enabled the anglophone minority to control its own educational institutions. That is probably why some anglophone groups have felt threatened by the proposed reform and have felt the need to air their concerns.

I indicated when I first appeared that anglophones' majority control of Protestant school boards is in jeopardy. The anglophone community has every interest in consolidating to stop that trend. Indeed, that opinion has been echoed by a number of anglophone groups, including the Protestant teachers association, the provincial association of Catholic teachers, and the Quebec Board of Black Educators.

[Translation]

Quebec's Anglophone minority can support amending section 93 with the utmost confidence, because its rights have been better protected since the coming into force of the Constitution Act, 1982, specifically section 23. Unlike section 93, section 23 of the Charter has in no way been eroded. Section 23 guarantees the minority the right to manage and control its schools. Several groups and experts confirmed that in their testimony. In his submission, Professor Daniel Proulx mentioned the "broad, liberal and very vigorous" interpretation that the Supreme Court has given section 23 in the case law, especially in the famous judgment Mahé v. Alberta in 1990. The Provincial Association of Protestant Teachers of Quebec drew the same conclusion. Referring to successful legal battles by Francophone minorities throughout the country, it noted in its submission:

[English]

The success of their struggles, as well as the various court decisions, have shown us that these protections are real and useful, in contrast to the empty shell that Section 93 turned out to be.

[Translation]

In reality, Quebec's school legislation goes beyond the requirements of section 23 by arranging the school system so that the Anglophone community has access to instruction in its own language throughout Quebec, not just "where numbers warrant". In point of fact, Quebec's Anglophone minority controls educational institutions from kindergarten to university.

• 0925

[English]

The rights of Quebec's anglophone minority were explicitly reaffirmed in the preamble of the resolution adopted by the National Assembly authorizing the amendment of section 93, at the express wish of the official opposition. We ourselves, in the Government of Canada, included this whereas clause in the motion for a resolution that I introduced in the House of Commons on behalf of the Government of Canada.

Of course there are some who want to use this debate to call for the full application of section 23 in Quebec, but that is another matter. Section 59 of the Constitution Act, 1982 allows the government or National Assembly of Quebec to determine when access to English schools will be expanded on the basis of the criterion set out in paragraph 23(1)(a). If the architects of the Constitution Act, 1982 deemed it appropriate to make the distinction at the time of repatriation, it is because they recognized that French does not have the same force of attraction as English in North America.

It is certainly fair enough for a minority to want to expand its rights. Nevertheless, the Government of Canada believes it would not be acting responsibly or in the interests of the Quebec anglophone minority by blocking this constitutional amendment. Restructuring Quebec's school system along linguistic lines will enable the anglophone community to consolidate its school population and fully exercise the rights it already has, even if it does not obtain full satisfaction in respect of all of its demands.

In their testimony before your committee, the Provincial Association of Protestant Teachers of Quebec, the Provincial Association of Catholic Teachers, the Quebec Board of Black Educators, and Forum Action Québec expressed the view that the full application of section 23 is another objective—one that must not, however, belie the adoption of the constitutional amendment submitted for your review.

Professors Foster and Smith summarized this viewpoint well, and I quote them:

As much as we support the application of section 23(1)(a) to Quebec, we do not feel that the constitutional amendment process should be blocked because of it.

[Translation]

In conclusion, your Joint Committee has made possible a high level of debate—something we are used to seeing in the House of Commons. Everyone is now better able to understand how denominational, school and linguistic issues have come together in Quebec. Section 93, as drafted in 1867, is no longer appropriate in view of the pluralistic society that Quebec has become; indeed, its scope has been considerably reduced by the case law. However, the Constitution Act, 1982, by allowing in its section 43 the amendment of section 93 on a bilateral basis, and by guaranteeing Anglophone minority language rights in its section 23, makes it possible to modernize the school system in the best interests of Quebec's children.

Thank you.

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

I would just like to pass on a little reminder to Committee members. I believe most of you have already indicated that you would like to put a question to the Minister. I would therefore ask you to try and limit yourselves to two minutes, as we discussed at the beginning of our hearings.

The first questioner will be Peter Goldring.

[English]

Mr. Peter Goldring (Edmonton East, Ref.): Thank you, Mr. Chairman.

Thank you, Monsieur Dion, for your presentation.

Monsieur Dion, the Quebec Federation of Home and School Associations have stated that there has never been any consensus in the community of parents they represent on an amendment to section 93 as proposed at this time. I wish to table documents to substantiate this, if I may.

May I table documents to substantiate it, Mr. Chairman?

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

Mr. Peter Goldring: These documents ask that the Quebec government maintain Catholic schools and school boards as they exist today, that they clearly support maintaining confessional schools, and that they clearly indicate that a consensus has not been given by the very people this affects most: the parents.

• 0930

I ask that the documents now be tabled, and I want to thank Jocelyne St-Cyr. There are 100,000 witnessed signatures and 135,000 others represented by affidavits; that's 235,000 who say no to extinguishing subsections 93(1) to 93(4).

Monsieur Dion, our Reform policy is that 3% of the population may call for a referendum. These documents indicate 4% who are against this request. Is it not a clear message that consensus has not been proven, that consensus has only been alluded to? Is there a petition existing of like numbers supporting your repeal proposal? I'll wait for your answer.

[Translation]

The Joint Chair (Mr. Denis Paradis): Minister, you have the floor.

[English]

Mr. Stéphane Dion: Your hearings have shown that there is almost unanimity for linguistic school boards and a consensus to do it by the constitutional amendment. But when we speak about consensus, we don't speak about unanimity. It's quite normal that the groups and the individuals who are strongly against are more likely to come to meet you than the groups who are roughly in support. This happens all the time in hearings, whatever it is—at the provincial legislature or here at the Parliament of Canada.

These groups had the opportunity to express their concerns, and that is good. It will help the provincial authorities to implement the change, taking into account the concerns of everyone.

Mr. Peter Goldring: I have a supplemental question.

Monsieur Dion, as this represents the parents—and we have been hearing one witness applicant after another about groups and organizations—I repeat, is not the impression or the will of the parents what is paramount here in making this decision? This clearly represents 4% of the parents of Quebec. Could you respond to that, please?

[Translation]

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

Mr. Stéphane Dion: Do I really have to answer that question? We have the support of the Provincial Association of Protestant Teachers of Quebec, the Centrale de l'enseignement du Québec, the Coalition for Denominational Schools, the Quebec Federation of School Boards, the Quebec Federation of Parent Committees, representing parents from across Quebec, the Quebec Workers Federation, and the Quebec University Student Federation. I have to apologize to those I've forgotten, but I believe I've mentioned the most important groups. And there's also the Mouvement laïque du Québec and the Mouvement national des Québécois. I have to list them at least once in my life. There are also other groups that support this change, and all those groups like to boast that they represent millions of Quebeckers. It is common practice for groups to claim that they represent all the people we represent. There is also the Coalition pour la déconfessionnalisation du système scolaire and a whole list of other groups, such as the Alliance des professeures et professeurs de Montréal, the Association des cadres de la CECM, the Montreal School Principals Association and the Quebec Haitian Teachers Association. Everyone of them can come along and claim that they represent one group, rather than another.

At the same time, it should be mentioned that members of the National Assembly voted unanimously for this resolution, even though their seats were not on the line, and that we in the Liberal Party of Canada and the Bloc Québécois have clearly indicated that we are in favour of the proposed amendment. It should also be noted that the parties that might have been opposed did not receive many votes in the last federal election. It should also be stated that all of these groups have declared themselves to be in favour of the amendment and do not feel their membership is threatened. Indeed, we have a number of indications that there is indeed a consensus on this issue.

The Joint Chair (Mr. Denis Paradis): The next questioner will be Senator Beaudoin.

Senator Gérald Beaudoin (Rigaud, PC): I have two specific points I'd like to raise. First of all, when you first appeared before the Committee, I raised a question with respect to section 43.

Mr. Stéphane Dion: Could I add one more thing as regards the consensus? When the clergy, and specifically the Catholic bishops and representatives of the Anglican church, say that they are not necessarily in favour, but are certainly not against the amendment, then it's clear both denominations realize that preventing change would not serve their cause in Quebec society. In order to promote their faith, they have no choice but to adapt.

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

Senator Gérald Beaudoin: I raised the issue of section 43. All the experts who appeared before us agreed that section 43 applies.

To my knowledge, none of them said that it was more than bilateral. It is clearly bilateral. So, as far as I'm concerned, that case is now closed. Thus section 43 will apply bilaterally.

• 0935

Coming now to the heart of the issue, as you put it, there's no doubt that if D'Arcy McGee, Galt and Cartier came back and had to rewrite section 93, they would draft it quite differently. The last two subsections would obviously be dropped, because we currently live in a society where the legal system is very strong, and we would not give preferential treatment to only two religions. Nowadays, with the principles enshrined in the Charter of Rights and Freedoms, we would extend that to everyone, or else develop an entirely new system.

You stated earlier that it was not clear that the notwithstanding clause would be needed. I hope that is true, because I am not keen to build a system based on notwithstanding clauses. I am quite comfortable with Charters of Rights, because we live in a wonderful world, but we should not be using the notwithstanding clause any more than is absolutely necessary.

However, I would like to know whether you have anything to add in that regard. As I see it, section 41 is there and it is a quasi- constitutional provision. If legal experts are able to come up with an egalitarian plan for religious instruction, the notwithstanding clause may not have to be used. Is your argument similar?

Mr. Stéphane Dion: Yes, absolutely, Senator. First of all, if you consider how many steps there are before the notwithstanding clause can be invoked, it is clear that there are quite a few of them. First of all, the legislation has to be invalidated, including the part about what is justified in a free and democratic society in section 1 of the Charter. Secondly, section 41 must not be deemed to offer a viable solution, and the court must not mention any other solution that could be applied without distorting the legislation.

We know that the court usually tries to find solutions that avoid use of the notwithstanding clause. I mentioned the 1988 example. The Supreme Court ruled that it was fair and just to guarantee the use of French in commercial signage and to make it highly visible, but that it wasn't appropriate to abolish or remove the right to post signage in other languages. That has become the law in Quebec.

As for the Quebec Referendum Act, I'm sure you are aware that there is currently a debate within the government of Quebec on that very issue, but outside the government of Quebec, the almost unanimous view is that the Supreme Court ruling provides the option of amending the law without using section 33, the notwithstanding clause.

So, the court could probably suggest changes that would make it possible to enforce the law if it should be invalidated, which is not certain at this time.

The Joint Chair (Mr. Denis Paradis): I'll allow you a supplementary, Senator Beaudoin.

Senator Gérald Beaudoin: That's quite true, since the Supreme Court has always had quite a generous interpretation of section 93. It is quite a complex section. I believe they will give the government some latitude. I certainly hope so, since this could complicate matters somewhat. But let's just wait and see, and in the meantime, we still have the quasi-constitutional protection that section 41 continues to provide.

Mr. Stéphane Dion: Exactly.

The Joint Chair (Mr. Denis Paradis): Thank you, Senator. The next questioner will be Mr. Réal Ménard.

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): Minister, I very much appreciated your brief. Although it did contain some overly enthusiastic references to 1982, that's the current climate. I'm sure it won't last. I have four questions for you.

Do you agree that since Minister Marois appeared before this Committee and said that consultations were held on Bill 109 through a parliamentary committee, we can consider those consultations to have been sufficient, given that Bill 109 only deals with linguistic school boards?

Secondly, could you tell us whether you have had a chance to discuss the follow-up to this debate with your colleague, the Government House Leader? Will there be a debate in the House of Commons at report stage? When do you expect we will be voting on this? Could you perhaps provide details as to the parliamentary process that will kick in over the coming days?

Thirdly, I would like you to elaborate on the notwithstanding clause. As you know, Minister Brassard has said that it should be used with tact. You also know that there is no lack of that in the current government. Could you also elaborate on your understanding of the notwithstanding clause?

Fourthly, I have a somewhat more personal question, which I will take the liberty of putting to you: were you disappointed that your government authorized a free vote?

• 0940

Mr. Stéphane Dion: Thank you for your questions.

As regards the parliamentary committee work on Bill 109, your party demanded that the constitutional amendment be pushed through last April, before the election. The parliamentary committee had not even begun its work at that point. So, you can't now claim that the work of the parliamentary committee on Bill 109 proves that there was adequate consultation, because your party was demanding that the amendment go through even before that committee was struck.

Mr. Réal Ménard: That's not my question.

Mr. Stéphane Dion: I know. I am coming to it. I felt I had to make that point.

Secondly, you yourself, Réal, said that you were surprised, even disturbed by some of the arguments you heard here. I wasn't disturbed, but you were.

Mr. Réal Ménard: But I'm strong, Minister.

Mr. Stéphane Dion: It seems to me the validity of the work you took part in has been amply demonstrated. The minute a constitutional change is involved, it must be considered from the standpoint of its constitutional dimension, not through any other prism. The Constitution constitutes the fundamental law of the land. It is more difficult to change than a statute. That's why I believe there should have been a parliamentary committee struck in Quebec to review the constitutional amendment, just as the Official Opposition requested. However, I pointed out in my statement that in a way, the two Quebec Ministers had redeemed themselves by coming before the Committee and making a good presentation.

With respect to section 33, I don't know whether I can really add anything. It is part of the Constitution. It is not illegitimate for governments to use it, but they must do so with great care and tact, and only as a last resort. When you derogate from a Charter, you must have very good reasons for doing so. When it is enough to amend a law, while still maintaining the spirit of that law, then there is no need to use it. That is not a very good reason.

As far as the free vote is concerned, I already gave an answer to Mr. Bouchard on that. I find it inconceivable that Mr. Bouchard, the Premier of Quebec, could question the courage and convictions of the Prime Minister of Canada simply because the Prime Minister authorized a free vote on a moral issue. In a democracy, free votes are in fact used in cases where the issue is a moral one. Governments are not required to hold them, but they may do so. I consider the comment made by the Premier of Quebec on this issue to be inappropriate, even though it is not really a central issue in this case.

The Joint Chair (Mr. Denis Paradis): Just a moment, Mr. Ménard.

Mr. Réal Ménard: Of your four answers, that's the least satisfactory.

Mr. Stéphane Dion: But it's the most normal one. In a democracy, where moral issues are involved, Mr. Chair...

The Joint Chair (Mr. Denis Paradis): Excuse me, Minister. The next questioner will be Sheila Finestone.

Ms. Jennings, do you have a point of order?

Ms. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): I apologize for interrupting the discussion. I have just learned that two of the organizations who presented briefs to the Committee,

[English]

the Native Alliance of Quebec and the Congress of Aboriginal Peoples, this morning gave more documents to be distributed to all of the members, and they have not been distributed as yet. I would like them to be distributed. Thank you.

[Translation]

The Joint Chair (Mr. Denis Paradis): We will deal with your point of order once the Minister has left. Mrs. Finestone.

[English]

Mrs. Sheila Finestone (Mount Royal, Lib.): I want to support the observations just made, because the aboriginal people have been very sage, I think, in their presentation and it is important that we take it into consideration, which I am sure the minister will. My colleague has been extremely forthcoming in bringing that issue to the front.

Mr. Minister, there are three things I would like to have assigned. First of all, at all times the Province of Quebec and therefore its Minister of Education is subject to section 23, which is not subject to the notwithstanding clause. Is that accurate?

Mr. Stéphane Dion: It is accurate. Section 23 is not subject to the notwithstanding clause.

Mrs. Sheila Finestone: Okay, thank you very much.

Secondly, the notwithstanding clause, as I understand it, does cover section 2, which is the freedom of expression, and section 15, which is the non-discrimination clause. In order for any religious education to be undertaken, such as the Protestant or the Catholic schools, they would have to continue using the notwithstanding clause, section 33, clause nonobstant.

Mr. Stéphane Dion: It will be for the court to decide, if the case is submitted to the court. We are not as categorical as that, as I said in the speech.

Professor Monahan is categorical on this issue. It's not sure that the law will be invalidated. And if that is the case, it is very likely that the court will suggest solutions that will avoid the use of section 33, of the notwithstanding clause.

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Mrs. Sheila Finestone: That was a serious concern of mine, Mr. Minister. I see where section 41 of the Quebec charter is a very strong section. The School Act is a good act. Both of them should give succour and support to the English-language community, who, notwithstanding that, are uncomfortable.

I would like to deal with the uncomfortable attitude, which I think is well-founded, by the English-speaking community, because where rights are concerned I think we have a fairness test and a moral issue on paragraph 23(1)(a).

I know that your views are that hopefully the day will come when there will be much enlightenment in the province of Quebec and they will start to recognize that it's important also to allow the English-speaking community to grow and to have renewal at its source. As immigration comes into Quebec, if there is less and less English immigration from outside of this country, there will be a diminution of the strength and the potential for growth and support of the English-language system.

My question is, by your having added the full support to section 23 in what was deposited in the House of Commons, as opposed to the situation of the content of what was by the Quebec government, support is given by the Canadian government to encourage Quebec to open its mind and heart to the fulsomeness of all people who choose to come and be citizens of Canada and live in Quebec. Is that right?

Mr. Stéphane Dion: I don't understand the question.

Mrs. Sheila Finestone: If I am an English-speaking person coming from the United States, England, or Australia, and I choose to come to settle in Quebec.... I could choose to come and settle in Ontario; I would never have a problem with my language rights. I choose to come and settle in Quebec. It is our hope that one day we will see the acceptance by Quebec of section 59, which will allow the application of paragraph 23(1)(a). Is that the hope and direction of the Government of Canada?

Mr. Stéphane Dion: Section 59 authorizes this change when the Government of Quebec or the National Assembly—because it may be only a decision of the government—decide that it is time to enforce paragraph 23(1)(a) in Quebec. This is a debate as such. It is legitimate for you to point out your point of view about it. It's a debate the Quebec society will have one day—this is sure—but it's not the debate we are discussing today.

Mrs. Sheila Finestone: My last point, Mr. Minister, is the fact that it is my firm conviction that, in a fairness and justice test, paragraph 23(1)(a) should be applied. I recognize and I accept that this is not what we're dealing with. We're dealing with discriminatory religious or denominational rights in accepting to amend section 93. Notwithstanding that, it is vital that there be encouragement by the Government of Canada to the Government of Quebec to start to think about and have a dialogue around section 59 so that we can have the fulsomeness of paragraph 23(1)(a).

Ms. Marlene Jennings: Mr. Dion, before I ask my questions of you, I'd like to straighten something up.

I just mentioned the additional documents that were tabled by the Native Alliance of Quebec and the Congress of Aboriginal Peoples. I was assured that they would be distributed. I was just told that they would not be.

Thank you.

[Translation]

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

Ms. Marlene Jennings: Minister, I was very pleased once again, to hear your comments and I greatly appreciate both the brief you tabled and your presentation to the Committee.

I'm sure you have followed the discussions that have taken place during the Committee's hearings. When Ms. Marois and Mr. Brassard appeared, I raised a question that was also brought up by

[English]

the Native Alliance of Quebec and the Congress of Aboriginal Peoples concerning the fact that at the time of Confederation—I'm sorry I'm switching between English and French—

[Translation]

the Aboriginal Peoples of Quebec enjoyed denominational rights under certain statutes and in accordance with practice.

• 0950

These two organizations I referred to claim that under section 93, Aboriginal rights are protected as regards denominational instruction in Quebec. They're concerned that an amendment that doesn't state that the amendment in no way affects their right to religious instruction, may indeed affect those rights.

I would like to hear your reaction to that and I also want to mention that I was quite upset to hear Ms. Marois say that the Aboriginal peoples were minorities like any other minority when it comes to religious instruction.

Mr. Stéphane Dion: Do you want me to answer in French or in English? I guess I'll answer in French.

Section 93 is completely silent on the matter to Aboriginal rights. That much is clear. It only deals with Protestants and Catholics. If the Aboriginal communities in Quebec now have their own school boards and enjoy educational rights, it is because of legislative accommodations and partly as a result of section 35 of the Charter; nevertheless, we have to be very cautious. This is a direct result of legislative accommodations made in response to a desire on the part of Quebeckers to meet the needs of the Aboriginal population of Quebec. There is no such constitutional guarantee in section 93. Any strengthening of Aboriginal rights must be debated in Quebec, just like in other provinces, which in some respects, would do well to follow Quebec's example.

Ms. Marlene Jennings: I believe there is a consensus in Quebec in favour of self-determination for the Aboriginal peoples of that province as regards territorial matters. This came through in a number of polls that were conducted during discussion of Quebec separation and the issue of territorial integrity.

I think you will agree that education is of prime importance in the context of self-government. Indeed, that is one of the reasons why they emphasized over and over that they did not want this constitutional amendment, even in Quebec.

Even though section 93 is completely silent as regards the Aboriginal peoples, if we accept the fact that

[Translation]

The Joint Chair (Mr. Denis Paradis): Thank you, Minister. Senator Lavoie-Roux.

Senator Thérèse Lavoie-Roux (Québec, PC): Good morning, Minister. I have two brief comments and then three very short questions.

First of all, I want to say that I deplore the fact that this Committee was required to stick to such a tight schedule. I have been sitting on parliamentary committees for more twenty years now, and never have I seen a Committee asked to examine an issue this important—we are not trying to decide whether to give drivers' licenses—that had so much trouble trying to thoroughly question a witness. We were always made to feel we were taking too much time, and constantly told: enough, enough, enough.

Also, it seems to me there was a certain amount of manipulation as regards the witnesses chosen to appear. Some people were excluded, and I would cite as an example Gary Caldwell.

• 0955

He came with a group, but he was the only one who could actually discuss the States General on Education held in Quebec, because he was one of the Vice-Chairs. Yet no one wanted to hear from him. And what I am saying now, I also intend to say in the Senate. You won't have to read our proceedings.

Secondly, you say that consensus does not necessarily mean unanimity, and I certainly agree with you there. But I want to point out that neither the Liberal party nor the Parti Québécois, now represented in the National Assembly, was elected on an electoral platform that included this issue. When you say they represent the people, that is true—I agree with you on that—but never did they put this question to the voters before being elected. In fact, if you went out into the street and asked people what they think about this, you would see that section 93 of the Constitution couldn't be further from their thoughts. That may be less true today; it's possible that things are a little better now. If I weren't here, I probably wouldn't understand what it all means.

I will now move on to my questions, Mr. Chairman. The reason I am asking them is that I want them on the record. Do you think the rights of the English-speaking community are guaranteed equally by section 23 of the Charter and section 93? I know you're going to say that the latter deals with religion, rather than language, but the fact remains that initially, the two were closely linked.

The Joint Chair (Mr. Denis Paradis): Thank you, Senator Lavoie-Roux. Please put your three questions and the Minister will answer them all at once.

Senator Thérèse Lavoie-Roux: Fine. If he can remember them, he'll be doing pretty well.

Secondly, if another government were to come to power—in Quebec, I mean—and questioned the denominational status of schools or even religious instruction, would those things be as well protected without section 93 as they are with?

Thirdly—and here I am trying to interpret the views of the French Protestant community—did you consider Mr. Woehrling's proposal to amend section 93 rather than repeal it, so as to maintain the minority's right to dissent? In this case, we're talking about the French Protestant minority.

Those are my three questions, Mr. Chairman. That was pretty quick, wasn't it?

The Joint Chair (Mr. Denis Paradis): Thank you very much, Senator Lavoie-Roux. Minister, you have the floor.

Mr. Stéphane Dion: Thank you very much, Senator; do you use the term "sénatrice" or "sénateur" in French? I have never known which one to use.

Senator Thérèse Lavoie-Roux: "Sénatrice".

Mr. Stéphane Dion: Very good, Senator.

Senator Thérèse Lavoie-Roux: When you're a member of the Senate, you will be called "monsieur le sénateur" in French.

Mr. Stéphane Dion: I can tell you right now that we're not going to debate the Senate. In any case, it is unlikely that I will ever be a Senator.

Senator Thérèse Lavoie-Roux: Yes, I agree that is completely out of the question.

Mr. Stéphane Dion: I know you are a very frank person, and I think I am as well. So, I'm going to answer your questions. The schedule was indeed very demanding. You have more parliamentary experience than I do. If you say this is the most demanding committee you have ever attended in terms of the intensity of the debate and the amount of work that had to be accomplished in two weeks, then I guess I should congratulate all of you. This was a very important issue that had to be resolved before the end of December, because the province has to have the time to make whatever changes are required before the school year begins next September. Otherwise, it would have to be prepared for two eventualities: either that the amendment would apply, or that the amendment would not apply. It has to prepare lists, put the appropriate facilities in place, and so on. I'm sure you can imagine what that involves.

Senator Thérèse Lavoie-Roux: But they'll have until the end of December to do that.

Mr. Stéphane Dion: With respect to the witnesses who appeared and those who didn't appear, I think you did excellent work in terms of trying to hear as many people as possible and gather as many opinions as possible. It is quite likely that people opposed to the amendment were actually over-represented, particularly during the first week. So, they had a very good opportunity to present their views. You mentioned Mr. Caldwell. He did come, and you say he could have provided testimony with respect to the States General, but he is the only States General Commissioner that you actually heard, and the only one to have dissented. All the others were in favour but did not appear. So, if I had any criticism to make—which I don't—it would be that you didn't hear from the others.

Senator Thérèse Lavoie-Roux: We could have heard from both.

• 1000

The Joint Chair (Mr. Denis Paradis): Mr. Dion, could you please complete your answer.

Mr. Stéphane Dion: But I am not criticizing—indeed, I realize just how hard you have worked. Everyone is indebted to you.

If we remove section 93, there is no doubt that would weaken the status of Protestants and Catholics. That much is absolutely clear and we cannot hide that fact. You talk about French-speaking Protestants. The fact is they will be in a less advantageous position than they currently are under section 93. There is no denying that.

The Joint Chair (Mr. Denis Paradis): Senator, pardon me for interrupting, but you have put your three questions and been given an answer. The next questioner will be Mr. Yvon Godin. I'm sorry; one question was not answered.

Mr. Stéphane Dion: It had to do with Anglophones. Anglophone rights are protected under section 23. The protection they enjoy under section 23 is both generous and solid. The courts have interpreted those rights more broadly thanks to the efforts of Francophones outside Quebec; the English-speaking community in Quebec is reaping the benefits of the struggles led by Francophone minorities elsewhere in Canada.

Senator Thérèse Lavoie-Roux: You didn't answer my second question either.

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

Senator Thérèse Lavoie-Roux: The second question was: if another government came to power...

Mr. Stéphane Dion: The Woehrling solution was put forward by the Quebec Liberal party, but it was not accepted by the Government of Quebec. What is proposed is an amendment to section 93, as suggested by the Government of Quebec, which would no longer protect the right to dissent in the context of the school system.

Senator Thérèse Lavoie-Roux: That answers my third question; thank you. My second question was: if another government came to power in Quebec and decided to abolish the denominational status of schools or even religious instruction, would religious rights be better protected under section 93 than they are under section 23?

Mr. Stéphane Dion: The answer is yes, but I believe I aptly demonstrated that section 93 offers only limited protection. If things like the curriculum, and the right to vote are no longer protected by section 93... Also, outside Montreal and Quebec City, those rights are extremely limited. On the other hand, section 41 of the Quebec Charter does establish religious rights. You heard the Minister announce that there would be a democratic debate to determine how that could be adjusted to suit the Quebec society of today. Catholics form a majority. They will have an opportunity to defend their rights and their conception of those rights as we move into the 21st century.

Senator Thérèse Lavoie-Roux: We'll see.

The Joint Chair (Mr. Denis Paradis): Thank you, Senator. We have three speakers left: Mr. Godin, Senator Grafstein and Mr. Nick Discepola. We will move immediately to Mr. Yvon Godin.

Mr. Yvon Godin (Acadie—Bathurst, NDP): Good morning, Minister.

Mr. Stéphane Dion: Good morning, Mr. Godin.

Mr. Yvon Godin: Like Senator Lavoie-Roux, I have three questions, but they're very brief.

I don't know whether all Committee members would agree with me, but the problem we encountered when witnesses came to challenge this amendment to the Constitution was their feeling that the wrong message had been sent. The message they had received was that a change would be made to the school boards.

So, why should we remove subsections (1) to (4) completely, when all we really need to remove is the part that deals with school boards? There is not only a consensus in Quebec. It's pretty well unanimous. People are in favour of removing the denominational status of the school boards. Their concerns relate more to the schools.

What discussions have you had with them to try and protect that? I think you knew that this was likely to happen.

According to what I've heard here, people feel they've been misinformed and that's the reason why they haven't reacted more strongly. The fact is, they have not been given the right information. They think this will only affect the school boards. In Quebec, the majority does not understand that what is under discussion is the whole system—in other words, the school boards and the schools. I'm talking about the Constitution now, not about Bill 109 or other legislation.

The Joint Chair (Mr. Denis Paradis): Mr. Godin, please ask all of your questions, and then we will give the Minister a chance to respond.

Mr. Yvon Godin: Was there a free vote in the Quebec National Assembly? I'm not really asking you that question. I guess I should have put that to other witnesses.

The Joint Chair (Mr. Denis Paradis): Your third question, please, Mr. Godin.

• 1005

Mr. Yvon Godin: My third question is similar to the one put to you by Mr. Ménard. There may well have been a consensus in the National Assembly, but there does not seem to have been one in the Government of Canada. I guess we will know for sure when we see the results of the free vote.

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

Mr. Stéphane Dion: First of all, I want to remind you that section 93 only protects school boards in Montreal and Quebec City. The right to dissent exists only outside Montreal and Quebec City. The scope of those rights has become increasingly limited as a result of the court's interpretation of them in ruling after ruling. The courts have recognized that this section does not deal with fundamental rights, but rather with rights, powers and privileges. We're not talking about freedom of religion here.

As for whether or not there needs to be religious instruction in the school setting, and if so, what form it should take, I believe there is a strong consensus in Quebec to maintain religious instruction in the schools. I may be wrong, but that is my reading of the situation. I don't think a government could easily decide that religious instruction would no longer be offered without paying a political price for that decision. The two political parties in Quebec are well aware of that. That is a debate that Quebec society will have to engage in. Based on my own experience...

Mr. Yvon Godin: Excuse me for interrupting, but based on the experience we have had in my province of New Brunswick... You know, when people were fighting to keep their French schools, Frank McKenna sent in police with dogs, tear gas and batons to attack the parents. I experienced that in my own province back in May. That's why I'm concerned.

Mr. Stéphane Dion: Yes, but with respect to...

Mr. Yvon Godin: As I said, I am not putting this question to you.

The Joint Chair (Mr. Denis Paradis): Mr. Godin, you have asked your question. Mr. Dion, please proceed.

Mr. Stéphane Dion: The debate in Acadia will continue after...

Mr. Yvon Godin: You're darn right it will.

Mr. Stéphane Dion: Yes, yes. Protestants and Catholics in New Brunswick do not have recognized rights, but an effort is made to teach religion in school. They will engage in the same debate as Quebeckers. What the Catholic and Anglican bishops are saying— whose letter I have tabled with the Committee—is that they're prepared to take part in that debate. They believe that Quebec society...

Senator Thérèse Lavoie-Roux: Yes, but they did not take a position on section 93.

The Joint Chair (Mr. Denis Paradis): Excuse me, Senator Lavoie-Roux.

Senator Thérèse Lavoie-Roux: The Quebec bishops said that again and again...

That's right, throw me out. People have been saying for I don't know how long that the Quebec bishops support this, but they took great care to say that they have never taken a position on whether or not it is appropriate to repeal section 93.

The Joint Chair (Mr. Denis Paradis): Please, Senator Lavoie-Roux. Mr. Dion.

Mr. Stéphane Dion: The bishops did say, though, that they were not opposed. They said that very clearly and I invite the Senator to reread Mgr Morissette's letter. They leave it up to elected officials to determine the means of solving this problem.

As regards the free vote, there is no obligation to hold a free vote, but it's something that is justified in a democracy where moral issues are involved. In this case, we're talking about religion and—albeit somewhat indirectly—about the languages used in Quebec. Holding a free vote makes sense, and you will see how the government and government members vote. There is a consensus, but there isn't unanimity. We are a reflection of Quebec society as a whole.

Mr. Yvon Godin: Getting back to my third question, was there a free vote in the National Assembly?

Mr. Stéphane Dion: No, there was no free vote in the National Assembly. There is no obligation to hold one, although it's an option that can certainly be justified.

Mr. Yvon Godin: So, there was no free vote?

Mr. Stéphane Dion: No.

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

[English]

Senator Jerahmiel S. Grafstein (Metro Toronto, Lib.): Thank you, Mr. Chairman.

Minister, coming to this hearing as a senator from Ontario, specifically from Metropolitan Toronto, I want to make several comments and then ask one question.

First of all, one of the hurdles this hearing overcame for me was the application of the 1982 Constitution. I noted with interest that, for the first time in my recall, a Quebec minister came to Ottawa and stated at our committee hearings that 1982 applies.

I want to quote for the record—and it's my translation—Mr. Brassard's statement: “But it is clear, it is evident, that it applies, ” meaning the 1982 Constitution. He then talked about Quebec's position since 1982. He concludes that paragraph in his transcript by saying, “but it applies”.

For me, one of the hurdles was whether or not Quebec was acknowledging, if you will, that 1982 applies, because we can't get to the amendment in section 43 unless there's a mutual acknowledgement of 1982. So that cleared a hurdle for me, and I'm really delighted with that.

• 1010

Second of all, on the issue of the consensus, again I heard, Mr. Minister, a clear consensus of a majority of the minorities. I say that because I heard from Catholic teachers, Protestant teachers, Catholic school boards, students, Quebec nationalist organizations. I read very carefully the letter from the archbishop, I looked very carefully at the unanimous resolution of the Quebec National Assembly and more recently the letter you've tabled from the Anglicans. I'm comfortable, Minister, there is a majority of the minorities affected by section 93.

That having been said, as we've been told now by our friends from the Bloc and by the minister from Quebec, at the very heart of this resolution is an equality project. This is respect for pluralism within Quebec. That pluralism in a way is no different from in my city of Toronto, because 42% of the population now comes from an area other than French or English, so we have a pluralistic society as well. So I'm delighted to hear the new realism, the new rhetoric that comes from Quebec, not just from the government but from others, recognizing and respecting pluralism.

That having been said, there is one problem, and this is my question. You'll note that both Alliance Quebec and the parent support organization feel their language rights are not equally protected as long as paragraph 23.(1)(a) is not proclaimed in Quebec. We've been told 13,000 students—that means 26,000 parents, roughly, 13,000 households—have been deprived of their choice of education.

I understand and I recognize the reality of the Quebec situation and the reality of the Quebec minister's statement. I've looked at Mr. Brassard's statement again where he re-emphasizes he doesn't believe paragraph 23.(1)(a) should, in effect, apply to Quebec.

That having been said, this is my question for you, Minister, representing the federal government, representing all of Canada, representing the citizens of Canada. Is the federal government continuing to be fully dedicated to the affirmation of paragraph 23.(1)(a) for all citizens across Canada? I recognize it's Quebec that has to push the button, but I want to know where my federal government stands.

Mr. Stéphane Dion: The Constitution Act of 1982 and paragraph 23.(1)(a) are the two topics.

About 1982, I will give only facts. Whatever we may think about this constitutional act, the fact is that before 1982 to have this amendment would have required not only the Parliament of Canada and the Quebec legislature but also a substantial number of other provincial legislatures, and it would have had to go to London. Without 1982 I'm quite sure—we may have a debate about it—that the anglophone minority of Quebec never would have supported the change, because there were no constitutional guaranties for minority languages before 1982. The Constitution of 1982 substantially strengthened the situation of language minorities throughout Canada for francophones and for anglophones.

So the merits of 1982 are a fact I'm ready to discuss with anybody.

The second question was about paragraph 23.(1)(a). I don't have any mandate to speak on behalf of the Government of Canada on this issue. I think it's good to encourage everyone in Quebec to consider the unique situation of Quebec society in North America. It is a unique situation for obvious reasons. If I had to encapsulate it in one sentence, I would say it is a society where everybody can claim to be a minority and can say to the other, you are the majority and you must take into account my minority situation. The francophones of Quebec can say they are a tiny minority in anglophone North America, a minority in the country called Canada, and a majority only in their own province. The anglophones of Quebec can say they don't live on a continent, they don't live in an abstract country; in daily life they live in the Gaspésie—in Jonquière there are not many, but in the Gaspésie—in the Eastern Townships, on Montreal Island, and in this concrete situation they need the support of the francophone majority of Quebec.

• 1015

So those two communities, francophone and anglophone, have to find a healthy way to have a strong and healthy relationship between them. It seems to me this society is able to do this; they have shown it in the past, they are showing it all the time. This debate about the application of 23(1)(a) is something they will have to do one day, and I hope they will do it in a quiet and calm way, because it's not sure at all that it is a huge number of students who would come if we apply 23(1)(a). It would not be a great change from the situation of today, according to my interpretation of this position. So both communities may look at it quietly when they will be ready for it.

[Translation]

The Joint Chair (Mr. Denis Paradis): The last questioner will be Nick Discepola.

Mr. Nick Discepola (Vaudreuil—Soulanges, Lib.): Minister, much has been made of the fact that there is a consensus, yet not enough has been made of the fact that there is also a consensus among the affected minority. When you see political parties trying to convince people to vote a particular way based on a consensus expressed in a referendum, or even provincial governments playing up a referendum result to try and establish a consensus, I must say that kind of scares me, because we're talking about the Constitution here. Even Mr. Monahan said that it was up to the legislature requesting the amendment to prove beyond any doubt that the affected minority had been consulted and that it had expressed its support. That was just a comment I wanted to make.

I would like to go back to paragraph 23(1)(a). I firmly believe, Minister, that the consensus which was sought and achieved might have been less significant without the guarantee inherent in paragraph 23(1)(a). In response to a question I put to him, Mr. Brassard answered that as far as he was concerned, adopting paragraph 23(1)(a), in either the short- or medium-term, was out of the question.

He talked mainly about immigrants. That affects me. I believe that this will penalize people like me, who freely chose to have my four children educated in French, despite the fact that I could have sent them to English schools. I checked this over the weekend and even Friday, because some people were saying I had acquired rights. However, Minister, the Ministry of Education has told me that is not the case. I am being penalized because my future grandchildren will not be allowed to attend English schools.

You say that Quebec society must debate this. But as Senator Grafstein said, I would have liked my government to support me in this process, because I think this is very important.

Mr. Stéphane Dion: Indeed, this is a debate that must be engaged in Quebec, with due consideration for the Canadian Charter of Rights and Freedoms. It's important to remember that it is the Charter that contains section 59, which—until the contrary be proved—suspends it pending a change of mind on the part of the Government of Quebec or the Quebec National Assembly about paragraph 23(1)(a). That is in the Charter. It is not something you are dreaming up today in your Committee. You are not the ones that created that situation. It already exists.

Paragraph 23(1)(a) does not apply, that's true; it is suspended, but section 23 does apply and, without section 23, there would be no consensus in Quebec. It's precisely because of section 23 that a consensus was able to emerge. Many Anglophone groups and citizens came before this Committee to tell you they want paragraph 23(1)(a). But that is not what you're considering today.

By amending section 93, as requested, you are in no way changing the status of paragraph 23(1)(a). On the other hand, you are allowing the English-speaking community to consolidate its population and resources in the schools in very practical, concrete terms, which is essential.

The Joint Chair (Mr. Denis Paradis): Thank you very much, Minister, for your presentation this morning. I want to take this opportunity to thank all the members of the Committee. We are concluding our public hearings today. Thank you for your interest and your participation in the Committee's work and for the quality of your comments and questions during appearances by witnesses.

I make that comment to all political parties. I think that we have succeeded together in raising the debate above political partisanship.

I also want to convey my thanks to the clerks, the staff of the Library of Parliament, the interpreters, and support staff, who all provided extraordinary service over the past two or three weeks.

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I would remind everyone that we will be meeting this afternoon at 3:30 P.M. in Room 505 of the Victoria Building, to begin drafting our report.

The Committee stands adjourned until this afternoon, at which time we will be meeting in camera.